SWAN, Circuit Judge.
This appeal brings before us the dismissal of a writ of habeas corpus in a deportation proceeding. The alien is a Greek who came to the United States in 1916 when a boy of thirteen years. He has lived here ever since, has married a United States citizen and is the father of two children who are still minors. On May 20, 1949 he was taken into custody for deportation to Greece. He sued out a writ of habeas corpus which came on for hearing before Judge Leibell who dismissed the writ, with an opinion reported in D.C., 90 F.Supp. 397. The order of dismissal was entered February 20, 1950, and on the same day the relator filed notice of appeal. Also on February 20, 1950 the Supreme Court handed down its opinion in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, holding that the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., is applicable to deportation proceedings. In reliance on this decision the relator moved for reargument and for leave to amend, nunc pro tunc, his petition for the writ. The motion was opposed on
The first question concerns the regularity of the administrative hearings in view of the Administrative Procedure Act, which became effective September 11, 1946.
The problem breaks down into two questions: (1) Are the provisions of the Act which specify the qualification of the presiding inspector and the method of appointing examiners "procedural requirements," and (2) Was the proceeding "initiated" before the effective date of the Act. We think it clear that the legislative history requires an affirmative answer to both questions. The Senate and House Committee reports indicate that no provision of the Act was to apply to any proceeding commenced before the Act became effective.
A warrant for the arrest of the alien was issued by the Immigration Service on April 12, 1930, but it was not served upon him until May 2, 1946. It charged him with being here in violation of law on the ground of membership in an organization that advocates the overthrow of the Government by force or violence.
Whether this would make the original hearings lawful, had they not been "initiated" before September 11, 1946 we need not decide. At the least it means that any new hearing could be presided over by an officer having no different qualifications than did Inspector Zimmerman.
The appellant next contends that the administrative determination should be reversed because the evidence is insufficient to support it. Since the appellant admits that he is an alien and was a member of the Communist Party of the United States from 1925 to 1939, this attack is only upon the administrative findings that the Communist Party advocated the overthrow of the Government by force and distributed printed matter so advocating. He argues that the Government rested its case upon the documentary evidence and that the documents do not support the findings. The record does not bear him out. Three witnesses besides the alien gave oral testimony. The presiding inspector analyzed their testimony, discredited the alien and Schneiderman, and concluded that the oral testimony "overwhelmingly supports the conclusions that have been reached on the basis of direct analysis of the writings of Lenin and Stalin, and the official utterances of the Communist International and the Communist Party of the U. S. A."
Finally the appellant urges that to deport an alien, who has resided here so long, merely because he belonged to the Communist Party twelve years ago violates constitutional prohibitions. The appellee replies (1) that the power of Congress to deport aliens at any time and for any reason it deems in the public interest is absolute; and (2) that even if the power to deport is not unlimited, its exercise in the case at bar does not contravene any provision of the Constitution. It must be conceded that a most persuasive argument both on principle and on authority has been advanced in support of the absolute power of Congress. A sovereign may exclude aliens altogether or may admit them on such terms as it chooses to impose. While an alien is allowed to remain here he is accorded certain constitutional protections but his license to remain is revocable at the sovereign's will; thereafter with respect to deportation he is entitled only to "procedural due process," that is, that he be given notice of the hearing and opportunity to show that he does not come within the classification of aliens whose deportation Congress has directed.
Nevertheless it is unnecessary to rest decision upon the principle that Congress has absolute and unqualified power with respect to the deportation of aliens. Even if the power be not absolutely unlimited and if we assume that a statute would be invalid which directed deportation for some cause having no rational relation to the public welfare, as for example, that all blue-eyed aliens be deported, this is not such a case. The statute here involved is directed against those who have at any time confederated to overthrow the Government by force, and we hold that its present application is not unconstitutional. No society need continue to harbor aliens who have joined a group who propose to destroy the society itself. This appellant joined the group voluntarily and at a time when membership in such an organization was ground for expelling him from the country. He served as an organizer in various cities and finally became Secretary of the Greek Bureau of the Communist Party. He never voluntarily withdrew but was dropped from membership for reasons of party policy. He argues that his joining was permissible political activity because he was not found to have personally advocated overthrow of the Government by force. A sufficient answer is that there is nothing in the Constitution which imposes upon deportation officials the difficult and uncertain task of distinguishing between those members of a subversive group who individually advocate the forbidden course and those who do not. The interest to be preserved of those who do not personally advocate the illegal means is at most the privilege of
For the foregoing reasons we hold that the orders on appeal were correct. However, subsequent to their entry the Internal Security Act of 1950 was passed.