(dissenting):
The question for decision is whether the administrative proceedings that resulted in withdrawal of approval of the Blackwell College satisfied the requirements of procedural due process. In short, were they fundamentally fair? I think they were, and accordingly I would affirm the judgment of the district court.
The administrative record (A.R.) is before us. It was open for inspection by the college during the administrative proceedings. This record discloses that in October and November 1969 an INS investigator made five visits to. the college, examined its records, and interviewed school officials, including Dr. Su-zanna Blackwell, President, and Mrs. Greene, the Registrar. This investigation was in accordance with regulations. 8 C.F.R. § 214.3(h) (1971).1 It revealed *937that there were about 120 alien students enrolled at the institution but that only about 38 of them actually attended classes. Of the 38 only about 10 attended class regularly; the others attended only 4 or 5 times a month. These facts appeared in the permanent records maintained by the school. Although requested to do so, Mrs. Greene was unable to furnish any evidence that proper reports to the INS had been made in the cases of students who did not attend class regularly. The findings of the investigator were set out in a report which appears in the file. (A.R. 190).
As a result of the investigation a district director of the INS on December 1, 1969, wrote to Dr. Blackwell as follows:
-X- -X- * * * *
Recent visits to your school by an officer of this Service, which included interviews of you and your staff, revealed that classroom attendance by such aliens is minimal, and that the majority of these students have never actually attended class at all, and that less than 10% of them attend classes regularly. There is no evidence of record that this Service has been kept informed of this lack of attendance.
Title 8, Code of Federal Regulations, Part 214.3(j) states in pertinent part that “the approval of a school shall be withdrawn if it is no longer entitled to approval . . . for any reason including, but not limited to, the following: ‘(1) failure to submit reports required by paragraph (g) of this section; . . . .’ Paragraph (g) states in part: ‘An immediate report shall also be made in the case of each nonimmigrant student who fails to carry a full course of study, fails to attend classes to the extent normally required, or terminates his attendance at the institution. This report shall be made on form I-20B.’ ”
You are hereby notified that pursuant to the above it is the intent of this Service to withdraw the approval previously granted. You may, within 30 days of the date of this notice, submit written representation under oath supported by documentary evidence setting forth reasons why the approval should not be withdrawn. If no response is forthcoming within that period, action will be taken on the basis of the evidence contained in the record.
-X- * * -X- -X- -X-
The District Director’s letter complied with the regulations. 8 C.F.R. § 214.3 (j) (1971).2
The school’s answer to the District Director’s letter was submitted by Regis*938trar Greene on December 15, 1969. The answer was in the form of an affidavit by Dr. Blackwell. Dr. Blackwell prefaced her answer with the statement that she was a member of the South Carolina bar, and the bars of the Supreme Court of the United States, the United States Court of Claims, and several other courts, as well as “an accredited attorney for the Veterans Administration”. Although she denied that the college had been remiss in reporting, she tendered no evidence in support of the denial.
On January 14, 1970 Dr. Blackwell was interviewed by three officials of the INS. At that time she submitted a list of 203 students for whom she claimed reports of nonattendance had been submitted on time. The INS examined a sampling of these reports “to ascertain whether in fact they were submitted and if so, whether the submissions were timely.” (A.R. 177) Scrutiny of between 75 and 100 of the reports disclosed that in 26 instances they were filed from three to eleven months late. A tabulation of the 26 late reports, with an accompanying memorandum to the file, is in the administrative record. The tabulation identifies each report, giving the name of the student and the pertinent dates (A.R. 151, 152) 3
On January 22, 1970 the District Director by letter informed Dr. Blackwell that since examination of individual student files taken from the list provided by her revealed that “a substantial number” of reports “were submitted from three months to eleven months later than permitted” the approval of her school was withdrawn. She was informed that she might appeal from this decision to the Regional Commissioner of the INS. (A.R. 150)
The school appealed to the Regional Commissioner, and Dr. Blackwell and two other lawyers, as counsel for the school, entered their appearances in the proceeding. (A.R. 140, 142, 143, 144) On April 17, 1970, Arthur W. Jackson, Esquire, one of Blackwell’s counsel, appeared for oral argument of the appeal before the Regional Commissioner and two immigration officers at the Richmond, Virginia Regional Office of the INS. (A.R. 75-92) Dr. Blackwell was also present and participated in the argument. At the outset the school’s representatives were advised by one of the immigration officers that “[t]his is an informal proceeding. We are here to hear anything that you wish to present. . . .” (A.R. 75) Blackwell submitted a brief (A.R. 101-112) and the following documentary evidence: a letter from the Veterans Administration dated February .6, 1970, indicating that the school is approved to enroll veterans in designated courses (A.R. 85); a letter to Blackwell from the American Embassy in Nigeria dated March 16, 1970, indicating that the INS had requested withholding of visas for prospective Blackwell students until a final decision had been made on the school’s status (Appendix to Brief for Appellant [App.] 13; A.R. 86); a Form I-20A, student’s certificate of eligibility with attachments (A.R. 87-91) issued to a Nigerian student; and a letter from the INS stating its policy for permitting students to accept employment during the coming summer vacation. (A.R. 92) The burden of Blackwell’s brief and oral argument was that the school had been denied a proper hearing with representation by counsel. The school alleged compliance with the reporting requirements of the regulations but offered no supporting evidence.
