dissenting:
I must dissent.
It is well established that the due process clause of the fifth amendment applies in deportation proceedings and requires that an alien be granted a full and fair hearing. Ramirez v. I&NS, 550 F.2d 560, 563 (9th Cir. 1977). Unless the statutory requisites1 for such hearings have been satisfied, an alien has not received the due process protection to which he is entitled. Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 1452-1453, 89 L.Ed. 2103 (1945); Hirsch v. I&NS, 308 F.2d 562, 566-67 (9th Cir. 1962). The majority notes the due process requirement, and points out that “this court and others have repeatedly recognized the importance of an interpreter to the fundamental fairness of such a hearing if the alien cannot speak English fluently.” The majority implicitly acknowledges2 that the denial of Tejeda-Mata’s request for an interpreter constituted a denial of due process, but it holds that the denial was harmless. I submit that a denial of due process which is as fundamental as the denial here is not subject to review for harmless error. Furthermore, even if the harmless error standard were appropriate here, the error at issue was undoubtedly harmful.
I.
The majority cites no authority to support its application of the harmless error standard here. That omission is not wholly surprising, because the denial of an interpreter3 should fall within that category of violations which are exempted from the application of the harmless error rule by the Supreme Court’s holding in Chapman v. *728California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In Chapman, the Court recognized that “there are some constitutional rights so basic that their infraction can never be treated as harmless error.” Id. at 23, 87 S.Ct. at 827-828. An alien’s right to understand the proceedings against him must fall within this category, for without this understanding, the rights to be present, to examine evidence, and to cross-examine — all of which are guaranteed to an alien by statute — are rendered meaningless. See 8 U.S.C. § 1252(b); Hirsch v. I&NS, supra, 308 F.2d at 566-67. I am certain that the majority would never have allowed the immigration judge’s decision to stand had Tejeda-Mata not been allowed to be present at the deportation hearing. Yet, refusal to allow simultaneous translation effectively denied Tejeda-Mata that very right. Presence can have no meaning absent comprehension. The right to understand must, then, fall into that category of rights so fundamental that their denial cannot be characterized as harmless. See Chapman v. California, supra, 380 U.S. at 23, 87 S.Ct. at 827-828.
Furthermore, this court has previously indicated its concern over the absence of adequate translation at deportation hearings. In Chung Young Chew v. Boyd, 309 F.2d 857 (9th Cir. 1962), we held that reopened hearings could not provide a basis for a deportation order because the petitioner’s due process rights had been violated at the initial (1954) hearing. The record of that first hearing revealed that the petitioner had not been advised of his right to counsel and was not provided with the services of an interpreter. On review, the Board of Immigration Appeals held that the evidence adduced at the 1954 hearing had been improperly considered at subsequent proceedings. That evidence was not probative, it held, since that hearing failed to comply with the provisions of 8 U.S.C. § 1252(b), which requires, in part, that the alien have a reasonable opportunity to be present, that he be given notice of the charges against him, that he have the privilege of being represented by counsel, that he have a reasonable opportunity to examine the evidence against him and to cross-examine witnesses.4 Id. at 862. On subsequent review by this court, we explained that the Board’s finding of lack of compliance with § 1252(b) referred “to the failure to inform petitioner at the 1954 hearing that he was entitled to counsel and to the failure to ascertain his ability to understand English, no interpreter being present.” Id. at 862 n. 12. The failure to reintroduce crucial evidence “at a hearing in which petitioner had been accorded due process,” id. at 863, we held, required that the deportation order be set aside.
In Orozco-Rangel v. I&NS, 528 F.2d 224 (9th Cir. 1976), we noted the presence of an interpreter at a deportation hearing in holding that the petitioners were accorded due process. In so holding, we relied on the presence of an official interpreter whose services were provided to the aliens, and on counsel’s fluency in Spanish and his assistance in translation. Id. Significantly, we found it necessary to point out these factors despite our conclusion that petitioners “admitted the essential charges upon which the [deportation] orders were based.” Id.
