concurring.
Although, for special factual reasons, I concur in the result, I disagree so vigorously with Judge Pettine’s analysis, partially accepted by Judge Coffin, and the matter being of broad importance, I wish to record my thinking. Judge Pettine would, seemingly, impose upon the Attorney General the same precondition for rejecting an ex-cludable alien as he must meet in order to deport one previously admitted. This, I believe, disregards both the substantive difference, and interests, between refusing admission to an illegal alien, and expelling one that is already here, and, what Judge Coffin refers to as a “detail,” the fact that there are separate statutes, differently worded. That an alien, once here, should be afforded certain rights before expulsion makes a great deal of sense. That the Attorney General should be obliged to confer these same rights on one whose sole claim is that he has succeeded in presenting himself at the border, uninvited, and with no basis for entry, seems much less desirable, or needed. Rather than noting the substantive difference between the two types of aliens, and their circumstances, as well as the normal implication of differing statutory provisions, Judge Pettine seems at pains to achieve identical results. I think this a serious mistake.
Prior to the 1981 amendment to the exclusion statute, 8 U.S.C. section 1227, there was, concededly, no requirement that the Attorney General obtain the prior consent of the country from which the unadmitted alien had embarked before returning him thereto, although, as section 1253(a) provided, such consent was needed before deporting one already here. United States ex rel. Tom Man v. Murff, 264 F.2d 926 (2d Cir.1959). This difference was recognized by Judge Weinfeld, of the Southern District, who pointed out,
The return of aliens who seek and who are denied admission into the United States is governed by the exclusion provisions, whereas the deportation of aliens who have already gained admission, whether legally or illegally, is governed by the expulsion provisions of the act_
The very fact that Congress spelled out in section 243(a) [8 U.S.C. § 1253(a) ] the requirement of consent by the receiving country negates any contention that such requirement be read into section 237(a) [8 U.S.C. § 1227(a)] as a condition of exclusion.
United States ex rel. Tom We Shung, 176 F.Supp. 253, 256, 259 (S.D.N.Y.1959), aff'd on opinion below, 274 F.2d 667 (2d Cir.1960). At that time section 1227(a) read as follows.
(a) Any alien (other than an alien crewman) arriving in the United States who is excluded under this chapter, shall be immediately deported to the country whence he came, in accommodations of the same class in which he arrived, on the vessel or aircraft bringing him, unless the Attorney General, in an individual case, in his discretion, concludes that immediate deportation is not practicable or proper. The cost of the maintenance including detention expenses and expenses incident to detention of any such alien while he is being detained, as well as the transportation expense of his deportation from the United States, shall be borne by the owner or owners of the vessel or aircraft on which he arrived, except_ [special exceptions omitted.]
The court now holds that a 1981 addition abolished this found distinction from section 1253(a).
The 1981 enactment amended, in matters not presently material, the paragraph previously quoted. It added a further paragraph.
*370(2) If the government of the country-designated in paragraph (1) will not accept the alien into its territory, the alien’s deportation shall be directed by the Attorney General, in his discretion and without necessarily giving any priority or preference because of their order as herein set forth, either to—
(A) the country of which the alien is a subject, citizen, or national;
(B) the country in which he was born;
(C) the country in which he has a residence; or
(D) any country which is willing to accept the alien into its territory, if deportation to any of the foregoing countries is impracticable, inadvisable, or impossible.
According to the legislative history, this addition was to permit the Attorney General “flexibility” as to what countries the alien could be directed.1 Judge Pettine takes as a “given” that “Congress intended to establish a common procedure for both excludable and deportable aliens.” That this is apparent in particular, obvious, respects does not mean it is true across the board. The effect of Judge Pettine’s conclusion is that making the Attorney General’s options more “flexible” has made them more onerous. Section 1227(a)(1) still fails to contain the section 1253(a) phrase, “if that country is willing to accept,” whose omission from section 1227 the Second Circuit found determinative. More important, section 1227(a)(1) still reads “shall be immediately deported,” whereas section 1253(a) provides for a three month interval for inquiry of the targeted country. Here, precisely, is the nub. “Immediately” recognizes the comparative urgency when an alien, seeking admission, is in limbo. The already present alien can remain in status quo, but who is to house the one waiting at the gate while the Attorney General goes through diplomatic channels? Does the court’s finding a “common procedure” mean that the phrase “shall be immediately deported” is to be read out of section 1227(a)(1)? Certainly, it cannot mean that it is to be imported into section 1253(a). This would upset the whole section 1227(a)(1) procedure.
