Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.
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.*fn3
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 Langer'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,*fn4 especially when the statute, thus administratively interpreted, has been re-enacted by Congress.*fn5 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 an 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 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.*fn6 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.*fn6a To be sure, he was a resident alien;*fn6b and it may be - although we need not and do not here so decide - that Congress could constitutionally empower 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.*fn7
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.*fn8 For the habeas corpus statute*fn9 provides that the court shall "hear and determine the facts, and dispose of the matter as law and justice require."*fn10 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 decision 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.*fn11
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.*fn12
L. HAND, Chief Judge (concurring).
I wish to base my concurrence on what is a somewhat narrower ground than my brother Frank, as I understand him. The case comes to us on a record which, as he says, compels us to assume that the Attorney General has hitherto in all cases postponed deportation while a bill to admit the alien has been pending in Congress. This practice may never in fact have covered the case of an alien whose presence the Attorney General has found to be prejudicial to the interests of the United States; and it can be argued that we should not assume that it has gone so far. However, since it is alleged to have been a general practice, we should accept the allegation as it reads, unless the return denies that it has ever ...