(concurring and dissenting).
I would be prepared to go along with my colleagues were they simply of the view that petitioner’s factual showing had been sufficiently suggestive of personal danger to justify a hearing. While I do not agree that the facts petitioner presented would, by themselves, necessarily require the Attorney General to grant asylum under 8 U.S.C. § 1253(h), they are more specific and serious than those presented in a number of other cases where courts have refused to order a hearing. Fairness may dictate a fuller examination into petitioner’s status.
But I cannot and do not accept my colleagues’ sweeping and extensive proposed reordering of the legal principles governing a case of this sort. In particular, I disagree with their casting by the board of the Supreme Court’s precedents conferring broad discretion upon the Attorney General in these matters. Rather than rejecting the notion of a “special judicial mood of extraordinary caution” in immigration cases, I find much to be said for such an approach. I believe the determination section 243(h) requires the Attorney General to make — whether an alien’s “life or freedom” would be threatened for a number of reasons if he or she is deported — remains largely within the discretion of the Attorney General, not with the court. It is hard for me to see how courts have the knowledge and expertise to play a major role in such rulings. There are far too many variables to be assessed; it seems to me only sensible that the executive branch, which is more sensitive to foreign policy considerations and to the overall status of immigration policy, should take the laboring oar.
I therefore dissent from the court’s reasoning, and in particular from its analysis and, as I see it, departure from the principles which should control in this area.
APPENDIX
8 U.S.C. § 1158. Asylum procedure (a) Establishment by Attorney General; coverage
The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.
*630APPENDIX — Continued [§ 1101(a)(42)
The term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. ...] Former 8 U.S.C. § 1253(h), repealed by Refugee Act of 1980
Withholding of deportation
The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.
8 U.S.C. § 1253
(h) Withholding of deportation or return
(1) The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(19) of this title) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1254. Suspension of deportation
(a) Adjustment of status for permanent residence; contents
As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien (other than that of an alien described in section 1251(a)(19) of this title) who applies to the Attorney
General for suspension of deportation and—
(1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence; or____