(dissenting).
I do not see how this decision can stand in the face of McGrath v. Kristensen, 340 U.S. 162, 169-171, 71 S.Ct. 224, 226, 95 L.Ed. 173. I think the majority opinion fails to note just what it was that the Special Inquiry Officer and the Board of Immigration Appeals determined. The Special Inquiry Officer never got around to consider whether the discretionary power would or would not be exercised. Rather, his decision was that appellant was ineligible for suspension or voluntary departure, as a person not of good moral character. The Special Inquiry Officer’s formal findings, labeled as such, refer to nothing but appellant’s deportability. They do not even mention discretionary relief. If those findings were the only ones made here the decision would have to be set aside for failure to pass upon the question before the Special Inquiry Officer, namely, whether suspension or voluntary departure should be granted. To make the officer’s decision meaningful, it must be read as a whole, including the opinion, where he said: “In view of all the facts and circumstances, I can only conclude that the respondent is wholly ineligible for any type of discretionary relief and should be deported and shall so order.” (Emphasis mine.)
Indeed, the whole matter was reopened for the sole purpose of passing upon appellant’s eligibility. The order read: “It is further ordered that the proceedings be reopened in order to determine the respondent’s eligibility for discretionary relief in view of new and important evidence now contained in the file.” (Emphasis mine) The Board of Immigration Appeals so read the decision when they affirmed it. Reference to their decision shows that they treated the Special Officer’s opinion as the real decision.1
*714Thus it is apparent that this case precisely parallels the Kristensen case, supra. There the question decided by the Attorney General was that the alien was ineligible for discretionary relief because he was not eligible for naturalization.2 The Court said: “Where an official’s authority to act depends upon the status of the person affected, in this case eligibility for citizenship, that status, when in dispute, may be determined by a declaratory judgment proceeding after the exhaustion of administrative remedies. Under § 19(c) of the Immigration Act the exercise of the Attorney General’s appropriate discretion in suspending deportation is prohibited in the case of aliens ineligible for citizenship. The alien is determined to have a proscribed status by this administrative ruling of ineligibility. Since the administrative determination is final, the alien can remove the bar to consideration of suspension only by a judicial determination of his eligibility for citizenship. This is an actual controversy between the alien and immigration officials over the legal right of the alien to be considered for suspension. As such a controversy over federal laws, it is within the jurisdiction of federal courts, 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, and the terms of the Declaratory Judgment Act, 28 U.S.C. § 2201, 28 U.S.C.A. § 2201.”
If we substitute in the above quotation the words “eligibility for discretionary relief” for the words “eligibility for citizenship”, we have this case precisely. Such a determination of status is reviewable for the reasons stated in Brownell v. We Shung, 352 U.S. 180, 185, 77 S.Ct. 252, 256, 1 L.Ed.2d 225: “ ‘Exemptions from the * * * Administrative Procedure Act are not lightly to be presumed,’ Marcello v. Bonds, 1955, 349 U.S. 302, 310, 75 S.Ct. 757, 762, 19 L.Ed. 1107, and unless made by clear language or supersedure the expanded mode of review granted by that Act cannot be modified.”
It is manifest from the record here that there is plenty of room for different fact conclusions upon a review of the officer’s decision. The explanation which the appellant gave for his ignorance of the marriage record was entirely understandable and it is confirmed by everything else in the record including the decree of the Italian court which in turn was based upon a confirmation of his story by the woman, Elly Porg, who appeared before that court to corroborate the appellant’s account that the signature on the document which turned out to be a marriage contract and which was written in German which he did not understand, had been affixed by him with the understanding that it was an application for additional food rations. Out of the blue sky, and, it seems to me, without basis, the hearing officer pulled a finding that his story was incredible.
Personally, I would doubt that a trial judge on a review of this order would find the appellant’s story incredible. More fantastic experiences of escaping soldiers during the late war have been checked and verified. At any rate, the purpose of the provision for review is to subject fact determinations as important as this one to review by a judge. That is what the Administrative Procedure Act is for.
I think the case should be remanded to the court below for the purpose of giving appellant the review of this finding to which he is entitled. If the trial court then finds appellant not ineligible for voluntary departure, the determina*715tion of ineligibility must be set aside, As in the case of United States ex rel. Zacharias v. Shaughnessy, 2 Cir., 221 F.2d 578, since appellant had initiated these proceedings, even before the 1952 Act, he would then be entitled to a new hearing for the exercise of discretion by the Board of Immigration Appeals.
