
USCA1 Opinion

	




          September 28, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1122        No. 92-2272                                JOSE MANUEL GONCALVES,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                        ON PETITIONS FOR REVIEW OF AN ORDER OF                           THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            David Yavner for petitioner.            ____________            Donald  Keener, Acting  Assistant Director,  with whom  Stuart  M.            ______________                                          __________        Gerson, Assistant  Attorney General,  Civil Division, Anne  C. Arries,        ______                                                _______________        Attorney, Office of Immigration Litigation, Civil Division, Department        of  Justice, and David  M. McConnell, Attorney,  Office of Immigration                         ___________________        Litigation,  Civil Division, Department of  Justice, were on brief for        respondent.                                 ____________________                                 ____________________                       BREYER, Chief  Judge.   The  Board of  Immigration                               ____________             Appeals has a general procedural rule that says it "may  . .             . reopen or reconsider any case  in which it has rendered  a             decision."   8 C.F.R.   3.2  (1993).  In a  series of cases,             however,  the  Board  has  developed an  exception  to  this             procedural rule.  The exception relates to a certain kind of             Board  decision:   whether  or not  to grant  "discretionary             relief" which would permit an alien, otherwise "deportable,"             nonetheless to remain in the United States.  Immigration and             Nationality  Act  (INA)      212(c),  8  U.S.C.     1182(c).             According to  the procedural  exception, once the  Board has             denied   the   alien's   initial    "discretionary   relief"             application (and thus the Board has finally found the  alien             "deportable"), the alien may not ask the Board to reopen his                                      ___________              ______             deportation  proceedings for  further  consideration of  his             application.  See,  e.g., Matter of  Cerna, Int. Dec.  3161,                           ___   ____  ________________             slip op. at 3-4 (BIA Oct. 7, 1991).                       This  appeal requires  us  to  decide whether  the             Board's "no reopening" exception to its ordinary "reopening"             rule is lawful.  The Third and Fifth Circuits have held that             it is  lawful.  See  Katsis v. INS,  997 F.2d 1067  (3d Cir.                             ___  ______    ___             1993);  Ghassan v. INS, 972  F.2d 631, 637  (5th Cir. 1992),                     _______    ___             cert. denied, 113 S. Ct. 1412 (1993); see also Cerna v. INS,             ____________                          ___ ____ _____    ___             979 F.2d 212,  213 (11th Cir.  1992) (table), aff'g  without                                                           ______________             opinion  Matter of Cerna, Int. Dec. 3161 (BIA Oct. 7, 1991).             _______  _______________             The Second and Ninth Circuits have held that it is not.  See                                                                      ___             Butros  v. INS,  990 F.2d  1142 (9th  Cir. 1993)  (en banc);             ______     ___             Vargas v.  INS, 938 F.2d 358  (2d Cir. 1991).   We, like the             ______     ___             latter two circuits, do not understand the basis for the "no             reopening" exception.    In  our view,  the  Board  has  not             properly explained why it will consider motions to reopen in             most  cases   but  not   in  the  particular   circumstances             illustrated  here.  We therefore hold that the Board may not             invoke this  exception as  grounds for refusing  to consider             the  petitioner's motion  to  reopen in  this  case, and  we             remand the case  to the Board  for further consideration  of             that motion.                                          I                                 A.  Legal Background                                     ________________                       To understand the issue before us, the reader must             keep in mind the following legal background.  First, the INA             lists a host of  grounds for excluding or  deporting aliens,             including  conviction of a drug-related crime.  See, e.g., 8                                                             ___  ____             U.S.C.           1182(a)(2)    (exclusion),    1251(a)(2)(B)             (deportation).   The Act also  says that a  certain class of             these "deportable" aliens  -- those who have  lived here for                                         -3-                                          3             seven years  as  aliens  "lawfully  admitted  for  permanent             residence" -- can ask the Attorney General (i.e., the Board,             see 8 U.S.C.    1103(a);  8 C.F.R.     3.0, 3.1(a),  (b)(3),             ___             212.3(a)(2), (e)(3) (1993)) to  exercise a kind of equitable             discretion that would permit them to remain here even though             they  have,  for example,  committed a  drug  crime.   INA               212(c), 8 U.S.C.   1182(c) (see Appendix for text).  The Act             defines the class of those eligible for this relief as those             who, for seven years,                        hav[e]   been   lawfully  accorded   the                       privilege of residing permanently in the                       United   States   as  an   immigrant  in                       accordance  with  the immigration  laws,                       such status not having changed.                       ______________________________             8 U.S.C.     1101(20) (emphasis  added) (defining  "lawfully             admitted for permanent residence").                       Second,  an Immigration  Judge (IJ)  normally will             make  the initial decision as  to whether a particular alien             is "deportable,"  8  C.F.R.    242.8(a) (1993),  and if  so,             whether  he   is  eligible  to  apply   for  section  212(c)             "discretionary relief."   Id.    212.3(a)(2), (e).   If  the                                       __             alien is eligible, the IJ will further decide whether, given             the "equities," the Attorney General will grant that relief.             Id.;  Matter of Marin, 16 I. &  N. Dec. 581, 584 (BIA 1978);             ___   _______________             see   generally  3   Charles  Gordon   &   Stanley  Mailman,             ___   _________                                         -4-                                          4             Immigration Law and Procedure    74.01[2][a]-[b] (1993).  If             dissatisfied  with the result,  the alien may  appeal to the             Board  of  Immigration  Appeals,   8  C.F.R.      3.1(b)(3),             212.3(e)(3) (1993), which may  hold a hearing, take evidence             and  decide the issues  de novo.   Hazzard v. INS,  951 F.2d                                     _______    _______    ___             435, 440 n.4 (1st Cir. 1991); Matter of Lok, 18 I. & N. Dec.                                           _____________             101,   106  (BIA  1981);  1   Gordon  &  Mailman,  supra,                                                                   _____             3.05[5][b].  If the Board  reaches a negative decision,  the             regulations (while phrased negatively, see infra pp. 9 - 10)                                                    ___ _____             indicate that the alien normally may ask the Board either to             reconsider its decision or to reopen the proceeding in light             of  "circumstances  which  have  arisen  subsequent  to  the             hearing."  8  C.F.R.   3.2  (1993).  The  Supreme Court  has             pointed out that the  regulation governing motions to reopen             "does  not affirmatively  require  the Board  to reopen  the             proceedings under any particular condition."  INS v. Jong Ha                                                           ___    _______             Wang, 450 U.S. 139,  144 n.5 (1981) (per curiam).  The issue             ____             before  us, however,  concerns  not whether  the Board  must             grant the motion, but whether it must consider it.             _____                                 ________                       Third,  despite these  regulations, the  Board has             held  in  a series  of cases  that  an alien,  resident here             lawfully for seven years but under an administratively final             deportation  order,  may  not  ask the  Board  to  reopen  a                                  _____________                                         -5-                                          5             proceeding   ordering   deportation   to    obtain   further             consideration  of  "discretionary   relief"  under   section             212(c).   The Board has  based these holdings  on the theory             that a final Board  decision ordering deportation means that             the  alien's "status"  has "changed."   He  is therefore  no             longer  "lawfully admitted for  permanent residence,"  see 8                                                                    ___             U.S.C.   1101(20),  and thus falls  outside the category  of             those whom  section 212(c) permits to  ask for discretionary             relief.   And  since the  alien would  now be  ineligible to             apply for section 212(c) relief in  the first instance, see,                                                                     ___             e.g., Rivera  v. INS, 810 F.2d 540, 541 (5th Cir. 1987), the             ____  ______     ___             Board  reasons that  he  also  may  not  move  to  reopen  a                                                                ______             previously  decided section 212(c)  application.  See, e.g.,                                                               ___ _____             Katsis, 997  F.2d at  1069; Butros, 990  F.2d at 1143.   The             ______                      ______             Board  does not, however, deny  the alien the  right to move             for   reconsideration  of   the   earlier   section   212(c)                   _______________             application.  Cerna, slip op. at 5.                           _____                                B.  Factual Background                                    __________________                       The case before us involves a resident alien, Jose             Manuel Goncalves, who entered the United States as a baby in             1968 and  who has lived  here ever since.   He has committed             serious crimes, including  drug crimes.   In late 1989,  the             INS began  deportation proceedings.  Goncalves conceded that                                         -6-                                          6             he  was  deportable.    Goncalves then  asked  the  Attorney             General to exercise equitable  discretion in his favor under             section 212(c).  An IJ rejected this request on May 21, 1991             and ordered him deported.  