with whom ■Judges WATERMAN, MOORE, and ■ SMITH join (dissenting).
In our view our majority brethren have chosen to adopt an interpretation of statutory language which is both artificially literal and highly inappropriate to the actual situation; in so doing they have frustrated the legislative purpose and have saddled the litigants and the courts with a complicating, overlapping, and delaying additional form of deportation review. It is not without irony that a carefully formulated program fashioned over the years by Congress to provide a simple ■and complete form of review in this important area, comparable to that provided for the other administrative agencies, .should result under judicial surgery in only adding delay and confusion to existing methods of review. As we expect to ■demonstrate, this is by no means a compelled result and we are at a loss to understand why it has been selected. None ■of the parties here or in the companion case of Ng Yen, 308 F.2d 796, have ■sought or now seek this result, and we ■expect that they will be as surprised and disturbed by this unexpected outcome as are we.
Before we turn to this demonstration we should note the strong current of judicial opinion in accord with our and the parties’ view. In this case Senior Judge Hincks and the writer' — comprising with Judge Friendly the panel assigned to hear the petition for review— joined in an opinion for affirmance on the merits; Judge Friendly dissented and sought and obtained an order under 28 U.S.C. § 46(c) for further proceedings in banc before only the active judges. In Ng Yen the entire panel, consisting of Judges Waterman and Moore and the writer, joined in an opinion also for af-firmance on the merits when we were met by the order for in banc proceedings. Thus the judges of our court who have considered the issue are equally divided, five to five; only the accident of a poorly worded statute (probably soon to be corrected) prevents Judge Hincks’ vote from being officially recorded.1 Elsewhere our view has the support of two well reasoned decisions by Seventh Circuit panels, Blagaic v. Flagg, 7 Cir., 304 F.2d 623, and Roumeliotis v. Immigration and Naturalization Service, 7 Cir., 304 F.2d 453, and of a Ninth Circuit decision, Louie King Fong v. Immigration and Naturalization Service, 9 Cir., 308 F.2d 191,2 *790accepting without question a transfer from the district court, as required by § 5(b) of P.L. 87-301, 8 U.S.C. § 1105a. (See Dentico v. Immigration and Naturalization Service, 2 Cir., 303 F.2d 137.) There are also like decisions from the court below (to which these cases are presumably being remitted if new actions can be or are started), including a ruling in Foti’s own action heretofore dismissed.3
Against this strong body of precedent our brothers are forced to seek support in a decision by Judge Edelstein in Zu-picich v. Esperdy, D.C.S.D.N.Y., 207 F. Supp. 574, made apparently before the contrary decisions in his own court referred to in our note 3, wherein the learned judge makes a ruling going somewhat along the way traveled by our brothers, though not so far. For he expressly refuses to pass upon a case arising under the new regulations of the Attorney General (discussed below and in the majority opinion) implementing and enforcing a unitary deportation procedure. But so far as the opinion goes, it shows a like hiatus in argument, as it starts with an initial stress upon the legislative intent to develop a simple complete system of review, as set forth in the Administrative Procedure Act, 5 U.S.C. §§ 1031-1042, and explicitly incorporated into our governing statute, 8 U.S.C. § 1105a(a), and then proceeds to an interpretation of the statute which sets at naught the intent thus uncovered.
