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
_______

Gerson, Assistant Attorney General, Civil Division, Anne C. Arri

______
_____________
Attorney, Office of Immigration Litigation, Civil Division, Departm
of Justice, and David M. McConnell, Attorney, Office of Immigrat
___________________
Litigation, Civil Division, Department of Justice, were on brief
respondent.
____________________
____________________

BREYER, Chief Judge.

____________

The

Board of

Immigration

Appeals has a general procedural rule that says it "may

. reopen or reconsider any case
decision."
however,

8 C.F.R.
the

Board

procedural rule.
Board

decision:

3.2
has

. .

in which it has rendered

(1993).

In a

developed an

series of cases,

exception

to

this

The exception relates to a certain kind of

whether

or not

to grant

"discretionary

relief" which would permit an alien, otherwise "deportable,"

nonetheless to remain in the United States.
Nationality

Act

(INA)

212(c),

Immigration and

U.S.C.

1182(c).

According to
denied

the procedural

the

alien's

exception, once the

initial

Board has

"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

application.

See,
___

further

consideration of

e.g., Matter of Cerna, Int. Dec.

____ ________________

his
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.
it is
1993);

lawful.

The Third and Fifth Circuits have held that

See
___

Katsis v. INS,
______
___

Ghassan v. INS, 972

_______
___

997 F.2d 1067

F.2d 631, 637

(3d Cir.

(5th Cir. 1992),

cert. denied, 113 S. Ct. 1412 (1993); see also Cerna v. INS,
____________
___ ____ _____
___

979 F.2d 212,

opinion
_______

213 (11th Cir.

1992) (table), aff'g without

______________

Matter of Cerna, Int. Dec. 3161 (BIA Oct. 7, 1991).

_______________

The Second and Ninth Circuits have held that it is not.

Butros
______

v. INS,
___

Vargas v.
______

990 F.2d

1142 (9th

INS, 938 F.2d 358

___

Cir. 1993)

(2d Cir. 1991).

See
___

(en banc);
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

illustrated

here.

invoke this

exception as

the

particular

circumstances

We therefore hold that the Board may not

petitioner's motion

remand the case

the

grounds for refusing

to

reopen in

to the Board

this

to consider
case, and

we

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.
lists a host of
including

grounds for excluding or

First, the INA

deporting aliens,

conviction of a drug-related crime.

U.S.C.

1182(a)(2)

(exclusion),

(deportation).

The Act also

says that a

these "deportable" aliens

-- those who have

See, e.g., 8
___ ____
1251(a)(2)(B)

certain class of
lived here for

-33

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.

212.3(a)(2), (e)(3) (1993)) to

3.0, 3.1(a),

(b)(3),

exercise a kind of equitable

discretion that would permit them to remain here even though

they

have,

for example,

212(c), 8 U.S.C.

committed a

drug

crime.

1182(c) (see Appendix for text).

INA
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

is "deportable,"

whether

eligible

he

is

to whether a particular alien

C.F.R.

"discretionary relief."

242.8(a) (1993),
to

apply

Id.
__

for

and if

section

212.3(a)(2), (e).

so,

212(c)
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. &

_______________

see
___

generally
_________

Charles

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

Gordon

&

Stanley

Mailman,

-44

Immigration Law and Procedure

dissatisfied
Board

of

with the result,

Immigration

decide the issues

the alien may

Appeals,

212.3(e)(3) (1993), which may

and

74.01[2][a]-[b] (1993).

If

appeal to the

C.F.R.

3.1(b)(3),

hold a hearing, take evidence

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

3.05[5][b].

1981);

If the Board

Gordon

&

Mailman,

supra,
_____

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

hearing."

which

C.F.R.

pointed out that the

"does

have

3.2

arisen

(1993).

The

subsequent

to

the

Supreme Court

has

regulation governing motions to reopen

not affirmatively

require

the Board

proceedings under any particular condition."

Wang, 450 U.S. 139,
____
before

us, however,

to reopen

INS v. Jong Ha
___
_______

144 n.5 (1981) (per curiam).

concerns

not whether

the

The issue

the Board

must

grant the motion, but whether it must consider it.