On January  8, 1992, the Board of             Immigration Appeals, after weighing the various equities for             and  against  Goncalves,  also rejected  the  "discretionary             relief"  request   and  affirmed  the   IJ,  thus  rendering             Goncalves'  deportation order  "final."   8  C.F.R.    243.1             (1993).   Goncalves  then  moved to  reopen the  deportation             proceeding  so   that  he  could  present   letters  and  an             employment  record  that,  in  his  view,  amounted  to  new             evidence  of  his rehabilitation  sufficient  to  change the             outcome of the Board's "discretionary" calculus.                       After a  series of proceedings  not here relevant,             the Board, on October  8, 1992, denied the motion  to reopen             on the sole ground that Goncalves, his "status . . .  having             changed" by virtue of  the Board's "final" deportation order             of  January 8, 1992,  was no  longer "lawfully  admitted for             permanent residence" and therefore "[could]  not establish a             prima facie case for relief."  The Board did not address the             merits  of his request to reopen.  Goncalves now appeals the             Board's denial  of his motion to reopen.  He argues that the                                         -7-                                          7             law requires the Board at least  to consider it.  We believe             he is correct.                                         -8-                                          8                                          II                                       Analysis                                       ________                       The  Board's  refusal  to  allow  aliens  to  make             certain "reopening" motions is, in essence, a detail of  its             procedure.   In deciding the lawfulness of such a detail, we             recognize that  Congress  intended the  Attorney General  to             have  considerable   leeway  in  working   out  the  precise             procedures  for  determining  contested  issues  related  to             deportation  and   "discretionary  relief."    8  U.S.C.                 1103(a), 1182(c).   The  Attorney General has  delegated the             authority  to  work out  such procedures  to  the Board.   8             U.S.C.   1103(a); 28 C.F.R.     0.115-0.117 (1991); 8 C.F.R.                3.0, 3.1(a), 3.1(d)(3) (1993).  We therefore must respect             the Board's judgment  in such  matters.  See,  e.g., FCC  v.                                                      ___   ____  ___             Pottsville Broadcasting Co., 309 U.S. 134, 143 (1940); Union             ___________________________                            _____             of Concerned  Scientists v.  Nuclear Regulatory Comm'n,  920             ________________________     _________________________             F.2d  50, 54 (D.C.  Cir. 1990); American  Trucking Ass'ns v.                                             _________________________             United  States,  627 F.2d  1313,  1320-21  (D.C. Cir.  1980)             ______________             (deferring to agency  regulations governing intervention  on             ground that "procedural regulations are generally within the             discretion of  the agency");  Wagner Seed  Co. v.  Bush, 946                                           ________________     ____             F.2d 918, 920  (D.C. Cir.  1991), cert. denied,  112 S.  Ct.                                               ____________             1584  (1992).   The Administrative  Procedure  Act provides,                                         -9-                                          9             however, that the Board  may not act arbitrarily  or "abuse"             its "discretion."  5  U.S.C.   706(2)(A).  And,  even though             we  give  the  Board  considerable  leeway,  we  nonetheless             conclude that it has acted arbitrarily in this instance.  We             reach this conclusion for the following three reasons, taken             together.                       First, one of  the Board's procedural  regulations             strongly suggests that it will  permit motions to reopen  in                                       ____             cases of this sort.   The regulation first makes  clear that             "[t]he Board  may . .  . reopen  or reconsider  any case  in                           ___        ______                 ___             which it has rendered a decision" (unless the motion is made             after the alien has left the United States).  8 C.F.R.   3.2             (1993)  (emphasis  added).   The  regulation  then says  the             following:                       Reopening or reconsideration of any case                       in which a decision has been made by the                       Board, whether  [or not] . . . requested                       by the  party affected by  the decision,                       shall be only upon written motion to the                       Board.  Motions to reopen in deportation                       proceedings shall not be  granted unless                       it  appears to  the Board  that evidence                       sought to be offered is material and was                       not  available and  could not  have been                       discovered  or  presented at  the former                       hearing;  nor shall any motion to reopen                       for the  purpose of affording  the alien                       an opportunity to apply  for any form of                       discretionary  relief  be granted  if it                       appears that the  alien's right to apply                       for  such relief was  fully explained to                       him and an opportunity to apply therefor                                         -10-                                          10                       was afforded him  at the former  hearing                       unless the relief is sought on the basis                       of   circumstances  which   have  arisen                       subsequent to the hearing.  