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February 15, 1956


The opinion of the court was delivered by: Sullivan, District Judge.

    This is an indictment under Title 8 U.S.C.A. § 1252(d), which reads:
    "(d) Any alien, against whom a final order of
  deportation as defined in subsection (c) of this
  section, heretofore or hereafter issued has been
  outstanding for more than six months, shall, pending
  eventual deportation, be subject to supervision under
  regulations prescribed by the Attorney General. Such
  regulations shall include provisions which will
  require any alien subject to supervision (1) to
  appear from time to time before an immigration
  officer for identification; (2) to submit, if
  necessary, to medical and psychiatric examination at
  the expense of the United States; (3) to give
  information under oath as to his nationality,
  circumstances, habits, associations, and activities,
  and such other information, whether or not related to
  the foregoing, as the Attorney General may deem fit
  and proper; and (4) to conform to such reasonable
  written restrictions on his conduct or activities as
  are prescribed by the Attorney General in his case.
  Any alien who shall willfully fail to comply with
  such regulations, or willfully fail to appear or to
  give information or submit to medical or psychiatric
  examination if required, or knowingly give false
  information in relation to the requirements of such
  regulations, or knowingly violate a reasonable
  restriction imposed upon his conduct or activity,
  shall upon conviction be guilty of a felony, and
  shall be fined not more than $1,000 or shall be
  imprisoned not more than one year, or both." (Italics

A motion to dismiss the indictment, attacking the constitutionality of the statute, is now before the court. The charge is that defendant violated clause (3), italicized above, in that he wilfully failed to answer certain questions which are set forth in the indictment. There is no allegation that he refused to appear, to submit to a medical or psychiatric examination, or to submit to reasonable restrictions on his conduct; these requirements are not, therefore, directly involved, although incidental consideration of them is necessary.

The parties agree that this Act is an exercise by Congress of the power of the United States as a sovereign state to deal with aliens within its territory, Carlson v. Landon, 1952, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547; United States v. Tandaric, 7 Cir., 1946, 152 F.2d 3, 5, certiorari denied 327 U.S. 786, 66 S.Ct. 703, 90 L.Ed. 1012. To be upheld, it must constitute a valid delegation of that power to the Attorney General, in terms definite enough to form a standard of guidance for his conduct. Winters v. New York, 1947, 333 U.S. 507, 515, 68 S.Ct. 665, 92 L.Ed. 840; Lichter v. United States, 1948, 334 U.S. 742, 786, 68 S.Ct. 1294, 92 L.Ed. 1694. Whether it does or not can be determined only by an examination of the section in its context: Title 8 U.S.C.A. § 1251 et seq., and the cases which have interpreted those sections. Section 1251 provides that any alien in the United States shall be deported upon the order of the Attorney General for causes there set forth; section 1252(b) prescribes the procedure for the entry of such an order. Pending determination of deportability, an alien may in the discretion of the Attorney General be continued in custody, or released on bond or conditional parole, section 1252(a). The Attorney General's discretion under this section is not unlimited, but may be reviewed by the courts to determine whether he acted reasonably. United States ex rel. Belfrage v. Shaughnessy, 2 Cir., 1954, 212 F.2d 128; U.S. ex rel. Hyndman v. Holton, 7 Cir., 1953, 205 F.2d 228, 230; Ocon v. Landon, 9 Cir., 1954, 218 F.2d 320, 324. After the entry of a final deportation order, the Attorney General is given six months within which to "effect the alien's departure", during which the alien may be detained or released on bond. Section 1252(c). The alien must be released from detention sooner than six months if it appears that there is no reasonable possibility of his being deported in the foreseeable future. United States ex rel. Kusman v. District Director of Immigration, D.C.S.D.N.Y. 1953, 117 F. Supp. 541; United States ex rel. Cefalu v. Shaughnessy, D.C.S.D.N.Y. 1954, 117 F. Supp. 473. Although this subsection provides that after the six-months period, if deportation has not been effected, the alien "shall become subject to such further supervision and detention pending eventual deportation as is authorized in this section", it has been held that "and detention" is surplusage, the period of detention must terminate after six months, and the alien thereafter be subject only to such detention as may result from a violation of the supervision provisions of subsection (d)(3). United States ex rel. Youw v. Shaughnessy, D.C.S.D.N.Y. 1952, 102 F. Supp. 799, 801; United States ex rel. Blankenstein, D.C.S.D.N.Y. 1953, 117 F. Supp. 699. The last-named section is the one here considered, and has been quoted in full; the regulations are in substantially the language of the statute. Subsection (2) provides that wilfull refusal or failure to depart after an immigration order is final shall be a felony; section 1253 relates to the countries to which the Attorney General shall deport the aliens.

