concurring in the result in part and dissenting in part:
I agree with the majority in reversing the decision of the district court, understandable as that decision was in the light of Yiu Sing Chun v. Sava, 708 F.2d 869 (2 Cir.1983). Were it not for Chun, a few sentences would suffice to reach the conclusion at which the majority’s lengthy analysis has arrived. I concur only in the result because, with all respect, I have serious doubts whether Chun was rightly decided and believe we should reconsider it as the Government has asked us to do in the event we felt compelled to apply it here, rather than make what seems to me an unconvincing attempt to distinguish it.
Without going into detail, I cannot accept what appears to be the basic assumption of Chun, namely, that a stowaway who has already had the opportunity to apply for asylum with the District Director under 8 C.F.R. § 208.1 to .8, is entitled, under 8 C.F.R. § 208.9, to renew his asylum request “before an immigration judge in exclusion or deportation proceedings,” when such proceedings with respect to stowaways are banned by 8 U.S.C. § 1323(d). While the result of today’s decision avoids extending Chun to security risk cases, I would have preferred to make a fresh start, including en banc procedures if these proved to be necessary. However, some other court of appeals will doubtless have an opportunity to decide the point determined by us in Chun in light of the decision of the Board of Immigration Appeals not to consider Chun as a controlling precedent outside the Second Circuit. See In re Waldei, Interim Decision No. 2981, at 6 (BIA, Oct. 30, 1984).
The point of my dissent is as follows: The majority opinion instructs the district court to remand to the INS for an explicit finding under § 235(c) procedures as to whether Azzouka presents a danger to the security of the United States. This implies that the remand shall be to the Regional Commissioner rather than the District Director. I think that it should be to the latter and that no reference should be made to § 235(c). The only defect in the INS proceedings was that the District Director in the asylum proceeding relied on the Regional Commissioner’s finding, under the summary exclusion procedures of § 235(c), that Azzouka fell within the broader language of § 212(a)(27),1 as conclusive on Azzouka’s being “a danger to the security of the United States,” and thus improperly held that he was deprived of discretion to grant asylum under 8 C.F.R. § 208.8(f)(l)(vi). While this may be a reason for reopening the asylum proceeding before the District Director, despite the provision in 8 C.F.R. § 208.8(c) that no appeal shall lie from his decision, see Garcia v. Smith, 674 F.2d 838 (11 Cir.) (seemingly holding that district court has jurisdiction to review, on habeas corpus under 8 U.S.C. § 1105a(b), the District Director’s decision to deny asylum to alien stowaway), rehearing denied & opinion modified, 680 F.2d 1327 (1982), I see no basis for requiring further proceedings before the Regional Commissioner under § 235(c) when he has already properly discharged his duties under that provision.
. "Aliens who the consular office or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States[.]’’