Why this is so and why our result is so confusing will become clear upon examination of the pertinent background. The Immigration and Nationality Act of 1952 contained provisions of an humanitarian nature authorizing the Attorney General to withhold deportation of an alien to a country where he would be subject to physical persecution, 8 U.S.C. § 1253(h), and, in certain specified cases of hardship to himself and family, to suspend deportation of an alien and adjust, his status to that of one lawfully admitted for permanent residence, 8 U.S.C. § 1254(a) (l)-(5). As was obvious and, indeed, intended, these provisions have become of the utmost importance in deportation cases; and in an increasingly large number of cases, applications for-withholding or suspension of deportation have been made and review of their denial has been sought in the courts. Consideration of such denials has become a: major part of our activity in the deportation field and from the nature of things-is likely to increase rather than otherwise. For these remedies afford a way-of obtaining a temporary stay and under-appropriate conditions a permanent status as resident of an alien who has no-other legal ground for relief; the two cases here before us where the petitions-had necessarily to admit deportability are good examples of the importance which-this discretionary relief has now assumed. True, the legislative intent is to-make this an executive, rather than a-judicial, function, so far as possible, as-indeed is its attitude with respect to immigration matters generally. But even-though judicial assistance is not easily obtained, it is natural, in view of the-stakes, that it should be regularly and persistently sought. It is not conceivable-that these well known facts were not: *791known to the sophisticated subcommittee on Immigration and Nationality of the House Judiciary Committee and its Chairman, Representative Walter, who have sponsored all the important legislation in this field. And it would be strange, indeed, if in their 1961 legislation as to review they conspicuously omitted any provision for this now vastly important aspect of deportation litigation.
Actually the history of the 1961 legislation shows pretty conclusively that there was no such omission. Improvement in the form of deportation review had been under consideration for some time. As early as 1954 the Attorney General had proposed legislation similar to that eventually passed, and bills in fact passed the House in 1958, 1959, and earlier in 1961. This history is traced in a perceptive 'Comment, Deportation and Exclusion: A Continuing Dialogue between Congress and the Courts, 71 Yale L.J. 760-792 (1962). In all the legislative activity there was expressed the purpose of reducing the existing complicated procedure to a simple system of direct review by the courts with decisive power, namely, the courts of appeals. Particularly stressed was the need to prevent the long delays possible under existing procedure “by repetitive appeals to the busy and overworked courts.” H. R. Rep. No. 1086, 87th Cong., 1st Sess., Aug. 30, 1961, to accompany S. 2237, 2 U.S. Cong. & Adm. News (1961) 2950, 2967, and see also H. R. Rep. No. 565, 87th Cong., 1st Sess. (1961); 71 Yale L.J. 760 n. 4 (1962). This is empasized by the strong support given the proposed legislation from President Eisenhower (who called for its enactment in 1956 and 1957, 2 U.S.Cong. & Adm.News, supra, 2967, 2968) through the Department of Justice (Letters of Deputy Attorney General Walsh and of Deputy Attorney Genera] White, March 30, 1959, and April 18, 1961, 2 U.S.Cong. & Adm.News, supra, 2968-2969) to the Judicial Conference of the United States, which endorsed the various bills on several occasions. 1959 Ann.Rep. of the Proceedings of the Jud.Conf. of the U.S. 8; 1960 Ann.Rep. 30, 31; 1961 Ann.Rep. 18, 78, 79 (meetings of March and Sept. 1961)4
The legislative committees, recognizing that the right of habeas corpus must be preserved, as it is in 8 U.S.C. § 1105a(a) (9), took steps reasonably designed to carry out their intent consistent with this preservation. ’ Thus the statute provides that no deportation order shall be reviewed unless the alien has exhausted his administrative remedies, that every petition for review or for habeas corpus must state whether the order had been upheld in any prior judicial proceedings, and, if so, the circumstances, and that no such petition shall be entertained if the order’s validity had been sustained in any prior judicial proceeding unless it presents grounds which the court finds could not *792have been presented in the earlier proceedings or that remedy was inadequate or ineffective to test the validity of the order, 8 U.S.C. § 1105a(c). All review must be upon the administrative record before the Attorney General unless an issue which is not frivolous is made as to nationality, when the case may be remitted to a district court for hearing de novo on this issue of fact, 8 U.S.C. § 1105a(a) (4) (5). And a limitation is set upon petitions for review of six months from the date of the final deportation order or the effective date of the statute (Oct. 26, 1961). 8 U.S.C. § 1105 a(a) (1).