A  motion to                       reopen . .  . shall not be made by . . .                       a  person   who   is  the   subject   of                       deportation  proceedings  subsequent  to                       his departure from the United States.             Id.  We recognize that the regulation is phrased in negative             ___             terms, which  means that  it does not  explicitly grant  any             right  to  anyone  ever  to  ask  to  reopen  a  proceeding.             Nonetheless, consider the words                       nor  shall any motion  to reopen for the                       purpose  of  affording   the  alien   an                       opportunity  to apply  for  any form  of                       discretionary  relief be  granted .  . .                       unless the relief is sought on the basis                       ________________________________________                       of   circumstances  which   have  arisen                       ________________________________________                       subsequent to the hearing.                       _________________________             Id.  (emphasis added).   Coupled  with the  Board's explicit             ___             authority to reopen  any case, what  could those words  mean             but  that the alien does have  a right to move for reopening                                 ____             to  ask for  "discretionary relief  . .  .  on the  basis of                 ___             circumstances   which  have   arisen   subsequent   to   the             rehearing"?  See  Butros v.  INS, 990 F.2d  1142, 1144  (9th                          ___  ______     ___             Cir. 1993) (en banc) ("Board's regulations do say[] that you             may have a second round").  But cf. Katsis v.  INS, 997 F.2d                                         _______ ______     ___             1067, 1073 n.6 (3d Cir.  1993) (arguing that the  emphasized             language is "hardly a  rousing encouragement for or approval             of" using "evidence  manufactured after  the fact .  . .  to                                         -11-                                          11             support a motion  to reopen").   An agency,  of course,  has             every  right to interpret its  own rules.   E.g., Stinson v.                                                         ____  _______             United  States, 113  S.  Ct. 1913,  1919  (1993); Bowles  v.             ______________                                    ______             Seminole Rock &  Sand Co., 325  U.S. 410,  414 (1945).   But             _________________________             there are limits, set  by what is "reasonable."   Ford Motor                                                               __________             Credit  Co.  v.  Milhollin,  444 U.S.  555,  565-66  (1980);             ___________      _________             Commonwealth of  Massachusetts, Dept. of  Public Welfare  v.             ________________________________________________________             Secretary of Agriculture, 984 F.2d 514, 524  (1st Cir. 1993)             ________________________             ("an   administrative  agency   enjoys  great   latitude  to             interpret its own rules as long as those interpretations are                                     ____________________________________             reasonable") (emphasis  added).  And the  agency must follow             __________             its own rules,  as reasonably  interpreted. Arizona  Grocery                                                         ________________             Co. v. Atchison,  T. & S.F.  Ry. Co., 284  U.S. 370,  389-90             ____________________________________             (1932).                       Second,  the   Board,  while  claiming   that  its             exception   is  a   reasonable   "interpretation"   of   its             regulation,  reached  that  interpretation  by  following  a             complicated logical  syllogism that, in our  view, is either             irrelevant or erroneous.   The syllogism runs  approximately             as follows:                         (1) The  INA allows section  212(c) "discretionary                       relief" only upon the  request of a resident alien                       whose "status" has not "changed."  See 8 U.S.C.                                                             ___                       1101(20), 1182(c); supra pp. 3 - 4.                                          _____                                         -12-                                          12                       (2)  The  INA does  not  say just  when,  during a                       deportation proceeding, the alien's "status  . . .                       change[s]."                         (3) The  Board thus has considerable  legal leeway                       in interpreting  the statute with  respect to  the                       precise  time  when  "status  .  .  .  change[s]."                       Chevron  U.S.A.  v.   Natural  Resources   Defense                       _______________       ____________________________                       Council,  467  U.S. 837  (1984); Matter  of Cerna,                       _______                          ________________                       Int.  Dec. 3161, slip op. at 10 (BIA Oct. 7, 1991)                       (citing Chevron).                               _______                                      (4)  In Matter of  Lok, 18 I.  & N.  