Carlson v. Landon (187 F.2d 991, 1951)

STEPHENS, Circuit Judge.

The above entitled proceedings in habeas corpus are here upon a second appeal after remand with instructions. The appellant-petitioners, all aliens, are being held by the local Director of Immigration (Landon) upon instructions from the Attorney General of the United States, pending hearing upon warrants of arrest and for deportation under the Act of October 16, 1918, as amended by the Internal Security Act of 1950, ch. 1024, Pub.Law 831, 8 U.S.C.A. § 137 et seq. Petitioners separately demanded their release through petitions for the issuance of the writ of habeas corpus, and the district court dismissed the proceedings upon a show cause order. We reversed and remanded.

In our opinion in the Carlson case, No. 12742, 9 Cir., 1950, 186 F.2d 183, we discussed the law which we deemed applicable to all of the cases and held (1) in accordance with the district court that the provision of the 1950 amendment to the Act of October 16, 1918, which refers to the release of aliens under arrest for deportation pending a hearing, requires the exercise of discretion on the part of the Attorney General in providing for release of the arrestee under bail or his detention without bail, Sec. 23, and (2) not in accordance with the district court that in a habeas corpus proceeding for release of the arrestee under bail, where detention without bail has been ordered, and petitioner had alleged in his petition that he was a law abiding person of a substantial character and that he would attend all hearings and was not a security risk, some fact upon which the discretion denying release on bail was based must be revealed by the Attorney General showing that such order was the result of a reasoned conclusion from relevant facts. The Attorney General’s discretion mentioned refers, of course, to discretion exercised or to be exercised upon the question as to whether the release of appellants on bail would likely endanger the security of the United States and whether they likely would fail to present themselves at the deportation hearings.

We reversed because no such revelation had been made, and remanded for further hearing. The district court complied, issued the writ, and return and supplemental return was made and traversed.

The district court, upon the original hearing, had adhered strictly to the theory that since the return to each petition showed regularity on its face the burden was upon the petitioner to go forward to prove the illegality of the restraint. Each appellant had set out facts in his petition and traverse personal to himself and his family status, as above indicated, which remained undenied, and relied upon the un-denied portions of the petition and traverse and gave no oral evidence or further docu'mentary evidence. Each appellant also alleged that his release under bail would not endanger the security of the United States and that the hearings would stretch over many months before being concluded, which latter allegations were put in issue.

At the resumed hearing and after the issuance of the writ, the Director filed his return and ¿mended return, annexing in Carlson’s case to the latter an affidavit stating certain facts, most of which were un-denied, and the Director relied upon the undenied portions of his returns and affidavit as proof that the Attorney General had properly exercised his discretion in denying bail as to each arrestee. The district court then gave every possible opportunity to the Director and to each arrestee to go forward with evidence, and all refrained. The court then denied each petition and dismissed the writ as to each, and remanded each arrestee to the custody of the Director.

Without restatement thereof, we adhere to our former Carlson opinion, 1950, 186 F.2d 183, and now proceed to the key question:

Was' the District Court in Error in Concluding That the Affidavits, Together With the Undenied Portions of the Pleadings, Failed to Show That Appellants’ Restraint Was Illegal?

We shall proceed to state briefly the revealed facts as they stood at the conclusion of the resumed hearing. Although the petitions for the writ of habeas corpus were not filed by the arrestees but on their behalf by their attorneys, we shall occasionally refer to them as “petitioners” or as “appellants”.

The Appeal of Carlson

Appellant was arrested in 1947 on a so-called alien deportation warrant, Immigration Act of October 16, 1918, and therein was charged with being an alien who, after entry, was found to be a member of cm or-ganisation which believes in and advocates violence to overthrow the government of the United States. He was enlarged under bail. Because "of the Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 decision, and after hearing sessions had been held, another charge was made by the issuance of a warrant under the amendment to the Immigration Act, the Internal Security Act of 1950. The 1950 amendment authorized (and the new warrant conformed) the deportation of an alien who was,