(concurring separately) .
I am entirely in accord with the court’s disposition of this case and with the essential holdings of the opinion. I file this separate opinion for two reasons. I think that the matters to be considered by the administrative officials upon remand have not been defined as fully as they might be. I think also that some of the portions of the opinion are demonstrably obiter dictum.
I wish to make it clear that it is not necessary for me to discuss these dicta as it can be demonstrated that they have no bearing, one way or another, upon the outcome of this case. The court’s opinion itself so indicates.
First I make it plain what I consider to be the actual decision of the court,— a decision with which I heartily agree. It may be indicated by quotation of four short extracts from the opinion as follows: “There can be no doubt that at the time petitioner appeared before the American Consul, he was qualified for readmission to the United States under Section 1281. Petitioner thus did not have to rely upon his reentry permit, then expired, to exercise his right to readmission.” “In particular, we find the administrative record grossly inadequate in its account of what transpired at the meeting between petitioner and the American Consul for the Philippines in late 1947 or early 1948.” “If the properly developed factual findings reveal that petitioner made a bona fide effort to reenter in 1947 or 1948 and failed to obtain reentry due to the misadvice of the American Consul, the respondents should be precluded from denying petitioner what was rightly his — reentry as a non-quota immigrant in 1947 or 1948 under 22 U.S.C. § 1281.” “We therefore stay the deportation of petitioner and remand the proceedings for further administrative findings consistent with this opinion.”
For some reason not entirely clear to me, perhaps for the purpose of discussing other problems which arise in connection with the admission of aliens who have departed from the United States, the opinion discusses a 1961 regulation relating to § 211(b) of the Immigration and Nationality Act, 8 U.S.C. § 1181(b), a regulation which, as the opinion notes, was not in effect in 1948, the date which was material here. Clearly it is not necessary for me to express any view which I might have concerning the opinion’s discussion of that regulation since it is obvious that no portion of that regulation is material here in the light of the holding of the court which I have quoted above, to the effect that if “petitioner made a bona fide effort to reenter in 1947 or 1948 and failed to obtain reentry due to the misadvice of the American Consul, the respondents should be precluded from denying petitioner what was rightly his —reentry as a non-quota immigrant in 1947 or 1948 under 22 U.S.C. 1281.” At least the holding amounts to saying that under those circumstances petitioner would be entitled to the discretionary relief which he has sought.
Proceeding then to my other reason for writing a separate opinion, I wish to note that the opinion contains discussions of certain legal questions which may arise under certain possible findings of the administrative body. In general, I find no fault with the inclusion of such matters in an opinion of this kind, for when a case such as this must be remanded for the making of findings, and it is perfectly plain what the ultimate issues are to be, it makes for orderly judicial administration to set forth fully our view as to the law of the case and, in that connection, indicate what the consequences of certain findings must necessarily be.1
*397The disposition made by the Court in reversing and remanding the decision of a lower court in Magenau v. Aetna Freight Lines, 360 U.S. 273, 79 S.Ct. 1184, 3 L.Ed.2d 1224, illustrates the type of procedure to which I am referring. I am quite in accord with the following statement in the opinion as to what would be the consequences of certain findings that might be made on remand: “Certainly, deportation of petitioner would be manifestly unjust where he possessed the statutory authority to reenter the United States in 1947 or 1948, if in fact he did not pursue that right because of a justifiable reliance upon a misstatement of a United States Government official.” 2
In my view this decision is not complete without some further comment upon what may happen on the remand which we have ordered. I assume, of course, that it would be within the discretion of the hearing officer to receive new or additional testimony. On the other hand such testimony may possibly not be forthcoming because no other testimony or evidence is available. If no additional testimony is received, then the record previously made points to the possibility 'that there may have been present a set of circumstances, not mentioned in Judge Barnes’ opinion, which would entitle Tejeda to relief.
Tejeda had resided in the United States for 20 years before he left for the Philippines. His passport discloses that following receipt of his reentry permit Tejeda reached Hong Kong on April 7, 1946 and was admitted in Manila on July 8, 1946; hence he was absent from the United States on July 4, 1946. Tejeda testified that it was a two-day trip which he took when he went to see the Consul' at Manila from his home town at Makati. He had with him, he said, his seaman’s passport which was received in evidence at the hearing. He showed this passport to the Consul; the Consul cut the corner from the passport and marked it “Cancelled”. Tejeda’s testimony then proceeds as follows: “You asked him how — that you wanted to get back to the United States ? A. Yes, I told him I like to go back to the United States, but he said ‘You cannot go any more because your entry is elapsed already.’ Q. Did he hand you back your Reentry Permit ? A. Yes.”
The passport, here in evidence, does show the corner cut and it does show that it was cancelled with a rubber stamp which was impressed on each page of the passport. Conceivably such a rubber stamp could be ordered made and purchased in Manila but such would be the height of improbability. All this sug*398gests that Tejeda went to see the Consul, that the cancellation occurred at that time and the stamp was affixed by the Consul himself.
This evidence also suggests that Tejeda was attempting to get back to the United States, that he saw the Consul for that reason and his inquiry to that end made to the Consul would naturally occur at that time. Certainly the special hearing officer might well draw such an inference and actually credit Tejeda’s statement “I told him I like to go back to the United States.”