This carefully devised legislation is superimposed upon already existing law providing for extensive departmental hearings before hearing officers under procedure in accordance with regulations to be prescribed by the Attorney General. “The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien.” 8 U.S.C. § 1252(b) (4). As showing the absence of limitation on the inquiry officer’s authority the first sentence of this subdivision is significant: “A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien, * * * and, as authorized by the Attorney General, shall make determinations, including orders of deportation.” (Italics supplied.) 8 U.S.C. § 1252(b).5 Pursuant to the authority given, the Attorney General has adopted regulations providing in detail for the initiation of proceedings before the special inquiry officer down through an appeal to the Board of Immigration Appeals and carefully safeguarding the procedural rights of the alien. 8 CFR § 242.1 et seq. Sees. 242.8 and 242.17, adopted in 1957 and extended by amendment Dee. 19, 1961, give the inquiry officer full authority to hear and determine all these applications for discretionary relief we are now considering, and § 242.17 (d) as now amended provides: “An application under this section [i. e., for all the various types of discretionary relief here specified] shall be made only during the hearing and shall not be held to constitute a concession of alienage or deportability in any case in which the respondent does not admit his alienage- or deportability.” (Italics supplied.)And by § 242.18 the decision of the special inquiry officer is required to include-a discussion of the evidence and findings as to deportability and of the evidence pertinent to any application for-discretionary relief under § 242.17 and' the reasons for granting or denying the1 relief. “The decision shall be concluded with the order of the special inquiry officer.”
Thus the Attorney General has recognized and reenforced the unitary nature of the entire deportation proceeding in regulations which have the force and effect of law. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265, 74 S.Ct. 499, 98 L.Ed. 681. Obviously it will be most difficult and inconvenient to disentangle and divide up' the inquiry officer’s one decision and order so that it may be subjected to different forms of piecemeal review. Our brothers have no suggestion as to how this difficulty will be met. There are-other difficulties they do not discuss arising from the six months’ time limitation and the requirement that all administrative remedies be satisfied. Suppose an alien against whom a deportation order has been entered wishes to-seek its reopening for the consideration of some new evidence and also to ask for hardship relief. According to-the provisions just discussed he must ask for both together and before filing his petition for review, though meanwhile the.*793■six months’ period of limitation is apparently running against him. His situation may well be precarious. See 71 Yale L.J. 760, 762-764 (1962) and the extract therefrom quoted in note 7 infra. Of course none of these difficulties arise under the view we are supporting.
The interpretation which our brothers find necessary rests at bottom upon four statutory words, viz., “final orders of deportation,” and in last analysis is only ■ an interpretation of “final.”6 This phrase occurs in 8 U.S.C. § 1105a (a) referring back to 8 U.S.C. § 1252(b), which we have already cited. There is nothing in this latter statute which expressly excludes the interpretation we make; indeed there is support for it, .as we have stated. Moreover we believe the practicalities and natural analogies point that way. Involved here are decisions on applications to suspend or stay the operation of the deportation order. When a like application is made as to a “final judgment” in an ordinary civil ■ action, the judgment is naturally stayed until the application is disposed of. F.R. 73(a); and see Leishman v. Associated Wholesale Electric Co., 318 U.S. 203, 63 S.Ct. 543, 87 L.Ed. 714. As is well understood, here included are a wide variety of motions, such as those to make ■or amend findings, to alter and amend the judgment, and for a new trial. Consideration of these motions does not impugn the settled regard for finality of judgments in civil procedure; it is indeed difficult under the statutory language and even more under the practical •compulsion of all the present circum.stances to see why that analogy is not persuasive here. Perhaps the situation could not be more neatly put than in the following quotation from Blagaic v. Flagg, supra, 7 Cir., 304 F.2d 623, 625: “If the withholding of deportation is •not granted, petitioner will be deported; thus, in a realistic sense the denial of a stay is a part of the deportation order.”