Dec. 101, 106                               ______________                       (BIA 1981), and later cases, the Board held that a                       "status change" takes place  at the time the Board                       enters a final  deportation order.  E.g.,  Nwolise                                                           ____   _______                       v.  INS, No. 91-1173, slip  op. at 4,  7 (4th Cir.                           ___                       Sept.  3, 1993); Perez-Rodriguez  v. INS,  No. 92-                                        _______________     ___                       3081, slip op. at  5, 7 (7th Cir. Aug.  25, 1993);                       Rivera v. INS, 810 F.2d 540 (5th Cir. 1987); cases                       ______    ___                       cited supra pp. 2 - 3,                              _____                       (5) Once that final deportation  order is entered,                       then, since  the  alien's "status"  has  "changed"                       (see step  (4)), the  alien must be  ineligible to                        ___                       ask for discretionary relief.                       (6) A motion  to reopen amounts  to a request  for                       discretionary relief.                         Therefore,  (7)  an  alien whom  the  Board orders                       deported  cannot  ask  the  Board  to  reopen  the                       proceeding to request discretionary relief.                       The flaw in this  syllogism is that step (4)  does             not  lead to step (5).  The  law permits the Board to decide             (within reason) when  a "change of status" takes  place, but             it also permits the Board  to decide that moment differently                ____                                          ___________             for  different purposes.    Cf.  Butros,  990 F.2d  at  1145                                         ___  ______             (discussing the  "fallacy of . .  . the belief that  what is                                         -13-                                          13             final for  certain administrative purposes is  final for all             purposes").  In Lok  (the source of the problem),  the Board                             ___             considered a substantive question,  namely, whether or not a             person  ordered  deported after  less  than  seven years  of             lawful residence  could continue to accrue  time towards the             magic  "seven  years"  while  his deportation  case  was  on             appeal.  Lok, 18 I. & N. Dec. at 102-05.  The Board sensibly                      ___             held  that the "seven  year" clock stopped  ticking once the             Board  ordered  deportation.   It  found  that his  "status"             "changed" at that moment  for the purpose of  accruing time.                                       _________________________________             See  Vargas, 938  F.2d at  361  ("Matter of  Lok, therefore,             ___  ______                       ______________             stands only for the proposition  that an alien cannot become                                                                   ______             eligible for discretionary relief through subsequent accrual             of  time  towards  the  seven-year threshold,  once  he  has             conceded  that he is deportable."); Lok v. INS, 681 F.2d 107                                                 ___    ___             (2d Cir. 1982); Lok, 18 I. & N. Dec. at 105.                             ___                       Lok  does  not  mean, however,  that  the  alien's                       ___             "status"  must   also  "change"  for  the   purpose  of  his                       ___________             eligibility  to  ask for  reopening.   After all,  the Board             itself agrees  that the  alien remains eligible  to ask  for             reconsideration.   8 C.F.R.    3.2 (1993); Matter  of Cerna,             _______________                            ________________             Int.  Dec. 3161,  slip op. at  5 (BIA  Oct. 7,  1991).  Even             after entry  of the  Board's "final" deportation  order, the             _____                                         -14-                                          14             alien can call to the Board's  attention evidence already in             the record  in an effort to show  that the Board's denial of             discretionary  relief  is  unlawful  or to  convince  it  to             exercise its  "discretion" differently.  Cerna,  slip op. at                                                      _____             5-6.   Moreover, the alien remains free to appeal the denial             of discretionary relief  to the  courts.  The  entry of  the             Board's final order  does not "change" his "status" for this             purpose  (if it did, it  would moot the  appeal by making it             impossible for the alien  to receive "discretionary  relief"             even if he wins).   See Butros, 990 F.2d at 1145.  In short,                                 ___ ______             Lok's  substantive  conclusion may  or  may  not permit  the             ___                                              ______             procedural exception to the Board's reopening regulations at             issue here, but it certainly does not require it.                                                   _______                       Either the  Board understands that  step (4)  does             not compel step (5) (i.e., that Lok and  other "substantive"                                             ___             change  of  status  precedents  do not  legally  compel  its                                                              ______             present position  on  motions to  reopen),  or it  does  not             understand  that.  