Yanish v. Barber, Civ. A. No. 29013.

• Decision Date: 02 February 1955
• Docket Number: Civ. A. No. 29013.
• Citation: 128 F. Supp. 240
• Parties: Nat YANISH, Plaintiff, v. Bruce BARBER, District Director, Immigration and Naturalization, Defendant.
• Court: U.S. District Court — Northern District of California

128 F. Supp. 240

Nat YANISH, Plaintiff, v. Bruce BARBER, District Director, Immigration and Naturalization, Defendant.

Civ. A. No. 29013.

United States District Court, N. D. California, S. D.

February 2, 1955.

Gladstein, Andersen & Leonard, San Francisco, Cal., for plaintiff.

Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for respondent.

OLIVER J. CARTER, District Judge.

The matter before this Court is a motion by respondent, the District Director of the Immigration and Naturalization Service, to modify an order entered by United States District Judge Dal M. Lemmon restraining respondent from imposing certain conditions on the issuance to petitioner of a bail bond pending final disposition of the deportation proceedings against petitioner.

When deportation proceedings were begun against petitioner in 1946, he was released from custody on $500 bond containing the conditions usual at that time, that he be produced for hearings with regard to the charge and for deportation if that were eventually ordered. At a hearing in 1949 the Immigration and Naturalization Service told him that he would be required to post a $5,000 bond containing the added condition that he report periodically in person to an office of the Service. Petitioner then instituted this proceeding, seeking to enjoin respondent from enlarging the amount of the bond and from imposing additional conditions such as requiring periodic visits to an office of the Service. In 1950 Judge Lemmon entered an order denying an injunction as to the increase in the amount of the bond, but enjoining respondent from revising or amending the bail bond by requiring periodic visits by petitioner to the Immigration Service or in any other particular except as to the principal amount of the bond.

On March 9, 1953 petitioner was informed by the Immigration Service that he would be imprisoned unless he posted a new bond containing various conditions including a requirement of periodic visits to the Immigration Service. Petitioner then filed a petition that respondent be held in contempt of Judge Lemmon's order of July 28, 1950. The Court declined to order that respondent show cause why he should not be held in contempt, basing its order on the fact that the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101 et seq., had become effective before respondent attempted to impose further conditions on petitioner being admitted to bail, and that Act empowers the Attorney General, during the pendency of deportation proceedings, to release aliens on a bond containing such conditions as the Attorney General may prescribe. On appeal this order was reversed, Yanish v. Barber, 9 Cir., 211 F.2d 467, the court holding that the injunction issued by Judge Lemmon continued to be valid and to require obedience until modified or set aside in appropriate proceedings. The court said at page 470:

"It would appear from the language of this reservation that Congress, as a measure of policy or precaution, intended to preserve the effectiveness of all subsisting proceedings, orders, or judgments fixing or determining individual statuses, obligations, liabilities, or rights; and for this purpose to have continued in force the statutes or parts thereof under which such status, obligation, liability or right became fixed or determined. The pertinency of the clause to Judge Lemmon's injunctive order seems apparent. The jurisdiction of the court over the subject matter of that proceeding did not terminate with the granting of the injunction. It persisted, and the cause continued to be pending in the sense that either party might move the court for further action enforcing or modifying the order. In sum, the proceeding and order were valid and subsisting as of the time the Act took effect. Cf. In the Matter of Robles-Rubio, D.C., 119 F.Supp. 610.

"We feel constrained to observe that, even apart from the savings clause, the appropriate procedure for appellee to pursue as a public officer would have been to move for a modification or vacation of the injunction."

Respondent now moves to vacate the injunction issued by Judge Lemmon, on the ground that the Immigration and Nationality Act of 1952 has since become effective, and therefore the Attorney General now has the power to impose any conditions he deems desirable before admitting aliens to bail pending deportation proceedings. Petitioner opposes respondent's motion, contending that the savings clause of the 1952 Act requires that the same law be applied to petitioner's situation now as Judge Lemmon applied at the time he issued the injunction, and contending further that the court of appeals opinion so held.

This Court does not agree that the effect of the court of appeals opinion was to hold adversely to respondent's position here; the holding of the court of appeals was that the injunction was valid until vacated by the issuing court, leaving open the question of what the result should be if proceedings were begun for the purpose of vacating the injunction. Therefore the court of appeals decision is not the law of the case as to the point raised here, nor is it decisive of the problem before this Court either by virtue of the doctrine of res judicata or stare decisis. It should be noted that no constitutional question has been raised. Consequently this memorandum and order proceeds upon the basis that Congress had the power to vest discretion in the Attorney General to impose conditions on bail bonds as to proceedings that were pending when the 1952 Act took effect; the precise question for determination here is whether Congress intended that result or whether Congress intended the new provision to apply to...