Before CLARK, Chief Judge, and FRANK and HARLAN, Circuit Judges.
1. We shall assume familiarity with the facts stated in our previous opinion, 2 Cir., 206 F.2d 897, and in the opinion of the Supreme Court, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681. We do stress one fact: The particular kind of discretionary relief sought by Accardi was suspension of deportation, pursuant to Section 19(c) of the Immigration Act of 1917, as amended in 1948,*fn* which, so far as pertinent, provides:
"In the case of any alien (other than one to whom subsection (d) is applicable) who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may * * * suspend deportation of such alien if he is not ineligible for naturalization or if ineligible, such ineligibility is solely by reason of his race, if he finds (a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien; or (b) that such alien has resided continuously in the United States for seven years on more and is residing in the United States upon July 1, 1948." 8 U.S.C. (1946 ed. Supp. V) Sec. 155(c).
2. Printed in the Appendix to this opinion are certain "public announcements" of the Attorney General, consisting of newspaper reports of interviews with him and of "press releases" issued by him. They were not called to our attention on the previous appeal. But they were submitted by the government to the Supreme Court. Apparently the Supreme Court took judicial notice of them, since it referred to and relied upon them in its opinion. These data were received in evidence at the subsequent trial and are now in the record before us. They are significant because of the following portions of the Supreme Court's opinion [347 U.S. 260, 74 S. Ct. 503]:
"We think the petition for habeas corpus charges the Attorney General with precisely what the regulations forbid him to do: dictating the Board's decision. The petition alleges that the Attorney General included the name of petitioner in a confidential list of 'unsavory characters' whom he wanted deported; public announcements clearly reveal that the Attorney General did not regard the listing as a mere preliminary to investigation and deportation; to the contrary, those listed were persons whom the Attorney General 'planned to deport.' And, it is alleged, this intention was made quite clear to the Board when the list was circulated among its members. In fact, the Assistant District Attorney characterized it as the 'Attorney General's proscribed list of alien deportees.' To be sure, the petition does not allege that the 'Attorney General ordered the Board to deny discretionary relief to the listed aliens.' It would be naive to expect such a heavy handed way of doing things. * * * If petitioner can prove the allegation, he sould receive a new hearing before the Board without the burden of previous proscription by the 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."
3. The government contends that, reasonably construed, those published utterances of the Attorney General could mean no more than that the hearings of persons included in his "program" should be "expedited." The government, explicitly and repeatedly, advanced that same contention in its brief in the Supreme Court.*fn1 It seems obvious that the Supreme Court rejected it.
4. If more were needed as to the meaning of the Attorney General's statements and "releases," we now have the testimony of the then Attorney General, McGranery, which amply supports the Supreme Court's interpretation.*fn2 We must take it, then, that the Attorney General's clearly stated intention was to deport anyone named by the Attorney General as within his program.
5. We read the Supreme Court's opinion as holding this:
(a) The Attorney General's statements, reported in the press and in his press releases, "clearly reveal that the Attorney General did not regard the listing as a mere preliminary to investigation and deportation," but, "to the contrary," showed that "those listed were persons whom the Attorney General 'planned to deport.'"
(b) Accardi is entitled to a new hearing before the Board - of the kind described by the Supreme Court - if at a trial in the district court he can prove that
(1) he was one of the persons to whom the Attorney General thus referred, and
(2) a majority of the Board knew that fact, and
(3) the majority was affected by it when the Board denied him discretionary relief.
6. The evidence leaves no doubt that Accardi was so named.
7. Was the Board informed of this fact? The trial judge so found, stating: "In accordance with the practice in such cases, notice was given to the Board that Accardi was an alien embraced within the Attorney General's program." He made this finding, despite the oral testimony of the Board's Chairman that, previous to the Board's decision, he had no such knowledge. As this finding has support in the deposition-testimony of one Board member, and as two other members, also testifying by deposition, said they could not remember whether or not they then had had such knowledge, we see no reason why we should not accept that finding.*fn3
8. This leaves but one issue of fact: Was a majority of the Board members influenced by that knowledge? All the Board members testified that were not, because, they said, a notification from the Attorney General that any particular alien was within his "program" meant, to them, merely that the Attorney General desired an expeditious consideration and determination of that alien's case. The trial judge, on the basis of that testimony, found that such was the Board's understanding;*fn4 and he grounded his decision primarily on that finding, saying that he could see "no rational ground for disbelieving the witnesses" on that score.
This finding, based on that testimony, cannot stand up. We accept it as a fact that the Board members consciously believed, when they testified, that the Attorney General's statements amounted to no more than a calendar order (i.e., a direction to give preference, merely in point of time, to consideration and decision of such cases), and that, beyond that, those statements did not have any effect on the Board's decisions. But it is incredible, human nature being what it normally is, that the Attorney General's statements - as interpreted by the Supreme Court and the former Attorney General - did not unconsciously influence the Board members so that they felt obliged not to exercise their discretion and, without doing so, to decide against Accardi. Any other finding involves reliance on so remarkable a degree of improbability as to be untenable.
Yet the rejection of the finding does not imply any challenge of the intelligence or integrity of the Board members. One need not turn to the works of Freud and his disciples to learn that unconscious influences importantly affect the memory of honest men; such teachings will be found in the writings of Plato, Aristotle, Euripides, Dante, Montaigne, Shakespeare, Moliere, Pascal, Pope, Byron, Dr. Oliver Wendell Holmes and his sagacious son, to say nothing of novels since Fielding to the present. Indeed, the courts have long recognized that, stimulated by interest, pride or other motives, thoroughly honest and intelligent witnesses may tell unbelievable stories. The books are full of comments like these: "No class of men know better than judges how much interest may unconsciously warp an honest mind."*fn4a "Our memories are easy, and ofttimes unconscious, slaves to our wills."*fn4b Accordingly, a court may discredit the testimony of a witness "without casting any shade of doubt upon his character."*fn4c "The statements of some are unconsciously affected by their wishes, hopes, or prejudices."*fn4d Judges have spoken of the "ease with which honest witnesses can persuade themselves that they remember some bygone circumstance which they are ingeniously induced to think that they remember";*fn4e of "how extremely prone persons are to believe what they wish."*fn4f Because of interest, "very honest persons (such is the infirmity of our nature) often deceive themselves without being aware of it"; they "will often give false color to a transaction, without * * * intending to speak falsely or to suppress the truth."*fn4g The judiciary has thus acknowledged the wisdom of the aphorism: "Memory says, 'I did this'; pride says, 'I could not have done it'; eventually pride wins."
The courts, too, have often held that a highly improbable store requires "strong corroboration,"*fn4h and that "inherently improbable" testimony, not adequately explained, should be disregarded.*fn4j "The circumstances of a case may be such as to make" evidence "utterly incredible, although there are confident attestations in support of it," said Lord Stowell.*fn4k A court, remarked Judge Learned Hand, is not obliged to close its eyes "and assume a credulity which no sensible man can * * *."*fn4l Evidence, as to human conduct, contrary to common experience, will not be accepted.*fn4m The "eye of the law" will not "be blinded" by incredible statements,*fn4n statements "beyond the pale of credibility."*fn4p "The ...