(dissenting).
I dissent because 1 think the district judge erred in refusing to hear testimony, offered by the relator, to show that the hearing before the Board was a farce.
Suppose the Supreme Court were secretly to notify all judges of inferior federal courts that in the future it would reverse all judgments they entered if favorable to certain designated persons. Accardi’s wife (in the second habeas corpus petition) asserts that we have here something of that sort — but worse. Let us see:
By a valid regulation,1 having the effect of a law,2 the Attorney General has provided that one who applies for discretionary relief under the statute shall receive a hearing before the Board of Immigration Appeals on his appeal from a decision, ad*902verse to the applicant, made by the Commissioner or Acting Commissioner. Another regulation provides that the Attorney General may review and reverse any decision made by the Board.2a, These regulations — which, while they stand, bind the Attorney General and his subordinates3 —mean, I think, that decision by the Board or the Attorney General as to the grant or refusal of such relief must not be made until after a..hearing by the Board.4 If it can be shown that, as the relator alleged in the second petition for habeas corpus, the decision adverse to discretionary relief in Accardi’s case was made by the Attorney General in 1952 before Accardi had had a Board hearing (in 1953), so that the purported Board hearing was but a sham, then it will appear that discretion has not been exercised as required by the regulation. In that event, habeas corpus should be granted, unless within a reasonable time an administrative decision is made on the basis of a Board hearing in accordance with the regulation and without regard to the pre-hearing decision by the Attorney General. See Mastrapasqua v. Shaughnessy, 2 Cir., 180 F.2d 999, 1003-1004. For while courts cannot review the exercise of administrative discretion nor themselves exercise it, they can and should compel its exercise where the officer vested with the discretion has failed to do so. Mastrapasqua v. Shaughnessy, supra, 180 F.2d at page 1002.
Relator alleged in the second habeas corpus petition that the pre-hearing decision consisted of the inclusion of Accardi’s name in a secret list of aliens whom the Attorney General had decided must be expelled from the United States, this secret list having been circulated in October 1952 among all the Attorney General’s subordinates in the Department of Justice, including the Board, and having since been approved with reference to Accardi by the present Attorney General — all previous to the administrative hearing on Accardi’s petition for discretionary relief. Relator argues, in effect, that, since the Attorney General was the Board’s superior, and since he could reverse any decision made by the Board concerning such relief,5 his issuance in 1952 of the secret list obliged the Board in 1953 to refuse to exercise its discretion in Accardi’s favor,6 and compelled it to act without considering the countervailing evidence, e. g., that Accardi has lived in the *903United States for 21 years, is the husband of a lawful resident of the United States and the father of a two-year-old American-born child. Respondent, in his traverse in the district court, denied the allegation of prejudgment. But relator’s counsel proposed in the district court to prove the contrary by evidence to be adduced in court. He proposed to prove, not only the specific facts alleged in the habeas corpus petition concerning the Attorney General’s prejudgment, but also that Accardi’s former counsel had been told by the Commissioner, “We can’t do a thing” in Accardi’s case “because the Attorney General has his name on that list.” 7 Yet the district judge refused to hear any testimony, i. e., refused to conduct a trial to determine whether relator’s allegations or respondent’s denials were true.
Obviously, we would reverse if the Board in its opinion had said: “We deny relief because the Attorney General has already decided, previous to the application for relief, that Accardi is not to receive any discretionary relief.” So the crucial question here is whether relator had a right to prove, by evidence outside the record, that in truth such was the ground of the Board’s action. My colleagues, accepting the district judge’s view, take this position: Even if it is a fact that Accardi’s application for relief was unlawfully prejudged by the Attorney General so that the Board’s hearing was a pure pretense, nevertheless no court can pay any attention to that fact. Why? Because, so my colleagues maintain, (1) the record of the administrative hearing and the opinion of the Board contain no reference to the Attorney General’s list, and, on their face, disclose nothing to indicate any irregularity; (2) the courts lack power to go behind such an administrative record; (3) relator’s allegations as to the Attorney General’s prejudgment are “on information and belief.”
I cannot agree. Respondent’s “nice, sharp quillets of the law” should not take us in. There is no doctrine that a court may never go outside such an official record to discover whether an official himself unlawfully acted on matters outside the record. Having served for a considerable period as an administrative officer, I am fairly callous to the cries of men who denounce all such officers as power-hungry bureaucrats, and I am perhaps unusually aware of the danger to the workings of government if any administrative officer could be dragged into court, to stand trial, on a mere suspicion of impropriety behind the scenes. However, there would be greater danger to democratic government in judicial acceptance of every administrative record as final and invulnerable, no matter how grave and serious the charges against the official.
While ordinarily a court must confine itself to the administrative record,8 there are exceptions. Even a court’s judgment, valid so far as the judicial record goes, will he vacated years later if it be then proved, by evidence entirely beyond the bounds of the record, to have been procured by bribery of a judge. Root Refining Co. v. Universal Products Oil Co., 3 Cir., 169 F.2d 514. And the same doctrine applies if the judgment resulted from what amounts to a judge’s decision of a case made before it began.9 Ours would be a sorry legal system if it completely shielded from attack a judge’s or other official’s order simply because the facts revealing its illegality are not in the official record on which the order purports to rest. To confer such immunity would be to make legality a matter of sheer ritualism, of mere outward looks. That way lies tyranny.