At the conclusion of counsel’s argument and presentation, the immigration officer, speaking for himself and the Regional Commissioner, stated: “[W]e are most willing to allow you to come in, to *939be heard, to bring your witnesses. [W]e would like to afford you every opportunity to be heard. I think this probably will take care of most of your argument here today; that you want your day in court. * * * So in effect what I would say that you’re suggesting ... is, that we remand the case to Washington to afford you another opportunity to perfect your case.” (A.R. 83, 84) To this statement Mr. Jackson responded: “I have a victory. Thank you so much. That is what we asked for, this is what we requested, we feel that we can sustain our position. . . .” (A.R. 84)
On April 29, 1970 the Regional Commissioner filed his decision on the school’s appeal. Referring to Dr. Blackwell’s contention that she was denied an opportunity to appear with counsel at her interview on January 14, 1970, the Regional Commissioner remanded the case to the District Director for reopening, to enable Dr. Blackwell to appear with counsel for an interview, to inspect the record of the proceeding, and to make further representations. The District Director was instructed to reconsider the case after these steps had been taken. (App. 20; A.R. 68-69)
On June 15, 1970 the District Director notified the college that additional evidence supporting withdrawal of approval had been compiled and might be inspected. (A.R. 62) The additional evidence included a summary and analysis of 90 files pertaining to former Blackwell College students. Most of these files were chosen at random from the list of students provided by the college in January 1970; a few other names were culled from the files of the INS. The administrative record contains a tabulation of the files reviewed, showing the name of each student, the approximate date on which he enrolled in the school, the approximate date on which he left, the date on which the form I-20B was received from the school, and the “length of violation” in each case. (A.R. 11-20) In addition, the INS had obtained and placed in the record sworn statements from about forty former students concerning their attendance or nonattendance at the school. (A.R. 21-59) A memorandum summarizing this new evidence stated:
* * * * * #
Of the 90 files reviewed, violations were established, either through documentation contained in the files or through interview, in 63 cases, or approximately 70%. This is a conservative figure since in seven of these cases a final determination as to a violation has not yet been made. However, in the interests of saving time, no further attempts to make this determination shall be made and the benefit of any doubt given to Blackwell.
In summary, 116 files were reviewed, including the original 26, and a total of 89 violations counted. This means that 77% of the files revealed a violation; i. e., failure to submit I-20B’s when the student failed to register, terminated, or was not attending regularly. (A.R. 10) (Emphasis in original)
* # * -X- * #
Dr. Blackwell, Registrar Greene, and counsel for the school all examined the entire administrative record, including the new evidence.
