(dissenting):
I cannot join in an affirmance. In the interest of justice and under the powers granted by 28 U.S.C. § 2106,1 the order of the Board should be vacated and the cause remanded to permit further development of the evidence and reconsideration. Several factors coalesce to require that result.
(A) The Immigration Judge put an impermissibly strenuous burden of proof on petitioners in the form of “beyond a troubling doubt.” On appeal the Board recognized this and nonetheless determined that petitioners had failed to prove their case by a preponderance of the evidence. Possibly the majority is correct that the Board’s action corrected the Immigration Judge’s error, but along with other factors this mistake bears on my conclusion.
(B) The statements given by petitioners were their only evidence on the issue of threatened persecution. The Immi*202gration Judge made no credibility findings — indeed he implies that he accepts the statements as true. I set out in the margin some of the statements, and extracts from others.2
*203The contents of these statements are not mere generalities but specifics. I summarize some of them in cold language, largely stripped of the fervor of the originals.
Joseph Paul: (1) He fled from fear of Duvalier’s “gang” which has killed thousands of persons. (2) Others have been murdered, raped, thrown in jail, etc. (3) He was kept in jail 20 days by the “gang” and has been hidden for seven months. (4) He has tried to run away but has been refused a visa. (5) He is in the United States to save his life.
Elie Pierre: (1) He fled from Haiti to Nassau “to save my life which is a gift of God.” (2) His brother was killed and relatives had to change their names and addresses.
Ferdinand Pierre: (1) Both his father and his mother died in 1973, his father after torture, in prison at the hands of the Haitian regime. (2) If he goes back he will fall into the hands of the same police and he knows that he will be killed.
Forestal Joseph: (1) For many years he has been tormented by the police [the Haitian secret police, or Tonton Mac-outes] and has been beaten by them. (2) The police have broken into his home and taken his possessions. (3) They have inhumanly treated his parents. (4) A specific policeman told him that if he did not leave Haiti he would kill him. (5) He has fought the Tonton Macoutes, he is well known to them and his attitude toward the regime is known, and if he returns to Haiti he will be killed.
Inocent Jean: (1) He has been beaten many times and some of his family killed. (2) After writing a letter to Jean-Claude (head of the “new regime” in Haiti) he was brought before Jean-Claude to explain and did so. Three days later he was arrested for plotting against the realm. He told the police that he hated Jean-Claude and they became angry enough to kill him. He fled his home, police came to his home that night but were unable to find him. “Whosoever speaks against him [Jean-Claude] must die.”
Federic de Jean: (1) He is a sailor. The police came to arrest him because vessels were taking Haitians to Nassau and seamen were suspected of involvement. He fought with the police and fled and did not sleep in his home that night. (2) If one is caught fleeing to another country in search of freedom “they cut off his life.” (8) “The same regime, the men, same GANG, for years and years keeps killing, killin and killing *204any one who refuses to bow head and swell up their throwing up and their fil-tiness msut die, . . . ”
D. Dikenne: (1) He used to “brave” the police and “fuss with them.” (2) He had an altercation with a named powerful police officer who had him jailed. He secured a temporary release and that same week the officer came in the night to kill him. He escaped and went to Nassau.
William Georges: (1) He fought the police underground. (2) The police killed one of his uncles and beat another one to death for being against the government and put his good friends in jail. Other friends have disappeared. (3) A named police officer has beaten him twice, kept him in a private home for 23 days and has gotten money from him three times. (4) His father and mother were killed by “these Princes of Haiti.”
Responding to these statements, considered collectively, the Immigration Judge found:
In examining the credentials presented by the respondents, I find that they have failed to meet the requirement of showing that they have a valid fear. Each statement, while differing in fact, do not add up, in my opinion, to a conclusion that any of the respondents engaged in that sort of activity which precludes their return to their native country because of opposition to the Government or because they had engaged in such an activity for which they would be persecuted by the Government of Haiti.