Also it would be most unlikely that the passport was cancelled on Tejeda’s arrival at Manila on July 8, 1946, for at that time he still had his valid reentry permit and there was no occasion for cancellation then. The hearing officer would be unlikely to assume cancellation would occur about May 2, 1962, when Tejeda obtained his visitor’s visa, especially since no effort was made to produce the then Consul for testimony on this point.3 The circumstance of the cancellation would indicate Tejeda’s presence at the consulate at the time Tejeda testified he went there. If he saw the Consul the natural inquiry is, why did he see the Consul ? What did he want ?
The hearing officer might well have found that the consular officer knew, or had reason to know, that Tejeda was probably eligible for admission under the Philippine Trade Act. The passport, United States passport, was issued to him on August 11, 1943. That was during the war, and it is highly unlikely that a Filipino would have left the Philippine Islands for the United States after November 30, 1941. The fact that he had an American passport under these circumstances would plainly suggest that he probably did qualify on the basis of the residence in the United States for three years preceding November 30, 1941.
If Tejeda’s testimony is correct, he told the Consul he wanted to get back to the United States. In my view it would be a perfectly proper finding here that the Consul told Tejeda that he could not return to the United States either falsely or without due inquiry as to the facts applicable to Tejeda.4 It remains then to determine whether such a course of conduct by the Consul would amount to a breach of his duty to Tejeda depriving him of his rights under the Philippine Trade Act.
It is difficult to understand what a consulate is for if not to provide information under precisely these circumstances.5 We have previously noted that duty of consular officers to familiarize themselves with the laws of immigration and visas, (footnote 4, supra). It is inconceivable that such a requirement would be made except on the assumption that the consul would make use of that knowledge and would use the knowledge in dealing with persons in need of information regarding immigration, which is to say, aliens seeking to come to the United States.
*399Here was a man with a record of twenty years continuous residence in the United States; a man who has served as a seaman during the hazardous days of the war convoys; and a man who was denied the assistance in returning as of right to the United States owed to him by a United States Consul. As noted in McLeod v. Peterson, 3 Cir., 283 F.2d 180, 183, “ * * * we are dealing with an especially critical and fundamental individual right,” and, as stated in that case also, to yield to the argument that this breach of duty is not sufficient to entitle Tejeda to relief, “would be to become party to a ‘bootstrap’ operation by means of which officers of the United States seek to turn their own error, however, innocent, into a bar to the assertion of a right by the victim of this very error.” (p. 187)
. To illustrate: suppose that the reviewing court knows that on remand the trial body may find either fact (a) or fact (b). It would obviously be appropriate for the court ordering the remand to state that if the trial body finds fact (a) to exist then the holding must be in favor of the appealing party; but if the court *397makes no comment as to the consequences of finding fact (b) to exist, although the court necessarily perceives that such may be the finding, then if the trial body makes such a finding of fact (b) and draws from that finding an impermissible conclusion or result, the resultant error would be one that should have been avoided.
. 1 would take exception to certain advisory comments in the opinion which, for the reasons I have previously related, have no bearing upon the real issues and real decision in this case. Thus at one place the opinion states “Petitioner faces a formidable obstacle, however, in attempting to sustain this argument” that he was returning from a temporary departure, because of the 1961 regulation previously referred to. Again I find fault with the speculative advisory suggestion in the opinion to the effect that “it is not inconceivable that petitioner’s eighteen months absence before the time he was allegedly misadvised by the American Consul would be considered a period of sufficient duration so as not to be considered ‘temporary’ within the meaning of Section 1181(b). Such an interpretation of the word ‘temporary’ would foreclose petitioner from any discretionary relief.” As I have previously noted, these comments are irrelevant in view of the holding of the opinion that if the findings. reveal “that petitioner made a bona fide effort to reenter in 1947 or 1948 and failed to gain reentry due to the misadvice of the American Consul, the respondents should be precluded from denying petitioner what was rightly his — reentry as a nonquota immigrant in 1947 or 1948 under 22 U.S.C. § 1281.”
. As stated by Mr. McCormick, (McCormick on Evidence, p. 533) “When it would be natural under the circumstances for a party to call a particular witness * * * and he fails to do so, his adversary may use this failure as the basis for invoking an adverse inference.”
. This was a consul, (not a “consular agent”). He was one of those foreign service officers required by the regulations (Foreign Service Regulations, 22 C.F.R. § 108.1) to “familiarize themselves with the existing laws on the subject of immigration and visas.”
. When Tejeda approached the Consul he was in possession of a seaman’s passport. He had served as a seaman on exclusively American ships throughout the war. He served on Army transports all of the time in convoys in the Atlantic and the Pacific to North Africa, South America, Australia and New Guinea. Under the then existing regulations (22 C.F.R. § 110.1) he probably came within the class of “aliens who have acquired and maintained the character of American seamen.” Under the then regulations, as well as under the statutes, a consular ofiicer owed special obligations to such seamen. See 22 C.S.R.1949 ed.. § 110.6 and 46 U.S.C. § 678.