(dissenting).
I dissent.
The relator, Gyula Paktorovics, his wife, Szeren Paktorovics, and their two minor daughters were part of a group of some 30,000 Hungarians who had fled to Austria from Hungary at the time of the uprising in the fall of 1956. To relieve Austria of the burden of this large influx, various countries, including the United States, sympathetic to those who were seeking freedom from Communistic oppression offered to receive certain numbers within their borders. Under the Refugee Relief Act, 50 U.S.C.A.Appendix, § 1971 et seq. there were only approximately 6,500 visas available for them. The number seeking asylum vastly exceeded this figure. The President, therefore, on December 1, 1956 directed that “emergency admission should be granted to 15,000 additional Hungarians through the exercise by the Attorney General of his discretionary authority under section 212 (d) (5) of the Immigration and Nationality Act.”1 Subsequently others were admitted making the total some 30,000.
In Austria the relator executed an application for himself and his family pursuant to § 212(d) (5) of the Immigration and Nationality Act [8 U.S.C.A. § 1182(d) (5)]. The truth or falsity of *616the relator’s statements in this application are immaterial to the decision required here. Suffice it to say that they were adequate to enable him and his family to be included in the group destined for the United States. The family arrived in this country on December 24, 1956, and settled in Baltimore where Gyula obtained employment as a milkman.
Because no visas were available beyond the exhausted 6,500, the President relied upon section 212(d) (5) of the Immigration and Nationality Act. Indeed there was no other way in which even temporary admission could have been secured. This section provides in part that the Attorney General may in his discretion parole into the United States temporarily, for emergent reasons, in the public interest, “any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien, and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled.” The section further provides that thereafter his case shall be “dealt with in the same manner as that of any other applicant for admission to the United States.”
Thus Congress had specifically given to “the Attorney General” the power “in his discretion” to “parole into the United States” but only “temporarily” and “for emergent reasons * * * in the public interest” aliens applying for admission. However, Congress with equal clarity declared that “such parole of such alien shall not be regarded as an admission of the alien.” When the purposes of the parole should have been served, again it was the Attorney General to whose opinion Congress entrusted the decision and the power to return the alien to the custody from which he was paroled.
On January 31, 1957 the President sent to the Congress a letter of the same date in which he advised Congress that on November 8, 1956 he had directed that extraordinary measures be taken to expedite the processing of 5,000 Hungarian visa applications under provisions of the Refugee Relief Act. However, by November 29 it was clear that many more persons would have to be admitted, and on December 1, the President directed that emergency admission should be granted to 15,000 additional Hungarians through the exercise by the Attorney General of his discretionary authority, and that when these numbers had been exhausted, the situation be reexamined. The President pointed out that most of the refugees had been admitted “only temporarily on an emergency basis” ; that some might ultimately decide to settle abroad; and that many would wish to remain in the United States permanently. As to them he said: “Their admission to the United States as parolees, however, does not permit permanent residence or the acquisition of citizenship.” To give them that opportunity he recommended that “the Congress enact legislation giving the President power to authorize the Attorney General to parole into the United States temporarily, under such conditions as he may prescribe, escapees selected by the Secretary of State who have fled or in the future flee from Communist persecution and tyranny.” To avoid the mass of private immigration bills dealing with hardships in individual cases the President recommended that “the Attorney General be granted authority, subject to such safeguards as Congress may prescribe, to grant relief from exclusion and expulsion * *
The President’s letter indicated that the problem in dealing with the Hungarian situation was one for Congressional action. In fact, the President squarely placed the problem of the status of the Hungarian refugees before Congress for action. They were physically present in the United States, and yet only “temporarily,” and at least 23,500 had no visas or other necessary papers to enable them to become permanent residents or citizens. After much debate
*617a bill (H.R.11033) was finally enacted providing for the admission of paroled Hungarian refugees who have been in the United States for at least two years (72 Stat. 419). Both the Senate and House reports accompanying H.R.11033 and recommending its passage (H.R.Rep. No.1661 and S.Rep.No.1817, 85th Cong., 2d Sess.) singled out as best explaining “the full purport of the bill” the comments by the bill’s sponsor, Representative Feighan of Ohio, made when introducing the bill. The Representative explained that the bill was designed to cover the case of a paroled Hungarian refugee and that its objective was to have him “regarded as lawfully admitted for permanent residence as of the date of his arrival in the United States.” To achieve this status, inspection and, if necessary, a hearing by special inquiry officer of the Immigration and Naturalization Service, were provided for. The Representative stated that “obviously, if he is not admissible on these terms, the alien’s exclusion and deportation would necessarily follow in accordance with the existing provisions of the Immigration and Nationality Act.” He was clear that his bill did nothing that “affects the duties, powers and functions of the Attorney General” granted by the Act, and that the bill re-states the substance of existing law — that a parolee, when returned to the custody of the Immigration Service and found inadmissible under the existing law, has automatically lost his status as a parolee, and is required to be excluded and deported just as any other excludable alien applying for admission to the United States.” Cong.Rec. Vol. 104, No. 31; Feb. 27, 1958; pp. 2676-7.