If the statements, or substantial parts of them, are accepted as credible, the conclusion that petitioners failed to meet the burden of proof is, to put it baldly, astonishing. Yet the Immigration Judge made no credibility findings — indeed his finding, quoted above, implies that he accepted petitioners’ statements as true. On appeal the Board of Immigration Appeals found that even when judged by the correct and less stringent burden of proof the petitioners had failed to show that their fear of persecution if deported to Haiti was well founded. The Board’s position on credibility is not stated. In this court INS implies that we should treat the statements as not credible.
(C) The Immigration Judge asked for, and insisted that there be introduced into evidence, a telegram from the Office of Refugee and Migration Affairs of the State Department stating the views of the Department on whether petitioners should be deported.3 The telegram said:
ACCORDING TO THE INFORMATION PROVIDED . . . FORTY-ONE OF THE GROUP OF HAITIANS [INCLUDING THE NINE PETITIONERS] MAKE NO CLAIM TO PRIOR PERSECUTION, IMPRISONMENT, OR POLITICAL AFFILIATION BEFORE THEIR DEPARTURE FROM HAITI. THEY STATE THEY CAME TO THE UNITED STATES TO FIND WORK AND SUPPORT THEIR FAMILIES IN HAITI. WE DO NOT BELIEVE ANY OF THESE HAS A VALID CLAIM TO ASYLUM ON THE BASIS OF THE FACTS PROVIDED.
The statements referred to above are presumably the ones sent to the State Department — the record reveals no others. As Judge Simpson points out, these statements reveal precisely the opposite of what the telegram said with respect to prior persecution, imprisonment or political affiliation, and, additionally, the telegram is nonresponsive to the claims of beatings and imprisonment and to petitioners’ express disclaimers of economic motivation.
I do not understand the conclusion of the majority, footnote 10 and related discussion, that there was no reliance on *205the State Department recommendation by either Immigration Judge or Board. The opinion of the Immigration Judge does not refer to it as a basis for decision, but on appeal the Board of Immigration Appeals held with respect to the telegram:
We hold that the immigration judge properly relied on this evidence. The advice came from a reliable, knowledgeable and competent source [citations].
All members of this panel now agree that regardless of how good the source, the report was wrong. Thus it now appears that whether the Immigration Judge did or did not rely on the advice, the Board, in affirming, thought he had relied and considered such reliance to have been appropriate. What the Board would have done had it correctly found the report was wrong one can only speculate.
(D) Despite the strength of the statements, counsel for petitioners states in his reply brief that he concedes that the INS did not act arbitrarily or abuse its discretion on the lack of persecution issue. See footnote 5 of majority opinion. While I do not reach the issue of arbitrary action and abuse of discretion, I do not understand why the concession was made.
(E) Petitioners seek an order of this court under 28 U.S.C. § 2347(c) granting leave to adduce additional evidence before the agency, including alleged evidence that a member of their group committed suicide and another attempted suicide rather than return to Haiti. Judge Simpson’s opinion brushes aside this evidence as either not material at all or merely cumulative to the statements. It is circumstantial evidence that members of the group were motivated by feelings stronger than mere economic interest in remaining in the United States. In this case consequences faced or feared by one person in the group are relevant to other persons in the group because throughout the INS has considered the statements of the individuals collectively.
