(dissenting) :
I adopt the following portion of Judge Lucas’ memorandum opinion as my own: “[Petitioner’s intention at his departure from the United States on or about December 11, 1970, was not so disposed as to regard it to be meaningfully inter-ruptive of his permanent residence status within this country. Rosenberg v. Fleuti, 374 U.S. 449 [83 S.Ct. 1804, 10 L.Ed.2d 1000] (1963). In arriving at this conclusion, [I] take into consideration the length of his absence being only two and one-half days; the absence of any demonstration of criminal intent being formed prior to or during his departure from this country; and the failure to make arrangements for a stay of significant duration in a foreign state. [I] also take into account the additional *1095factors of his youth, of the absence of a former criminal record, and of the absence of prior departures from this country. Rosenberg, supra, 374 U.S. at 462 [83 S.Ct. 1804].
“Furthermore, [I] find persuasive supplementary authority for [the] decision in the Fifth Circuit. Petitioner’s position is at least as viable as the petitioner’s in Yanez-Jacquez v. Immigration and Naturalization Service, 440 F.2d 701 (5th Cir. 1971). In that case, the Fifth Circuit recognized the clear formation of a criminal intent prior to the departure in question. And yet it did not deem that to be the controlling factor. Yanez-Jacquez, supra, 440 F.2d at 704. There simply was no indication that Yanez intended his trip to be an interruption of his status as a permanent resident alien of the United States. A fortiori, petitioner similarly demonstrated no indication of an intention to renounce the privileges of his permanent alien resident status in the United States. The Fifth Circuit extended Yanez-Jacquez in Vargas-Banuelos v. Immigration & Naturalization Service, 466 F.2d 1371 (5th Cir. 1972). The formation of the criminal intent on the part of the petitioner (a forty-one year old man) also took place while abroad in Mexico; however, the total circumstances for granting the petition in that case seemed far less compelling than in the instant case. The point was made by the Fifth Circuit in that case that the petitioner had been duly tried, convicted, and punished by a federal court for his misdeeds, and the further sanction of deportation with its attendant hardships, personal and familial, should be deemed to be excessive unless clearly authorized by statute. Vargas-Banuelos, supra, 466 F.2d at 1374. It is certainly not insignificant in this case that the additional sanction of deportation here would result not only in the deprivation of familial residence in the United States, but also in the deprivation of individual liberties in a democratic society. Petitioner’s home of deportation would be communist Bulgaria. Such a harsh sanction delivered to one initially wedded to this country by the democratic ideal should not be so summarily accomplished in the absence of a clear congressional mandate, or, in the very least, in the absence of more precise and flexible guidelines which may be administratively tailored to the individual peculiarities of each case. Insofar as the Service failed to consider all of the above factors, or considering them, dismissed their weight summarily, it is deemed to be contrary to the implied instruction of Congress to treat the acceptance and exclusion of aliens under circumstances attentive to the individual characteristics of each case, and not in a fashion merely consequential to the application of a broad statutory standard. Viewed under the total circumstances available for consideration, and mindful of the principles developed by the Supreme Court and the Fifth Circuit, [I am] not willing to lend that ‘hard and fast’ construction to or application of the statute’s prima facie language to the facts such that in this case it can be deemed that petitioner’s departure from this country was a meaningful one under the statute. See generally Wadman v. Immigration and Naturalization Service, 329 F.2d 812, 816 (9th Cir. 1964). The mere interruption of petitioner’s permanent residence, however the Service may have construed it, is simply not in balance with the consequences which will be levied upon him as a result. Accordingly, [I] can only conclude that Congress did not intend those consequences to be within the purpose of the Act under the circumstances of this particular case.”
I would affirm.