United States v. Shaughnessy

• Decision Date: 17 November 1950
• Docket Number: 62-41,61-376,62-102,61-334,61-400,61-373,62-42,62-17.,62-103,62-100,62-104,61-368,61-393,Civ. No. 62-105,62-101,61-337
• Parties: UNITED STATES ex rel. KLIG et al. v. SHAUGHNESSY, District Director of Immigration, etc.
• Court: U.S. District Court — Southern District of New York

94 F. Supp. 157

UNITED STATES ex rel. KLIG et al. v. SHAUGHNESSY, District Director of Immigration, etc.

Civ. Nos. 62-105, 62-41, 62-42, 61-400, 61-334, 61-393, 62-101, 62-100, 61-337, 61-376, 62-103, 61-368, 61-373, 62-104, 62-102, 62-17.

United States District Court S. D. New York.

November 17, 1950.

Witt & Cammer, New York City, for relators Schneider, Tarazona, Klig.

Carol King, New York City, for relator Borich.

Carol King and Isidore Englander, New York City, for relator Bittelman.

Carol King and Blanch Freedman, New York City, for relators Jones, Scholnick, Gannett.

Englander & Englander, New York City, for relators Lightcap, Pirinsky, Paivio.

Mary M. Kaufman, New York City, for relator Dmytryshyn (Dolin).

William B. Cherevas, New York City, for relators Busch, Cattonar.

Ira Gollobin, New York City, for relator Siskind.

Herman Rosenfeld, New York City, for relator Smith.

Milton Friedman, New York City, for relator Yaris.

Irving H. Saypol, U. S. Atty., New York City (Nathan Skolnick, Asst. U. S. Atty., William J. Sexton, Asst. U. S. Atty., Louis Steinberg, District Counsel U. S. Department of Justice Immigration and Naturalization Service, Max Blau, U. S. Department of Justice Immigration and Naturalization Service, and Lester Friedman, U. S. Department of Justice Immigration and Naturalization Service, all of New York City, of counsel), for respondent.

RYAN, District Judge.

The sixteen relators filed separate petitions for habeas corpus. The writs were awarded; returns and traverses filed; and a hearing held pursuant thereto. All the petitions raise fundamentally the same issues, and, therefore, will be disposed of together in this opinion. Where material factual variations appear, they will receive appropriate comment.

All the relators had been previously arrested pending deportation proceedings under warrants alleging violation of one or more of the provisions of the Anarchist Exclusion Act of October 16, 1918, as amended, 8 U.S.C.A. § 137. In a few instances, other deportable offenses were charged, but these are not material. Each of the relators was released under bond ranging in amount of $1,000 to $10,000; in one instance, bail being granted only after judicial intervention.

Shortly after the passage of the Internal Security Act of 1950, and pursuant to instructions from the Acting Commissioner of Immigration and Naturalization, the bonds of the relators were revoked and they were returned to custody. The relators allege that their detention under these circumstances constituted an abuse by the Attorney General of his discretionary authority to detain aliens pending deportation hearings.

At the outset, the court is confronted by the government's contention that the power of the Attorney General to confine an alien pending deportation hearings is absolute and not subject to judicial review. This contention is grounded on the following language in Section 23 of the Internal Security Act, which amends Section 20 of the Immigration Act of February 5, 1917, as amended, 8 U.S.C.A. § 156: "Pending final determination of the deportability of any alien taken into custody under warrant of the Attorney General, such alien may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General; or (3) be released on conditional parole."

Correctly to understand the meaning of this language, it is necessary to consider the section as it read prior to the amendment and the judicial construction it has received. The section previously read, in pertinent part: "Pending the final disposal of the case of any alien so taken into custody, he may be released under a bond in the penalty of not less than $500 with security approved by the Attorney General".

The sixth circuit has interpreted the section in its earlier form as conferring upon the alien an absolute right to bail on request, and withholding all administrative discretion to deny bail. Prentis v. Manoogian, 6 Cir., 1926, 16 F.2d 422. However, the second circuit subsequently held that the section vested the Attorney General with power to deny bail, subject to judicial review for abuse of discretion. United States ex rel. Potash v. District Director of Immigration, 2 Cir., 1948, 169 F.2d 747. In the light of this difference between the circuits, the more probably correct interpretation of the amendment is that Congress intended thereby to adopt the Potash construction as opposed to that set forth in the Manoogian case. If Congress had proposed to override the Potash decision as well as that of the Manoogian case, language explicitly divesting the courts of the power to review for abuse of discretion would undoubtedly have been employed. This conclusion makes it unnecessary to consider the grave constitutional questions which would arise if the construction urged by the government were to be accepted.

With...