Our brothers finally resort to the “old-fashioned,” but hoary and illusory, principle of “reading Congressional language to mean what it says.” “But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary,” said our late great colleague Learned Hand in a famous passage, Cabell v. Markham, 2 Cir., 148 F.2d 737, 739, quoted in Markham v. Cabell, 326 U.S. 404, 409, 66 S.Ct. 193, 195, 90 L.Ed. 165, affirming the decision below. This admonition seems particularly in point as to matters of procedural detail, which are only a means to an end where rigid formalism tends to defeat their own purpose, and not an end in themselves. Here the announced principle seems meaningless. It is doubtful if a layman without personal experience would know what “deportation” legally signifies; and if he had knowledge, he would hardly assume that the “proceedings” were at an end before the now so important steps to secure discretionary relief are begun. And as we have pointed out, to a lawyer a final judgment does not mean what it is here made to mean. Our brothers also refer to a variety of makeweight considerations which for the most part are not established and even if established would not weigh against the Congressional intent. We are given no figures as to the volume of litigation, present or prospective; in view of the delay now so easily to be secured by pressing steps under the divided procedure here forced upon us, it seems hardly doubtful but that our appellate work will be sharply increased, rather than otherwise. Whatever nuances of legal principle may distinguish the review of the order of deportation from that of denials of discretionary relief, certainly experienced circuit judges may work out the law as easily where en*794try to their court has been by way of petition for agency review as where it has been by appeal from the district court. And the desire to give “the alien greater rights, greater security, and more assurance of a close study of his ease by experienced judges,” 2 U.S. Cong. & Adm.News (1961) 2972, would seem to apply as much to the orders now under consideration as to any others in view of the great importance that they now have in deportation proceedings. All this seems quite unpersuasive.
We have referred to the legislative history, which is convincing as to the view we are stating. But yet to be recounted is one item which is quite conclusive as to the legislative intent. That is the colloquy on the floor when the legislation passed the House in 1959. That colloquy is fairly recounted by our brothers in their opinion, although they attempt to discredit its meaning and effect. But such discrediting does not seem possible. Recall the participants: Chairman Walter, the legislative leader in all this area; his assistant and committee reporter, Congressman Moore; and, asking the important questions, Representative Lindsay, who was thoroughly cognizant of the problem by having represented the government in Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242 — -the now controlling case as to review of this type of orders. Recall also the repeated assurances that “The final order means the final administrative order,” and that the “ ‘final deportation order’ does not take effect until after determination of the question of suspension,” with the ultimate statement of Chairman Walter himself “that the 6 months’ period on the question of finality of an order applies to the final administrative adjudication of the application for suspension of deportation just as it would apply to any other issue brought up in deportation proceedings.” 105 Cong.Rec. 12728. It was on this assurance that the bill was. passed. Here literally the words must mean what they say, as an informed commentator concludes, 71 Yale L.J. 760, 763, 764 n. 20 (1962),7 and we are-content to accept and act on this view.
Indeed our brothers’ attempt to dull the impact of these enlightening responses is decidedly forced. Thus they imply that the legislators were avoiding the difficulty of the imposed statute of limitations by holding the six months’' period for filing the review petition only suspended or erased by the filing of the application for discretionary relief. That is far from what the legislators said; and the results of such a statutory interpretation would surely be dubious and bizarre. Consider the example instanced above of a filing of a joint motion to reopen and application for discretionary relief. As we have seen, denial of the motion must go to the court of appeals, Dentieo v. Immigration and Naturalization Service, supra, 2 Cir., 303 F.2d 137, while denial of the application is now to be reserved for district court action. How long are the proceedings to be held in abeyance by these procedural steps? Suppose the motion and application are filed a day before the expiration *795of six months after the entry of the deportation order and are not determined for, say, a year. Does the alien then still have time to file his review petition? If so, does he have six months or only a day in which to act? And when should he institute his district court action? On these matters, where in all fairness the alien should have clear expression of and timely warning as to his rights, the answers would be left hopelessly obscure. And the opportunities for delay and special treatment if the alien times his moves shrewdly are obvious.