It may be thought that we are talking about a very small matter. It is not to be gainsaid that if the excluded alien is refused entry on this return, the Attorney General has him on his hands; re-entry cannot be compelled. Judge Pettine quotes characteristic language by Judge Learned Hand in Tom Man that “it would be to the last degree cumbersome and oppressive to shuttle an alien back and forth on the chance of his acceptance, when it was possible to ascertain the truth in advance by inquiry,” 264 F.2d ante, at 928, but he was speaking in respect to expulsion, section 1253(a), where prior inquiry was statutorily required — and prior to his court’s recognition that in section 1227(a) it was not. Tom We Shung, ante. There is a difference in the situation between an individual who has been long absent and one who just left, and in practice re-entry by the latter may be much more easily accepted, with no need for cumbersome action. Moreover, *371there is a practical side. The exclusion statute has devised a ready means in the case of rejected aliens. Under section 1227(a)(1), see ante, the carrier that debarks the excludable alien is, in most instances, financially responsible for his return, and for his maintenance meanwhile. Quite apart from the administrative problems of diplomatic procedures imposed upon the Attorney General, and housing the alien meanwhile, not only will deportation be “immediately” achieved by turning the alien back to the delivering carrier forthwith, but that carrier’s interested and prompt action would seem the most likely successful method of obtaining the return. In fact, it is the government’s submission, in no way contradicted, that this is the common experience.
I may wonder, incidentally, whether the delay that would result from the court’s “common procedure” of diplomatic negotiations might not induce inadmissible aliens to “go for the ride,” if only to enjoy the stay away from home during the diplomatic procedure. If so, it would be a further objection to watering down the statute’s requirement for immediate deportment.
In sum, I do not find in the legislative history, or in the very differing circumstances and interests, the intent or the need for the radical change to identical treatment, and, with respect, I see neither reason nor excuse for brushing aside explicit statutory differences as a “detail.” This is not to say, however, that what seems clear to the government may not have the same clarity to reasonable judges. The government should take this case to heart.
I accept the court’s result because the government obtained petitioner’s abandonment of their appeal in a prior proceeding upon an agreement that it would not return them to Afghanistan. It now appears, through representations of the government of India and the UNHCR2, that return of petitioners to India would present a serious risk of their return to Afghanistan. The government appears to dispute that these representations are an accurate portrayal of the actual practice of the government of India, but does not dispute their authenticity, nor offer reliable indicia to the contrary. The government should not be permitted to renege, and a ruling in its favor would incur the unnecessary risk of precisely that effect. It is not necessary to demolish a fly with a hammer, however, particularly with what I must believe to be a very wrong blow.
. SECTION 7 — DEPORTATION OF EXCLUDA- ' BLE ALIENS
Section 7 amends section 237 of the INA to provide that, in the case of aliens who are excluded from entry into the United States but who cannot be returned to the country from whence they came, the aliens can be deported to other countries. This is currently the case only with respect to aliens who are being deported from the U.S.; present law does not provide this option for aliens who are removed from the United States following exclusionary proceedings. Present law requires an excluded alien to be removed only to the country "whence he came” to the United States; if this country does not recognize the alien’s right to be returned (as may be the case of an alien who had resided temporarily in a foreign country not his home), there is no authority to return the alien to any other country, even the country of the alien’s nationality or another country which is willing to accept the alien. This amendment provides the Attorney General with the same flexibility with respect to removal of aliens who are not permitted to enter the United States as it does, under section 243(a) of the Act, in the case of aliens who have entered the United States and are subsequently deported. It also eliminates the use of the confusing term “whence he came." H.R.Rep. No. 264, 97th Cong. 1st Sess. 24, reprinted in 1981 U.S.Code Cong. & Ad.News 2577, 2593.
For Senate commentary on predecessor bill in 96th Congress, see S.Rep. No. 859, 96th Cong. 2d Sess. 14 (1980).
. Some of these communications were not available to the district court. Inasmuch as they do not bear upon fact-finding on the merits, but rather upon the effects of the government’s representation to the court, we may consider them,