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UNITED STATES EX REL. YARIS v. ESPERDY

December 8, 1952

UNITED STATES ex rel. YARIS
v.
ESPERDY, Acting District Director of Immigration and Naturalization Service, Port of New york



The opinion of the court was delivered by: KAUFMAN

The relator, Harry Yaris, is presently in the custody of the Immigration and Naturalization Service on Ellis Island where he is being detained without bail. By this writ of habeas corpus he challenges the legality of his detention asserting that the refusal of bail constitutes an abuse of the discretionary authority vested in the Attorney General. *fn1" Yaris was taken into custody on or about July 6, 1950 pursuant to an immigration warrant of arrest, dated July 5, 1950, which charged him

'with being unlawfully in the United States and subject to deportation, in that at the time of and after entry he was a member of an organization which advocates and teaches the overthrow of the government of the United States by force and violence, and which writes, circulates, prints, publishes and displays written or printed matter, so advising, advocating and teaching.'

 He was also charged

 'with having entered the United States unlawfully, in that at the time of such entry he was an immigrant not in possession of a valid immigration visa as required by the Immigration Laws.'

 An additional charge was subsequently added

 'that he was subject to deportation in that prior to, at the time of, and after entry into the United States, he was a member of the Communist Party of the United States.'

 On July 6, 1950 Yaris was released on bond until on or about October 23, 1950, when, after the passage of the Internal Security Act of 1950, his bond was revoked and he was returned to the custody of the Immigration and Naturalization Service. Judge Sylvester Ryan of this court on November 17, 1950 sustained a writ directing relator's release on the same bond as had theretofore been filed. United States ex rel. Klig v. Shaughnessy, D.C.S.D.N.Y. 1950, 94 F.Supp. 157. Judge Ryan concluded that

 'the denial of bail to relators herein was arbitrary and an abuse of discretion on the part of the Attorney General.' 94 F.Supp.at page 160.

 In the main, Judge Ryan's decision was predicated on his finding that

 '* * * not a scintilla of evidence relating to any recent activity on the part of any relator has been adduced to substantiate this general allegation (that relator is a security peril), nor has there been any denial of relators' assertions that the revocation of their bail was in no way attributable to any change in their conduct after their initial enlargement on bail.' 94 F.Supp.at page 160.

 On November 28, 1950 a hearing was held before a Hearing Officer. Relator was represented by counsel and declined to testify as a government witness at that time. Upon request of counsel for the relator an adjournment was granted on the grounds that he needed time to prepare his defense, his cross-examination and further that a criminal proceeding was pending against the relator which might affect the course he would follow in the deportation proceeding. The hearing was thereupon adjourned without date, subject to call by the government.

 On March 10, 1952, the United States Supreme Court decided the case of Carlson v. Landon, 342 U.S. 524, 72 S. Ct. 525, wherein it was held that the refusal of bail

 'When in the judgment of the Attorney General an alien Communist may so conduct himself pending deportation hearings as to aid in carrying out the objectives of the world Communist movement.' 342 U.S.at page 544, 72 S. Ct.at page 536.

 is not arbitrary to capricious or an abuse of power not does it violate Constitutional mandates.

 The return to the instant writ states:

 'after the decision in Carlson v. Landon, supra, the records and files of the Immigration and Naturalization Service relating to this relator were reexamined and upon the basis of the information contained therein concerning his membership in the Communist Party of the United States and his activity in supporting the Party's doctrine, it was concluded that there was a reasonable basis for anticipating that he would so conduct himself in aid of the ...


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