c30:No. 13651

STALEY, Circuit Judge
(dissenting).
This court recently in Blazina v. Bouchard, 286 F.2d 507 (C.A.3), cert. denied, 366 U.S. 950, 81 S.Ct. 1904, 6 L.Ed.2d 1242 (1961), held that a court may review a refusal to grant a stay to determine whether the application was denied arbitrarily or capriciously. We subsequently reaffirmed that in Dunat v. Hurney, No. 13,307, 3 Cir., 297 F.2d 744 (1962). Today the court is abdicating even that limited function. It does this on the basis that the Attorney General has unfettered discretion, and analogizes it to that exercised in pardon board or probation proceedings, following what was said in Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 923, 100 L.Ed. 1242 (1956). In that case, the Supreme Court, in a five to four decision, upheld the action of the Attorney General in the use of undisclosed confidential information, only however after a finding that a disclosure “would be prejudicial to the public interest, safety or security.” I shall refer to this ease later.
In the instant case, the special inquiry officer found that appellant would be physically persecuted for his political and not religious beliefs if he were returned to Yugoslavia, and he recommended that a stay of deportation be entered. The regional commissioner, relying exclusively on information not put into the record and not disclosed to appellant, refused to enter a stay. At oral argument, the government conceded the action of the regional commissioner would have been “arbitrary or capricious” if it had been predicated solely upon the evidence disclosed in the record, but since it was based upon undisclosed information, it was not arbitrary or capricious. Thus, we are now squarely faced with the question of whether a stay of deportation may be withheld solely upon the basis of undisclosed information. The majority of the court answers this question in the affirmative. With due deference to the views of my colleagues, I must respectfully dissent.
It is anomalous to say that we have the function and therefore the duty to review administrative action to determine whether it was arbitrary or capricious, and at the same time limit our review to evidence disclosed on the record but which admittedly was not the basis for the decision of the administrative agency. It seems to me that the net result is that we have no power to review at all in those cases where the Attorney General or his delegated officer incorporates in his report the magic ritualistic formula that he has “considered all other pertinent evidence or available information” and does not disclose it. Thus, we are today permitting the Attorney General to define and limit our jurisdiction. This, however, can only be done by Congress, and Congress has not done so.
I do not interpret § 243(h) to grant the Attorney General unfettered discretion. True enough, in the Jay case the Court held that he had such discretion under § 244. That, however, is not the section with which we are concerned. In that case the Supreme Court pointed to the language of § 244 that the Attorney General may “in his discretion” suspend deportation. This language does not appear in § 243(h). Furthermore, in § 244, as noted by the Supreme Court at 351 U.S. 353, 76 S.Ct. 924, 100 L.Ed. 1242, “ * * * Congress did not provide statutory standards for determining who, among qualified applicants for suspension, should receive the ultimate relief.” Here, Congress clearly provided such a standard, and if the Attorney General has misapplied it, his action is subject to review. Blazina v. Bouchard, supra; Dunat v. Hurney, supra. The standard provided in § 243(h) is that 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 physical persecution * * Thus, it is clear that the controlling standard for action by the Attorney General is whether or not the alien would be subject to physical persecution. The use of the words “in his opinion” means nothing more than that he is to exercise his informed judgment in making that, determination, and that judgment must, be based on evidence that is in the record; otherwise there could be no review of that judgment even though it be arbitrary or capricious, Blazina v. Bouchard, supra, and even though it be contrary to the clear statutory standard, Dunat v. Hurney, supra. If the statutory standard has been met, the Attorney General has no discretion to withhold a stay. Section 243(h) was preceded by § 20 of the Immigration Act of 1917, as amended in 1950, which in 8 U.S.C. § 156, provided: “No alien shall be deported under any provisions of this chapter to any country in which the Attorney General shall find that such alien would be subjected to physical persecution.” That provision made it clear that the Attorney General had to make a finding, and if the record supported a claim that the alien would be subjected to physical persecution, withhold deportation. Enactment of § 243(h) did not. work a change in this regard. Its Congressional history supports that conclusion. In the committee report that accompanied it through Congress, it was. stated:
“The bill continues the provision in existing law to the effect that no alien shall be deported to any country in which the Attorney General finds that he would be subjected to physical persecution.” (Emphasis supplied.) 2 U.S.Code Cong. & Adm.News, 82d Cong., 2d Sess., 1952, p. 1715.
The Ninth Circuit recently decided the-case of Chi Sheng Liu v. Holton, Dec. 14, 1961, 297 F.2d 740. It there held that, the Attorney General’s finding of non-persecution in a § 243(h) case was judicially reviewable. It was there said:
“ -x- * * Therefore, we conclude that while the Attorney General is invested with wide discretion, an alien is entitled to a suspension of deportation if he can establish that, the exercise of this discretion was. not based on a reasonable foundation.”
For these reasons, I would reverse the judgment of the district court, with directions to stay the deportation.
. Nowhere in the record or in the government’s brief does it appear that the undisclosed information was confidential. It has never been intimated that the failure to disclose was necessitated by overriding considerations of national safety as was true in Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242 (1956). The government has never offered to make the undisclosed information available to the appellant, Ms counsel, the district court, or to this court. It has never been claimed that the source of the undisclosed information must be protected or that any peculiar factors require secrecy. No reason is offered in an attempt to explain why the information remains undisclosed.

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