Zydok v. Butterfield
| Decision Date | 26 March 1951 |
| Docket Number | No. 11312.,11312. |
| Parties | ZYDOK v. BUTTERFIELD, Director of Immigration & Naturalization. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Carol King, New York City (Carol King, New York City, and Alan N. Brown, Detroit, Mich., on the brief), for appellant.
Joseph Murphy, Detroit, Mich. (Edward T. Kane, Joseph C. Murphy, and Harry Kobel, Detroit, Mich., on the brief), for appellee.
Before HICKS, Chief Judge, ALLEN and MILLER, Circuit Judges.
Appeal from an order of the district court dismissing a writ of habeas corpus.
Appellant, John Zydok, an alien, entered the United States in 1913. He was arrested in August, 1949 upon a warrant issued by the Assistant Commissioner, Enforcement Division, Immigration and Naturalization Service of the United States Department of Justice. The warrant charged that he was found in the United States in violation of the Immigration Laws. The specific charge was that he was a member of an organization that advised, advocated or taught the overthrow, by force or violence, of the Government of the United States; and which wrote, circulated, distributed, printed, published or displayed written or printed matter advising, advocating or teaching the overthrow, by force or violence, of the Government.
Appellant was released under bond in the sum of $2,000.00. The condition of the bond was that appellant "shall be produced when required for a hearing or hearings in regard to the charge upon which he has been taken into custody, and for deportation if he should be found to be unlawfully in the United States." 8 U.S.C.A. § 156, Sec. 20 of the Immigration Act of 1917.
Following appellant's arrest, a deportation proceeding was instituted against him before the Immigration and Naturalization Service at Detroit, Mich., to determine the deportability of appellant and this proceeding was pending when appellant was again arrested on October 23, 1950. His rearrest was based upon the following provision of Sec. 23 of the Internal Security Act of 1950, to wit: "* * * 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", and was without warrant. He was held in prison without bail; hence the writ of habeas corpus.
The pertinent question here is, whether the Attorney General abused his discretion in causing appellant to be held without bail.
It is undeniably true that appellant was, before his original arrest, a member of the Communist Party and was financial secretary of the Hamtramck Division of the Communist Party of Michigan for the year 1949 and that as such secretary he assisted in the collection of funds to be used in the defense of the Communist Party leaders who were tried and convicted in New York under the Smith Act, 18 U.S.C.A. § 2385, of conspiring to advocate the overthrow of the Government and that the United States Department of Justice had information to that effect when appellant was rearrested. If in the exercise of sound judgment upon whether appellant should have been continued in custody, or have been released on bail, the Attorney General was limited to a consideration of the undisputed fact that appellant was a Communist, little may be urged against his decision in view of the preamble to the Internal Security Act of 1950. But we think that in determining whether appellant should have been granted or denied bail the Attorney General had a much wider latitude for decision.
Discretion does not mean decision upon one particular fact or set of facts. It means rather a just and proper decision in view of all the attending circumstances. The Styria v. Morgan, 186 U.S. 1, 9, 22 S.Ct. 731, 46 L.Ed. 1027. There are many circumstances which involve decision.
Appellant was seventeen years of age when he arrived in this country...
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