WATERMAN, Circuit Judge.
This is an appeal from an order of the United States District Court for the Southern District of New York granting a motion by the District Director of the Immigration and Naturalization Service, defendant below, for summary judgment, 206 F.Supp. 558. The action was commenced to review an administrative order denying appellant’s application under Section 243(h) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1253(h), for a stay of his deportation to Yugoslavia. The primary question presented is whether the Attorney General, through his delegate, the Regional Commissioner of the I. N. S., correctly interpreted the statutory standard in ruling that appellant would not be subject to “physical persecution” were he deported to Yugoslavia.
Stefano Sovieh was born in 1925 in the City of Cres, on the Istrian Peninsula. The territory was then in Italy and now is part of Yugoslavia. In 1956, Sovieh, after several unsuccessful attempts, escaped from Yugoslavia and fled to Italy, where he was received as a refugee and where he remained for one year. In 1957 he found employment on a Panamanian vessel and, on October 12, 1958, entered the United States as a non-immigrant crewman for a 29-day period of shore leave.
On January 16,1959, Sovieh having remained in the United States for a longer period than authorized, was served with an order to show cause why he should not be deported. At his deportation hearing, appellant conceded deportability, but was granted, upon request, the privilege of voluntary departure to Italy. 8 U.S.C. § 1254(e). When it subsequently appeared that Sovieh would not be admitted to Italy, however, his deportation to Yugoslavia was ordered. 8 U.S.C. § 1253(a).
On September 22, 1959, Sovieh applied to the Attorney General for a stay of deportation pursuant to Section 243(h), which provides:
“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 and for such period of time as he deems to' be necessary for such reason.”
Appellant was thereafter interrogated, on October 9, 1959, by a Special Inquiry Officer of the Immigration and Naturalization Service in accordance with the regulations of the Attorney General then in effect. 8 C.F.R. 243.3(b) (2) (1958).
In his testimony before the Special Inquiry Officer Sovieh told of his life in Yugoslavia, of his opposition to Communism on religious and political grounds, of statements against the regime which he had made to friends, of being questioned by the Yugoslav officials and warned against further opposition to the regime, and, finally, of his escape from Yugoslavia and flight to Italy. Appellant further testified that he feared he would be imprisoned for his anti-communistic beliefs and statements, or for his illegal departure from the country, in the event of his return to Yugoslavia.
On October 21, 1959, the Special Inquiry Officer recommended a denial of appellant’s application on the ground that Sovieh had failed to establish that he would be subject to physical persecution if deported to Yugoslavia. The officer stated:
“Since the applicant was not in any way mistreated after these al[24]*24leged utterances were reported to the authorities, it seems reasonable to believe that he would not now be persecuted therefor upon his return. While it may be true that he may be punished for his illegal departure from Yugoslavia such punishment is not the physical persecution contemplated by the statute. The statute contemplates persecution visited upon the alleged offender in the form of corporal punishment, torture or death because of race, religion or political opinion. Here the punishment which the applicant fears he. might suffer would apparently be after conviction for a crime cognizable under the recognized juridical system. That is not persecution.”
The Regional Commissioner for the Northeast Region of the I.N.S. (to whom the Attorney General had delegated his authority under the administrative system then in effect, 8 C.F.R. § 243.3(b) (2) (1958)), concurred in the opinion of the Special Inquiry Officer, and ordered that Sovich’s application under Section 243(h) be denied.
Appellant thereupon commenced this action in the District Court and seeks a declaration that the denial of his application was based upon an erroneous interpretation of Section 243(h).
We are confronted, at the outset, with the problem of determining the scope of our powers to review actions of the Attorney General, or his delegates, under Section 243(h) of the Immigration and Nationality Act of 1952.
