(dissenting).
Natural abhorrence for any governmental discrimination on account of race, religion or political opinion inclines one to concur with the majority. Adherence, however, to the well recognized doctrine that in the field of immigration and nationality, Congress has vested the executive branch of the Government with wide discretionary powers and that the scope of judicial review is closely circumscribed,1 compels me to dissent.
The majority holds that the Attorney General through his Special Inquiry Officer erroneously interpreted the phrase “physical persecution” when the report of the latter was adopted, wherein he said, “The fact that the applicant might be denied employment for church membership or for failure to join the Communist Party is likewise not within the import of the term ‘physical persecu<tion’.” The majority finds that the Attorney General thereby overlooked the economic reality that “(t)he denial of an opportunity to earn a livelihood in the country such as the one involved here is the equivalent of a sentence to death by means of slow starvation and none the less final because it is gradual.”
The sentence quoted from the report of the Special Inquiry Officer, however, must be read in its context. The Officer was analyzing all of the.testimony in the case in its reflection of the claimed physical persecution in three aspects. He said:
“An analysis of all the testimony in this case reflects that the claim of physical persecution has a three-fold aspect. First, the applicant fears loss of ability to obtain work and imprisonment because he jumped ship. Such a possible punishment is not *750the physical persecution contemplated by the statute. Physical persecution contemplates incarceration or subjection to corporal punishment, torture, or death based usually on one’s race, religion or political opinion. Conviction followed by imprisonment for crimes cognizable as such under generally recognized civilized juridical systems, is not physical persecution.
“Second, he alleges that he would be unable to obtain employment in Yugoslavia. As to this it might be stated that economic sanctions applied against those who are not members of the controlling clique in a country whose economic system is completely and rigidly state-controlled is not physical persecution. Therefore, there remains only for consideration the applicant’s claim that he might be jailed because of the refusal of his family to join the Communist Party following requests upon him on board ship to do so. On the question of freedom of worship one item of evidence must not be overlooked and that is the testimony of the pastor who was a witness for the applicant that the Communists cannot stamp out the Catholic Church and that Catholics will and do find ways to worship even though they may be deprived of the ability to earn a living because of that.
“It would appear established from various sources that the government of Yugoslavia is dominated and controlled by the Communist Party of that country and that the economic and political philosophy of the country differs only in degree from that followed in the USSR and its satellite countries. Advancement in almost any line of activity is, with few exceptions, limited to Party members. The basic freedom to criticize, as we know and enjoy it, does not exist in Yugoslavia. On the other hand churches throughout the country are open for public worship and religious assembly and they are being maintained, obviously with government permission, if not with its approval and support. The applicant’s family has not been physically persecuted, within the meaning of that term, merely because his wife and two sons go to church, even though it should be established that they are denied certain types of employment. The fact that the applicant might be denied employment for church membership or for failure to join the Communist Party is likewise not within the import of the term ‘physical persecution’. The applicant claims he may be jailed for failure to join the Communist Party pursuant to requests to do so while on board ship. It is clear, however, that he has returned to Yugoslavia on occasions after refusing to join the Communist Party prior to his last refusal and he was not imprisoned for it. His present statement that he feels he would be persecuted at this time is unsupported. He was not jailed before but was free to continue his calling as a crewman.
“From, all of the testimony, as discussed above, it is believed that the applicant has failed to establish that he would be physically persecuted, as that term is contemplated in Section 243(h) of the Immigration and Nationality Act, if he were to return to Yugoslavia.” (Emphasis supplied.) Report and Recommendation of Special Inquiry Officer, August 12, 1958.
It should be noted that it is the Regional Commissioner to whom the Attorney General has delegated the power to withhold deportation under § 243(h), 8 U.S.C. A. § 1253(h).2
*751The Regional Commissioner for the Southeast Region of the Immigration and Naturalization Service, in making his determination to deny appellant’s application, commented as follows:
“On October 31, 1956, pending receipt of official information which could assist in resolving the issues presented in such cases as this, other Yugoslav nationals in similar circumstances were granted a stay of deportation until January 1, 1958.3
“I have carefully reviewed the transcript of the interrogation of the applicant, the evidence he has submitted for consideration, the findings and recommendations in the matter of the Special Inquiry Officer; and the representations made by the applicant’s counsel.
“I have also considered all the reliable additional information made available to me through official government channels, pertinent to the proper disposition of this application.
