The opinion of the court was delivered by: BONDY
This is a habeas corpus proceeding brought for the release of the relator, Michael Dzuro, from the custody of the District Director of Immigration and Naturalization at the Port of New York.
An order of deportation has been entered against Dzuro. Its validity is not contested. The relator's contention is that the Attorney General's refusal to enlarge him upon bond until he can actually be deported is arbitrary and constitutes an abuse of discretion. This raises the question whether the Attorney General's exercise of discretion after an order of deportation has been entered may be judicially reviewed.
Before its amendment by the Internal Security (McCarran) Act, Section 20 of the Immigration Act of February 5, 1917, Section 156 of Title 8 of the United States Code provided that 'pending the final disposal of the case of any alien so taken into custody (i.e., in connection with deportation proceedings commenced against him pursuant to Section 155), he may be released under a bond * * * conditioned that such alien shall be produced when required for a hearing or hearings * * * and for deportation if he shall be found to be unlawfully within the United States.'
This provision, governing the period when proceedings are pending and an order of deportation has not yet been entered, was not uniformly construed. In the Sixth Circuit, it was held that the release of the alien on bond was mandatory, because the provision did not contain the phrase, 'in the discretion of the Attorney General,' which Congress commonly employed when it desired to grant him discretion. In the above provision, 'may' was thus construed as 'must'. Prentis v. Manoogian, 6 Cir., 1926, 16 F.2d 422.
In this Circuit, however, the provision was construed to give the Attorney General discretion either to detain the alien or to release him under bond. U.S. ex rel. Zapp v. District Director, 2 Cir., 1941, 120 F.2d 762. This discretion was held not to be absolute, but one to be reasonably exercised upon a consideration of relevant facts; and the courts accordingly could review its exercise when it was alleged that it had been abused. U.S. ex rel. Potash v. District Director, 2 Cir., 1948, 169 F.2d 747.
Section 23 of the Internal Security (McCarran) Act of 1950, Pub. L. No. 831, 81st Cong., 2d Sess., Sept. 22, 1950, changed the former provision of Section 156 to read: ' * * * 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 * * * ; or (3) be released on conditional parole. It shall be among the conditions of any such bond, or of the terms of release on parole, that the alien shall be produced, or will produce himself, when required to do so * * * , and for deportation if an order for his deportation has been made. * * * '
The power given to the Attorney General was thus enlarged by the addition of a provision permitting release on conditional parole. There also was added the phrase, 'in the discretion of the Attorney General', upon the absence of which from the former Section 156 the Manoogian decision had been based.
It appears that after enactment of the McCarran Bill, the Attorney General, acting on the theory that the amended Section 156 now gave him an absolute and unreviewable discretion, caused to be returned to custody 48 aliens against whom deportation proceedings were pending, and who until that time had been at large under bond. That contention was emphatically rejected by the courts. All the reported decisions held that the addition of the express provision for discretion was intended to do no more than to confirm the interpretation of the Court of Appeals for the Second Circuit that the Attorney General has discretion to detain or to release, and to reject the construction of the Manoogian decision. All the courts held that the amendment had not changed the Potash rule, and that the exercise of this discretion can now as before be judicially reviewed. Carlson v. Landon, 9 Cir., 186 F.2d 183 and the companion decisions Stevenson v. Landon (Hyun v. Landon and Carlisle v. Landon), 9 Cir., 186 F.2d 190, reversing on other grounds Ex parte Carlson, D.C.S.D. Cal. 1950, 94 F.Supp. 18; United States ex rel. Klig v. Shaughnessy, D.C.S.D.N.Y. 1950, 94 F.Supp. 157 (in which Judge Ryan released 16 relators); United States ex rel. McQuillan v. Delaney, D.C.E.D. La. 1950, 94 F.Supp. 184; Podolski v. Baird, D.C.E.D. Mich. 1950, 94 F.Supp. 294; Zydok v. Butterfield, D.C.E.D. Mich. 1950, 94 F.Supp. 338; Warhol v. Shrode, D.C. Minn. 1950, 94 F.Supp. 229; Ex parte Sentner, D.C.E.D. Mo. 1950, 94 F.Supp. 77.
In the law governing the disposition of an alien after an order of deportation has been made against him, the Internal Security Act made more far-reaching changes.
Formerly the Immigration Law, 8 U.S.C.A. §§ 100-246, did not contain any provision for the release of an alien upon parole or bond after an order of deportation had been made, and the alien usually remained in custody between the time of entry of order and his actual deportation. However, the courts reviewed the duration of such detention for its reasonableness, and generally held detention exceeding four to six months to constitute an unreasonable and thus unlawful restraint. See, e.g., United States ex rel. Ross v. Wallis, 2 Cir., 1922, 279 Fed. 401. Furthermore, the former Section 156 was construed as not authorizing the imposition of conditions or the exaction of bond when an alien who could not be deported within a reasonable time was enlarged. Petition of Brooks, D.C. Mass. 1925, 5 F.2d 238.
The present Section 156 substituted by the McCarran Act for the former section now provides: ' * * * When such an order of deportation has been made against any alien, the Attorney General shall have a period of six months from the date of such order within which to effect the alien's departure from the United States, during which period, at the Attorney General's discretion, the alien may be detained, released on conditional parole, or upon bond in an amount and specifying such conditions for surrender of the alien to the Immigration and Naturalization Service as may be determined by the Attorney General. * * * '
Thus the same alternatives given to the Attorney General during the pendency of deportation proceedings have also been granted to him after an order of deportation has been made: he may detain the alien, release him on conditional parole, or under bond.
The petitioner's contention is solely that the Attorney General's determination to detain him, rather than to release him under bond, was arbitrary and an abuse of discretion. There is not any contention that Dzuro has been held an unreasonable time. The question whether an alien against whom an order has been made and who has been detained for six months or less can still, in view of the newly-added six-months provision, attack his detention as being unreasonably long is thus not presented, for Dzuro maintains, not that he has been detained too long, but that he should have been released under bond at once, rather than being detained.
This contention presents the question whether the Attorney General's exercise of discretion as to releasing or detaining an alien after an order has ...