(dissenting).
After the statutory provision here in issue was added to 8 U.S.C. § 156 by amendment in 1950, this court construed it to require that “before the appellant can be deported, the Attorney General * * * must find that he will not be subjected to physical persecution in the country to which he is to be sent.” U. S. ex rel. Harisiades v. Shaughnessy, 2 Cir., 187 F.2d 137, 142, affirmed Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512. In so stating, I believe the court was making a reasonable interpretation of the statutory mandate— an interpretation also reached by several district judges.1 The requirement of a definite finding for certain action implies deliberation and quasi-judicial adjudication, rather than mere refusal to think or act; rationally it suggests that contrary action should be based on a contrary finding. This logical conclusion is here strengthened by the obvious Congressional intent to ameliorate the potentially tragic consequences which may attend deportation to certain countries. The construction claimed by the government makes a cruel hoax of the announced relief. The Attorney-General or his representatives may sit back and do nothing; they need not give even the consideration necessary to say, “We are not convinced” — and the statutory provision becomes nugatory. In argument to us, that *292contention was actually made; it was said that this provision was in no way for the benefit of the deportee, but was only protection to the government officer in his performance of 'merely administrative and ministerial functions. But so restrictive a function seems quite inconsistent with the structure of the section (which also gives a choice to the alien if he can get a country to recognize it). And to say that such an interpretation is inhumane is an understatement. The opinion herewith does not explicitly adopt this rationale; but it unfortunately seems the natural deduction from my brothers’ decision.
If I am correct, the finding here in question is inadequate, since it is carefully negative in form. In view of the precise language used with obvious circumspection, I do not believe it possible to read it as constituting the finding 'I deem necessary. Hence I would reverse without getting to the question of the amount of evidence needed or the extent of the Attorney-General’s discretion in evaluating testimony. But I think some reference may be made to the showing on behalf of the alien as bearing upon the failure of the government officer to make a finding; for conceivably no finding may be necessary where no case is made for the alien. Here I am bound to say that I think a rather persuasive case is made not only by the alien’s own testimony, but by that of two apparently intelligent expert witnesses — one formerly in the Tito government, now professor of Modern European History in New Jersey, the other Dean of the Serbian Cathedral of St. Sava in New York City. I suggest that reading this record — containing nothing to challenge the alien’s contention — hardly any of us would doubt the fate awaiting this renegade Communist if returned to the Communist country where he had joined the party as a boy.
I recognize that the area in which an alien can seek judicial relief and does not remain subject to the unreviewable and uncontrollable doom of a governmental official is being steadily narrowed by Congress, which has the responsibility, and that judges must obey the declarations of governmental policy made by the legislative body. But I think we ought not to rush ahead of Congressional intent. I am impressed by the wisdom of a distinguished American lawyer, who finds that courts (as well as other bodies governmental and lay) have not been thus hesitant — in this among other crucial areas — and who gives this measured conclusion:
“May it not well be that the greatest danger to our institutions lies not in the threats of' foreigners but in our own weakness in yielding to emotion and our increasing readiness to- minimize and disregard the fundamental rights of the individual? What is needed is a resurgence of the moral principles upon which our greatness was built. Thus the right to a fair hearing involves a moral principle recognized long before the adoption of the Constitution. It has become a legal right because it was first recognized as a moral right, and the age-old test remains unchanged — the test of ‘what is fair between man and man.’ ” John Lord O’Brian, New Encroachments on Individual Freedom, 66 Harv.L.Rev. 1, 26, 1952.
I would reverse.
. See Sang Ryup Park v. Barber, D.C.N. D.Cal, 107 F.Supp. 603; Id., D.C., 107 F.Supp. 605; United States ex rel. Chen Ping Zee v. Shaughnessy, D.C.S.D.N.Y., 107 F.Supp. 607; and United States ex rel. Watts v. Shaughnessy, D.C.S.D.N. Y., 107 F.Supp. 613.