“Upon consideration of all the pertinent information at hand, there are, in my opinion, insufficient grounds to support a finding that the applicant would be subject to physical persecution if deported to Yugoslavia; therefore, his deportation should not be withheld under Section 243(h) of the Immigration and Nationality Act.” (Emphasis supplied.) Order Denying Application under § 243(h) of August 20, 1958.
Subsequently the proceedings were reopened at the request of the appellant for the introduction of additional testimony before the same Special Inquiry Officer. He reported upon the additional evidence and reiterated his recommendation that the application should be denied. The report and recommendation came before a successor Regional Commissioner who denied the application in the following language:
“An interrogation on the application for withholding of deportation was conducted at Philadelphia, Penna., on August 11, 1958. The Special Inquiry Officer who conducted the interrogation recommended that the application be denied. The Regional Commissioner concurred in this recommendation, and on August 20, 1958 ordered that the application for withholding of deportation be denied. .
“Upon motion of Counsel the interrogation was ordered reopened by the Regional Commissioner on November 19, 1959 to permit the introduction of additional evidence. The reopened interrogation was conducted in Philadelphia, Penna., on January 5, 1960. The Special Inquiry Officer who conducted the reopened interrogation has recommended that the application be denied.
*752“The additional evidence which was submitted at the reopened interrogation has been adequately discussed in the recommendation of the Special Inquiry Officer, and has been carefully reviewed and considered. It is my opinion that the applicant has failed to establish that he would be subject to physical persecution if he returned to Yugoslavia.
“The findings and the recommendations of the Special Inquiry Officer will be approved, and stay of deportation will be denied.” Order denying stay of deportation of February 26, 1960.
The majority ignores the findings of the Regional Commissioner as a whole and places too heavy an emphasis upon the single sentence in the report of the Special Inquiry Officer — “The fact that the applicant might be denied employment for church membership or for failure to join the Communist Party is likewise not within the import of the term ‘physical persecution’. ” Particularly that sentence must be read with the one preceding it — “The applicant’s family has not been physically persecuted, within the meaning of that term, merely because his wife and two sons go to church, even though it should be established that they are denied certain types of employment." (Emphasis supplied.) When so read the words “might be denied employment” in the offending sentence are similarly restricted to “certain types of employment”.
It is true that the evidence offered by appellant to the Special Inquiry Officer was to the effect that economic sanctions were leveled at those who adhered to the Catholic faith and declined membership in the Communist Party by precluding them from holding government jobs. Granted that most employment in Yugoslavia is governmentally controlled there is nothing in the evidence to support the conclusion that Catholics and political dissenters were precluded from all forms of employment and that it must necessarily follow that they slowly starve to death. Of course if this were so it would indeed constitute “physical persecution”. But apparently the Attorney General was not so persuaded from the evidence offered by the appellant as he weighed it against the information that was available to him.4
Only in the Attorney General did Congress vest the power under § 243(h) of the Immigration and Nationality Act to stay a valid order of deportation when in his opinion that deportation would sub*753ject an alien to physical persecution. That power was substantially broadened in the 1952 Immigration and Nationality Act.5 Here, ample, even generous, opportunity was granted appellant to place his application for stay before the Attorney General and it was given consideration in accordance with the statute and the regulation thereunder. Procedural due process and a fair consideration of his application was accorded to him, for the lack of which, only, is court intervention permissible.
In proceedings involving applications for suspension of deportation under § 244(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1254(a), certainly more formal and prescribed, than those now under review, it has been held that the Attorney General’s power to grant or deny suspension is a dispensing-power, a matter of grace not right, comparable to the power of a judge to suspend the execution of a sentence or the President to pardon a convict.6
1 cannot agree with the majority that the failure to grant the stay of deportation was arbitrary and capricious in view of the evidence presented by the appellant, the information available to the Attorney General and the discretion vested in him by Congress. On the contrary I am convinced that he acted well within the power vested in him and that a reversal of his decision substitutes the judgment of the court for his opinion.
1 would affirm the judgment and order of the district court.
On Reargument.
Before BIGGS, Chief Judge, and Goodrich, McLaughlin, kalodNER, STALEY, HASTIE, GANEY and SMITH, Circuit Judges. PER CURIAM.Four members of the court agree fully with the views expressed by the majority of the panel which first heard this case; four do not. However, all of us agree, contrary to what seems to have been the position of the Attorney General during administrative consideration of this case, that economic proscription so severe as to deprive a person of all means of earning a livelihood may amount to physical persecution. On reargument this position was conceded by the government.
In the circumstances we all agree that the judgment of the district court must be reversed, deportation stayed, and the cause remanded to the Attorney General. However, the Attorney General will be free, as indicated in the opinion on first argument, to reopen the case for further consideration based upon additional evidence and information not heretofore considered.
