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June 5, 1953

SHAUGHNESSY, District Director of Immigration and Naturalization et al.

The opinion of the court was delivered by: WEINFELD

Petitioner has been detained by the immigration authorities without bail since March 1951. For more than two years of that time he was denied information as to the nature of the charges upon which his detention was based. He had been ordered excluded without a hearing as an alien whose entry was deemed prejudicial to the public interest *fn1" pursuant to 8 C.F.R. Sec. 175.57(b). *fn2" This aspect of relator's matter was passed upon by the Supreme Court of the United States, *fn3" which held that such detention was not authorized by that regulation.

Chew is a native and citizen of China. He first entered the United States in April 1941 as a seaman and remained here until November 1941, when he reshipped. From November 1941 until sometime in November 1945, he sailed in war zones. His status as a permanent resident was legalized as of January 10th, 1945. *fn4" In April 1950 he filed a petition for naturalization, which is still pending.

 Chew is a seaman. In November 1950 he signed articles as chief steward on the S.S. Sir John Franklin, a vessel of American registry, with its home port in New York City. Immediately prior thereto, he had been screened and passed by the Coast Guard as a person whose presence aboard a merchant vessel of the United States would not be inimical to the security of the United States. When the S.S. Sir John Franklin on its return voyage reached San Francisco in March 1951, the immigration authorities ordered him "temporarily excluded" under 8 C.F.R. § 175.57 as an alien whose landing was deemed prejudicial to the United States. He was detained aboard the vessel and when it reached New York the Attorney General, acting under the aforesaid section, directed that his temporary exclusion be made permanent. The Attorney General refused the relator all information as to the nature of the accusation and opportunity to be heard. His view was that the preceeding was an exclusion one, and his authority, the aforesaid section. The relator contended that the section was inapplicable to him as a permanent resident. His position was overruled both in the District Court *fn5" and the Court of Appeals. *fn6" The Supreme Court reversed, *fn7" and upheld his contention. It ruled that he was entitled to notice of the nature of the charge and a hearing.

 The government attempted to commence hearings on March 31st, 1953, without serving a written notice of the charges against relator. An order was thereafter obtained from the District Court commanding compliance with the Supreme Court mandate. On April 3rd, 1953, Chew for the first time was apprised in writing that he was excludable under § 1 of the Act of October 16th, 1918, as amended by the Internal Security Act of 1950, in that he was an alien who had been a member of the Communist Party of the United States. *fn8" Specifically, he was charged with membership therein from 1945, through 1947. During the progress of the hearings the charge was enlarged to include a membership from 1943 to 1950. *fn9" The hearings commenced on April 7th, 1953, continued a number of days thereafter and concluded on April 22nd. Four hundred and seventeen pages of testimony were taken. Relator was represented by counsel who cross-examined government witnesses. *fn10"

 Three witnesses, former members of the Communist Party, testified that between 1945 and 1948, the relator was a member of the Communist Party of the United States, Waterfront Section; that he was a card- carrying and dues-paying member, who attended closed meetings; that he distributed Communist literature; that in 1948 he was a candidate on the Communist Party slate of officers during the 1948 National Maritime Union election, which slate had been defeated.

 Chew testified and categorically denied the charges. His wife, his two brothers-in-law, all American-born citizens, testified they had no knowledge and no reason to believe that relator at any time had been a member of the Communist Party of the United States. The Special Inquiry Officer resolved the conflict of fact against Chew and found he had been a voluntary member of the Communist Party of the United States from at least some time in 1945 until some time in September 1948. Accordingly, he held that Chew was excludable from admission to the United States under the Act of October 16, 1918, as amended by the Internal Security Act of 1950.

 The relator has appealed to the Board of Immigration Appeals. He contends that various substantial errors were committed by the Special Inquiry Officer sufficient to warrant a reversal of his decision and that whether or not he had a hearing which conformed with the requirements of due process can only be finally determined administratively by the Board of Immigration Appeals. An application to the District Director of Immigration and Naturalization for release on bail was denied. The present writ of habeas corpus essentially seeks relator's release upon bond pending his appeal. He urges that the denial of bail is arbitrary and capricious and a denial of due process in violation of the Fifth Amendment to the Constitution.

 At the very outset the government denies the Court's power to consider the question of bail. It contends here, as it did in the Supreme Court, that the proceeding against Chew is an exclusion one. The government urges that in an exclusion proceeding the only applicable provision under which Chew may be released is § 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(d)(5), which permits the Attorney General in his discretion to release on bond or otherwise persons applying for admission to the United States for "emergent reasons or for reasons deemed strictly in the public interest". *fn11" Noting that Chew has not presented evidence to the Attorney General that his release is necessitated by an emergency or that it will be in the public interest, the government takes the position that he may not seek judicial review of the Attorney General's failure to release him on bond or otherwise, particularly after an order of exclusion has been entered.

