United States v. Shaughnessy, 140

Citation212 F.2d 128
Decision Date09 April 1954
Docket NumberDocket 22910.,No. 140,140
PartiesUNITED STATES ex rel. BELFRAGE v. SHAUGHNESSY.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

J. Edward Lumbard, U. S. Atty., New York City (Harold J. Raby, Asst. U. S. Atty., Louis Steinberg and Lester Friedman, Dist. Counsel and Atty., Immigration and Naturalization Service, New York City, of counsel), for respondent-appellant.

Blanch Freedman and Nathan Dambroff, New York City (Gloria Agrin, Nathan Dambroff & Blanch Freedman, New York City, on the brief), for petitioner-appellee.

Before CLARK, FRANK and HINCKS, Circuit Judges.

HINCKS, Circuit Judge.

The order below sustaining a writ of habeas corpus, enlarged the relator, under conditions therein specified, on judicial bail pending this appeal. He had previously been arrested on May 15, 1953, simultaneously with the institution of deportation proceedings against him. While in custody, bail having been administratively refused, he petitioned for the issuance of a writ of habeas corpus on May 25, 1953 on the ground that the "refusal to enlarge him on bail is arbitrary, unreasonable and an unlawful exercise of discretion."

Contrary to the contentions made in behalf of the respondent-appellant, we adhere to the view which we previously expressed in United States ex rel. Yaris v. Esperdy, 2 Cir., 202 F.2d 109, and hold that Sec. 242(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1252(a), was not intended to restrict the power of judicial review theretofore existing. Yanish v. Barber, 1953, 73 S.Ct. 1105, 97 L.Ed. 1637. It follows that the court below had power to admit the relator to bail pending the determination of the deportation proceedings on "a clear and convincing showing that the decision against him was without a reasonable foundation." United States ex rel. Potash v. District Director, 2 Cir., 169 F.2d 747, 751. See also United States ex rel. DeGeronimi v. Shaughnessy, 2 Cir., 187 F. 2d 896, and United States ex rel. Young v. Shaughnessy, 2 Cir., 194 F.2d 474.

Here the order sustaining the writ was required because the respondent's return showed on its face that the administrative decision denying bail had been based in part — an inextricable part — on an invalid assumption. For in enumerating the bases of his decision the respondent stated, in Par. 8(h), that the relator when examined on May 5, 1953 by the Un-American Activities Committee of the House of Representatives refused to answer questions then propounded to him; and, in Par. 8(i), that on May 14, 1953, the day when the pending proceedings for his deportation were initiated, the relator invoked his Constitutional privilege to refuse to answer questions put to him by a Senate Investigations Sub-Committee.

From these two incidents we find no rational basis for an inference that if admitted to bail pending the outcome of the deportation proceedings there was substantial danger that he would abscond or engage in the interim in activities inimical to the public welfare. His mere refusal to answer might perhaps have...

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  • United States v. Marquez
    • United States
    • U.S. District Court — Southern District of New York
    • December 4, 1970
    ...274, 184 F.2d 394, 398 (1950); cf. United States v. Tomaiolo, 249 F.2d 683, 691-692 (2d Cir. 1957). 23 United States ex rel. Belfrage v. Shaughnessy, 212 F.2d 128, 130 (2d Cir. 1954). 24 United States v. Atnip, 374 F.2d 720 (7th Cir. 25 People v. Bernal, 254 Cal.App.2d 283, 62 Cal.Rptr. 96,......
  • Lamont v. Department of Justice
    • United States
    • U.S. District Court — Southern District of New York
    • July 2, 1979
    ...and should be "thorough, probing, in depth"); United States ex rel. Belfrage v. Shaughnessy, 113 F.Supp. 56 (S.D.N.Y.1953), aff'd, 212 F.2d 128 (2d Cir. 1954) (probing judicial review extends to certain foreign policy 27 Cf. Ray v. Turner, 468 F.Supp. 730 (D.D.C. 1979) (on remand); Ferry v.......
  • United States v. Witkovich
    • United States
    • U.S. District Court — Northern District of Illinois
    • May 10, 1956
    ...this section is not unlimited, but may be reviewed by the courts to determine whether he acted reasonably. United States ex rel. Belfrage v. Shaughnessy, 2 Cir., 1954, 212 F.2d 128; U. S. ex rel. Hyndman v. Holton, 7 Cir., 1953, 205 F. 2d 228, 230; Ocon v. Landon, 9 Cir., 1954, 218 F.2d 320......
  • Application of Patterson
    • United States
    • U.S. District Court — Southern District of New York
    • November 19, 1954
    ...States v. Goldstein, 2 Cir., 105 F.2d 150. 19 United States ex rel. Belfrage v. Shaughnessy, D.C.S.D.N.Y., 113 F.Supp. 56, affirmed 2 Cir., 212 F.2d 128. 20 Although at another point in his testimony he sought to disavow this statement, there can be no doubt as to what he said. His own atto......
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