The opinion
CLARK, Chief Judge
(concurring in the result).
I concur in the result reached in the majority opinion, but do not feel it necessary to explore, as it does, the underlying motivation of the Board members. What the Supreme Court required the relator to prove he has now adequately demonstrated; namely, that there was a list as alleged, that he was on it, and that this fact was known to the Board. I do not believe that the Supreme Court required us to go beyond this to speculate about the effect of this knowledge on the exercise of the Board’s discretion. That would surely be a vain task; all judges naturally and honestly believe that they are above bias. But the facts shown create a presumption of bias not overcome by the Board’s self-serving declaration to the contrary. This would be so, whether the program was one of expedition or one of deportation, for in either case relator was being singled out as an alien whose imminent departure was deemed desirable by the Attorney General.
What, then, should be the proper disposition of this case ? The. Supreme Court advised thus: “If petitioner can prove the allegation he should receive a new hearing before the Board without the burden of previous proscription by the *90 list. After the recall or cancellation of the list the Board must rule out any consideration thereof and in arriving at its decision exercise its own independent discretion, after a fair hearing, which is nothing more than what the regulations accord petitioner as a right.” 347 U.S. 260, 268 , 74 S.Ct. 499, 504 , 98 L.Ed. 681 . I am not convinced that the Attorney General’s instructions of April 23, 1954, constituted a withdrawal of the list. Since we cannot effectively control the Attorney General in the administration of his office, we can require only that at a new hearing relator should at least have the opportunity to present evidence rebutting the Attorney General’s characterization of him as a racketeer.