In United States ex rel. Leong Choy Moon v. Shaughnessy, 218 F.2d 316, 318 (2 Cir. 1954), we stated that “In the field of immigration and nationality Congress has vested the executive branch of the Government with wide discretionary powers, and the scope of judicial review is closely circumscribed.” The language of Section 243(h) itself makes clear that the decision whether an alien would be physically persecuted on return to his native country rests solely with the Attorney General or his delegate. Ibid.; Blazina v. Bouchard, 286 F.2d 507, 511 (3 Cir. 1961), cert. denied, 366 U.S. 950, 81 S.Ct. 1904, 6 L.Ed.2d 1242. “The very nature of the decision * * * concerning what the foreign-country is likely to do is a political issue-into which the courts should not intrude.” United States ex rel. Dolenz v. Shaughnessy, 206 F.2d 392, 395 (2 Cir. 1953); see Chicago & Southern Air Lines, v. Waterman S.S. Corp., 333 U.S. 103,, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948). In formulating that decision, the Attorney General has access to, and may under appropriate circumstances rely upon, State Department material and intelligence information which is unavailable to a reviewing court. Diminich v. Esperdy, 299 F.2d 244, 246 (2 Cir. 1961), cert. denied, 369 U.S. 844, 82 S.Ct. 875, 7 L.Ed.2d 848 (1962); United States ex rel. Dolenz v. Shaughnessy, supra; see Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242 (1956). Moreover,, as with the Attorney General’s power to suspend deportation under Section 244(a) of the Act, the favorable exercise of his discretion to withhold deportation under Section 243(h) “is manifestly not a matter of right under any circumstances, but rather is in all cases a matter of grace.” Jay v. Boyd, 351 U.S. at 354, 76 S.Ct. at 924; Chao-Ling Wang v. Pilliod, 285 F.2d 517, 520 (7 Cir. 1960); Zupicich v. Esperdy, 207 F.Supp. 574, 581 (S.D.N.Y.1962).
Nevertheless, the applicant under Section 243(h) is not without rights, which may be judicially enforced' when, as here, the refusal of the Attorney General to stay deportation is challenged in a suit for declaratory judgment. The applicant is entitled to procedural due-process. United States ex rel. Leong Choy Moon v. Shaughnessy, supra. Helias a right to have his application considered, Blazina v. Bouchard, supra, and this consideration must be given in conformity with the pertinent regulations, promulgated by the Attorney General himself. Milutin v. Bouchard, 370 U.S. 292, 82 S.Ct. 156, 8 L.Ed.2d 501 (1962). [25]*25The denial of his application must not have been “actuated by considerations that Congress could not have intended to make relevant.” Cf. United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2 Cir. 1950); Blazina v. Bouchard, 286 F.2d at 511.
Whether the courts, in reviewing action under Section 243(h), may properly consider the standard employed by the Attorney General’s delegates, as distinguished from procedural fairness, is a question not yet expressly ruled upon in this circuit. Cf. Diminich v. Esperdy, 299 F.2d 244, 248 (2 Cir. 1961). In Dunat v. Hurney, 297 F.2d 744 (1961), [297 F.2d 753 (1962) on rehearing in banc], however, the Third Circuit ruled that the proper interpretation of the phrase “physical persecution” in Section 243(h) is a question of law “peculiarly appropriate for independent judicial ascertainment.” 297 F.2d at 746. The court there held that the Attorney General’s delegate had erroneously interpreted the provision in stating that “the fact that the applicant might be denied •employment for church membership or for failure to join the Communist Party is * * * not within the import of the term ‘physical persecution.’ ” Ibid.
In other cases the courts have expressly approved the Attorney General’s construction of Section 243(h), thereby indicating their willingness to entertain .an attack upon the standards employed in its administration. E. g., Diminich v. Esperdy, 299 F.2d 244, 246 (2 Cir. 1961) •(“ * * * Diminich’s claims were simply •of ‘difficulties’; repugnant as we find such interference with religious observance and freedom of association to be, ‘difficulties’ are not the ‘physical persecution’ which Congress chose to make the sole factor warranting a stay of deportation * * * ”); Blazina v. Bouchard, 286 F.2d 507, 511 (3 Cir. 1961) (“At worst, it appears that [appellant] will be ‘looked down upon’ and will encounter some ‘complications’. * * * The repugnance of such a governmental policy to our own concepts of religious freedom cannot, however, justify our labelling such actions as ‘physical persecution’. Nor can the three-month prison sentence to which Blazina may be subjected as punishment for deserting his ship or his country illegally be termed physical persecution. The phrase ‘physical persecution’ should be taken to mean confinement, torture or death inflicted on account of race, religion, or political viewpoint.” Chao-Ling Wang v. Pilliod, 285 F.2d 517, 520 (7 Cir. 1960) (“A prosecution before a military tribunal convened pursuant to laws of a foreign state to try offenses committed by a member of the military forces of that country, cannot be construed to be physical persecution under [Section 243 (h)].”).
