# United States Ex Rel. Knauff v. McGrath Attorney General > Court of Appeals for the Second Circuit · March 28, 1950 · 181 F.2d 839 URL: https://www.frixlaw.com/law-library/cases/9442436 ## Case - **Full name:** UNITED STATES Ex Rel. KNAUFF v. MCGRATH, Attorney General, Et Al. - **Court:** Court of Appeals for the Second Circuit - **Decided:** March 28, 1950 - **Citations:** 181 F.2d 839; 1950 U.S. App. LEXIS 2710 - **Precedential status:** Published - **Opinion:** Dissent by Swan - **Judges:** Frank, Hand, Swan - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9442436 ## Opinion text SWAN, Circuit Judge (dissenting). The appellant was excluded from admission to this country and the order of exclusion was affirmed by the Supreme Court. Pursuant to § 154 of Title 8 the immigration officials made arrangements to send her *844 back to the country whenpe she came. , On. the day preceding the.date fixed for her departure, a petition for habeas corpus was filed on her behalf in the district court to stay her deportation. The district judge forthwith denied .the petition. He 'stated that he refused to grant.the writ because he knew of no law giving, him authority to issue it. ... ■ My brothers are agreed tjiat the . order must.be reversed,; a--writ must issue, and thé - respondents must be-given an opportunity -to file a return thereto; If no return; is filed, I take it that the respondents will be ordered to defer deportation of the appel-, lant -so long as -a remedial bill to admit her remains pending in Congres.s.. If-a return is filed, my brothers appear to be not in complete agreement as to .what course the subsequent proceedings will take. . Judge Hand believes that if the return states that “the' Attorney General has found that the alien’s continued presence in- the United Statfes would be prejudicial to its interests, even'though she-were'detained at Ellis Island',” the writ will be discharged without any hearing because no court has power to determine whether the excuse stated is supported by the facts. As a technical objection to this view it may-be noted, that to speak of this alien’s “continued presence in the United States” runs counter to the legal theory that an alien stopped at the border is still in theory of law outside the country, even-though physically allowed to enter, as this' court' has - recently held with respect to this 'very alien. Knauff v. Shaughhessy, 2 Cir., 179 F.2d 628 . A substantial objection is the futility of the proposed procedure. To issue'the Writ, merely to permit the Attorney General to say that he exercised his discretion in the public'interest seems to me a barren formality. Concededly the alien is excludable and must be sent back to the country whénce she came. The discretion’ which § 154 confers upon the Attorney General is to send her back “immediately,” or to defer her departure, if in his opinion “immediate deportation is not practicable or proper.” The Attorney General must be presumed to perform his duty and to exercise, in the public interest the discretion conferred upon him. If the court cannot consider whether the facts upon which the Attorney General' acts justify his. action, I can sge 150 useful purpose in requiring -him to pleá'd.' The ordinary plea in confession and avoidance raises issues of fact which, if denied, must he tried out, but in the case at bar, if I correctly understand Judge Hand’s view, a plea such as he' suggests will' end the case and the writ will be discharged. Judge Frank suggests that upon remand the respondents may “file a return denying the relator’s allegations as. to the administrative practice” and, if they do, “there will be a trial of the resulting issue of fact.” This I take to mean that the only ground on which the writ may be discharged will be the relator’s failure to prove the existence of an “invariable practice” to suspend deportation proceedings when a private bill for the deportee’s relief has been introduced in Congress. This court’s decision in United States ex rel. Pirinsky is relied upon. ■I do not think it supports my brother’s decision in the case at bar.- -In the first place, that case dealt with the provision in § 156 that pending the final disposition of his case, an alien may be released under bond. That provision was plainly intended for the benefit of the alien. The discretion conferred by § 154, with which we are now dealing, is to be exercised not for the benefit; of the alien but with a view to what is “practicable or proper” in the public interest of efficient administration of the provisions relating to sending back excluded aliens. Secondly, and- more important, although we held in the Pirinsky case that it was an abuse of discretion to *set bail at a “úniquely high” sum when the particular circumstances of the relator’s case did not justify singling him out for such treatment, we did not hold that a-deviation from invariable administrative practice was- itself an abuse of discretion regardless of circumstances. Yet that, is the doctrine which my brothers have here adopted. They do not contemplate, if I understand them, an inquiry into the particular circumstances of the appellant’s case which might differentiate it from other prior cases and justify a departure from the alleged -invariable administrative practice. I do not understand *845 how it can he within the competence of a court to declare the exercise of administrative discretion unreasonable if the court may not inquire into the reasons upon which the administrative official acted. I think the order should be affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9442436. Public record. Not legal advice.