EDGERTON, Circuit Judge.
On December 29, 1952, the then Attorney General issued an order for appellant Rubinstein's deportation. On the same day the Attorney General's subordinate the District Director of the Immigration and Naturalization Service ordered appellant's arrest. On December 30, 1952, appellant brought this suit against the then Attorney General for declaratory and injunctive relief. The present Attorney General has been substituted as appellee.
We are not now reviewing the deportation order. We are reviewing only the District Court's denial of a temporary injunction to restrain the appellee from arresting the appellant.
Appellant is an alien whose deportation is sought because he was convicted
The District Court declined to issue a restraining order and Rubinstein appealed. On January 5, 1953, we remanded the case
We adhere to our ruling of January 5 that the legality of appellant's threatened and imminent detention may be tested in this suit by the principles that would be applicable in habeas corpus.
Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, decided March 16, 1953, is not to the contrary. Distinguishing McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, and overruling decisions of this and two other Courts of Appeals,
The 1952 Act and its historical background. Unlike the 1917 Act, § 242(b) (4) of the 1952 Act provides that "no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence." Unlike the 1917 Act, §§ 242(c) and 242(e) of the 1952 Act expressly recognize that there may be "judicial review" of a final order of deportation. Section 242(c) provides that "the Attorney General shall have a period of six months from the date of such order, or, if judicial review is had, then from the date of the final order of the court, within which to effect the alien's departure from the United States * * *."
"Judicial review" is not synonymous with habeas corpus.
Section 242(b)(4) of the 1952 Act provides, in practically the same words as § 19(a) of the 1917 Act
The 1952 Act has a very different background of judicial interpretation. In 1948, 1949, and 1950, three Courts of Appeals including this one ruled
In dealing with other sorts of legislation, the Supreme Court had repeatedly held that the word "final" does not necessarily exclude, or limit to habeas corpus, judicial review of administrative action. Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567, is an example. Accordingly it had become common before 1952 for Congress, when it wished to preclude or restrict judicial review, to do so by express language and not to rely on the word "final". Section 601(e) of the Revenue Act of 1936, 49 Stat. 1740, provided that "The determination of the Commissioner of Internal Revenue with respect to any refund under this section shall be final and no court shall have jurisdiction to review such determination." A 1940 amendment of the World War Veterans Act of 1924, 54 Stat. 1197, 38 U.S.C.A. § 11a-2, provided that "the decisions of the Administrator of Veterans' Affairs on any question of law or fact concerning a claim for benefits * * * shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decisions."
Section 360(c) of the 1952 Act itself provides, as to persons seeking admission to the United States, that "A final determination by the Attorney General that any such person is not entitled to admission to the United States shall be subject to review by any court of competent jurisdiction in habeas corpus proceedings and not otherwise."
In the 81st Congress, Senator McCarran introduced on April 20, 1950, a bill to revise the immigration and nationality laws. (S. 3455, 81st Cong., 2d Sess.) It provided in § 106 that "Notwithstanding the provisions of any other law — (a) determinations of fact by administrative officers under the provisions of this Act or regulations issued thereunder shall not be subject to review by any court; (b) determinations of law by administrative officers under the provisions of this Act or regulations issued thereunder shall not be subject to review by any court except through the writ of habeas corpus; and (c) the exercise of discretionary authority conferred upon administrative officers by this Act or regulations issued thereunder shall not be subject to review by any court."
In the 1st Session of the 82d Congress, a revised bill introduced by Senator McCarran (S. 716) and a bill introduced by Congressman Walter (H.R. 2379) contained similar provisions, but a bill introduced by Congressman Celler (H.R. 2816) did not. There were joint hearings on these three bills. Representatives of the American Bar Association and many other organizations opposed restriction of judicial review and urged continued application of § 10 of the Administrative Procedure Act.
During the House debate on April 24, 1952, Congressman Meader proposed to amend the bill by providing expressly that "the order of deportation shall be subject to review by any court of competent jurisdiction". 98 Cong.Rec. p. 4415. Congressman Walter, co-author of the bill, in opposing the amendment said (p. 4416): "Now, we come to this question of the finality of the decision of the Attorney General. That language means that it is a final decision as far as the administrative branch of the Government is concerned, but it is not final in that it is not the last remedy that the alien has. Section 10 of
In the Senate debate Senator McCarran said on May 22, 1952 (98 Cong.Rec. p. 5778): "The Administrative Procedure Act is made applicable to the bill. The Administrative Procedure Act prevails now."
In our opinion the appellant, if he were under arrest, would be entitled to release in habeas corpus.
To justify the proposed arrest the appellee relies on § 242(c) of the 1952 Act. We think it inapplicable. The six-month period during which § 242(c) gives the Attorney General discretion to detain an alien who has been ordered deported begins to run "if judicial review is had, then from the date of the final order of the court". There has not yet been a final order of the court. The purpose of the detention authorized by § 242(c) is "to effect the alien's departure from the United States". All agree that departure cannot be effected while the deportation order is under review.
The appellee does not rely on § 242(a), which relates primarily to the period before a final administrative deportation order is issued. Read literally, it may relate only to that period. But Congress can hardly have meant to give the Attorney General no authority to arrest the alien, in any circumstances, during the present interval between the final administrative deportation order and the final order of the court. To avoid such a gap in the statute, we read the arrest provisions of § 242(a) as applicable during this interval.
