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

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                             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. &amp;  N. Dec. 581, 584 (BIA 1978);
                     

see   generally  3   Charles  Gordon   &amp;   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. &amp; N. Dec.
                                           

101,   106  (BIA  1981);  1   Gordon  &amp;  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

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                             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

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                             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 &amp;  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. &amp; 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.  &amp; 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. &amp; 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. &amp; 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 &amp; 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

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                             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

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                             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.
                     

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                             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. &amp; N. Dec. 26, 30 (BIA 1976).
     

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