I agree with what Judge Byrne said in Acosta v. Landon, D.C., 125 F.Supp. 434, 441: “In other words, according to the Board, whenever an alien is found to be deportable, suspension of deportation should not be granted if at his hearing the alien gave testimony contrary to what the administrative officials found to be true. The reasoning apparently is that a witness whose testimony is not accepted by the trier of fact is a perjurer and not a person of good moral character. Such reasoning is not only legally invalid, but it is contrary to the basic sense of fairness upon which our legal system is founded.
* * * * * *
“The courts may not suspend the deportation of a deportable alien as that discretionary power is vested solely in the Attorney General, 8 U.S.C.A. § 1254. However, when the Attorney General is required as a condition precedent to an order of deportation to exercise his discretion with respect to the suspension of deportation, the validity of the order must rest upon the needed exercise of discretion. If it is lacking, the order is ineffective.” 3
That case is interesting for another reason. It is an illustration of the manner in which district courts, reviewing orders of administrative bodies, properly reject the latters’ findings when the court is satisfied that they are “unsupported by substantial evidence” within the meaning of Sec. 10(e) of the Administrative Procedure Act (Title 5 Sec. 1009-(e)).
Another case where a district judge substituted his own judgment on the facts was Bonica v. Olesen, D.C., 126 F.Supp. 398. Cf. Securities and Exchange Commission v. Cogan, 9 Cir., 201 F.2d 78, 86: “[W]e think it manifest that the district judge knew more about the subject in hand than did the Commission.” See also; Jaffe, “Judicial Review: Questions of Fact,” 69 Harv.L.Rev. 1020, at 1032: “It would seem that the purpose of the ‘whole record’ test is to limit the opportunity for transmuting a preconception into judgment by picking and choosing what will support that preconception and willfully ignoring whatever weighs against it. Thus, even on a credibility issue we should probably not tolerate the intuitive ‘hunch’ where the record evidence overwhelmingly points to the contrary. The ‘hunch’ may of course be honest and it may be right. But it may equally mask the sheer determination to *716find a certain way, and thus substitute the will of a man for the ‘reason’ of law.”
Deportation is serious business. It may result in the loss “of all that makes life worth living.” Bridges v. Wixon, 326 U.S. 135; 147, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103. And the man entitled to have a review in court should not be denied it.
. Interestingly, tbe majority opinion contains statements consistent with my view of what was decided. Says the majority, *714(10th paragraph of the opinion): “ * * the only issues determined by the Special Inquiry Officer during the administrative hearings in this case were the issues of appellant’s deportability and eligibility for discretionary relief. * * ”
. “Review was granted by this Court to determine whether the Attorney General was justified in refusing to suspend deportation of an alien under § 19(c) as amended, 62 Stat. 1206, of the Immigration Act of 1917, 39 Stat. 874, 889, 8 U.S.C. §§ 101, 155(c) on the sole ground that the alien was ineligible for naturalization.” 340 U.S. at page 163, 71 S.Ct. at page 226.
. Said Judge Byrne: “It is difficult to understand how the inquiry officer could find that the deportation of this alien * * * would not result in exceptional and extremely unusual hardship.” (In Mar Gong v. Brownell, 9 Cir., 209 F.2d 448, 452, are listed cases in which this court under earlier acts has rejected fact findings of immigration authorities as “purely arbitrary.”)
Indeed, if what Judge Byrne said is valid, then oven if the Special Inquiry Officer had purported to exercise a discretion to deny voluntary departure, (I have shown he did not), a reviewing court could well conclude that a discretion exercised on these grounds was an arbitrary one, — an abuse of discretion. The suggestion of the majority that a court may never interfere with the exercise of discretion by the Attorney General is not good law. Thus in Wolf v. Boyd, 9 Cir., 238 F.2d 249, 254, 257, this court expressly recognized the power of a court to review even discretionary orders “when there has been a clear abuse of discretion”, or where “the denial of discretionary relief was arbitrary”. So, in United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 638, 621, 1 L.Ed.2d 652, the court recognized this exceptional ease when it said “Nor can we say that it was abuse of discretion to withhold relief in this case. * * * ” If discretion had been exercised here, I would hold it arbitrary, and an abuse of discretion for the reasons stated by Judge Byrne. Such a decision is not called for here, for no discretion was ever exercised,