United States Ex Rel. Knauff v. McGrath Attorney General

181 F.2d 839, 1950 U.S. App. LEXIS 2710

• Court: Court of Appeals for the Second Circuit
• Decided: March 28, 1950
• Docket: 21616_1
• Status: Published

Opinions

FRANK, Circuit Judge.

Respondents in their brief concede that the applicable statutory provision is 8 U.S.C.A. § 154 which provides: “All aliens brought to this country in violation of law shall be immediately sent back * * * to the country whence they respectively came, on the vessels bringing them, unless in the opinion of the -Attorney General immediate deportation is not practicable or proper.” That “deportation” in that context includes “exclusion” seems clear on the face of the statute.³

Respondents also, on oral argument of this appeal, conceded that, on the pleadings as they now stand, we must take it as true that, as alleged in the petition, “it has been the invariable practice to stop all deportation proceedings” whenever a bill, such as Senator Danger’s, has been introduced in either House of Congress. We italicize the word “all”: It allows of no exceptions of cases, like this, in which an alien has been ordered to be excluded because the Attorney General, on confidential information, found that the alien’s entry would be prejudicial to the interests of the United States. This “invariable practice” may be regarded in one (or both) of the following two ways:

(1) The practice constitutes an administrative interpretation of the Act to the effect that it is never “proper” in “the opinion of the Attorney General” not to suspend execution of an exclusion order when a Senator or Congressman introduces such a bill and that bill is still pending. Such a settled administrative interpretation, unless unreasonable or flatly contrary to the statute, has generally been given great weight,⁴ especially when the statute, thus administratively interpreted, -has been re-enacted by Congress.⁵ 8 U.S.C.A. § 154 was re-enacted, with changes of no significance here, in 1944. It is most unlikely that Congress was unaware of this administrative interpretation, inasmuch as it related to the introduction of bills by Senators and Congressmen.

(2) 8 U.S.C.A. § 154 gives the Attorney General discretion to determine when “immediate deportation is not * * * proper.” By the adoption of an “invariable practice,” he has established a class of situations with respect to which he has always so exercised that discretion as to suspend deportation. That classification is entirely reasonable. To depart from it in a single instance is to act arbitrarily or capriciously, to abuse the administrative discretion.

Whichever of the two foregoing views we accept, the refusal to suspend action here, on the record facts, was improper. In U. S. ex rel. Pirinsky v. Shaughnessy, 2 Cir., 177 F.2d 708, 709, an alien, a resident of this country, was arrested and taken in custody in deportation proceedings. On his application for release on bail,- pending decision, the Attorney General, purporting to exercise the discretion granted him.by 8 U.S.C.A. § 156, fixed bail at $25,000. The alien sought habeas corpus. We held that bail in excess of $5,000 was unreasonable, saying: “It was brought'out at the argument before us that the bail ultimately set was uniquely high in this type of proceeding,” adding that “there is nothing in the record to justify the, singling out of the individual for unusual treatment.”

That ruling is, applicable here. It accords with many cases deciding that arbitrary use of administrative authority is invalid.⁶ It is worth recalling that that doctrine, now a vital part of American liberties, received its clearest enunciation in the famous case of the Chinese laundryman.

6a, Tq <be sure, he was a resident alien;6b and it may be — although we need not and do not here -so decide — that Congress could constitutionally empowef an official to use his sheer personal whim' or caprice in dealing with aliens (like relator) stopped at the border. But, absent an explicit congressional grant of such arbitrary power, we think it cannot 'be implied.

7

In such circumstances as this, habeas corpus may be employed not to procure relator’s release but to prevent the improper course respondents intended to pursue.⁸ For the habeas corpus - statute⁹ provides that the court shall “hear- and determine the facts, and dispose of the matter as law and justice require.”'¹⁰ See United States ex rel. Zaffarano v. Corsi, 2 Cir., 63 F.2d 757, 758.

It is true that the Attorney General has already exercised his discretion (without a -hearing) to exclude relator; that, in doing so, he ■ decided that her admission would be prejudicial to the interests of the United-States ; and that this court and the Supreme Court sustained his decision. But his de-cisión dealt with the issue of her exclusion. We do not hold that she is not to be excluded, i. e., we do not hold that she is to be admitted. We merely hold that, so long as Senator Langer’s bill is pending during the present session of Congress, the exclusion order may not be executed. Meanwhile she will be detained in custody at Ellis Island, as closely guarded as the Attorney General deems reasonably necessary to safeguard the country’s interests; therefore she cannot become a security risk.¹¹

Our decision, however, rests on the present state of the record. On the remand of this case, respondents should be permitted, •if they so desire, to file a return denying the relator’s allegations as to the administrative practice. If they do so, of course there will be a trial of the resulting issue of fact.¹²

Reversed and remanded.

3 . Sen also 8 C.F.R. (1949 edition) Sec. 145.2.

