The opinion of the court was delivered by: CONGER
Habeas corpus proceeding to review the detention of relator at Ellis Island.
Relator is an alien, a native and citizen of Russia.
Deportation proceedings were instituted against relator on May 1, 1953. Subsequent proceedings were had which finally resulted in an order of deportation of relator, who, having exhausted all of his administrative remedies, is now at Ellis Island awaiting deportation. No attack is made here upon the regularity or the validity of the order of deportation.
This is really an application to admit relator to bail pending deportation.
During the progress of the deportation proceedings relator has been on bail pursuant to an order of one of the Judges of this Court.
After the deportation order herein became final the relator was taken into custody and has been continued in custody pending arrangements for his deportation.
Six months have not elapsed since the final order of deportation became effective and the Government shows that it is proceeding with dispatch to effect the departure of the alien from the United States. There is no claim asserted here that the Government is dilatory in this respect. At the argument before me relator's attorney stated relator did not know whether the Government was proceeding with diligence or not; that he could not prove or disprove it.
The respondent's main contention is that Section 242(c) of the Immigration and Nationality Act, 8 U.S.C.A. § 1252(c), limits the scope of judicial review to cases wherein there has been a conclusive showing of unwarranted delay in effecting an alien's departure from the United States under a final order of deportation.
The pertinent part of the Statute reads as follows:
'Any court of competent jurisdiction shall have authority to review or revise any determination of the Attorney General concerning detention, release on bond, or other release during such six-month period upon a conclusive showing in habeas corpus proceedings that the Attorney General is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to effect such alien's departure from the United States within such six-month period.'
As far as I can discover this above provision of the law has never been judicially passed on. United States ex rel. Nukk v. District Director, 2 Cir., 1953, 205 F.2d 242, cited by the United States Attorney in support of the Government's contention does not pass on this point. The Court expressly stated that for a reason not pertinent here, it was not passing on that question.
We do find in Section 242(a), 8 U.S.C.A. 1252(a), a similar provision concerning the authority of a court of competent jurisdiction to review or revise any determination of the Attorney General concerning the detention, release on bail or parole of an alien pending final decision of his deportability.
The provision of the law has been squarely passed on by the Court of Appeals of this Circuit. U.S. ex rel. Yaris v. Esperdy, 2 Cir., 1953, 202 F.2d 109. There the Court said:
'We find nothing which justifies the appellee's argument that § 242(a) of the Immigration and Nationality Act, which grants the courts authority to review the determination of the Attorney General where it is conclusively shown that he 'is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to determine deportability', does away with all judicial power to review the exercise of discretion under the statute, absent such delay. In the absence of clear language to the contrary, we cannot construe the statute to give the Attorney General unbridled license to exercise his discretion as to detention in whatever arbitrary or capricious way he might see fit, provided only that he act with reasonable dispatch to obtain a decision as to the alien's deportability. On the contrary, we think his discretion as to keeping an alien in ...