Persuasive authority for our power to review administrative interpretations of § 243(h) may be drawn from cases in which the courts have independently construed related provisions in the Immigration and Nationality Act of 1952 or the Immigration Act of 1917. Under § 244(a) of the Act of 1952, 8 U.S.C. § 1254(a), [formerly 19(c) of the Immigration Act of 1917, 8 U.S.C. § 155(c)] the Attorney General is given the discretionary power to suspend deportation in the case of certain aliens who have continuously resided in the United States for some years prior to their application for relief, who have proved their “good moral character” during that period, and “whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship * * * ” 8 U.S.C. § 1254(a). As in the case of withholding deportation under § 243(h), the favorable exercise of the Attorney General’s power to suspend deportation under § 244(a) is a matter of grace and rests within the sole discretion of the Attorney General or his delegate. Jay v. Boyd, 351 U.S. 345, 354, 76 S.Ct. 919, 100 L.Ed. 1242 (1956) ; Cavallaro v. Lehmann, 264 F.2d 237 (6 Cir. 1959). Again, as under Section 243(h), the Attorney General may rely upon confidential information, unavailable to the applicant or a reviewing court, in considering an application to suspend [26]*26deportation under Section 244. Jay v. Boyd, supra; United States ex rel. Matranga v. Mackey, 210 F.2d 160 (2 Cir. 1954), cert. denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1109.
Nevertheless, the courts have repeatedly granted relief to deportable aliens where it has appeared that the Attorney General has misconstrued the limits or terms of his discretionary power under § 244(a) or its predecessor statute.
In McLeod v. Peterson, 283 F.2d 180 (3 Cir. 1960), petitioner had been denied suspension of deportation under § 244(a) (2) on the ground that he had not been “present in the United States for a continuous period of * * * five years” as required by the statute. Ruling that petitioner’s temporary absence from the country was caused by an initial “erroneous deprivation of the appellant’s right to discretionary relief,” the court held that his departure, under those circumstances, did “not interrupt the continuity of his presence in the United States within the meaning of that specific statutory provision.” 283 F.2d at 187. The court thereupon directed that appellant’s deportation be stayed pending a new application to the Attorney General for discretionary relief. In United States ex rel. Exarchou v. Murff, 265 F.2d 504 (2 Cir. 1959), this court granted similar relief under § 19(c) of the Immigration Act of 1917, holding that the Attorney General, through his delegate, had erroneously denied appellant’s application for suspension of deportation on the ground that appellant had failed to prove his good character. “The statute,” we said, “makes good character itself, not a reputation for it, the finding necessary to the Service's decision. * * * Thus we cannot accept the Service’s alternative conclusion that, even if Exarchou truthfully described his conduct, ‘a married man is not free to carry on such a relationship and still be considered one of good character.’ ” 265 F.2d at 507.
In Pagano v. Brownell, 227 F.2d 36 (D.C.Cir.1955), appellant had been denied suspension of deportation under § 19 on the ground that a prior criminal conviction involved moral turpitude and thus rendered him ineligible for discretionary relief. Finding in subsequent actions of the Attorney General’s delegate some indication that appellant’s prior conviction had not involved moral turpitude, the Court of Appeals for the-District of Columbia remanded the cause, directing that the district court “should determine whether * * * the Attorney General had discretion to suspend appellant’s deportation, and if so, should direct him to exercise it.” 227 F.2d at 37. And see United States ex rel. Zacharias v. Shaughnessy, 221 F.2d 578 (2 Cir. 1955).
The Supreme Court has itself undertaken to review statutory constructions of the Attorney General in deportation cases where discretionary relief was denied. See McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173-(1950) (holding that because of erroneous construction of a related statute, the-Attorney General unjustly refused to suspend appellant’s' deportation under § 19(c) of the Immigration Act of 1917); United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957) (“[i]t is clear from the record that the Board applied the correct legal standards in deciding whether petitioners met the statutory prerequisites for suspension of deportation.”) And see Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17 (1947) ; Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1948).
Reason as well as authority supports the position that the standards employed by the Attorney General in exercising his discretion under § 243(h) are subject to judicial review. The Attorney General’s assessment of the conditions obtaining in any particular country, is, of course, a political matter, a “question of fact.” It is equally clear, we believe, that the standards by which those conditions are to be judged — what Congress meant by the expression “physical persecution” — is a question of law. For the courts to rule upon that issue is not an intrusion into the Attorney General’s [27]*27discretion. It is rather an interpretation of the statutory prerequisites to any proper exercise of his discretion.
