ON PETITION FOR REHEARING

1. In his petition for rehearing petitioner presses the contention that the Board of Immigration Appeals acted arbitrarily and capriciously by ignoring the testimony of petitioner’s expert witnesses about conditions in Iran in reliance upon the letter from the State Department official whom counsel was not permitted to cross-examine or subject to discovery procedures.

The potential unreliability of such letters is effectively exposed in Kasravi v. Immigration & Naturalization Service, 400 F.2d 675 , 677 & n. 1 (9th Cir. 1968). The generalities regarding conditions in Iran which appear in the letter were severely challenged by petitioner’s expert witnesses. It might well have been improper had the Board given substantial weight to those generalities without corroboration or further inquiry. Cf. Consolidated Edison Co. of New York v. NLRB, 305 U.S. 197, 229-230 , 59 S.Ct. 206 , 83 L.Ed. 126 (1938); National Council of American-Soviet Friendship, Inc. v. Subversive Activities Control Board, 116 U.S.App.D.C. 162 , 322 F.2d 375, 386-387 (1963); NLRB v. Yutana Barge Lines, Inc., 315 F.2d 524, 528 (9th Cir. 1963); Willapoint Oysters Inc. v. Ewing, 174 F.2d 676, 691 (9th Cir. 1949); 2 K. Davis, Administrative Law Treatise § 14.10, at 295-296 (1958).

The Board, however, did not rely upon the general statements regarding conditions in Iran. The Board mentioned only one of the statements in the letter (that students returning to Iran after anti-regime activity abroad had not been subject to persecution, without additional action on their part), but the Board did not base its conclusion even upon this assertion. Rather, the thrust of the Board’s decision was that the petitioner’s own evidence was insufficient to discharge his burden of establishing that he would be persecuted if deported to Iran.

2. In United States ex rel. Kordic v. Esperdy, 386 F.2d 232, 238-239 (2d Cir. 1967), a decision not considered in our original opinion, the Court of Appeals for the Second Circuit held that the determination whether or not persecution would occur in the event of deportation was a finding of fact (distinct from the exercise of administrative discretion to stay deportation) which, by virtue of 8 U.S.C. § 1105a(a) (4), was subject to judicial review for substantial evidence in the record. See also Foti v. Immigration & Naturalization Service, 375 U.S. 217 , 228 n. 15, 84 S.Ct. 306 , 11 L.Ed.2d 281 (1963); Wong Wing Hank v. Immigration & Naturalization Service, 360 F. 2d 715, 717 (2d Cir. 1966). Another panel of this court has rejected this view. Kasravi v. Immigration & Naturalization Service, supra, En banc reconsideration would be inappropriate in this case, for we are satisfied that the Board’s decision must be affirmed under either standard of review.

The petition for rehearing is denied.

I, too, vote to deny the petition for rehearing. As stated by the Supreme Court in Jay v. Boyd, 351 U.S. 345, 354 , 76 S.Ct. 919, 925 , 100 L.Ed. 1242 , the Attorney General’s “unfettered discretion * * * with respect to suspension of deportation, is analogous to the Board of Parole’s powers to release federal prisoners on parole.”

In the exercise of this discretion, the Attorney General may consider all information available to him, including letters from State Department officials. Namkung v. Boyd, 226 F.2d 385 (9th Cir.). In the instant case, there clearly was no abuse of discretion, nor was the decision of the special inquiry officer arbitrary or capricious. That is all that is required to support the “unfettered discretion” of the Attorney General.