The opinion
CLARK, Circuit Judge
(dissenting).
I agree with the propositions of law stated in the opinion, but am troubled by another matter not there discussed, namely, the stark and unadorned form of medical certificate, i. e., that relator “has this day been examined and is found to be afflicted with—
MENTAL DEFECTIVE
Class ‘A,’”
followed by the signatures of two surgeons. The Immigration Act of 1917, 8 U.S.C.A. § 136 (d), provides for the exclusion of persons “who are found to be and are certified by the examining surgeon as being mentally or physically defective,” thus in respondent’s own words providing that “the examining surgeons were to do both the finding and the certifying.” Nothing in the record tells us what a Class “A” Mental Defective is or how much the classification adds to the damning phrase. But search and the help of counsel show that the phrase goes back to the Regulations of the Surgeon General for the Medical Examination of Aliens, the applicable provisions being those of September 15, 1947, as approved by the Federal Security Administrator pursuant to 8 U.S.C.A. § 152 , 42 U.S.C.A. §§ 249 (c), 252, and set forth in 42 C.F.R., 1947 Supp., 34.1-34.13. These seem, at first blush at least, clear and admirable ; they seem just as clearly not complied with here. Sec. 34.7 shows that there are three classes, with four types of diseases and defects in Class A, including tuberculosis, a loathsome or dangerous contagious disease, a series of defects, including idiocy, imbecility, chronic alcoholism, and *1014 four other types of like diseases, and finally a catchall group of mental defects not enumerated in the previous paragraph and not showing mental shortcomings due to ignorance, etc. This is a variegated list, among which the relator is left to guess as to her particular affliction. If-we consider the certificate to refer to the last two paragraphs only, that still leaves some eight types of affliction.
But this vagueness seems directly contrary to the requirements of the regulations, which in § 34.2(c) defines a certificate as a document issued by an examining medical officer to the Immigration Service, “signed by him and certifying his findings with respect to an alien’s physical and mental condition.” That real, and not formal, findings are meant is shown by the detailed provisions for re-examination by a specially convened board upon the alien’s appeal, § 34.13, leading to findings and conclusions on its part, viz.,
“(g) The findings and conclusions of the board shall be based on its medical examination of the alien and on the evidence presented to it and made a part of the record of its proceedings.
"(h) The board shall report its findings and conclusions to the Immigration Serv- ■ ice, and shall also give prompt notice thereof to the alien if the re-examination has been held upon his appeal. The board’s report to the Immigration Service shall specifically affirm, modify, or reject the findings and conclusions of prior examining medical officers.”
Not only was the original certificate therefore defectively general, but there was no compliance with the provisions last quoted, and particularly the last sentence of (h). The statement of the Board of Medical Officers was merely that it had considered the appeal and, “after taking into consideration the certificate of Mar. 11, 1948 and the testimony given by Dr. Carlton Simon, reports that it concurs with the above dated certificate.”
While I agree that the ideas of laymen . should not control the views of medical experts upon this medical question, yet it does seem that under the statute the Board of Special Inquiry does have some function in the premises, namely, to see that there is an adequate and revealing certificate, just as-the Surgeon General has required. Thus it certainly should reject one which is self-contradictory, and the court must sustain the writ of habeas corpus if it does not, as was held in Hughes v. United States ex rel. Licata, 3 Cir., 295 F. 800, 802 , affirming D.C.E.D.Pa., 289 F. 808 . As Judge Learned Hand has said: “It is indeed another matter whether the certificate should not itself state the evidence upon which the conclusion is based, and what efforts have been made to ascertain the facts between entry and arrest. Certainly that is desirable.” United States ex rel. Powlowec v. Day, 2 Cir., 33 F.2d 267, 268 , certiorari denied 280 U.S. 594 , 50 S.Ct. 40 , 74 L.Ed. 641 . See also United States ex rel. Papa v. Day, D.C.S.D.N.Y., 45 F.2d 435 ; and compare United States ex rel. v. Devenuto v. Curran, 2 Cir., 299 F. 206, 213 . United States ex reL Fong On v. Day, 2 Cir., 54 F.2d 990, 991, 992 , which finds no error in the admission in evidence before a board of a certificate as to age based upon observation, where the relator had not availed himself of his privilege of calling the surgeon to testify, concerns so different a situation as to-point the moral here. There was no question of according it conclusive effect. Even as evidence Judge Swan criticized it, saying, “Such a certificate is competent evidence, although it would carry more weight if it. contained a statement of the nature of the-surgeon’s examination of the applicant and the grounds upon which he based his conclusion.”
These general reactions of eminent-judges are now given specific point by the-Surgeon General’s detailed regulations. Had the prescribed practice been followed here, we would not have been faced with, this quite anomalous record where actual, decision lurks behind the vaguest of medico- • legal generalities and the precise and detailed evidence of the relator’s expert does-, point to a result unjustifiably harsh. I would reverse the order and direct that the writ be sustained because of inadequacy-of the original certificate of the examining ■ surgeons and total failure of the reviewing Board of Medical Officers to comply with the regulations.