Not all statutory schemes for administrative regulation are properly subject to judicial construction, of course. The interpretation or elaboration of a statutory pattern occasionally lies within the special expertise of the agency charged with its enforcement. Under these circumstances the courts have readily deferred to the administrative judgment, whether the question be labeled one of “fact” or of “law.” E. g., N. L. R. B. v. Local 182, I. B. T., 314 F.2d 53 (2 Cir. Jan. 28, 1963); Moog Industries v. F. T. C., 355 U.S. 411, 78 S.Ct. 377, 2 L.Ed.2d 370 (1958); Railroad Commission of Texas v. Rowan, Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368 (1940); N. L. R. B. v. Standard Oil Co., 138 F.2d 885 (2 Cir. 1943); and see generally 4 Davis, Administrative Law § 30 (1958). Here, however, no problem of administrative expertise arises. Section 243(h), like its predecessor statute, reflected the humanitarian concern of Congress that aliens should not be expelled from our shores into the hands of totalitarian regimes unwilling to recognize even elementary standards of human decency. Neither the Attorney General nor his delegates in the Immigration and Naturalization Service are better able than we to gauge the bounds of that Congressional concern, and thus to define the limits within which the Attorney General’s discretion is to operate.
It is suggested that even if the courts undertook to review the standards employed by the Attorney General’s delegate under § 243(h), they would have no means of knowing whether standards decreed by them were being applied in the light of the extra-record material relied upon by the Attorney General in making his determinations. Under administrative regulations now in effect, such reliance upon confidential information may be sharply limited by the requirement of a prior determination that disclosure of such information would be prejudicial to the interests of the United States, 8 C.F.R. 242.17 (c); Milutin v. Bouchard, 370 U.S. 292, 82 S.Ct. 156, 8 L.Ed.2d 501 (1962). Moreover, we are unwilling to accept a necessary premise of the argument advanced: that having received our authoritative construction of the statutory standard to be employed under § 243 (h), the Attorney General would cloak his disregard of that standard behind factual determinations based upon information unavailable to a reviewing court.
We hold that the courts may review the Attorney General’s construction of the statutory limits within which his discretion is to operate under Section 243(h).
We are brought thus to the merits. In his recommendation that appellant’s application be denied, the Special Inquiry Officer stated, as set forth above:
“While it may be true that [Sovich] may be punished for his illegal departure from Yugoslavia such punishment is not the physical persecution contemplated by the statute. The statute contemplates persecution visited upon the alleged offender in the form of corporal punishment, torture or death because of race, religion or political opinion. Here the punishment which the applicant fears he might suffer would apparently be after conviction for a crime cognizable under the recognized juridical system. That is not persecution.”
In effectuating the Inquiry Officer’s recommendation of denial, the Regional Commissioner for the Northeast Region of the I.N.S. “concur [red] in the opinion of the Special Inquiry Officer that this applicant would not he physically persecuted if deported to Yugoslavia,” not merely in the Officer’s ultimate conclusion that discretionary relief should be denied. The Commissioner made no attempt to negative the assumption of the Inquiry Officer that Sovich might well be subject to punishment for his illegal departure from Yugoslavia, nor did the Commissioner disclaim the standard upon which the Officer’s recommendation was based.
[28]*28Under these circumstances it is fairly to be inferred, we believe, that the Regional Commissioner, as the Attorney General’s delegate, adopted the standard employed by the Inquiry Officer in denying appellant’s application under § 243 (h). It would be anomalous for one official to profess concurrence in the judgment of another, knowing full well that the substance of the matters decided was not the same, and that the supposed concurrence went merely to a similarity of verbal expression.
An analysis of the Inquiry Officer’s statement, quoted above, reveals three assumptions which underlie his conclusion that imprisonment for illegal departure from Yugoslavia would not be the physical persecution contemplated by the statute:
1. “Punishment * * * after conviction for a crime cognizable under the recognized juridical system * * * is not persecution,” We have no doubt that an alien fugitive from punishment for a traditional crime could not ordinarily claim the benefits of Section 243 (h). It was not the intent of Congress to make the United States a refuge for common criminals by operation of this humanitarian statute. The memory of Hitler’s atrocities and of the legal system which he corrupted to serve his purposes, however, are still too fresh for us to suppose that physical persecution may not bear the nihil obstat of a “recognized juridical system.” These same events, indeed, led this country to recognize that even traditional crimes may involve no moral turpitude, within the purview of American immigration laws, when their commission was “incidental to the * * flight from great persecution or oppression by nations * * * against large racial, religious or political minorities.” 39 Op.Atty.Gen. 215-227.