*904My colleagues say that “there is absolutely nothing in the record to indicate that the administrative officials considered anything outside the record.” But the same was true in the Root Refining case, L e., the record was obviously silent as to the bribery of the judge which brought about the decision, since necessarily that was a secret fact — in that respect like the Attorney General’s list. Moreover, relief by habeas corpus inherently involves judicial reliance on facts not in the record supporting the judgment which habeas corpus collaterally attacks.9a
Of course, an attack on an official’s decision, by recourse to off-the-record evidence, is not allowed if the allegations are vague: Legality should be more than well-ordered paper work, but allowable peering behind the paper facade has its limits. One may not compel an official to submit to courtroom interrogation in the search for possible concealed, unlawful behavior, unless one first brings forward some striking traces of it. As a consequence, well-concealed misconduct may escape judicial correction.10 That is the price we pay to avoid having governmental action at the mercy of anyone who voices mere suspicions. For instance, to open up the judgment in the Root Refining case, it would not have sufficed to allege, without more, “The judge was bribed.” There must be an offer to prove specific facts which will pretty plainly impugn the official record. Relator here satisfied that requirement: Not only did she offer proof of the Attorney General’s list — a secret, official document of marked evidentiary significance tending strongly to show that the Attorney General had stripped the Board of discretion in Accardi’s case — but she also offered to prove that the Commissioner of Immigration had said to Accardi’s counsel that such was the purpose and effect of including. Accardi’s name in that list.
Finally, I disagree with my colleagues when they say that no attention may be paid to the allegation of secret prejudgment by the Attorney General because it is made on information and belief. Surely we would not refuse to act in a case like Root Refining on a sufficiently specific charge that a judge had been bribed to decide the case, merely because the facts, necessarily not within the first-hand knowledge of the party so charging, were stated on such information and belief. In a variety of circumstances, it has been held that such an allegation suffices where, as here, the asserted facts are thus not within affiant’s personal knowledge.10® I think the district court should be directed to afford relator an opportunity to prove those facts, just as in the Root Refining case the Supreme Court ordered a trial of the movant’s charge of bribery11 I do not for a moment intimate that relator’s allegations are true; I urge only that we ought not now assume that they are false. It will not do, I think, to hold it enough that the outside of the administrative cup is clean.12
. 8 C.F.R. (1949 ed. Pocket Part.) §§ 150.7(a), (b), 150.11(b), 150.13(b), and Part 151, esp. §§ 151.2(c), 151.3(e), 151.5(e); note infra.
. See, e.g., Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846; Mastrapasqua v. Shaughnessy, 2 Cir., 180 F.2d 999,1001.
. 8 C.F.R. (1949 ed.) §§ 90.3, 90.12; cf. 8 C.F.R. (Rev. ed. 1952) § 1.2.
. See, e.g., Bridges v. Wixon, 326 U.S. 135, 153, 65 S.Ct. 1443, 89 L.Ed. 2103.
. Cf. Alexiou v. McGrath, D.C., 101 F. Supp. 421.
. See note 2a, supra.
. Pertinent allegations of the petition were:
“12. Upon information and belief that on or about October 2, 1952, the Attorney General announced at a presé conference that he planned to deport certain so-called ‘unsavory characters.’
“13. That upon information and belief, on or about October 2, 1952, the Attorney General prepared a list of one hundred individuals whose deportation he sought in accordance with the announcement made at his press conference of October 2, 1952.
“14. Upon information and belief, that included in this list of one hundred persons was the name of my husband, Joseph Accardi.
“15. Upon information and belief, that the aforesaid list of one hundred individuals, including the name of my husband, was circulated by the Department of Justice among all its employees connected with the Immigration Service and the Board of Immigration Appeals.
“16. Upon information and belief, that because of the listing of my husband’s name on this confidential list and because of consideration of matters outside the record of his immigration hearing, discretionary relief has been denied to permit my husband to adjust his immigration status to that of a permanent resident. * * *
“19. That the decision to deny favorable discretionary relief herein was prejudged by the Attorney General on October 2, 1952, when he included my husband’s name in the list of one hundred so-called ‘unsavory characters’ and since that time it has been impossible for my husband to secure fair consideration of his case.
“20. That the present Attorney General has continued the policies and practices of his predecessor with reference to my husband’s case.”
. Relator’s counsel, on the hearing of the petition, said he understood “that former counsel in this case spoke to the Commissioner and the Commissioner told him, ‘We can’t do a thing in your case because the Attorney General has his name on that list of a hundred.’ ”
. United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429; Chicago, B. & Q. R. Co. v. Babcock, 204 U.S. 585, 588, 593, 27 S.Ct. 326, 51 L.Ed. 636; Fayerweather v. Ritch, 195 U.S. 276, 306-307, 25 S.Ct. 58, 49 L.Ed. 193.
. See Schwab v. Coleman, 4 Cir., 145 F.2d 672, 156 A.L.R. 355.
. See Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543.
. See, e.g., Broadcast Music v. Havana Madrid Restaurant Corp., 2 Cir., 175 F.2d 77, 80.
a. See, e.g., Berger v. United States, 255 U.S. 22, 34-35, 41 S.Ct. 230, 65 L.Ed. 481; Kelly v. United States, 9 Cir., 250 F. 947, 948-949; Creckmore v. United States, 8 Cir., 237 F. 743.
. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 90 L.Ed. 1447.
. “For ye make clean the outside of the cup and platter, but within they are full of extortion and excess.” Matt. 23, 25.