For another and less narrow reason, the petitioners should be permitted a reopening to present additional evidence. Their brief, asking that relief, was filed six months before the case was orally argued. In response, and by a brief filed five months before oral argument, INS asked that we not order any reopening because petitioners failed to ask INS to reopen. Regulations permit a motion for reopening, 8 CFR 103.5, which must describe any judicial proceeding of which the order “has been or is the subject.” Counsel for petitioners says he thought jurisdiction over the validity of the order was vested in this court when the petition for review was filed and considered, so that, either as a matter of law or of respect for this court, he could not proceed contemporaneously before the agency. Pretermitting whether that position is legally correct, it is not an unreasonable reaction. During the six months after petitioners’ brief requested a court-ordered reopening INS tendered no administrative reopening but stood, and continues to stand, on its position that there must never be any reopening, court-ordered or administratively granted, because petitioners followed the wrong procedural route. I cannot say that this ultra-technical argument is not available to INS. I do say that it is not in keeping with what INS represents in its brief is its policy under the United Nations 1967 Protocol Relating to the Status of Refugees, which is that it stands ready to reconsider any requests for political asylum.4
*206The INS suggests to us no prejudice, or even inconvenience, in permitting further development of the evidence and a reconsideration which could still the doubts that swirl about this case. Hopefully the INS, having vindicated its position that it should not be required to reconsider, will, in the interest of justice, exercise its power to do so voluntarily.
. Section 2106 is applicable to proceedings for review of an administrative order. See Greater Boston Television Corp. v. FCC, 149 U.S.App.D.C. 322, 463 F.2d 268, 277 (1971).
. Joseph Paul: I ran away from trror of Duvalier’s GANG, from its havoc of killing thousands on thousands; after walking too long in the ocean of the blood of my brothers who injustly got killed, unjustly murdered; injustly crushed down; injustly depossessed; unjustly thrown in jail; unjustly raped (young-girls) forced to be separated (husbands and wifes); forced to be hated and to hate the dearest ones; forced to swell up all filtineás of the GANG; twice I also, I’ve been beaten, crushed down, depossessed; I was kept 20 days in a secret jail of the GANG. I have been hidden for seven months. Many times I have tried to run away I couldnt; they refused me visas of going out. I am here to save my life, not for food or the betterment’ of life. If U. S. can’t help me, please send me to another place (like Congo.
Elie Pierre: I was in Nassau, not as a job seeker but as a freedomseeker, even Tonton Macoutes in Haiti seek to run away from Duvalier, the despotist. I did not go to Nassau because I was hungry, I did run away to save my life which is a gift of God. I think every body loves his life and seeks to conserve and preserve it as long as he can. The millions that got killed is because they could not find way to escape. They killed one of my brother by running away from Duvalier GANG. Several of my relatives have to change their names and addresses, even town after the pre-matured death of my brother. Due to the poverty of Haiti, poeple keep saying that we come to U. S. for the betterment of life, this is a big weapon they use to have reason to send us back. Because we are poor we have to die in silence, being accused and charged with what we ignore.
. . . If we were sent back God will revenge our blood.
Ferdinand Pierre: Who will be queit after losing his father for a selfish cause, after seeing his father being struck slapped unjustly, bleeding from head to the palms of feet, at last died tortured that was in 1973, while Jean-Claude rules. Few months after the death of my father, my mother jailed and died asphy-xated? Who will be silent after being witness such a scandale, such a tragic fact, mother and father tragic death by a so-called republic regime? Did I have not right to escape? After having escaped, do I have to be willing to go back and produce myself to the same tonton macoutes? to the same clic, the same GANGSTERISM to be eaten up? No, no never, I’ll never want to go back. We have no security in Haiti; no right of enjoyment of your life, no right of choice for nothing. There is one but USURPERS rule. I’wll not go back to Haiti. I know I’ll be killed.
Forestal Joseph: I have never had peace in Haiti; for so many years I was tourmented by the Macoutes; unjustly they have beaten me cruelly; unjustly they broke into my house and took my belongings and did some other mean treatements to many of my parents. The tribulation that Duvalier’s regime causes to my parents is inhuman, the few who are surviving flew from Haiti. One of them said to me, if I didn’t leave Haiti he will kill me. I know they have power to kill, they have power to set free. I have fought with them; they know me very well. That is only reason makes me leave Haiti. I hate the government; I can’t live under such a regime, and I know by my negative attitude if I return I will be killed. The Macoute Pierre slapped me and threatened me not once but several times.