If  it does  not, then  it has  based its             procedural exception upon a legal misunderstanding, in which             case it must reconsider the matter.   See Camp v. Pitts, 411                                                   ___ ____    _____             U.S. 138, 143 (1973) (per curiam); SEC v. Chenery Corp., 318                                                ___    _____________             U.S.  80, 93-95  (1943) (where  agency's decision  rests, in             significant part,  upon an  incorrect view  of what  the law                                         -15-                                          15             requires, court should set forth the correct view and remand             the  case for new agency  decision).  If  it does understand                                                          ____             that  its procedural  exception does  not follow  inevitably             from Lok, then it has failed to  explain why it adopted that                  ___                                 ___             exception, for its  opinions on the matter,  and its efforts             to justify the exception  in court, rely in large  part upon             Lok  and a  syllogism that  is basically  irrelevant.   That             ___             syllogism --  based upon the substantive  "change of status"             statute, 8  U.S.C.   1101(20)  -- is irrelevant  because the             Board  does  not need  to refer  to  the "change  of status"             statute to  justify its procedural "no  reopening" exception             if  that  exception  is  reasonable, and  reference  to  the             ___________________________________             statute cannot help the Board justify the exception if  that                                                                 ________             exception  is not  reasonable.   The basic  question is  the             ______________________________             reasonableness of  the exception, not the  intricate maze of             relationships between  it and the substantive  statute.  And             the reasonableness  of the  exception seems  doubtful, given             the fact  that its finely-spun distinctions  (e.g., allowing             reconsideration  but  not   reopening)  have  virtually   no             explanation apart from  those based on the syllogism.   See,                                                                     ___             e.g., Cerna, slip op. at 5-7.             ____  _____                       Third, we say  "virtually" because the  Board does             offer one practical consideration in an effort to answer the                                         -16-                                          16             question  "why is the 'no reopening' exception reasonable?."                        _______________________________________________             It says  that the  exception is reasonable  because it  will             prevent aliens  from "stringing out" their  claims, i.e., by             removing  the  possibility  of  the  alien's  asking  for  a             reopening, the exception also removes the alien's temptation             to  withhold  some evidence  initially  in  order to  obtain             reopening  after  an adverse  decision.    Some courts  have             accepted this justification.  See, e.g., Katsis, 997 F.2d at                                           ___  ____  ______             1072,  1074.   We cannot  do so,  however, both  because the             Board seems to  rely more  upon its  logical syllogism  than             upon this  practical justification,  see, e.g.,  Cerna, slip                                                  ___  ____   _____             op. at 3-7, and because the explanation itself raises fairly             obvious questions that the Board has not yet answered.                       Why,  for  example,  isn't  the   Board's  printed             regulation  -- limiting  reopenings to  those sought  on the             "basis of  circumstances that have arisen  subsequent to the             hearing,"  see  supra  p.  10 --  sufficient  to  remove the                        ___  _____             temptation to withhold evidence,  thus obviating the Board's             practical  concern?   Why  is  the  "stringing out"  problem             greater  where "discretionary  relief" involving  seven year             resident aliens is at issue than in other deportation cases?             Why  is the  "stringing out" problem  greater in  such cases             than where  other "discretionary relief" matters,  such as a                                         -17-                                          17             request for  suspension of  deportation under INA    244(a),             are  at  issue?    See  8  U.S.C.     1254(a);  8 C.F.R.                                    ___             3.1(b)(2),  242.8(a), 242.22,  242.21(a), 244.1   (1993);  3             Gordon & Mailman, supra,    74.07[5][e], [7].  Why  does the                               _____             Board  absolutely  forbid motions  to reopen  section 212(c)                    __________             discretionary  relief applications?   Does it really believe             that circumstances could never  change enough, that even the                                      _____             most heroic, public  spirited, self-sacrificing action  by a             seven  year resident  alien, after  the  "final" deportation             order, could not alter the outcome of the "equity" calculus?             We  do  not  say  that  no  satisfactory  answers  to  these             questions exist, but  we do say that the Board  seems not to             have asked them.                       