 Chew, on the other hand, denies that this is an exclusion proceeding. He contends that under the Supreme Court ruling his status has been assimilated to that of a permanent resident alien "continuously residing and physically present in the United States, *fn12" in consequence of which he is entitled to all the rights of such an alien- including the right to review an alleged arbitrary refusal by the Attorney General to grant bail pending deportation proceedings.

 The government replies that the Supreme Court's holding is limited, that Chew is only entitled to notice of the charges and a hearing thereon- and this now having been accorded to him, his rights have been fully expended. *fn13" Alternatively, the government's position is that, assuming arguendo the present proceeding must be equated to an expulsion proceeding, there has been no showing that the refusal of bail *fn14" was arbitrary or an abuse of executive power.

 Because of the Supreme Court's detailed consideration of petitioner's situation, a close examination of its opinion is here necessitated. The Court construed 8 C.F.R. § 175.57 so as to avoid constitutional difficulties and held, therefore, that is provisions authorizing the denial of a hearing were not applicable to one in petitioner's situation. It said: "We do not regard the constitutional status which petitioner indisputably enjoyed prior to his voyage as terminated by that voyage. From a constitutional point of view, he is entitled to due process without regard to whether or not, for immigration purposes, he is to be treated as an entrant alien, and we do not now reach the question whether he is to be so treated." *fn15" "[Chew's] status as a person within the meaning and protection of the Fifth Amendment cannot be capriciously taken from him." *fn16"

 The Supreme Court did not find it necessary to decide whether the proceeding against Chew was one of exclusion or expulsion. Upon argument of the writ before me, government counsel suggested that under the Supreme Court ruling Chew's matter is sui generis. I do not think it is necessary for the purposes of the present application to decide its precise nature. As I read the Supreme Court decision, its underlying rationale appears to be that the circumstance of his employment as a seaman on a ship of American registry did not break the continuity of his permanent residence so as to deprive him of those rights which clearly he enjoyed as an alien resident on terra firma. *fn17" Thus, the spirit of Kwong Hai Chew v. Colding leads me to hold that his rights are not limited simply to notice of the charges and a hearing thereon, but, rather, that encompassed within his assimilated status is also the right to question his alleged arbitrary detention without bail- a right accorded to every alien continuously residing here. *fn18" To deny Chew this would be to penalize him for following a gainful occupation- one recognized, incidentally, as not breaking his residence for naturalization purposes. *fn19"

 This brings me to a consideration of the question of the circumstances under which the refusal to grant bail may be considered arbitrary. *fn20" The right of a resident alien with respect to the admission of bail was exhaustively examined in Carlson v. Landon. There the court posed the issue before it thus: "May the Attorney General * * * after taking into custody active alien communists * * * continue them in custody without bail, at his discretion pending determination as to their deportability * * *?" *fn21" If held that he could, pointing out that the charges of present Communist membership and personal activity remained undenied. Indicating that the Attorney General's discretion can be overturned only on a clear showing of abuse, it said: "* * * evidence of membership [in the Communist Party] plus personal activity in supporting and extending the Party's philosophy concerning violence gives adequate ground for detention."21A "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, that alien may be detained. * * * The authority to detain without bail is to be exercised within the framework of the Subversive Activities Control Act to guard against Communist activities pending deportation hearings." *fn22" Emphasis on membership plus present activity as constituting a menace to the public interest dominates the opinion.

 There were four dissents in the Carlson case; the dissent of Mr. Justice Frankfurter is particularly useful for the light it throws on the majority opinion. Mr. Justice Frankfurter thought that the Attorney General had made "an abstract, class determination" *fn23" rather than "an individual judgment" when he denied bail to the petitioners. As if in answer to this objection the majority noted that there was not evidence that all persons arrested as deportable for Communist membership were held without bail. *fn24" Elsewhere the majority said, "Detention is necessarily a part of this deportation procedure. Otherwise aliens arrested for deportation would have opportunities to hurt the United States during the pendency of the deportation proceedings. Of course purpose to injure could not be imputed generally to all aliens subject to deportation, so discretion was placed by the 1950 Act in the Attorney General to detain aliens without bail * * *." *fn25"

