Zydok v. Butterfield

• Citation: 94 F. Supp. 338
• Decision Date: 10 November 1950
• Docket Number: No. 9883.,9883.
• Parties: ZYDOK v. BUTTERFIELD, Director of the Immigration and Naturalization Service.
• Court: U.S. District Court — Western District of Michigan

94 F. Supp. 338

ZYDOK v. BUTTERFIELD, Director of the Immigration and Naturalization Service.

No. 9883.

United States District Court E. D. Michigan, S. D.

November 10, 1950.

Allan N. Brown, Mitchell Schnaar, of Detroit, Mich., of counsel, Carol King, of New York City, for the petitioner.

Edward T. Kane, U. S. Atty., Joseph C. Murphy, Asst. U. S. Atty., Detroit, Mich., for the respondent.

THORNTON, District Judge.

Findings of Fact

1. The petitioner, John Zydok, on October 24, 1950, by his attorney, filed a petition for a writ of habeas corpus wherein he alleges that his confinement "is not for any lawful cause or reason and not by virtue of any warrant, order or Constitutional process whatsoever and not for any crime or offense against the laws of the U. S. A."

2. The hearing on the petition was set for 2:00 o'clock on the same day at which time the petitioner was produced in court and was orally informed by Mr. Joseph C. Murphy, Chief Assistant United States District Attorney for the Eastern District of Michigan, as to the cause of his detention by the respondent, and at which time the Government requested an adjournment of three days in order to make a formal return, which request was granted by the Court.

3. The answer and return to the petition by the respondent alleges that the petitioner is an alien and that pursuant to a warrant dated June 30, 1949, issued by W. F. Kelly, Assistant Commissioner, Enforcement Division of the Immigration and Naturalization Service, and by direction of the Acting Commissioner of the Immigration and Naturalization Service, the petitioner, John Zydok, on October 23, 1950, was arrested and taken into custody; and that there is presently pending before the Immigration and Naturalization Service at Detroit, Michigan, a proceeding under the aforesaid warrant to determine the deportability of the petitioner, John Zydok, and that a hearing was held beginning September 19, 1950, and continued without date at the request of this petitioner, and that under the authority contained in Section 20 of the Immigration Act of 1917, as amended by Section 23 of the Subversive Activities Control Act of 1950, the Attorney General, acting through his duly authorized representatives, directed that this petitioner, John Zydok, be continued in custody.

4. Appended to and made a part of the answer returned by the respondent was the afterdescribed warrant:

"Warrant

For Arrest Of Alien

-------

"Form I-200 (Rev. 5-1-45) U.S. Department of Justice Immigration and Naturalization Service "United States Of America "Department of Justice "Washington "XXXX-XXXXX No. A-5098547 To District Director of Immigration and Naturalization, Detroit, Michigan Or to any Immigrant Inspector in the service of the United States.

"Whereas, from evidence submitted to me, it appears that the alien Iwan Zydok or John Zydok alias Johnson who entered this country at New York, New York ex SS `Carpathia' on the 23rd day of June, 1913 has been found in the United States in violation of the immigration laws thereof, and is subject to be taken into custody and deported pursuant to the following provisions of law, and for the following reasons, to wit: The Act of October 16, 1918, as amended, in that he was, after entry a member of the following class, set forth in Section 1 of said Act: An alien who is a member of an organization, association, society, or group that advises, advocates, or teaches the overthrow, by force or violence of the Government of the United States; and the Act of October 16, 1918, as amended, in that he was, after entry a member of the following class, set forth in Section 1 of said Act: An alien who is a member of an organization, association, society, or group that writes, circulates, distributes, prints, publishes, or displays any written or printed matter advising, advocating or teaching the overthrow, by force or violence, of the Government of the United States.

"I, by virtue of the power and authority vested in me by the laws of the United States, hereby command you to take into custody the said alien and grant him a hearing to enable him to show cause why he should not be deported in conformity with law. The expenses of detention, hereunder, if necessary, are authorized payable from the appropriation `Salaries and Expenses, Immigration and Naturalization Service, 1949.' Authority has been granted for release under bond in the sum of $2000.

"For so doing, this shall be your sufficient warrant.

"Witness my hand and seal this 30th day of June, 1949.

/s/ W. F. Kelly W. F. Kelly Assistant Commissioner Enforcement Division" dmg

5. The traverse filed by the petitioner on November 3, 1950, alleges substantially as follows:

"1. The relator was arrested and is being held without bail in custody, without any legal process whatsoever; the original warrant of arrest has lost its force as an arresting instrument."

"2. The re-arrest of the relator is not within the terms of section 23(a) of the Internal Security Act of 1950."

"3. Section 23(a) of the Internal Security Act of 1950, does not authorize the detention of the relator without bail. In many district courts in the United States, it has been held that an alien cannot be held without bail because of the Internal Security Act of 1950."

"4. The re-arrest of the relator is an abuse of discretion by the Attorney General in violation of the Fifth and Eighth Amendments to the Federal Constitution."

"5. The re-arrest of the relator is not for the ordinary purposes of bail, but for the improper and indirect purpose of compelling him to apply for travel documents."

"6. The re-arrest of the relator and his detention without bail, is a violation of the First Amendment to the Federal Constitution, and serves to discriminate against him because of his views and associations."

6. That the petitioner is an alien who has resided in the United States since June 1913.

7. That pursuant to the said warrant the petitioner was arrested in August 1949, released under $2000.00 bail, and remained at large on bail until October 23, 1950.

8. That a deportation proceeding is presently pending against the petitioner based upon the charges set forth in the aforementioned warrant.

9. That the petitioner was taken into custody on the 23rd day of October, 1950, by the respondent under the provisions of Section 23 of the Subversive Activities Control Act of 1950.

10. That the necessity for the Subversive Activities Control Act, as set forth in the Act itself, is, in part, as follows: "The Communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined. Awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that overthrow of the Government of the United States by force and violence may seem possible of achievement, it seeks converts far and wide by an extensive system of schooling and indoctrination. Such preparations by Communist organizations in other countries have aided in supplanting existing governments. The Communist organization in the United States, pursuing its stated objectives, the recent successes of Communist methods in other countries, and the nature and control of the world Communist movement itself, present a clear and present danger to the security of the United States and to the existence of free...