(concurring) .
I concur. I cannot agree with my brother Moore’s statement that our holding in this case amounts to “undertaking a gigantic task of world paternalism” or that it opens the way to “bizarre and undesirable results.” On the contrary, on this record, the remand for further consideration seems to me to be an act of simple justice.
Section 243(h), referred to in both the majority and the dissenting opinions, authorizes the Attorney General to withhold deportation to any country in which in his opinion the alien would be subject to “physical persecution.” I do not see how the rulings of the Special Inquiry Officer and the Regional Commissioner can mean anything other than that imprisonment for illegal departure may never constitute “physical persecution.” If this is so, the construction thus given to the statute is not only utterly repugnant to our national traditions and history, it is also patently inconsistent with the intention of the Congress in enacting Section 243(h). A decision based upon such misreading of the law must necessarily be capricious and arbitrary.
Even if we assume, as seems to be suggested by my brother Moore, that there is something vaguely ambiguous about the rulings of the Special Inquiry Officer and the Regional Commissioner, and that the correct governing standards were understood by these officials sub silentio,1 this is mere unsubstantiated hypothesis. The so-called ambiguity can readily be resolved upon the remand, and, in view of the drastic consequences to which Sovich may be exposed and the pervasive humanitarian concern of the Congress in enacting Section 243(h) (see Chi Sheng Liu v. Holton, 9 Cir., 1961, 297 F.2d 740, 741-742; United States v. Esperdy, S.D.N.Y., 1960, 188 F.Supp. 491, 498-499), it seems to me to be our clear duty to remand the case for further proceedings.2 ****8
. This position finds its parallel in the dissenting opinion in Dunat v. Hurney, 3 Cir., 1961, 297 F.2d 744, 749, which was rejected by a majority in that case and apparently by eight members of the Court on reargument in bane, 297 F.2d 753 (1962). This Court’s critical discussion of Dunat in Diminich v. Esperdy, 2 Cir., 1961, 299 F.2d 244, 247-248, cert. denied, 1962, 369 U.S. 844, 82 S.Ct. 875, 7 L.Ed.2d 848, is without application to the instant case where the language of the ■Special Inquiry Officer's opinion quoted by Judge Waterman cannot be ignored.
While I find the standard adopted in the prior hearing to be patently erroneous, the error may not have appeared to the Special Inquiry Officer and the Regional Commissioner, who may have been misled by the broad language of cases which hold ■that under particular circumstances imprisonment for crimes cognizable under a foreign juridical system would not constitute “physical persecution.” See Kalatjis v. Rosenberg, 9 Cir., 1962, 305 F.2d 249, 252; Blagaic v. Flagg, 7 Cir., 1962, 304 F.2d 623, 627; Diminich v. Esperdy, supra, 299 F.2d at 246; Blazina v. Bouchard, 3 Cir., 1961, 286 F.2d 507, 511, cert. denied, 366 U.S. 950, 81 S.Ct. 1904, 6 L. Ed.2d 1242.
. At the very least, in view of the substantial doubts as to the standard employed in the prior bearing, Sovich would seem to be entitled to have us reverse and remand for a clarification on this issue. Cf. Townsend v. Sain, 1963, 372 U.S. 293, 315, fn. 10, 83 S.Ct. 745, 9 L.Ed.2d 770 ; Minnesota v. National Tea Co., 1940, 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920; Herb v. Pitcairn, 1945, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789. In the circumstances of this case, in order that the Service may have the benefit of Judge Waterman’s elaboration of the governing standards, and also to accord to Sovich the advantage of the new procedures established by regulations in force subsequent to the date of bis hearing (see Milutin v. Bouchard, 1962, 370 U.S. 292, 82 S.Ct. 156, 8 L.Ed.2d 501, vacating and remanding, 3 Cir., 1962, 299 F.2d 50; Zupicich v. Esperdy, S.D.N.Y., 1962, 207 F.Supp. 574, 580, fns. 13-14), it seems just that Sovich should receive a new hearing.