(dissenting) :
Appealing as is my brothers’ desire to ease the rigors of a statute that permits deportation twenty-five years after the cause,1 I am unable to find the requisite authority on our part. Moreover, I fear that imposing a special judicially prescribed burden of persuasion on an ill-defined group of cases will introduce confusion and uncertainty into deportation law.
If the slate were clean, I might well agree that the standard of persuasion for deportation should be similar to that in denaturalization, where the Supreme Court has insisted that the evidence must be “clear, unequivocal, and convincing” and that the Government needs “more than a bare preponderance of the evidence” to prevail. Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 1336, 87 L.Ed. 1796 (1943); Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960). But here Congress has spoken, most pertinently in § 242(b) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1252(b), where it directed the Attorney General to make regulations requiring that
“no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.”
This provision overruled earlier indications that had been taken to recognize a lower quantum of proof as sufficient. See United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 71 L.Ed. 560 (1927) (“some evidence” sufficient to sustain deportation order against attack in habeas corpus); Note, Developments in the Law — Immigration and Nationality, 66 Harv.L.Rev. 643, 698 (1953); Gordon & Rosenfield, Immigration Law and Procedure § 8.12c (1959). Standing alone, this direction to the Immigration Service to apply a higher standard than had previously been thought permissible might not preclude the courts from insisting on a still higher one in certain types of cases. But Congress made rather plain that, in raising the standard, it did not intend the courts to have liberty to effect further elevations. The House Report on the Immigration and Nationality Act, 2 U.S.Code Cong. & Ad.News (1952), pp. 1653, 1712, stated:
“The requirement that the decision of the special inquiry officer shall be based on reasonable, substantial, and probative evidence means that, where the decision rests upon evidence of such a nature that it cannot be said that a reasonable person might not have reached the conclusion which was reached, the case may not be reversed because the judgment of the appellate body differs from that below.”
The intention thus expressed was enacted in 1961, 8 U.S.C. § 1105a(a) (4):
“Judicial Review of Orders of Deportation and Exclusion.
“[T]he Attorney General’s findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive.”
The standard of “reasonable, substantial, and probative evidence” thus applies in all deportation cases — both to the Service and to the courts.
It is true that the substantial evidence rule itself is “quite malleable and permits wide variances in judicial practice.” Gordon & Rosenfield, supra, at 857; see also 4 Davis, Administrative Law Treatise § 29.02 at 126 (1958), and 1965 pocket part. But cf. NLRB v. Wal*901ton Mfg. Co., 369 U.S. 404, 407, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962). And the Supreme Court has spoken, of the “solidity of proof that is required for a judgment entailing the consequences of deportation, particularly in the case of an old man who has lived in this country for forty years.” Rowoldt v. Perfetto, 355 U.S. 115, 120, 78 S.Ct. 180, 183, 2 L.Ed.2d 140 (1957). Granting all this, I perceive no proper basis under the statutory standard for reversing the order here under review; indeed, by remanding the, case rather than setting the order aside, my brothers necessarily concede the evidence to have been sufficient even under the reasonable doubt standard they would apply.
If, as has been urged, deportation of a long-time resident should be treated as a penal sanction, my brothers’ conclusion might indeed follow on constitutional grounds. But, as they recognize, an inferior court cannot take that step so long as Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 57 L.Ed. 978 (1913), Harisiades v. Shaughnessy, 342 U.S. 580, 594-95, 72 S.Ct. 512, 96 L.Ed. 586 (1952), Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954), and other Supreme Court decisions remain the law.
I would deny the petition.
DECISION EN BANC
Before LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and ANDERSON, Circuit Judges.
PER CURIAM:The Immigration and Naturalization Service having moved for rehearing in banc, and a majority of the judges in regular active service having voted to reconsider the case in banc and having given the parties an opportunity to submit further briefs, upon consideration by the court in banc the petition of Joseph Sherman to review the order of the Service is denied, for reasons stated in Judge Friendly’s dissenting opinion, 350 F.2d at 900.
WATERMAN and SMITH, Circuit Judges, dissent and vote to grant the petition and set aside the deportation order for reasons stated in Judge Waterman’s opinion, 350 F.2d 894.
. It should not be forgotten that Congress has provided a method of relief for such eases, 8 U.S.C. § 1254, which petitioner, for reasons best known to himself, has declined to pursue.