Other circuit courts have also stressed the importance of simultaneous translation in ruling on cases similar to the case below. Niarchos v. I&NS, 393 F.2d 509 (7th Cir. 1968), is illustrative of these courts’ reactions to the absence of interpreters at deportation proceedings involving non-English speaking individuals. The Niarchos petitioner asked the court to reverse an earlier deportation order because he did not have the services of a qualified interpreter.5 The court noted that the petitioner was precluded from challenging the validity of the order because he departed the United States *729after its issuance,6 but it addressed the interpreter issue in dictum in which it recognized the per se harm resulting from a failure to provide translation:
We think that the absence of an interpreter at the 1962 hearing is contrary to the aim of our law to provide fundamental fairness in administrative proceedings. Despite the essential discretionary power of the Immigration officials in dealing with violations of the crewman provision . . it would seem clearly not within the Service’s discretion to conduct an official inquiry, without an interpreter, in a language the subject of the inquiry can neither understand nor speak. We therefore in this dictum express the hope that should petitioner seek permission to reenter, . . . the Attorney General will consider the petition in the light of the shocking circumstances of the 1962 deportation hearing.”
Id. at 511. The circumstances surrounding the instant case are equally shocking.
The Seventh Circuit also has recognized that the right to counsel in deportation proceedings is “too important and fundamental a right to be circumscribed by a harmless error rule.” Castaneda-Delgado v. I&NS, 525 F.2d 1295, 1300 (7th Cir. 1975). Castaneda involved the denial of the right to counsel as granted by § 1252(b). The court noted that the provisions granting aliens the right to counsel “are an integral part of the procedural due process to which the alien is entitled.” Id. at 1302. Similarly, the right to be present is an integral part of the due process rights granted aliens by that same statute. The Castaneda court was unwilling to eviscerate these provisions by applying the harmless error standard. We would do well to follow their example.
The Second Circuit, like the Seventh Circuit, has held that it would not tolerate the denial of an interpreter to a non-English speaking defendant. In U.S. ex rel. Negron v. State of New York, 434 F.2d 386 (2d Cir. 1970), the court affirmed the grant of a petition for habeas corpus by a defendant convicted of murder. At trial, the defendant’s testimony was translated into English, but the witnesses’ testimony was not translated into Spanish.7 The court held that the trial lacked the basic and fundamental fairness required by the due process clause. In reaching that conclusion, the court determined that Negron not only was deprived of his right to be confronted by adverse witnesses, but was also effectively deprived of the even more fundamental right to be present. The court explained that if the right to be present is to have any meaning, it must encompass the ability to consult with one’s lawyer regarding adverse testimony. Id. at 389. In the court’s view, these denials were intolerable:
Negron’s incapacity to respond to specific testimony would inevitably hamper the capacity of his counsel to conduct effective cross-examination. Not only for the sake of effective cross-examination, however, but as a matter of simple humaneness, Negron deserved more than to sit in total incomprehension as the trial proceeded.
Id. at 390. Tejeda-Mata, like Negron, deserved more.
I am, of course, fully aware of the civil nature of deportation proceedings. It is undeniable, however, that deportation hearings are “fraught with serious consequences to the alien.” Castaneda-Delgado v. I&NS, supra, 525 F.2d at 1301. The Supreme Court has noted that
[tjhough deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty — at times a most serious one — cannot be doubted. Meticulous care must be exercised lest the proce*730dure by which he is deprived of that liberty not meet the essential standards of fairness.
Bridges v. Wixon, supra, 326 U.S. at 154, 65 S.Ct. at 1452.8
There can be no question but that the immigration judge failed to exercise “meticulous care” here. His unwillingness to allow translation deprived Tejeda-Mata of his right to understand and participate in his deportation hearing. As demonstrated above, this court and other courts have stressed the fundamental importance of these rights. Their denial can be nothing other than per se harmful.
II.
Even if the harmless error standard were applicable here, the refusal to allow simultaneous translation into Spanish was not harmless error. As enunciated by the Supreme Court, that standard demands that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, supra, 386 U.S. at 24, 87 S.Ct. at 828. A close reading of the record convinces me that the error here was undoubtedly harmful.