We  stress,  and  we  well  understand,  that  the             exigencies of  the practical world  in which the  Board must             work  require that we  do not, and  we will not,  expect the             Board   to  answer   every  potentially   relevant  question             regarding its  procedures.  Here, however,  the problem goes             beyond the fact  that the Board  has left obvious  questions             unanswered.   More fundamentally, the Board  has not focused                                                          _______________             directly  on  the  basic  question of  whether  or  not  the             ________             particular  procedure before  us  is desirable,  nor has  it             clearly  explained its  position.   Further, it  has instead                                         -18-                                          18             unnecessarily  relied  on a  logical  syllogism involving  a             theoretical analysis of its own cases interpreting a statute             of  only  marginal relevance  to  the  problem, rather  than             squarely  facing  the  practical  question  of  whether  the             procedural  exception is good or bad.  Finally, it has acted             in the face  of a  regulation that seems  rather clearly  to             authorize the very kind of "reopening" motion that its cases             then deny.  Taking all these circumstances together, we find                         _______________________________________             the practice insufficiently justified.   That is to say,  we             find no legally  adequate explanation of  why the Board  has             departed from  the rule set forth in its own regulation.  We             therefore  conclude  that the  Board's  departure  from that             regulation is "arbitrary," and we set it aside.                                           III                                        Relief                                        ______                       Having   set  aside  the  Board's  exception  that             absolutely  forbids   motions  to  reopen,  we   remand  for             consideration of the petitioner's motion to reopen his case.             We  shall  not decide  petitioner's  further  appeal of  the             Board's basic decision to deport him until the Board decides             the motion to reopen.                         We  also have  a suggestion.   The  circuit courts             have now split three to two  about the lawfulness of the "no                                         -19-                                          19             reopening" exception.  Obviously,  the Board will be tempted             to  ask  for Supreme  Court review.    There is,  however, a             simpler way.  Why  does the Board not consider  amending its             procedural regulations  to reach  the procedural  result for             which it argues here?   Cf. Butros,  990 F.2d at 1144  ("The                                     ___ ______             Board could, no doubt, alter this regulation . . . ."), 1146             (Fernandez, J., concurring) ("If the INS now wishes to adopt             different regulations, that route is available to it.").  If             its exception makes sense,  and it explains why that  is so,             all  courts would respect the result.  If the exception does             not make sense, the Board  will not adopt it, and  that will             be  the end  of  the matter.   This  suggestion  is not,  of             course, legally binding, and there may be sound reasons  not             to follow it.   Yet it seems to us to  offer a fairly simple             way  out of  what has  become something  of a  legal morass,             involving five courts of appeals threading their way through             minor procedural details of a highly complex subject.                       The  petition in  No.  92-2272 for  review of  the             Board of  Immigration Appeals' decision is  granted, and the             case is  remanded  for further  proceedings consistent  with             this  opinion.  We do not  reach the issues presented in No.             92-1122.                       So ordered.                       ___________                                         -20-                                          20                                       APPENDIX                                       ________             INA     212(c), 8  U.S.C.A.     1182(c)  (West Supp.  1993),             provides in pertinent part:                            Aliens   lawfully   admitted    for                       permanent resident [sic] who temporarily                       proceeded  abroad  voluntarily  and  not                       under an order  of deportation, and  who                       are returning to a lawful unrelinquished                       domicile of seven consecutive years, may                       be  admitted  in the  discretion  of the                       Attorney General without  regard to  the                       provisions  of  subsection  (a) of  this                       section (other than  paragraphs (3)  and                       (9)(C)).             Although on its face  this section applies only  to resident             aliens  who have temporarily left the United States and seek             readmission,  case  law  has  extended  its  application  to             resident  aliens who have not  left the United  States.  See                                                                      ___             Joseph  v. INS,  909  F.2d 605,  606  n.1 (1st  Cir.  1990);             ______     ___             Francis  v.  INS, 532  F.2d 268  (2d  Cir. 1976);  Matter of             _______      ___                                   _________             Silva, 16 I. & N. Dec. 26, 30 (BIA 1976).             _____                                         -21-                                          21
