(dissenting).
We have repeatedly held that where there has been an exercise of discretion under this statute there can be no judicial review. United States ex rel. Weddeke v. Watkins, 2 Cir., 166 F.2d 369, certiorari denied, 333 U.S. 876, 68 S.Ct. 904, 92 L.Ed. 1152; United States ex rel. Walther v. District Director, 2 Cir., 175 F.2d 693; United States ex rel. Sleddens v. Shaughnessy, 2 Cir., 177 F.2d 363. In this instance, the appellant has been the beneficiary of *1010favorable discretionary action, in that he was given ample opportunity to depart voluntarily despite the admittedly valid order for his deportation.
It seems to me that what has been done for him conclusively shows that discretion has been exercised and that my brothers are actually, and mistakenly, reviewing that exercise by holding that the reason given for denying the appellant further relief from the deportation order is not good enough. I can only say, with deference, that if there is any distinction between reviewing an exercise of discretion and reviewing the reasons given for taking, or denying, such action it is one without substance. I put aside any instance where the stated reason for refusing favorable discretionary action, or that which is as favorable as desired by the appellant, is palpably irrelevant and arbitrary, both because such a situation is not here presented and because it is unlikely that responsible officers of the government would perform their duties with so light a touch. In any event that problem can be dealt with if and when it arises.
Here the denial of the greater relief sought was based on a supposedly similar denial by the Attorney General in a supposedly similar situation. This record shows no more on that score. But if we may, whioh I doubt, go outside this record to take notice of the facts and the disclosed reasons for the Attorney General’s denial in the other instance, we find that he gave no reasons. Yet it is assumed that he then adopted a classification made by someone else. Even on that assumption he, then, and the Board in this instance, but gave effect to a policy of denying the favor of pre-departure examination to those aliens who had been able, or been compelled, to remain in this country for the statutory period because of conditions attributable to the war. Judges should not offhandedly —without any showing that there are no administrative, or other, conditions which may make such a classification not only reasonable but, perhaps, practically necessary — hold it to be so capricious that its application amounts to a reviewable failure to exercise discretion at all. See, U.S. ex rel. Kaloudis v. Shaughnessy, 2 Cir., 180 F.2d 489.
I would affirm the order.