There was, of course, a major inconsistency in using § 212(d) (5) as the vehicle for emergency admission because the greater proportion by far of those admitted came in purportedly under this section and not pursuant to visas. In the case now before the Court the rela-tors were not aliens “applying for admission to the United States.” They came in pursuant to a section which by grace of the sovereign permitted them to do so without complying with any law except that which was being used to sanction their de facto admission, and under the specific condition that parole by the Attorney General should not be regarded as admission of the alien. By act of Congress parole was exclusively within the discretion of the Attorney General and he assigned the task of investigating and screening the person so admitted to the Immigration Service.
Commencing in February 1957, officers of the Service conducted several investigations and interrogations of the relator Gyula and came to the conclusion that he had been a volunteer member of the Communist party in Hungary and that he had withheld information of such affiliation because of a fear that such disclosure might result in a denial of his application. Thereafter, the Acting Regional Commissioner of the Service at Richmond, Virginia, entered an order on August 14, 1957 revoking his temporary parole and directing that steps be taken for relator’s return to Austria. On August 26, 1957 the relator sought a writ of habeas corpus on the ground that his expulsion was without a hearing, in violation of due process. Prior to the return of the writ, the Service invoked § 235(c) of the Immigration Act [8 U.S.C.A. § 1225(c)] providing for the expulsion of an alien without a hearing where inadmissibility is based on confidential information which would be inimical to public welfare. Subsequently the Commissioner withdrew the exclusion order on this ground and agreed to grant a hearing pursuant to § 236 at which bearing the only question permitted to be litigated was whether the rela-tors were in possession of valid unexpired entry documents. This was a futile proceeding because, of course, the rela-tors had no valid entry documents and could not have obtained them. Had they possessed such papers they would not have had to come in by means of § 212(d) (5). An appeal to the Board of Immigration Appeals was an equally vain for*618mality. Upon its rejection of the appeal an exclusion order was entered. The relators challenged the constitutionality of these proceedings by habeas corpus, the main ground being that parole was revoked without a hearing.
Initial and instinctive reaction leads to the conclusion that this country, in waiving the entry requirements because of the Hungarian emergency, should :grant to these unfortunate people all benefits and privileges to be obtained under our Constitution. However, emotional reaction should not blind us to the fact that our immigration policy has been, and still should be, declared by Congress, and enforced by such officers of government as are so designated by Congress. The Supreme Court recently, in this very field (to be sure by votes of four to three, and thrice by five to four), has had occasion to pass upon cases of even greater hardship than that now presented to us.
In United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317, the majority pointed out that “Admission of aliens to the United States is a privilege granted by the sovereign United States Government. Such privilege is granted to an alien only upon such terms as the United States shall prescribe. It must be exercised in accordance with the procedure which the United States provides” (338 U.S. at page 542, 70 S.Ct. at page 312). As to the power to delegate, the court .continued: “Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under such authority is final and conclusive.” Even if the alien had gained entry into the United States (and § 212(d) (5) expressly negates entry) “it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien” (338 U.S. at page 543, 70 S.Ct. at page 312). In the Knauff case a German bride married to an American soldier in Germany was excluded.
In Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956, the Court had to deal with the situation which frequently received comment in the public press of the Rumanian who was on Ellis Island unable to enter the United States and .equally unable to return to any other country in the world. After he languished within sight of his hoped-for destination for some twenty-one months his case finally reached the Supreme Court which defined the generosity of Congress toward this alien by saying that the hardship of staying aboard the vessel “persuaded Congress to adopt a more generous course. By statute it authorized, in cases such as this, aliens’ temporary removal from ship to shore. But such temporary harborage, an act of legislative grace, bestows no additional rights. Congress meticulously specified that such shelter ashore ‘shall not be considered a landing’ * * *. And this Court has long considered such temporary arrangements as not affecting an alien’s status; he is treated as if stopped at the border” (345 U.S. at page 215, 73 S.Ct. at page 631).
As recently as June 16, 1958 the Su.preme Court had occasion again to consider the status of parolees in the cases of Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246, and Rogers v. Quan, 357 U.S. 193, 78 S.Ct. 1076, 2 L.Ed.2d 1252. Although the cases involved section 243(h) of the Immigration and Nationality Act dealing with the withholding of deportation of aliens who “in his opinion” (the Attorney General) would be subject to physical persecution the decisions turned upon whether “physical presence as a parolee” gave the parolee the status of being “within the United States.” The Court’s conclusion was “that petitioner’s parole did not alter her status as an excluded alien or otherwise bring her ‘within the United States’ in the mean*619ing of § 243(h)” (357 U.S. at page 186, 78 S.Ct. at page 1073). Yet in that case Leng May Ma had been physically present in the United States for many years. Having failed in establishing citizenship by virtue of claiming that her father was a United States citizen, she then alleged that deportation to China would subject her to physical persecution and probable death. The Court noted the law as it was, and apparently still is. “For over a half century this Court [the Supreme Court] has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States (citing cases)” (357 U.S. at page 188, 78 S.Ct. at page 1074). (Emphasis supplied.) The Court then faced the question “whether the granting of temporary parole somehow effects a change in the alien’s legal status.” Specifically construing the language of the very section here involved (section 212(d) (5)), the Supreme Court said “Petitioner’s concept of the effect of parole certainly finds no support in this statutory language” (357 U.S. at page 188, 78 S.Ct. at page 1074).
The majority argues that the fact that the relator was paroled into this country at the behest of the executive department makes this case different or “sui generis.” But all parolees by definition are given that status only through the exercise of the executive department’s discretion or its “invitation,” to use the terminology of the majority. The parole here was granted pursuant to the same statutory authorization as in Leng May Ma, supra, and is no different in principle than the one involved in that case where the Supreme Court showed its consciousness of this situation by noting that “The parole of aliens seeking admission is simply a device through which needless confinement is avoided while administrative proceedings are conducted. It was never intended to affect an alien’s status, and to hold that petitioner’s parole placed her legally ‘within the United States’ is inconsistent with the congressional mandate, the administrative concept of parole, and the decisions of this Court” (357 U.S. at page 190, 78 S.Ct. at page 1075).
In my opinion, the majority in not hesitating “to take that forward step” namely, to hold “that aliens [such as relator here] as well as citizens are entitled to the protection of procedural due process in deportation proceedings so as to include within the protected class of persons parolees who have come to the United States as have the Hungarian refugees of whom appellant is merely one of thousands * * * ” has undertaken (1) to override the enactments and intent of Congress; (2) to substitute its judgment for the opinion of the Executive branch of Government; ánd (3) to overrule the long line of consistent decisions of the Supreme Court on this very subject. The effect of the decision is to remove such aliens from the parole of the Attorney General and without Congressional sanction to place it in the courts.
The creation and administration of international policies including the admission of citizens of other lands to our shores has been vested in the legislative and executive branches of the Government. Wisely so. Chaos would result were international policy to be set ad hoe by individual courts throughout the country. Even eventual decision by the Supreme Court might be in conflict with executive policies in international affairs.
