United States Ex Rel. Young v. Shaughnessy, District Director of Immigration and Naturalization Service

194 F.2d 474, 1952 U.S. App. LEXIS 2786

• Court: Court of Appeals for the Second Circuit
• Decided: February 13, 1952
• Docket: 166. Docket 22259
• Status: Published

Opinions

AUGUSTUS N. HAND, Circuit Judge.

Martin Young was taken into custody on October 26, 1951, pursuant to a warrant for his arrest dated October 18, 1951, which charged that he was deportable in that he had illegally entered the United States without a valid immigration visa and was a member of the Communist party of the United States at the time of his entry. The warrant of arrest made no provision for his release on bail pending deportation proceedings, wherefore he filed a petition in the district court for a writ of habeas corpus, alleging that his detention was illegal. The writ was granted on October 31, 1951. The respondent filed a return, and the relator a traverse to the return, both of which were dated November 7, 1951. On November 21, 1951, the district court ordered the writ dismissed after having heard oral argument. Thereafter, the relator moved for a reargument on the petition and asked leave to amend the traverse. This motion was denied.-

For the purpose of this appeal we may assume without deciding that the action of the Attorney General in refusing to release Young on bail pending the outcome of the deportation proceedings would be reviewable and subject to reversal in case of an abuse of discretion even after the passage of the Internal Security Act of 1950,. 50 U.S.C. § 781 et seq. United States ex reí. De Geronimi v. Shaughnessy, 2 Cir., 187 F.2d 896. In his petition for the writ, Young alleged facts indicating that if released he would be available for any further proceedings at which 'his presence would be required. The return to the writ, however, contained allegations which, if accepted, established a reasonable foundation for the denial of bail by the Attorney General. Thus the return, in addition to containing allegations of membership in the Communist party, alleged that Young had once before escaped from custody during earlier proceedings; that he had previously attempted to enter the United States by furnishing a false identity and with a fraudulent passport; and that during his present detention he refused to answer questions relating to prior identification, places of residence, employment and home life. Section 2248 of the Judicial Code, 28 U.S.C. § 2248, requires that the facts alleged in the return be taken as true unless impeached, ' and Young in his traverse to the return did not refute those statements, nor did he in his motion for re-argument, make any offer to prove the contrary, nor did he assert new facts, which under 28 U.S.C. § 2246 could have been accomplished by affidavit. As the Supreme Court has recently said in Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3: “The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty.” While we held in United State ex rel. Potash v. District Director of Immigration and Naturalization, 2d Cir., 169 F.2d 747, that the action of the Attorney General was under the then existing law judicially reviewable, we nevertheless carefully said: “However, in any consideration of his denial of bail it should always be borne in mind that the court’s opinion as to whether the alien should be admitted to bail can only override that of the Attorney General where the alien makes a clear and convincing showing that the' decision against him was without reasonable foundation.” 169 F.2d at page 751.

In the light of the allegations of the return, which we must accept as true, we cannot say that the relator made such a showing here. Accordingly the orders are affirmed.