Inocent Jean: I have left Haiti 8/9/73 and arrived in Nassau 8/13/73. The reason I Have escaped from Haiti is thsi: I have been bent many time and some of my folks get killed.
After the palace getting in fire every thing became hardest for us. When Jean-Claude first in power, he claimed that every body must live a decent live. He asked that every body to write him to express to him my feeling. I did say the right thing in my letter. I told him my wish for him that he will not do the same thing that his father did. As answer, he sent for me to explain my letter. In his face I told him the same thing I have writen and more. He laughed and shaked my hand and let me go. Three days after a Macoute arrested me and said that I was comploting against the regime. I told him I will not deny what you say, if could I would do it, because I feel tired with this government, there is no freedom for the ruled. Why should I not talk freely according my conscience. He said that I should say nothing against Jean-Claude, I told him I hate Jean-Claude. Hearing that, he became so angry to kill me. I didn’t sleep in my house that night I was afraid. They sent for me in my house, the same night. They didn’t find me. Jean-Claude said he must keep his father doctrine in order to rule for life. Whosoever speaks against him must die. If U. S. can’ or refuse to help me, please, send me to another country as Africa.
Federic DeJean: My profession is marine (sea-faring). I used to sail from Arcahaie to Gonaives, and from Gonaives to Arcahaie. Since some other sea-faring or sea-going took some other haitians to Nassau and they couldnt find exact which ones, they started to round up any one they know as sea-going. Some Tonton (secret police) accused me as one of those sea-going. They sent after me. I fought with one of them, and flew. I didn’t sleep in my house that night. The GANG *203know that any one who runs to Nassau will join the other opposed groups there.
. . . [Tjhe same regime, the men, same GANG, for years and years keeps killing, killin and killing any one who refuses to bow head and swell up their throwing up and their filtiness msut die, .
D. Dikenne: I used to brave the Duvalier Macoutes and fuss with them. . . But one day after having an altercation with one of the most powerful Macoutes (L.Lubain) he has jailed me for 2 months. I have paid $50.00 to be free from jail, a temporary release. In that same week, he came in the night to kill me, I have escaped through a window and went to Nassau.
William Georges: 1 left Haiti August 14, 1973, for one thing which is politic. The fact is we completed under ground against Duvalier, the Tyrant. So many a time we fought against Tontos, the police of the Regime. So many a time I used to curse it by calling them gangs, blodthirsty After killing my onde (Pierre Georges and beating to death another one for being against the government) putting
so many of my good friends in jail, friends who have been disappeared. Twice I have been beaten by Mr. Gilbert; once I have been kept for 23 days in his own private home. Three times he got money from me, pretending that he would save me from being killed by the others.
My father and mother got killed by these Princes of Haiti. I’ve enough under this regime. I would like to go back today, but not live and ruled by Jean-Claude and his mother and all the clic-rulers since since 1957.
Phillipe Marmotel: What makes me hate this regime, because it is a tyrant and the most cruel government — Why it has to kill my father and mother to depossess them? Why have I to be mistreated and tortured for quoting a fragment of the Haitian Constitution.
. . . If we had weapons we would fight the regime, but we are poor, weak. ... I am not going back to Haiti, I will be murdered if I will be sent back. I love my life. Send me to Congo. Please, please, please.
. Counsel did not object to introduction into evidence of the telegram. It was not necessary that he do so since the Immigration Judge made clear, prior to any proffer by the govemment attorney, that he would insist upon the telegram, wanted it offered into evidence, and would ask for it on his own motion.
. INS quotes from a publicly distributed document, 51 Interpreter Releases No. 18, at 139 (1974):
“Those Haitians whose requests for asylum have been denied, and their counsel, have been informed that they are free to request reconsideration if they have additional evidence to present.”
There is no evidence that these petitioners and their counsel were so informed other than to the extent that the existence of an appeal to the Board of Immigration Appeals, and the existence of 8 CFR 103.5, would serve that purpose.