It will be so ordered.
. United States ex rel. Leong Choy Moon v. Shaughnessy, 2 Cir., 1954, 218 F.2d 316, 318; Chao-Ling Wang v. Pilliod, 7 Cir., 1960, 285 F.2d 517; Blazina v. Bouchard, 3 Cir., 1961, 286 F.2d 507.
. The pertinent administrative regulation reads in part:
“(2) If the request for a stay of deportation is predicated upon a claim by the alien that he would be subject to physical persecution if deported to the country designated by the Service, he shall be requested, upon notice, to appear *751before a special inquiry officer for interrogation under oath. The alien may liave present with him, at Ms own expense, during the interrogation any attorney or representative authorized to practice before the Service. The alien may submit any evidence in support of his claim which he believes should be considered by the special inquiry officer. Upon completion of the interrogation, the special inquiry officer shall prepare a written memorandum of his findings and a recommendation which shall be forwarded to the regional commissioner, together with all the evidence and information submitted by the alien or which may be applicable to the case.”
* * * * •
“The decision whether to withhold deportation and, if so, for what period of time shall be finally made by the regional commissioner upon consideration of all the evidence submitted by the alien and any other pertinent evidence or available information.” 8 C.F.R. 243.3(b) (2) ; Chao-Ling Wang v. Pilliod, 7 Cir., 1960, 285 F.2d 517.
. See The Matter of Kale, A9 555 532, decided by the Assistant Commissioner of the Enforcement Division of the Immigration and Naturalization Service, April 23, 1958, referred to in Dombrovskis et al. v. Esperdy, D.C.S.D.N.Y.1961, 195 F.Supp. 488 and Batistic v. Pilliod, D.C.N.D.Ill.1980, 188 F.Supp. 344, affirmed 7 Cir., 1961, 286 F.2d 268.
. In United States ex. rel. Dolenz v. Shaughnessy, 2 Cir., 1953, 206 F.2d 392, 394-395, tile court said:
“That section modifies the language of the former statute in a manner which shows clearly, we think, that the withholding of deportation in cases where the alien fears persecution rests wholly in the administrative judgment and ‘opinion’ of the Attorney General or his delegate. The courts may not substitute their judgment for his. Doubtless a court might intervene to stay deportation, if the Attorney General or his delegate should deny the alien any opportunity to present evidence on the subject of persecution or should refuse to consider the evidence presented by the alien. But we see nothing in the statute to suggest that the courts may insist that the Attorney General’s opinion be based solely on evidence which is disclosed to the alien. In his official capacity the Attorney General has access to confidential information derived from the State Department or other intelligence services of the Government which may be of great assistance to him in malcing his decision as to the lilcelihood of physical persecution of the alien in the country to which he is to be deported. We believe Congress intended the Attorney General to use whatever information he has. To preclude his use of confidential information unless he is willing to disclose it to the alien would defeat this purpose. Moreover, the very nature of the decision he must make concerning what the foreign country is likely to do is a political issue into which the courts should not intrude. As was said in Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436,. 92 L.Ed. 568: ‘But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial.’ ” (Emphasis supplied.)
. This is made clear in United States ex rel. Leong Choy Moon v. Shaughnessy, 2 Cir., 1954, 218 F.2d 316, 318, where the court stated:
“ * * * In particular, we have held that under § 243(h) the question of whether deportation should be withheld because an alien fears persecution rests solely with the Attorney General or his delegate. United States ex rel. Dolenz v. Shaughnessy, 2 Cir., 1953, 206 F.2d 392. We there pointed out that whereas the comparable section in the predecessor statute, § 23, Internal Security Act of 1950, 64 Stat. 1010, required withholding the deportation of any alien to any country in which the Attorney General ‘shall find’ that such alien would be subjected to physical persecution, present § 243(h) modified that provision so as simply to authorize the Attorney General to withhold deportation to any country in which ‘in his opinion’ the alien would be subjected to such persecution. We found in this change of language a clear indication that Congress intended the withholding of deportation in such circumstances to rest ‘wholly in the administrative judgment and “opinion” of the Attorney General or his delegate.’ United States ex rel. Dolenz v. Shaughnessy, supra, 206 F.2d at page 394 * * *”
. Jay v. Boyd, 1956, 351 U.S. 345, 354, 76 S.Ct. 919, 100 L.Ed. 1242; United States ex rel. Kaloudis v. Shaughnessy, 2 Cir., 1950, 180 F.2d 489, 491.