The opinion of the court was delivered by: KAUFMAN
The relator, Morris Angel, is presently in the custody of the Immigration and Naturalization Service on Ellis Island where he is being detained without bail pending deportation which has been ordered. By this writ of habeas corpus he challenges the legality of his detention, asserting that the Attorney General abused his discretionary authority in refusing bail. Angel was arrested on March 16, 1954, pursuant to a warrant of arrest dated March 12, 1954, which charged him with being illegally in the United States and subject to deportation in that: (1) After entry, he was a member of the Communist Party of the United States, and (2) he failed to maintain the non-immigrant status in which he was admitted.
After a hearing before a Special Inquiry Officer of the Immigration and Naturalization Service the relator was found deportable on the charges stated in the warrant of arrest. The action of the Attorney General in denying bail, which is challenged in the present petition, was taken prior to the deportation hearing, and pending a determination of deportability. This determination has now been made as indicated. The issue in the light of such finding is whether the present detention of the petitioner without bail is a proper exercise of the Attorney General's discretionary power under 8 U.S.C.A. § 1252.
Relator's petition for the present writ recites inter alia that:
(1) He is married to an American citizen, and has one son born in the United States; that he lives with his family in his home in Danbury, Connecticut, and that he has continuously resided in the United States since 1929.
(2) He has been continuously employed by Local 64, Joint Board Fur Dressers and Dyers Union, International Fur and Leather Workers Union, first as an organizer, and since 1941 as manager of Local 64, and that he has achieved a place of prominence and distinction in the labor movement in the City of New York.
(3) In 1945 relator was invited to report for an interview at the offices of the Immigration and Naturalization Service in the City of New York and that relator responded to such invitation, voluntarily submitted to such interview and on many later occasions has responded to such invitations and submitted to such interviews and at no time has refused to do so, although informed that the Service could not compel his attendance.
(4) By reason of the foregoing, and of relator's family ties and his position in his union and in the fur industry, relator, if enlarged on bail, will be available at all times for future proceedings, and that his detention without bail violates his constitutional rights, and is arbitrary, capricious and unreasonable.
The return to the writ states inter alia
that in determining that relator be continued in custody, the following factors, among others, were administratively considered: That relator is and has been an active member of the Communist Party of the United States, and has engaged in subversive Communist activities, and that if enlarged on bail the Government believes he will continue to conduct himself in aid of the world Communist movement so as to constitute a menace to the security of the United States.
The supplemental return states that at relator's deportation hearing on April 5, 1954, he admitted past membership in the Communist Party of the United States, but refused to answer any other question concerning his activities and the extent and duration of his membership, resting upon his constitutional privilege against self-incrimination. The supplemental return states that relator then indicated for the record his desire to withdraw his affirmative answer as to membership in the Communist Party and to substitute for such answer a refusal to answer on the ground of self-incrimination.
In the traverse to the return and in a supplemental affidavit filed by relator, he asserts that he has not been a member of the Communist Party for several years and further denies certain charges of past Communist activity. He states that his sole and entire allegiance is to the United States.
An oral hearing has been afforded relator in this habeas corpus proceeding. Six witnesses appeared on his behalf and testified solely to his good reputation in the fur industry for veracity.
None of these witnesses, however, knew the relator socially, nor had any of them ever discussed with him his political philosophy.
Relator testified that he was not at present a member of the Communist Party and that he had neither been a member no engaged in any Communist activity in 1952, 1953 or 1954. When questioned as to his Communist Party membership and/or Communist activity prior to 1952, relator refused to answer, claiming his privilege against self-incrimination under the Fifth Amendment. Relator similar refused to testify when asked if he had been a member of the Communist Party before 1952, and when and in what manner he had dissociated himself from the Communist Party. He did testify, however, that at no time was he directed to engage in underground Communist activity. In sum, relator denied both Communist Party membership and Communist activity in 1952, 1953 and 1954, but refused to say anything further as to other years. He takes the position that since, on his own assertion, he is not at present and was not in 1953, or 1952, either a member of the Communist Party or engaged in Communist activity, it is unreasonable for the Attorney General to deny him bail on the ground that, if released, he would be a menace to the national security.
It is to be noted that the Attorney General's denial of bail in cases like the present is to be upset only upon the clearest showing of an abuse of his discretionary power. United States ex rel. Yaris v. Esperdy, D.C.S.C.N.Y.1952, 108 F.Supp. 735, affirmed 2 Cir., 1953, 202 F.2d 109.
The action of the Attorney General is presumptively correct and the burden is on the alien to show the contrary. Carlson v. Landon, 1952, 342 U.S. 524, 72 S. Ct. 525, 96 L. Ed. 547; United States ex rel. Nukk v. District Director of Immigration, 2 Cir., 1953, 205 F.2d 242, 244. Proof of membership in the Communist Party 'and present or recent 'personal activity in supporting and extending the Party's philosophy concerning violence' furnishes a sufficient basis for detention.' United States ex rel. Belfrage v. Shaughnessy, D.C.S.D.N.Y.1953, 113 F.Supp. 56, 60, affirmed, 2 Cir., 212 F.2d 128.
In the Carlson case, the Attorney General was held not to have abused his discretion in denying bail to four petitioners when only one had formally denied, as to himself, the Government's charges that, at the time of arrest, each was an active member of the Communist Party. The Court found that since the petitioners were active Communists, the Attorney General had not abused his discretion in detaining them without bail. Carlson v. Landon, supra, 342 U.S. at page 530, 541, 72 S. Ct. 525. In the Yaris case, a similar result was reached by this Court when the relator declined either to admit or deny the Government's charges of Communist Party membership or activity. United States ex rel. Yaris v. Esperdy, supra, 108 F.Supp. at page 738;Id., 202 F.2d at page 110. Under the applicable statute, such charges by the Government are accepted as true unless impeached. 28 U.S.C.A. § 2248. In the Nukk case, the denial of bail was also ...