
    NG YEN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 384, Docket 27462.
    United States Court of Appeals Second Circuit.
    Argued June 5, 1962.
    Decided Sept. 21, 1962.
    Clark, Waterman, Moore and Smith, Circuit Judges, dissented.
    Jules E. Coven, New York City (Abraham Lebenkoff, New York City, on the brief), for petitioner.
    Roy Babitt, Sp. Asst. U. S. Atty., S.D. N.Y., New York City (Robert M. Mor-genthau, U. S. Atty., New York City, on the brief), for respondent.
    Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.
   FRIENDLY, Circuit Judge.

This is a petition for review presenting problems similar to those considered in Foti v. Immigration and Naturalization Service, 2 Cir., 308 F.2d 779. Petitioner, a native and citizen of China— where his wife and child reside — -entered the United States in January 1947 as a visitor for pleasure for six months, and has been here ever since. He concedes his deportability, but has sought suspension of deportation under the hardship provisions of § 244(a) (1) of the Immigration and Nationality Act, 8 U.S.C.A. § 1254(a) (1). He also asserts fear of persecution if returned to China. The Special Inquiry Officer noted that for the latter he should have-sought withholding of deportation under § 243(h) of the Act, 8 U.S.C.A. § 1253 (h). The Officer denied relief under § 244(a) (1) but authorized him to depart voluntarily in lieu of deportation under § 244(e), 8 U.S.C.A. § 1254(e). Petitioner did not so depart, but instead filed this petition for review.

Our jurisdiction on review was not contested; indeed, the Immigration and Naturalization Service, consistent with the position taken by it in Foti v. Immigration and Naturalization Service, this day decided, but inconsistent with its position elsewhere, urged us to take jurisdiction. The case was heard initially by Judges Clark, Waterman and Moore, who voted to uphold jurisdiction. It was later voted that the case be considered by the full court, along with the Foti case. Such consideration, as there explained, has resulted in a decision, by a 5-4 vote, that we have no jurisdiction. Accordingly the petition is dismissed on that ground.

CLARK, Circuit Judge,

with whom WATERMAN, MOORE, and SMITH, Judges, join (dissenting).

As in the companion case of Foti v. Immigration and Naturalization Service, 2 Cir., 308 F.2d 779, the issue of our jurisdiction was not raised by the parties, but is entirely court-created. The original panel hearing this case, consisting of Judges Waterman and Moore and the writer, concurred in an opinion for affirmance on the merits when we were met with an order for proceedings in banc, resulting in the opinion herewith from which we dissent. For reasons stated at some length in the Foti case we are clear that we have jurisdiction under 8 U.S.C. § 1105a(a) and that we should consider the petition for review on the merits, and so adjudicate.  