(dissenting).
A deportation proceeding so jeopardizes a resident alien’s basic and fundamental right to personal liberty that I *572cannot agree due process is guaranteed by a “fundamental fairness” analysis on a case-by-case basis. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). I think a resident alien has an unqualified right to the appointment of counsel. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). When the government, with plenary power to exclude, agrees to allow an alien lawful residence, it is unconscionable for the government to unilaterally terminate that agreement without affording an indigent resident alien assistance of appointed counsel. Expulsion is such lasting punishment that meaningful due process can require no less. Assuredly, it inflicts punishment as grave as the institutionalization which may follow an In re Gault finding of delinquency. A resident alien’s right to due process should not be tempered by a classification of the deportation proceeding as “civil”, “criminal”, or “administrative.” No matter the classification, deportation is punishment, pure and simple.1
In Gagnon, the Supreme Court acknowledged that it was affording parolees and probationers less due process than it afforded juveniles in In re Gault. It reached this result because a parolee or probationer is in that position solely because he was previously convicted of a crime. The court reasoned that parolees and probationers should be required to demonstrate that an attorney would serve a useful purpose prior to compelling the government to provide counsel at government expense. But, in a deportation proceeding, the respondent need not necessarily be before the immigration judge because of a prior conviction.2 The fact of conviction is only one of numerous grounds for deportation outlined in the statute. Similar to the juvenile, an alien may only stand accused of an offense.
As noted in Gagnon, the function of the probation or parole officer is not to “compel conformance to a strict code of behavior” but to “supervise a course of rehabilitation.” 411 U.S. 784, 93 S.Ct. 1760. Insertion of counsel into such a “predictive and discretionary” proceeding could inadvertently circumscribe the officer’s flexibility. However, no such justification for the exclusion of counsel exists in deportation proceedings where the sole duty of the immigration law judge is to determine whether a deportable offense has occurred. 8 U.S.C. § 1251(a).
Further, a probation revocation hearing is a non-adversary proceeding. The government is not represented by a prosecutor. There are no procedural rights which may be lost as in a criminal trial. A deportation hearing on the other hand is always an adversary proceeding.3 *573Gagnon does not go so far as to hold that in adversary proceedings due process may be afforded on a case-by-case basis by retrospective determination that the hearing was characterized by “fundamental fairness.”
The court today has fashioned a test to resolve whether a resident alien’s due-process right requires appointment of counsel. That test is whether “ . in a given case, the assistance of counsel would be necessary to provide ‘fundamental fairness — the touchstone of due process.’ ” Gagnon, supra. The majority concludes that lack of counsel before the immigration judge did not prevent full consideration of petitioner’s sole argument and no different result would have been obtained had counsel been appointed. Accordingly, the court holds the hearing was fundamentally fair.4 These conclusions are reached by second guessing the record — a record made without petitioner’s meaningful participation.
In my view, the absence of counsel at respondent’s hearing before the immigration judge inherently denied him fundamental fairness. Moreover, I do not believe that we should make the initial determination that counsel is unnecessary; or that lack of counsel did not prevent full administrative consideration of petitioner’s argument; or that counsel could not have obtained a different administrative result.5 We should not speculate at this stage what contentions appointed counsel could have raised before the immigration judge. For exam-pie, a lawyer may well have contended that § 1251(a)(ll) is an unconstitutional deprivation of the equal protection of the laws by arguing that alienage was the sole basis for the infliction of punishment, additional to that imposed by criminal law; that since the government elected to rely upon the criminal law sanctions, it may not now additionally exile petitioner without demonstrating a compelling governmental interest.
I do not intend to imply such a contention has validity. I cite this only to emphasize the danger of attempting to speculate at this stage whether counsel could have obtained a different result and to show that it is possible that the immigration judge did not fully consider all of petitioner’s arguments.
Because the consequences of a deportation proceeding parallels punishment for crime, only a per se rule requiring appointment of counsel will assure a resident alien due process of law. In this case, the respondent, a resident alien for seven years, committed a criminal offense. Our laws require that he be punished and he was. Now, he must face additional punishment in the form of banishment. He will be deprived of the life, liberty, and pursuit of happiness he enjoyed by governmental consent.6 It may be proper that he be compelled to face the consequences of such a proceeding. But,.when he does, he should have a lawyer at his side and one at government expense, if necessary. When the government consents to grant an alien residency, it cannot constitutionally expel unless and until it affords that alien *574due process. Our country’s constitutional dedication to freedom is thwarted by a watered-down version of due process on a case-by-case basis.
I would reverse and remand for the appointment of counsel before the immigration judge.
. Based upon a civil-criminal classification, the Seventh and Ninth Circuits have ruled that indigent aliens have no right to appointed counsel. Tupacyupanqui-Marin v. Immigration & Nat. Service, 447 F.2d 603 (7th Cir. 1971); Murgia-Melendrez v. United States Immigration & Nat. Serv., 407 F.2d 207 (9th Cir. 1969).
. If the court wishes to extend Gagnon, perhaps a better approach is to limit the case-by-case appointment of counsel to proceedings where respondent is being deported because he has a previous conviction and is, therefore, entitled to less due process. In all other instances, counsel should be appointed as a matter of right under the due process clause. The court suggests an indigent alien is entitled to appointed counsel only when it is necessary “ . . to present his position adequately to an immigration judge. . . . ” (See fn. 3, supra.)
. A reading of 8 U.S.C. § 1252(b) makes it apparent that the special inquiry officer [now an immigration judge by regulation] functions as a prosecutor, defense lawyer, finder of facts, and judge. While the statute does not provide for the appointment of a government trial attorney, a regulation does. 8 CFR § 242.16(c) provides that if an alien does not admit he is deportable the immigration judge shall appoint a government trial attorney to establish the facts justifying deportation. At the hearing, the rules of evidence do not apply. Hearsay evidence is admissible. During such an adversary hearing, the indigent resident alien stands alone. He does not have a lawyer to meaningfully participate in making a record, a record upon which the Appeals Board and this court will determine whether the order of deportation was supported by evidence that is clear and convincing.
. The Second Circuit has similarly held that where the respondent admits the allegations in the order to show cause and it does not appear that an attorney would affect the outcome, lack of appointed counsel does not violate due process. Henriques v. Immigration & Naturalization Service, 465 F.2d 119, 121 (2nd Cir. 1972), cert. denied, 410 U.S. 968, 93 S.Ct. 1452, 35 L.Ed.2d 703.
. Respondent obtained counsel to appeal his deportation. Before the Board of Immigration Appeals, counsel urged reversal because he had filed a Rule 32(d) motion to attack respondent’s prior plea to the narcotic charge. The attorney argued the conviction was not final and, therefore, respondent was not deportable. Because I believe respondent’s request for appointed counsel should have bean granted, I would not reach the Rule 32(d) motion as the majority does. I would reverse and allow a lawyer to decide how best to protect respondent’s interests.
. Of course, what I have said applies only to a resident alien. I readily agree that an alien who enters illegally is entitled to less due process, if any at all. It is interesting to note that the Immigration Act seems to treat all aliens alike.