Section 242(a) authorizes the Attorney General to keep an alien in custody, release him on bond, or release him on conditional parole. The Attorney General arrested the appellant and released him on bond. It also authorizes the Attorney General "in his discretion" to revoke the bond or parole and take the alien into custody again. But discretion in this connection is a reasonable discretion, not an arbitrary and capricious one. Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547, was a habeas corpus case decided under a provision of the Internal Security Act of 1950, 64 Stat. 1010, 8 U.S.C.A. § 156(a), which likewise authorized the Attorney General in his "discretion" to keep an alien in custody pending final determination of his deportability. The Court said: "Respondent filed returns defending his orders of detention on the ground that there was reasonable cause to believe that petitioners' release would be prejudicial to the public interest and would endanger the welfare and safety of the United States. * * * The Government does not urge that the Attorney General's discretion is not subject to any judicial review, but merely that his discretion can be overturned only on a showing of clear abuse. * * * 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. * * * This is a permissible delegation of legislative power because the executive judgment is limited by adequate standards." 342 U.S. at pages 529, 540, 544, 72 S.Ct. at page 528. United States ex rel. Yaris v. Esperdy, supra, note 14, was a habeas corpus case under the Immigration and Nationality Act of 1952. The Second Circuit said: "When there has been a revocation and a rearrest on the warrant, the test on habeas corpus of the lawfulness of the resulting detention is whether under the prevailing circumstances the Attorney General exercised a sound discretion". The court ruled, rightly we think, that "an allegation in the return that the appellant was engaged in communist activities up to the time of his rearrest sufficiently refutes the claim that there was an abuse of discretion by the Attorney General in revoking his bail and taking him into custody." 202 F.2d at page 111.
As we held on the former appeal, the question of detention must be decided in accordance with the principles applicable in habeas corpus proceedings. In accordance with those principles, the question of detention is entirely independent of the question who is likely finally to prevail in regard to the validity of the deportation order. If the order be upheld, that will not retroactively legalize a previous arrest. There is no occasion to balance equities. Even if there were, the record contains nothing that could outweigh the irreparable loss of personal liberty which would follow from an arrest.
In denying a preliminary injunction the District Court declared that the crime for which appellant had served a term involved moral turpitude. But this is only one of the issues, raised by the complaint, on which the validity of the deportation order will depend. To avoid piecemeal appeals, we shall not consider this issue until the others have been heard. The case is accordingly remanded to the District Court for further proceedings, with directions to issue a preliminary injunction restraining appellee from revoking appellant's bail and from taking him into custody on a warrant of arrest for deportation, pending final determination of this suit, unless the appellee shows to the court that there are adequate reasons for making the arrest.
Reversed and remanded.
PROCTOR, Circuit Judge (dissenting).
The majority opinion holds that upon the present record the Attorney General has no authority to arrest Rubinstein while judicial review is pending and that an arrest would be a clear abuse of discretion. They conclude that the "question of detention must be decided in accordance with the principles applicable in habeas corpus proceedings." They remand the case for further proceedings, with directions to issue a preliminary injunction against the arrest of Rubinstein unless adequate reasons are shown.
It seems to me confusing, if not misleading, to involve the question of a preliminary injunction with the principles of habeas corpus. The District Court's authority to grant the injunction rests upon its general powers to preserve pendente lite its jurisdiction over the case or prevent irreparable injury. If I thought the present situation required a preliminary injunction I would put its issuance upon those grounds. However, I am convinced that there is no present need for such action. Therefore, in my opinion, the injunction directed by the majority is an unwarranted encroachment upon and interference with the authority and responsibility of the Attorney General. The practical effect of the injunction is to strip the Attorney General, during the period of judicial review, of his statutory authority to control and supervise an alien
As I view the matter, the critical question now is whether pending a final determination of the case a sufficient showing has been made to warrant an injunction against Rubinstein being taken into custody or detained by the Attorney General. I think not. Although it is charged that the deportation proceedings are lacking in due process and the deportation order is invalid, there is no substantial support for that position, unless it be that the crime of which Rubinstein was convicted did not involve moral turpitude. If it did, then under the applicable statute
Finally, I suggest that it cannot be supposed the Attorney General will go forward with deportation pending final determination of judicial review. It is fair to assume that the present action of that officer is designed to reconsider and adjust the terms of Rubinstein's release in view of the deportation order. This assumption comports with assurance to the court by the Attorney General's counsel "that he has not at this point in the administrative proceedings determined whether the alien shall be detained, released on bond or released otherwise."
As the Second Circuit has held regarding practically the same language in § 242(a), this sentence "provides but an added statutory recognition of a basis for judicial review, not a limitation upon the power * * *." United States ex rel. Yaris v. Esperdy, 202 F.2d 109, 112. (1) Read literally the sentence grants, and does not withdraw or restrict, authority to review. (2) It does not touch the subject of review, in habeas corpus or otherwise, of deportation orders, but relates only to review of "detention, release on bond, or other release" when the Attorney General is not proceeding with "reasonable dispatch" to effect a deportation. (3) The six-month period referred to, during which this sentence authorizes review of these matters, begins to run only after "a final order of deportation * * * or, if judicial review is had, then from the date of the final order of the court * * *." (4) So far if at all as the sentence in question may imply that the matters to which it refers, during the time to which it refers, may be reviewed only in habeas corpus, it implies that review of other matters and review at other times are not so limited.