2. “The statute contemplates [only] persecution * * * because of race, religion or political opinion.” General prohibitions against departure from a country do not, of course, define traditional crimes in Western societies. They are the product of modern dictatorships able to control long borders and the movements of their people within them. Indeed, the recent history of Eastern European countries and current events in Berlin would seem to suggest that such prohibitions are a prerequisite to the repressions that communistic regimes impose upon their subjects.
Devotees of such regimes do not risk-life and limb to violate statutes prohibiting departure. It would be naive to suppose, therefore, that punishment for illegal departure, under these circumstances,, is not politically motivated, or does not constitute punishment “because of * *• political opinion.”
3. “The statute contemplates; persecution * * * in the form of corporal punishment, torture or death.”' In so formulating the standard to be applied under § 243(h), the Special Inquiry Officer made a significant omission from previous formulations approved by the Attorney General and the courts:
“The phrase ‘physical persecution’ should be taken to mean confinement, torture, or death inflicted on account of race, religion, or political viewpoint.” (Emphasis supplied). Blazina v. Bouchard, 286 F.2d 507, 511 (3 Cir. 1961).
“Physical persecution contemplates incarceration or subjection to corporal punishment, torture, or death based usually on one’s race, religion, or political opinions.” (Emphasis supplied.) Matter of Kale, Adm.Dec. A9555532 (1958).
The Kale decision was forwarded to Regional Commissioners in May, 1958, with instructions that decisions as to all Yugoslav crewmen who had entered since 1945 and had been in Yugoslavia at some time since that date should be “based upon the criteria” stated therein. See Diminich v. Esperdy, 299 F.2d 244, 246 (2 Cir. 1961). By his failure to allege the threat of torture or death, therefore, as distinguished from simple incarceration, appellant was not precluded from having his-application considered under § 243(h).
[29]*29We do not suggest, of course, that all incarceration, whatever its duration or whatever its assigned justification, would constitute physical persecution within the purview of the statute. The courts have held that a brief period of incarceration for a seaman who has deserted his ship, or “a prosecution before a military tribunal convened pursuant to laws of a foreign state to try offenses committed by a member of the military forces of that country” would not constitute physical persecution under § 243(h). Chao-Ling Wang v. Pilliod, 285 F.2d 517, 520 (7 Cir. 1960); Blazina v. Bouchard, 286 F.2d 507, 511 (3 Cir. 1961). Without more, the alien’s punishment, under these circumstances, might realistically be compared to his liabilities within our system of law were he to violate traditional statutory or contractual duties.
We do not suggest that any incarceration for even political crimes, such as the one here involved, would constitute physical persecution under § 243 (h). However repugnant to. our own concept of justice, a brief confinement for illegal departure or for political opposition to a totalitarian regime would not necessarily fall within the ambit of Congress’s special concern in enacting this provision. We are unwilling to believe, however, that Congress has precluded from relief under § 243(h) an alien threatened with long years of imprisonment, perhaps even life imprisonment, for attempting to escape a cruel dictatorship. Such a construction of the statute would attribute to Congress an insensitivity to human suffering wholly inconsistent with our national history.
We hold, therefore, that the Attorney General, through his delegate, erroneously construed the limits of his discretion in ruling that imprisonment for illegal departure may never constitute “physical persecution” within the purview of § 243(h).
The Government now argues that, even assuming the Attorney General’s use of an erroneous standard in denying appellant’s application, we should review the record ourselves and rule that, under the most generous standard applicable, appellant has failed to establish a case for discretionary relief.
We cannot say that such a case has been established on the record before us. Although the Government appears to concede the possibility of appellant’s incarceration should he be returned to his native country, the nature, duration and grounds for that threatened punishment are disputed.
Such a record is not uncommon in the case of applications under § 243(h), of course. Although applicants under this provision have the burden of establishing their eligibility for relief, they are often, like Sovich, unlettered persons who have been away from their native countries for many years. They typically have available to them no better methods for ascertaining current political conditions abroad than does the average citizen — or than does this court.
We believe it is for this reason, as well as to avoid prejudicing national interests, that the Attorney General has authorized his delegates in the Immigration and Naturalization Service to consider extra-record information available from national intelligence sources, in ruling upon applications under § 243 (h). Inasmuch as that information might as well be favorable as unfavorable to appellant’s contentions, we cannot say how the Attorney General’s delegate would rule upon appellant’s application were he to consider it anew under the standards herein set forth. See Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943).
The judgment of the district court dismissing appellant’s complaint is, accordingly, reversed, and the cause is remanded with instructions that a stay of deportation be issued to remain in effect until appellant shall have been given the opportunity to renew his application to the' Attorney General under § 243(h).