Again our brothers guess- — -with no real knowledge — that only a few members of the House were present to hear the colloquy. We question the propriety of thus attempting to impugn the action of a co-ordinate arm of government; in any event the observation even if possibly well based has little pertinence to the issue. Had this debate not settled the question for the legislators, it would surely have been raised again in the final two years of strenuous debate on other portions of the legislation before-the statute was enacted. Thus the very weakness of the answers suggested tends to prove the point as to the colloquy itself.
Hence it is difficult to perceive the reasons why our brothers have chosen the view they now adopt and press. It has been said that there is a continuing debate between Congress and the courts over immigration and nationality legislation, with the latter pressing the humanitarian approach as against the sterner legislative view. 71 Yale L.J. 760 (1962). Be that as it may, it is hard to see how humanitarian reasons can be resorted to here to limit the meaning of the statutory enactments. In view of the unusually distinguished support, cited above, which the legislation brought out, we surely must hesitate to be certain that it is actually inimical to the interests of aliens. And we cannot shut our eyes to the vigorous, even bitter, debate, within and without the halls of Congress in 1961 as to whether the review provisions of the act created undue hardship for the alien.8 After such a thorough consideration by the legislators charged with the major responsibility in the premises, it is a question how far the courts may assume the role of knight-errant to correct assumed unfairnesses.
The question becomes the more pressing when we see the increased confusion and labor for the courts and litigants now impending and appreciate that the one clear result of the statutory reform under court amputation is now only to add extensive delay — of surely a year or more — to an already delaying procedure. Is it a boon to an alien, doomed eventually to be deported, to gain some more time while the doom continues to hang over him ? And yet we perceive no other practical reason for the narrowing construction of a remedial statute here advanced. Hence we think the statutory purpose should be carried out. We believe we have jurisdiction to adjudicate Foti’s petition on the merits and should proceed to do so.
. See United States v. American-Foreign S.S. Corp., 363 U.S. 685, 690, 80 S.Ct. 1336, 4 L.Ed.2d 1491 n. 7, referring to the amendment of 28 U.S.C. § 46(c), recommended by the Judicial Conference of the United States. 1959 Ann.Rep. 9-10. See also 1961 Ann.Rep. 77.
. Our brothers also cite two other decisions of Ninth Circuit panels, which, however, are of uncertain import because of lack of discussion of the issue before us. We understand that in at least one of them time has been extended for the filing of a petition for rehearing. In Giova v. Rosenberg, 9 Cir., 308 F.2d 347, the court declined jurisdiction to review a denial of a motion to reopen deportation proceedings before the Board of Immigration Appeals where the deportation order had been entered over four years earlier. Since a timely petition to review such a denial of a motion to reopen is surely within our jurisdiction — as, indeed, we held in Dentieo v. Immigration and Naturalization Service, 2 Cir., 303 F.2d 137 — the difficulty would appear to concern the long delay. See 8 U.S.C. § 1105a(a) (1). In Mai Kai Fong v. Immigration and Naturalization Service, 9 Cir., 305 F.2d 239, a similar situation of delay obtained and a like ruling was made, based, however, upon the two reasons that the matter had already been adjudicated in the District Court for the District of Columbia and that the petitioner had failed to exhaust his administrative remedies. Involved also were denials of applications for a stay which were held also settled by the carlier adjudication. Alternatively it was stated — in the only ruling here pertinent ■ — that these denials were not reviewable as final orders of deportation; this ruling was made merely citing the doubtful Giova case without discussion.
. Of the eleven cases already transferred to our court pursuant to § 8(b) of P.L. 87-301, 8 U.S.C. § 1105a, it appears that six involved only deportability, while the other five raised either solely or additionally issues of suspension or other relief. In Walters v. Esperdy, D.C.S.D.N.Y., 209 F.Supp. 664, a suspension case, Judge Bryan wrote a memorandum opinion Dee. 18, 1961, and filed his order of transfer Jan. 18, 1962. He said in his discussion that, while the question is not free from doubt, yet the defendant had shown enough to justify transfer at this juncture and afford this court opportunity to pass on the question of its own jurisdiction. In the present case Foti’s petition for review was filed, after dismissal-upon consent, of his action below in the Southern District of New York after-Judge Murphy had refused a preliminary injunction on the ground that the District Court no longer had jurisdiction of’ the action. Thus after a rather dizzy-runabout, Foti now finds himself back: where he started, but with a consent, judgment against him.
