(dissenting).
When this court, on a petition for rehearing publishes a supplemental opinion which adheres to the previous decision, but on new grounds, the new opinion with its new rationale is invariably and correctly taken, by us and others, as reporting the basis of our decision. I think we must deal similarly with the Board. Accordingly, I think we must look to its second opinion, responsive to the motion for reconsideration, to learn *710the basis on which the Board refused to exercise its discretion favorably to appellants.
The Board’s second opinion is set forth in full in the Appendix hereto. There the Board plainly stated, as follows, that it relied on Section 244(a) of the 1952 Act: “It is crystal clear that Congress intended to greatly restrict the granting of suspension of deportation by the change of phraseology which was used in Section 244(a) of the Immigration and Nationality Act as well as the Congressional comment at the time this provision was enacted.”
Judge Dawson, in dismissing the habeas corpus writ, recognized that the Board took “into account the new standard which was laid down by Congress,” and held that the Board, in so doing, acted properly.
Here the Board erred. The new statute narrowed the discretion of the Attorney General and thus of his delegate, the Board. Thus the Board did not feel free to exercise the discretion it had under the properly applicable legislation, i. e., the statute as it stood before the 1952 amendment. However, the new Act, as my colleagues concede, had no application to this case. Accordingly, it was precisely as if the Board, without relying on the amended Act, had declared that it would never grant discretionary relief unless deportation would “result in exceptional and extremely unusual hardship to the alien, his spouse, parent or child.” Such a restriction by the Board of the breadth of its discretion was arbitrary and therefore illegal.
This case is like Mastrapasqua v. Shaughnessy, 2 Cir., 180 F.2d 999, 1002-1004. There, an Italian seaman, detained in this country during the war, sought the discretionary relief of pre-examination or, in the alternative, suspension of deportation. The Board of Immigration Appeals refused to exercise its discretion because Mastrapasqua was in a class of aliens (those in the United States solely for reasons connected with the war) which the Attorney General, in a prior case, had said should be denied discretionary relief. We held that the Board was not justified in so refusing to exercise its discretion in this class of cases, since the classification was irrational and capricious, and we ordered Mastrapasqua’s release from custody unless the Board, within a reasonable time, exercised its discretion one way or the other, without reliance on any such limitation on its discretion.
My colleagues lean heavily on United States ex rel. Kaloudis v. Shaughnessy, 2 Cir., 180 F.2d 489, 491, which suggested that the Attorney General’s discretionary power to suspend deportation might be analogized to the President’s power to pardon a convict. It should be noted that the Mastrapasqua case was decided by us less than two weeks after we decided Kaloudis. As the two must therefore be read together, it cannot be argued that the earlier decision, Kaloudis, over-ruled the later, Mastrapasqua, or vice versa. Moreover, in Kaloudis, although we said that there the denial of discretionary relief rested on a ground that was not improper, we indicated that cases might arise where the discretionary power is exercised in disregard of implied limitations. See 180 F.2d at page 490.
Kaloudis did not say that the Board, in exercising its discretion, could apply a standard which Congress specifically said was not to be applied to cases, such as this, which come within the savings clause of Section 405 of the Immigration and Nationality Act of 1952, 66 Stat. 280.1 In interpreting Section 405 in *711connection with the application of the pre-1952 test for determining eligibility of an alien for citizenship, the Supreme Court said, in United States v. Menasche, 348 U.S. 528, 535, 75 S.Ct. 513, 518, 99 L.Ed. 615 “The whole development of this general savings clause, its predecessors accompanying each of the recent codifications in the field of immigration and naturalization, manifests a well-established congressional policy not to strip aliens of advantages gained under prior laws. The consistent broadening of the savings provision, particularly in its general terminology, indicates that this policy of preservation was intended to apply to matters both within and without the specific contemplation of Congress.”
In United States ex rel. Zacharias v. Shaughnessy, 2 Cir., 221 F.2d 578, this court, adopting the liberal view of the savings clause set forth in Menasche, held that the eligibility of an alien who came within the clause, for the discretionary relief of voluntary departure, was to be determined under the pre-1952 statute. I think that the same considerations which caused us to so hold in Zacharias require that we now order the Board to exercise its discretion in determining whether to suspend the deportation of petitioners without regard to the new and more severe standard adopted by Congress in the 1952 Act.
Appendix
The Board’s Second Opinion
“These cases are before us on counsel’s motion to reopen the proceedings for reconsideration of the respondents’ applications for suspension of deportation.
“The male respondent last entered the United States on August 15, 1951 and the female respondent on July 4, 1951. Both arrived as seamen and have been found deportable on the charge that they were immigrants at the time of entry and were not in possession of immigration visas. They have one child who was born in the United States during November 1951. On March 18, 1954, we dismissed the appeals of the respondents from the hearing officer’s decision granting voluntary departure and denying suspension of deportation. After considering all the facts in the case at that time, we denied suspension of deportation as a matter of administrative discretion.
“Counsel’s motion sets forth no matters of which we were unaware at the time our previous decision was rendered. It is crystal clear that Congress intended to greatly restrict the granting of suspension of deportation by the change of phraseology which was used in Section 244(a) of the Immigration and Nationality Act as well as the Congressional comment at the time this provision was enacted. We indicated in our previous order that the deportation of the respondents would result in a serious economic detriment to their citizen minor child, and we do not question that the respondents have established the statutory requirements for suspension of deportation under Section 19(c) of the Immigration Act of 1917, as amended.
“Counsel argues that the two court decisions cited in our previous order involved grounds for deportation specified in Section 19(d) of the Immigration Act of 1917, as amended. These cases were not within the purview of Section 19(d) although one alien had been convicted of incest and the other had been a member of the International Workers Order. Weddeke was not deportable because of his conviction and Kaloudis was not charged with being deportable because of his membership in the International Workers Order. In both cases, the decision of the court was predicated on the fact that, regardless of whether the aliens had established or could establish statutory eligibility, the question of whether suspension of deportation should be granted was entirely discretionary with the Attorney General and his decision *712was not reviewable by a court unless clearly arbitrary.
“Upon our further review of the cases of the two respondents, we ahere to our previous decision that suspension of deportation should be denied as a matter of administrative discretion and counsel’s motion will, therefore, be denied.
“Order: It is ordered that counsel’s motion be and the same is hereby denied.”
. Section 405, in part, reads “Nothing eontained in this Act, unless specifically provided therein, shall he construed * '* * to affect any prosecution, suit, action, or proceedings, civil or criminal, brought * * * at the time this Act shall take effect; but as to all such * * * proceedings * * *, the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect * * *. An application for suspension of deportation under section 19 of the Immi*711gration Act of 1917, as amended, * * * shall be regarded as a proceeding within the meaning of this subsection.” (Emphasis added.)