The opinion of the court was delivered by: FRANKEL
The petitioners for habeas corpus are in prison under warrants by the Immigration and Naturalization Service pending deportation proceedings which must inevitably be delayed for some months from now. They complain that their confinement is unlawful because the determination that each must post a $25,000 bond as a condition of release amounts in the circumstances to an abuse of the discretion over such matters confided to the Attorney General and his delegates. They concede in this argument that the matter does lie in executive discretion, subject only to broad outer limits beyond which may be found relatively rare and vaguely defined cases of "abuse." Cf. Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d 715, 718-19 (2d Cir. 1966). The Attorney General's representative, on the other hand, concedes that petitioners have selected the appropriate procedure for their complaint, and has in general followed a commendable course of dealing directly and exclusively with the substance of the problem.
Both petitioners are natives and citizens of Argentina. They arrived here on the same airplane on May 1, 1969, both, the government alleges, carrying false travel documents and claiming false identities. Maringolo (whose true name is reported to be Pedro Valela), the government further says, was arrested when he arrived and found to be possessed of 5 1/2 pounds of heroin. Troiano (or Ernesto Fernandez) was arrested shortly afterwards by customs officers. Both were imprisoned on the criminal complaints against them while the United States prepared to submit the charges to a grand jury. Bail was set at $100,000 for Maringolo and $50,000 for Troiano. Unable to meet those requirements, they remained in custody for what has now lengthened to a period of five months.
On July 29, 1969, both were indicted - Maringolo for illegal importation and possession of narcotics under 21 U.S.C. § 174, and Troiano for the use of a false passport under 18 U.S.C. § 1546. Arraigned on the same day, they entered pleas of not guilty and sought reductions in the amounts of bail they had been unable to post. Among the matters pressed upon Judge Abruzzo in this connection was the point that preparation of their defense was hampered by their incarceration, partly because neither speaks English and the convening of counsel and interpreter in the House of Detention was a cumbersome constraint. Judge Abruzzo was also made aware of the prospect that petitioners would face deportation proceedings at some point after the trial of the pending indictments, but such proceedings had not yet been instituted. He concluded that bail should be lowered - to $50,000 for Maringolo and $25,000 for Troiano.
If petitioners had been able to post those amounts, they would then have been set free. It must be presumed, therefore, that Judge Abruzzo, balancing the interests made pertinent by the Congress in the Bail Reform Act of 1966, 18 U.S.C. § 3146 et seq. deemed this an acceptable measure of the risk unquestionably present in every such determination.
In fact, the petitioners did not manage until August 11, almost two weeks later, to post the bail Judge Abruzzo had ordered.
Meanwhile, however, on August 8, the Immigration and Naturalization Service had formally initiated deportation proceedings by orders to show cause, and had issued warrants of arrest. Upon their formal enlargement on bail by the Eastern District Court, petitioners were promptly "taken into custody" by the Service, so that there was actually no interruption of their confinement in the Federal House of Detention. On August 12, they applied to the district director for their release. The request was denied, and they were ordered to be held without bond. On August 18, they obtained a re-determination of this question by a special inquiry officer, who ruled that they could be released if each posted $25,000 in addition to the amount on deposit for him in the Eastern District. On appeal by petitioners, the Board of Immigration Appeals sustained this ruling (on September 5, 1969), which is now before this court.
In a memorandum explaining his determination the special inquiry officer reviewed the circumstances of petitioners' arrival in the United States, their arrests, and their indictments. He observed that "[the] government believes that each of these aliens was acting in concert with each other and others in the smuggling of narcotics into the United States." He recorded that Troiano is reported to have some sort of "criminal record in Argentina," citing no convictions but saying it is "indicated that one of these arrests involved smuggling, although the contraband involved is not known." He noted that Maringolo has until September 29 for motions in his criminal case, so that trial would be "some six or more weeks away." And he considered the fact that their deportation proceedings will be postponed until after the conclusion of their criminal trials. In light of that circumstance, he continued:
"* * * I believe that their release under substantial bond to insure their appearance before the Service in these deportation proceedings would be warranted. The respondents argue that because they were released by the District Court under bonds which amounts to $50,000, in the case of Valela, and $25,000, in the case of Fernandez, the Service should release them in nominal bonds. While this argument has a superficial appeal, it overlooks the fact the the criminal proceeding and this proceeding are entirely independent one of the other. The existence of the criminal bond does not operate to compel their appearance before this Service. The respondents entered the United States by documentation which concealed their true identity. In a very real sense this was a surreptitious entry. They have thus revealed themselves as persons likely to conceal themselves within the society. If they are, in fact, engaged in narcotics traffic as is suspected, they are engaged in a field where, not only the risks, but the rewards are very high. They have no roots in the community and, indeed, their own counsel pointed out that if they were prepared to jump the court bond, they would most likely jump the immigration bond as well. Perhaps so, but they are far more likely to do so if the immigration bond is merely nominal than if it is substantial and does operate to raise the motivation to appear when and as required. The District Court has set relatively high bond in each of their cases. The respondents have managed to post the amount set, nevertheless. The $25,000 bond set by the District Court in the case of Fernandez is, in my judgment a reasonable one for the Attorney General to impose. Accordingly, I will grant the respondents application that their custody status be changed to the extent that they may be released under bond in the sum of $25,000 each."
The written decision of the Board of Immigration Appeals summarized at length what the special inquiry officer had said, and stated its grounds for affirmance as follows:
"After carefully considering all the evidence of record, together with the representations of counsel by brief on appeal, we find nothing therein that would warrant a reduction of the $25,000 bond required for the release of each respondent or justify any change being made in the special inquiry officer's action of August 18, 1969. The manner in which the respondents effected their entry into the United States together with the nature of the crime which resulted in their being apprehended by enforcement officers of the United States Government are factors to be considered in arriving at a decision in this case."
Since decisions of the Attorney General's delegates on bail pending deportation proceedings may be set aside only for abuse of discretion, United States ex rel. Belfrage v. Shaughnessy, 212 F.2d 128, 129 (2d Cir. 1954); United States ex rel. Potash v. District Director, 169 F.2d 747, 751 (2d Cir. 1948); cf. Carlson v. Landon, 342 U.S. 524, 72 S. Ct. 525, 96 L. Ed. 547 (1952), or for fundamental errors of law affecting the scope of the supposed discretion, cf. McGrath v. Kristensen, 340 U.S. 162, 71 S. Ct. 224, 95 L. Ed. 173 (1950), or the lawful manner of exercising it, United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681 (1954), this court recognizes that cases warranting displacements of the administrative determination are likely to be rare. The present case is such a one, however; the order of the special inquiry officer is fatally infirm because it misconceives the relationship between the pending criminal and administrative proceedings. In treating this central subject, the officer
(1) operated upon an "invalid assumption," Belfrage, supra, 212 F.2d at 129, as to the "independence" of the ...