. Tims see 1959 Ann.Rep. 8:
“(3) H.R. 2807, 86th Congress, to authorize a neio type of judicial review of administrative orders for the deportation of aliens from the United States, which, except as to aliens in custody, ivould he exclusive. — This proposal would permit an alien to file a petition for the review of a deportation order in a United States Court of Appeals within six months from the date of the final order. In so doing, the bill implements and applies Section 10 of the Administrative Procedure Act, and, with some exceptions, makes the procedure of the Hobbs Act (5 U.S.C. 1031 et seq.) applicable to the judicial review of deportation orders. The review would be had upon the administrative record upon which the order was based, and the Attorney General’s findings of fact, if supported by reasonable, substantial and probative evidence on the record considered as a whole, would be conclusive. The right of any alien in custody to petition for a writ of habeas corpus would be preserved. The Committees [on Court Administration and Revision of the Laws] stated that the proposal is intended to do away with delays which heretofore had been encountered as a result of repeated litigation in deportation proceedings, some of which had been carried on for many years. On recommendation of the Committees, the Conference approved the bill.”
The later reports cited referred back to and reiterated this approval.
. These provisions make doubly significant the venue of the new petition for review “in the judicial circuit in which the administrative proceedings before a special inquiry officer were conducted in icliole or in part” (italics supplied), or in the circuit of the petitioner’s residence. but not in more than one. 8 U.S.C. § 1105a(a) (2). Obviously the legislative committees knew the parts into which the deportation proceedings may divide. And the implication of a single unitary review is obvious.
. If there is, indeed, compulsion in this word or phrase, it would seem to press in the opposite direction from that taken by our brothers, namely, to the really ultimate step, the issuance of the final warrant commanding deportation. But, presumably because of the obvious unworkability of this meaning in the general statutory setting, no one appears to support this view.
. “Section 1(a) (1), H.R. 187, 75 Stat. 651 (1901), 8 U.S.C.A. § 1105a (a) (1) (Supp. 1961). H.R. 187 allows six months from tlie date of the final deportation order in which to bring a petition for review. The determination of when an order becomes final has always been important because of the need to exhaust administrative remedies before seeking judicial review, a requirement retained in section (c) of the bill, 75 Stat. 653 (1961), 8 U.S.C.A. § 1105a (c) (Supp.1961). The determination of finality is made vital by the combination of the statute of limitations and the requirement of exhausting administrative finality. During the House debate on H.R. 2807, 86th Cong., 1st Sess. (1959), the author, Representative Walter, and the committee reporter, Representative Moore, agreed to a statement by Representative Lindsay that ‘if there is any remedy on the administrative level left of any nature, that the deportation order will not be considered final.’ 105 Cong.Rec. 12728 (1959). It was also stated that ‘final’ meant after a determination of suspension of deportation. Ibid. * * * ” 71 Tale L.J. 760, 763, 764 n. 20 (1962).
. This is recounted with full citations in 71 Yale L.J. 760 n. 8, 762 nn. 2-4 (1962). Included are references to a debate in the weekly New Republic involving Representative Walter, Assistant Attorney General Katzenbach, and the editors, coming finally to the question, “Did the New Republic Misrepresent Francis Walter’s Bill?” Objection centered chiefly on the increased cost and inconvenience of applying to a court of appeals for review, and on the short statute of limitations. with the contention that the act will affect chiefly aliens with limited resources. It is said that many of those opposed were induced finally to vote for the Conference Report because of their desire to achieve passage of the alien orphan program and other humanitarian provisions which had been added to the original bill. Ibid. Of course the additional possibilities for delay afforded under the present decision will give increased opportunities for litigation to aliens of means.