It is apparent from this summary of the deportation procedure that after the entry of a final order of deportation, the sole remaining power and duty of the Attorney General is to make sure that the alien departs from the country. It follows that the powers of supervision given him are intended as an aid in enforcing this power by making certain that the alien will be available for deportation when and if the time comes that this is possible. Clauses (1), (2), and (4) of the same subsection are reasonably calculated to fulfill this purpose. Clause (1), requiring the alien to submit himself for identification, is clearly helpful to that end; the requirement of physical examinations might be necessary to deportation to a particular country; and in (4), "to conform to such reasonable written restrictions on his conduct or activities as are prescribed by the Attorney General in his case", the word "reasonable" may be read as "those restrictions which tend to guarantee his availability for deportation." The same may be said of clause (3), of immediate concern here: "to give information * * * as to his nationality, circumstances, habits, associations, and activities, and such other information, whether or not related to the foregoing, as the Attorney General may deem fit and proper." This must be read to mean such information as is necessary to enable the Attorney General to be certain that the alien is holding himself in readiness to answer the call to be deported when it comes.

The Government urges that the Attorney General may, under this section, question the alien to determine not only his availability for deportation, but also to satisfy himself that the activities for which the alien was ordered deported are not continuing. There is no warrant for such an interpretation, since the Attorney General is powerless to take any further action even if they are continuing. A deportation order is not a magic incantation, but a finding that the alien is, for one reason or another, an undesirable resident of this country. Further, it is an order entered in a civil proceeding, in which proof is by "clear and convincing" evidence, rather than beyond a reasonable doubt. United States ex rel. Vajtauer v. Commissioner, 272 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560, in which counsel need not be appointed, United States v. Vander Jagt, D.C.W.D.Mich. 1955, 135 F. Supp. 676, and hearsay evidence may be admitted. Navarrette-Navarrette v. Landon, 9 Cir., 1955, 223 F.2d 234.

There is accordingly no justification for allowing a deportation order to accomplish more than its intended purpose. It establishes, in a hearing adequate for this end, that the alien shall depart this country and nothing more. The Attorney General has been given power to supervise the alien to make sure he is available for deportation, and no further power. If, after the entry of the order, the alien engages in activity punishable under the Criminal Code, the Attorney General is at liberty to bring him before a Grand Jury and move for an indictment in the usual way. If he is not engaging in such activity, and if it is physically impossible to deport him, and if increasing numbers of aliens in this situation has created a serious problem, then Congress may solve it by giving some official definite and measurable power to deal with the dilemma. So far it has not done so, except to the extent that it has given the Attorney General the powers of supervision here considered.

This discussion has dealt with most of the objections urged by the defendant. He also urges that the statute creates a crime by legislative fiat, leaving the court nothing to do but to pronounce sentence in a summary proceeding, Wong Wing v. United States, 1896, 163 U.S. 228, 236, 16 S.Ct. 977, 41 L.Ed. 140, and that procedural due process has been violated. That is not the case when the statute is correctly interpreted. The court will determine the relevancy of the questions by a definite standard: do they assist the Attorney General in making certain that the alien will be available for deportation?

Defendant also contends that the statute here considered violates the First Amendment guarantee of freedom of speech of which freedom of silence has been assumed to be a part. United States v. O'Connor, D.C. 1951, 135 F. Supp. 590, at page 596, and cases cited. However, speech may be compelled by Congress, and silence punished, when special circumstances warrant restrictions on traditional freedoms. Thus Title 2 U.S.C.A. § 192 making it an offense punishable by fine or imprisonment to fail to answer proper questions asked by Congressional committees has been upheld. In re Chapman, 1896, 166 U.S. 661, 672, 17 S.Ct. 677, 41 L.Ed. 1154; United States v. Bryan, 1949, 339 U.S. 323, 327, 70 S.Ct. 724, 94 L.Ed. 884. Under this statute, however, questions must be relevant to the Congressional power to legislate, Quinn v. United States, 1955, 349 U.S. 155, 162, 75 S.Ct. 668, 99 L.Ed. 964; just as in the instant case they must relate to the valid power of the Attorney General.

The motion to dismiss the indictment is overruled.

Supplemental Opinion

After the announcement of the foregoing opinion, new motions and briefs were filed by both parties.

Defendant filed a "Supplemental Motion to Dismiss Indictment." His argument in support of this motion in part reiterates objections previously considered by the court. He contends that the indictment is vague and uncertain in that it fails to set forth the order of deportation, the authority by which, or the sections under which it was made, or that the defendant had notice of it. These objections must be overruled. The indictment is in the language of the statute and sufficiently notifies the defendant of the charge which he must meet. Several other objections urged were dealt with in the original memorandum, but have been re-considered, and are overruled. The Court adheres to its original opinion that the statute, as construed, is not unconstitutional.

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