 Thus, what emerges from the Carlson case are the following criteria which may be applied in determining whether the Attorney General's refusal to grant bail was arbitrary in cases where the deportation charge is based on membership in, or affiliation with, the Communist Party or the other groups specified in 8 U.S.C.A. § 1251(a)(6)(C): (1)the Attorney General's denial must be based on the individual facts of each case and (2)upon evidence which could reasonably lead to the inference that the alien, if enlarged on bond, would "so conduct himself pending deportation hearings as to aid in carrying out the objectives of the world communist movement" thereby endangering the public interest; (3)present or continuing membership in the Communist Party and recent personal activity in supporting and extending its "philosophy concerning violence" is such evidence and sufficient to warrant detention without bail. *fn26"

 Absent the foregoing, to hold an alien without bail would amount to detention on the basis of "an abstract, class determination," which the Court in the Carlson case seemed desirous of avoiding. But the burden is upon the alien to show that the Attorney General's exercise of discretion "was without a reasonable foundation." *fn27"

 The respondent urges that under the new Immigration and Nationality Act, which became effective on December 24th, 1952, the scope of judicial review even in the case of resident aliens is limited to cases where the has been a conclusive showing of unwarranted delay in determining deportability. *fn28" This contention has heretofore been advanced and it was rejected by the Court of Appeals for this circuit in the United States ex rel. Yaris v. Esperdy, 2 Cir., 202 F.2d 109, 112, where it stated that the Attorney General's discretion "as to keeping an alien in custody is judicially reviewable to the same extent it was before" and that § 242(a) provides "but an added statutory recognition of a basis for judicial review, not a limitation upon the power as it had existed." Hence, the principles of the Carlson case and of United States ex re. Potash v. District Director, 2 Cir., 169 F.2d 747, 751, noted with approval in Carlson, apply as before.

 In Chew's case there is no evidence of Communist Party membership or activity after 1948. Upon the hearing the government enlarged its charge to include membership from 1943 to 1950, but the Special Hearing Officer limited his finding to the years 1945 to September 1948. Thus the government failed to sustain its amended charge, which included the period from October 1948 to 1950. No evidence has been submitted in the proceeding of membership or activity in the Communist Party subsequent and up to March 1951, the date of Chew's detention, when the S.S. Sir John Franklin reached New York. And, of course, it would be idle to suggest that during his continued detention on Ellis Island from that date to the present he was engaged in any conduct initial to the welfare of the United States. Hence, on this record there is no evidence that since September 1948 to date Chew was either a member of, or acted in, or on behalf of, the Communist Party, or that if released on bail he would so conduct himself as to imperil the national welfare.

 In this connection it may be recalled that in November 1950, before his last sailing, he was screened and approved by the Coast Guard for employment as a seaman on a merchant vessel. The certificate would not have been issued if Chew's character and habits of life were deemed inimical to the security of the United States. *fn29" Also in 1949, in applying for suspension of deportation and admission to permanent residence, which was granted as of January 10th, 1945, it was necessary for him to prove his good moral character for the proceeding five years. *fn30"

 In effect, the government concedes that upon this record there is no proof of membership or activity in the Communist Party since September 1948, but contends it its return: "A vast amount of additional information concerning relator's subversive activities has been made available to the Attorney General and his subordinate officers." This "vast amount of additional information" is not disclosed or made available to the Court. The record is singularly silent with respect thereto. The conclusory statement in the unverified return made by an attorney with the Immigration Service is not a substitute for the submission of facts which would enable the Court to determine whether or not there has been an abuse of discretion. "* * * [The] * * * return, to be good, must state some fact upon which a reasonable person could logically conclude that the denial of bail is required to protect the country or to secure the alleged alien's presence for deportation should an order to that effect be the result of the hearing. * * * The Imagination can hardly create a situation more incompatible with the spirit of our institutions than that one civil official's completely secret viewpoint could be the basis of sustained imprisonment." *fn31"

 Chew testified before the Special Inquiry Officer and denied the basic charges against him. *fn32" His cross-examination was limited to the single question of whether he was or is a member of the Communist Party. His sworn denial has again been reaffirmed in the traverse to the return. *fn33"

 There remains to be considered the additional factor set forth in the Potash case -the question of Chew's availability for subsequent proceedings if enlarged on bail. He is married to a native-born citizen. His work habits have been steady through the years, and except for his service at sea, he has lived with his wife at one residence since their marriage in 1946. He has never been arrested or charged with any crime either in this country or in any other place. He registered for the draft in February 1942, and served in the United States Merchant Marine. No suggestion has been made that if released pending the final determination of his matter he will not respond to the directions of the appropriate authorities and make himself available at all times.

 I conclude upon the facts presented that the denial of Chew's release on bond was an abuse of discretion. The writ is sustained to the extent of directing his enlargement of bond, as to the amount of which the Court invites suggestions from counsel upon settlement of the order.

 Settle order on one day's notice.

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