Contrary to the majority’s assertions, it is not clear that petitioner admitted alienage. He did admit telling Officer Spence that he was “from Mexico.” (R. 33). The immigration judge later characterized this testimony as follows: “He [Tejeda-Mata] testified that he [Officer Spence] asked him where he was born and he said he was born in Mexico.” (R. 34). Officer Spence testified that Tejeda-Mata stated before arrest that “he was a Mexican citizen.” (R. 49). Neither the judge’s characterization nor Spence’s testimony was translated into Spanish. In addition, the 1-213 form, completed in English by Officer Spence after Tejeda-Mata’s arrest and admitted into evidence at the deportation hearing, contains statements which similarly enlarge upon those statements admitted to by petitioner.9 Tejeda-Mata might have been able to point out these conflicting descriptions of his admission to counsel had he been aware of them, and we cannot properly penalize him for his counsel’s failure to observe these conflicting reports. As the Negron court emphasized, the inability to respond to testimony inevitably hampers counsel’s ability to conduct an effective cross-examination. U.S. ex rel. Negron v. State of New York, supra, 434 F.2d at 390.
In his oral decision, the immigration judge concluded that both the petitioner’s birth in a foreign country and his Mexican citizenship had been established by his own admission. In reaching these conclusions, the judge clearly relied on Officer Spence’s testimony. As a result, the failure to allow Officer Spence’s testimony to be translated can hardly be characterized as harmless beyond a reasonable doubt. The majority errs in stating that reversal and remand for a new hearing would amount to no more than a futile gesture; a new hearing is, in fact, an absolute necessity.
I therefore dissent.
. See 8 U.S.C. § 1252(b), which provides in pertinent part:
Determination of deportability in any case shall be made only upon a record made in a proceeding before a special inquiry officer, at which the alien shall have reasonable opportunity to be present, unless by reason of the alien’s mental incompetency it is impracticable for him to be present, . . . Proceedings before a special inquiry officer acting under the provisions of this section shall be in accordance with such regulations, not inconsistent with this chapter, as the Attorney General shall prescribe. Such regulations shall include requirements that—
(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held;
******
(3) the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; ....
. The majority correctly notes that an alien is “entitled to a full and fair hearing prior to deportation,” but fails to point out that this right is derived from the due process clause. See, e. g., Ramirez v. I&NS, supra, 550 F.2d at 563: “Constitutional due process requirements under the Fifth Amendment are satisfied by a full and fair hearing.” When the majority points out this court’s recognition of the “importance of an interpreter to the fundamental fairness” of deportation hearings involving non-English speaking aliens, it thus acknowledges that a hearing cannot comport with due process absent simultaneous translation. The majority’s conclusion that the immigration judge’s refusal to allow translation was “plainly improper” merely represents its implicit application of this due process requirement to the facts of this particular case.
. In holding that due process required simultaneous translation in this case, this court would not have to decide whether the government must provide an interpreter at its own expense. An official interpreter was already present in the courtroom to translate Tejeda-Mata’s testimony for the court. In addition, Tejeda-Mata’s counsel offered to translate for his client but was denied permission. No further expenditure would have accrued had the judge allowed Tejeda-Mata the same right he enjoyed himself — the right to fully understand and participate in the proceeding.
. See footnote 1, supra.
. The existence of the earlier deportation order was significant because it precluded an application for re-entry without the Attorney General’s permission. See 8 U.S.C. § 1182(a)(16).
. See 8 U.S.C. § 1105a(c).
. Negron did receive summaries of witnesses’ testimony. The court recognized, however, that these summaries could not effectively replace simultaneous translation. Id. at 389-90.
. See also Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 12, 92 L.Ed. 17 (1947): “[D]eportation can be the equivalent of banishment or exile.”
. Those comments include an assertion that the petitioner admitted to an illegal presence in the United States. In addition, Mexico is given as the petitioner’s country of birth, and a Mexican city is listed as petitioner’s permanent residence.