The complaint in this action was filed on July 1, 1970. (App. 1-7; A.R. 3-9; Brief for Appellant at 8) Thereafter the District Director informed Blackwell that it might appear with counsel on or before July 27, 1970, for an interview and also submit additional evidence and make further representations in its behalf. The letter stated that if Blackwell failed to respond by July 27, 1970, a decision would be rendered on the basis of the evidence of record. (App. 21)
Blackwell failed to take advantage of the opportunity for a further interview. Therefore, on August 13, 1970 the District Director again notified the school of withdrawal of its approval for attendance by nonimmigrant students. The stated ground for this action was the school’s failure to fulfill the requirements of 8 C.F.R. § 214.3(g) (1971), in *940that it had failed to report nonimmi-grant students who carried less than a full course of study, attended classes irregularly, or terminated attendance. The notice also informed Blackwell that its case had been certified to the Regional Commissioner for review and that it might submit a brief or other written statement in connection with that review. (App. 22) The school did not submit its case to the Regional Commissioner.4
From this recitation of the details of the administrative proceedings I draw the following conclusions:
1. I cannot say that the original investigation, resulting in the District Director’s letter of December 1, 1969, was ex parte. The investigation consisted of interviews with Dr. Blackwell and Mrs. Greene, the registrar of the school, together with an examination of the school records in their possession. I am not impressed by the suggestion that the absence of counsel at the interviews was prejudicial. Dr. Blackwell was herself a lawyer who later entered her formal appearance as a counsel for the school, and she was free to secure the assistance of additional counsel if she thought help was necessary. There is no indication or claim of any overreaching or unfairness on the part of the investigating officer. In any event the standards governing police interrogations in criminal eases should not be applied to this kind of interview.
2. The school has never been in doubt about the reasons for the proposed withdrawal of approval. These grounds were plainly stated in the District Director’s letter of December 1, 1969, and were made specific and definite by later documentation. As I have said, the INS submitted to the school and its counsel a list of 89 cases in which the INS alleged that the school had failed to file proper reports. The list showed the name of each student, the date on which he enrolled in the school, the date on which he left, the date on which his form I-20B was received and the “approximate length of violation.” (A.R. 11-20, 152; 153)
3. The case for the INS was based upon reports submitted by the school and upon the school’s own records. If rebuttal was possible the material for that purpose was available to the school in those same reports and records. Although the school was given every oppor-, tunity to produce such evidence, it did not do so.
4. The documentary evidence established a substantial basis for the action of the INS. The affidavits of former students were cumulative. Moreover, although these statements were made available to it, the school did not challenge the veracity of the affiants in any way, or make any attempt or offer, by subpoena or otherwise, to procure their attendance as witnesses or to take their depositions. Indeed, there is no indication that any of the affiants was even interviewed by counsel for the school.
5. I think this case is controlled by the principles of Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), and Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Those cases establish that administrative procedure need not “be stiff and comfortable only for the trained attorney” but may “be liberal and not strict in tone and operation.” The only requirement is that the procedures be fundamentally fair. Richardson v. Perales, 402 U.S. at 400-401, 91 S.Ct. at 1427. In my judgment the procedures here met that test. The school had notice and every opportunity to present its case, if it had a case. This I think was all that was required.
Since the merits of the matter seem so plain to me, I do not debate the serious question raised by the school’s failure to exhaust its administrative remedies.
. 8 C.F.R. § 214.3(h) (1971) provides:
Review of school approvals. The district director shall review from time *937to time the approval accorded to schools in his district. The review shall be made to determine whether the school meets the eligibility requirements of paragraph (e) of this section and has complied with the reporting requirements of paragraph (g) of this section. Each school whose approval is reviewed may be required to furnish a currently executed Form 1-17 as a petition for continuation of approval without fee together with the supporting documents specified in paragraph (b) of this section. The review may include interview of the school’s authorized representative and consultation with the United States Office of Education. If upon completion of the review the district director finds that the approval should be continued, he shall so notify the school when Form 1-17 was submitted as a petition for continuation of approval; otherwise, he shall institute proceedings to withdraw its approval in accordance with paragraph (j) of this section.
. 8 C.F.R. § 214.3(j) (1971) is as follows: Withdrawal of approval. The approval of a school shall be withdrawn if it is no longer entitled to approval under section 101(a) (15) (F) of the Act, or under this part, for any reason including, but not limited to, the following: (1) Failure' to submit reports required by paragraph (g) of this section. . . . Whenever a district director 1ms reason to believe that an approved school in his district is no longer entitled to approval, he shall send it a notice of intention to withdraw the approval. The notice shall inform the school of the grounds upon which it is intended to withdraw its approval, and also shall inform the school that it may, within 30 days of the date of service *938of the notice, submit written representations under oath supported by documentary evidence setting forth reasons why the approval should not be withdrawn.
. The memorandum also indicates that on or about February 20, 1969 and again on May 13, 1969 the INS warned the college and Dr. Blackwell that failure to submit the proper reports might result in withdrawal of approval. (A.R. 151)
. On Blackwell’s unopposed motion, this court granted a stay of the order terminating the school’s approved status.