4 . See, e. g., U. S. v. Moore, 5 Otto 760, 95 U.S. 760, 763, 24 L.Ed. 588; U. S. v. Macdaniel, 7 Pet. 1, 14-15, 8 L.Ed. 587; U. S. v. Finnell, 185 U.S. 236, 243-244, 22 S.Ct. 633, 46 L.Ed. 890; U. S. v. Sweet, 189 U.S. 471, 473, 23 S. Ct. 638, 47 L.Ed. 907; U. S. v. Johnston, 124 U.S. 236, 237, 253, 8 S.Ct. 446, 31 L.Ed. 389; Hahn v. U. S. 107 U.S. 402, 405-406, 2 S.Ct. 494, 27 L.Ed. 527; U. S. v. Philbruck, 120 U.S. 52, 59, 7 S.Ct. 413, 30 L.Ed. 559; Copper Queen Mining Co. v. Arizona Board, 206 U.S. 474, 479, 27 S.Ct. 695, 51 L.Ed. 1143; Logan v. Davis, 233 U.S. 613, 627, 34 S.Ct. 685, 58 L.Ed. 1121; cf. U. S. ex rel. Hirschberg v. Cooke, 336 U.S. 210, 216, 69 S.Ct. 530; Hiatt v. Brown, 1950, 70 S.Ct. 495; U. S. v. American Trucking Ass’ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 84 L.Ed. 1345; Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301; Billings v. Truesdell, 32.1 U.S. 542, 552-553, 64 S.Ct. 737, 88 L.Ed. 917; U. S. v. Minnesota, 270 U.S. 181. 205, 46 S.Ct. 298, 70 L.Ed. 539; Swendig v. Washington Water Power Co., 265 U.S. 322, 331, 44 S.Ct. 496, 68 L.Ed. 1030; Kern River Co. v. U. S., 257, U.S. 147, 154, 42 S.Ct. 60, 66 L.Ed. 175; U. S. v. Shreveport Grain & El. Co., 287 U.S. 77, 84, 53 S.Ct. 42, 77 L.Ed. 175; State of Wisconsin v. Illinois, 278 U.S. 367, 413, 49 S.Ct. 163, 73 L.Ed. 426.

5 . See, e. g., Copper Queen Mining Co. v. Arizona Board, 206 U.S. 474, 479, 27 S.Ct. 695, 51 L.Ed. 1143; U. S. v. G. Falk & Brother, 204 U.S. 143, 162, 27 S.Ct. 191, 51 L.Ed. 411; U. S. v. Cerecedo Hemanos Y Compania, 209 U.S. 337, 339, 28 S.Ct. 532, 52 L.Ed. 821; National Lead Co. v. U. S., 252 U.S. 140, 146, 40 S.Ct. 237, 64 L.Ed. 496; U. S. v. Bailey, 9 Pet. 238, 255, 9 L.Ed. 113.

6 . See, e. g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, ,30 L.Ed. 220; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 560, 22 S.Ct. 431, 46 L.Ed. 679; Dobbins v. Los Angeles, 195 U.S. 223, 240, 25 S.Ct. 18, 49 L.Ed. 169; Raymond v. Chicago Union Traction Co., 207 U.S. 20, 28 S.Ct. 7, 52 L.Ed. 78, 12 Ann.Cas. 757; Southern Ry. Co. v. Greene, 216 U.S. 400, 417, 30 S.Ct. 287, 54 L.Ed. 536, 17 Ann.Cas. 1247; Greene v. Louisville & Interurban R. Co., 244 U.S. 499, 515-518, 37 S.Ct. 673, 61 L.Ed. 1280, Ann.Cas.l917E, 88; Bohler v. Callaway, 267 U.S. 479, 489, 45 S.Ct. 431, 69 L.Ed. 745; Whitfield v. Hanges, 8 Cir., 222 F. 745, 748; cf. Mastrapasqua v. Shaughnessy, 2 Cir., 1950, 180 F.2d 999.

Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.

Moreover, the “equal protection” clause of the Fourteenth Amendment was there invoked, while here we have action by a federal official. We need not decide whether the “due process” clause of the Fifth Amendment includes “equal protection” in these circumstances—cf. Whitfield v. Hanges, 8 Cir., 222 F. 745, 748—for we do not rest our decision on constitutional grounds.

7 . As an indication of a congressional policy against such arbitrary conduct, compare the Administrative Procedure Act, 5 U. S.O.A. § 1009 (e), as to the duty of a court reviewing administrative conduct: “It shall . * * . * set aside * * * action * * * found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Cf. Wong Tang Sung v. McGrath, 1950, 70 S.Ct. 445.

8 . Tod v. Waldman, 266 U.S. 113, 118, 45 S.Ct. 85, 69 L.Ed. 195; Mhhler v. Eby, 264 U.S. 32, 46, 44 S.Ct. 283, 68 L.Ed. 549; U. S. ex rel. Mazur v. Commissioner, 2 Cir., 101 F.2d 707, 709; U. S. ex rel. Di Paola v. Reimer, 2 Cir,, 102 F.2d 40, 42; U. S. ex rel. Zaffarano v. Corsi, 2 Cir., 63 F.2d 757, 758.

9 . 28 U.S.C.A. § 2243, formerly 28 U.S. C.A. § 461.

10 . Referring to this language, the Court said in Storti v. Massachusetts, 183 U. S. 138, 143, 22 S.Ct. 72, 74, 46 L.Ed. 120: “All the freedom of equity procedure is thus prescribed; and substantial justice, promptly administered, is ever the rule in habeas corpus.”

11 . Of course, if Congress should enact the bill, she will be released.

12 . Judge Hand and I disagree to this extent: He would require no proof if the return states that the Attorney General has found that relator’s presence, even at Ellis Island, would be prejudicial to the interests of the United States.