In summary, the law is clear both in statute and decision. Relator, as a parolee, in law, has not as yet been admitted. The facts are equally clear. He was admitted “temporarily” and “on parole.” The generous gesture of the President brought him here. However, even the Chief Executive lacks the power to annul the laws passed by Congress regulating admission to this country. Thus, for example, the President could not lawfully declare that thousands of aliens could be received as citizens without visas and without complying with the existing laws prerequisite to citizenship. *620The President recognized this lack of power when he requested Congressional action to clarify or legitimize the situation of these very refugees.
The majority holds that a hearing in this case is a constitutional necessity to assure “that the discretion of the Attorney General shall be exercised against a background of facts contested in the open.” But is this not merely stating that the courts are to determine how the Attorney General should exercise his discretion and to take onto themselves the power to fix the standards for such exercise, a function which is and should be vested in Congress? Thus under the new law (H.R.11033) Congress requires a Hungarian refugee to meet all the qualifications for admission listed in 8 U.S.C.A. § 1182, and renders ineligible for admission any refugee who, like Paktorovics, allegedly has been a voluntary member of the Communistic Party in 1954 (8 U.S.C.A. § 1182(a) (28)). If the existing statutory criteria have continuously applied to Paktorovics and the other Hungarian refugees and are now governing the outcome of the hearing said by the majority to be Pak-torovics’ constitutional right, it was unnecessary for Congress to enact the recent legislation. Moreover, any restriction of the benefits of the Act to refugees who have been in this country for two years or more under the rationale of the majority might well be unconstitutional. Furthermore, under the majority’s rationale it is difficult to envisage a situation in which a hearing will not turn the proceeding even farther into the exclusive custody of the courts and away from the officer designated by Congress.
The sympathy expressed by the majority for the plight of the Hungarian refugees must be universal amongst freedom-loving peoples. This thought is well expressed in the dissent in Leng May Ma, supra. Were a law enacted that no one against his will be returned to a communist governed country, it would undoubtedly reflect national opinion. If persons presently espousing the communist philosophy not only can remain but participate without restriction in our national life and institutions, why should not those who have risked much to come here not remain ? If there be spies whose presence would be dangerous, our agencies charged with prosecuting enemies of the country can deal appropriately with such cases. However, would it not be more fitting and just to give equal treatment to nationals of all nations and races? This court had no difficulty in following the laws to the extent of honoring the opinion of the Immigration Department and affirming an order directing the exclusion and the deportation to China of four young men who claimed that return meant physical persecution and probable death.2 Yet these young men had been here and participated in our economic life much longer than the relator. When, as, and if the Supreme Court decides, as the majority here, that the Hungarian refugees are “sui generis,” it will not be of much comfort (if any) to Leng May Ma or the other Chinese whose deportation has been ordered.
The very reason which moves so many aliens to seek our citizenship is the success in the preservation of the various important freedoms which this nation has had under its Constitution with its division of powers between the Legislative, Executive and Judicial branches. Anomalous, indeed, would it be if, to extend to aliens these advantages, we were to violate these constitutional concepts. Furthermore, as the Supreme Court so aptly pointed out in Leng May Ma to alter by decision the “parole sta*621tus, would be quite likely to prompt some curtailment of current parole policy— an intention we are reluctant to impute to the Congress.”
I, therefore, agree completely with the majority in their desire to enable the Hungarian refugees to remain in this country but must disagree that their opinion reflects authoritative law as declared by statute or by decision — at least at the present moment.
The trial court in an able and, in my opinion, accurate analysis of the law has concluded that there has been “no manifest abuse of discretion” by the Commissioner and that the writ of habeas corpus be dismissed. I would affirm that decision.
. Message from the President of the United States to the Congress, January 13, 1957, 103 Cong.Rec. 1355.
. United States ex rel. Due Chow Yee v. Shaughnessy, 2 Cir., 1957, 245 F.2d 874, affirming D.C., 146 F.Supp. 3; Dong Wing Ott v. Shaughnessy, 2 Cir., 1957, 245 F.2d 875, affirming D.C., 142 F.Supp. 379. Both of these decisions were reaffirmed in a rehearing (247 F.2d 769) in which this court explicitly rejected the decision of the District of Columbia Circuit in Quan v. Brownell, 1957, 101 U.S.App.D.C. 229, 248 F.2d 89, reversed sub nom. Rogers v. Quan, supra.