_____
________
Third,
held

in

despite these

regulations, the

of cases

an alien,

a series

that

Board has

resident here

lawfully for seven years but under an administratively final

deportation

order,

may not ask the

_____________
-55

Board

to

reopen

proceeding

ordering

consideration
212(c).

of

"discretionary

The Board has

that a final Board

the

deportation

1101(20),

those whom
relief.

And

section

Katsis, 997
______

since the

He

is therefore

no

see 8
___

outside the category

alien would

of

ask for discretionary

now be

ineligible to

the first instance, see,

___

v. INS, 810 F.2d 540, 541 (5th Cir. 1987), the

___
he

also

may

not

decided section 212(c)

F.2d at

reconsideration
_______________

of

the

to

earlier

Factual Background

reopen
______

See, e.g.,
___ _____

F.2d at 1143.

the alien the

Cerna, slip op. at 5.

_____
B.

move

application.

1069; Butros, 990

______

does not, however, deny

application.

on the theory

permanent residence,"

and thus falls

reasons that

previously

for

under

section 212(c) permits to

e.g., Rivera
____ ______

Board

relief"

has "changed."

apply for section 212(c) relief in

Board

further

based these holdings

"lawfully admitted for

U.S.C.

obtain

decision ordering deportation means that

alien's "status"

longer

to

The

right to move

section

212(c)

__________________
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.

serious crimes, including

INS began

drug crimes.

deportation proceedings.

He has committed
In late 1989,

the

Goncalves conceded that

-66

he

was

deportable.

Goncalves then

General to exercise equitable

section 212(c).

asked

the

Attorney

discretion in his favor under

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

relief"

Goncalves,

request

Goncalves'
(1993).
proceeding

and

also rejected
affirmed

deportation order
Goncalves
so

that

then
he

the

the
IJ,

"final."

moved to
could

"discretionary
thus
C.F.R.

reopen the

present

rendering
243.1

deportation

letters

and

an

employment
evidence

record
of

that,

in

his

his rehabilitation

view,

amounted

sufficient

to

to

new

change the

outcome of the Board's "discretionary" calculus.

After a

series of proceedings

the Board, on October

not here relevant,

8, 1992, denied the motion

to reopen

on the sole ground that Goncalves, his "status . . .

changed" by virtue of
of

January 8, 1992,

the Board's "final" deportation order

was no

longer "lawfully

permanent residence" and therefore "[could]

prima facie case for relief."
merits

admitted for

not establish a

The Board did not address the

of his request to reopen.

Board's denial

having

Goncalves now appeals the

of his motion to reopen.

He argues that the

-77

law requires the Board at least

he is correct.

to consider it.

We believe

-88

II
Analysis
________
The

Board's

refusal

to

allow

aliens

to

make

certain "reopening" motions is, in essence, a detail of

procedure.

In deciding the lawfulness of such a detail, we

recognize that
have

Congress

considerable

procedures

for

deportation

U.S.C.

in

determining

and

to

intended the

leeway

The

work out

contested

out

relief."

such procedures

the

issues

to

to

precise

related
8

Attorney General has

1103(a); 28 C.F.R.

to

U.S.C.

delegated the
the Board.

0.115-0.117 (1991); 8 C.F.R.

3.0, 3.1(a), 3.1(d)(3) (1993).

the Board's judgment

Attorney General

working

"discretionary

1103(a), 1182(c).
authority

its

in such

We therefore must respect

matters.

See,
___

e.g., FCC
____ ___

v.

Pottsville Broadcasting Co., 309 U.S. 134, 143 (1940); Union

___________________________
_____
of Concerned Scientists v.
________________________
F.2d

50, 54 (D.C.

United States,
______________

920

Cir. 1990); American Trucking Ass'ns v.

_________________________

627 F.2d

(deferring to agency

Nuclear Regulatory Comm'n,

_________________________

1313,

1320-21

(D.C. Cir.

1980)

regulations governing intervention

on

ground that "procedural regulations are generally within the

discretion of

the agency");

F.2d 918, 920

(D.C. Cir.

1584

(1992).

Wagner Seed Co. v.

________________

1991), cert. denied,

____________

The Administrative

Procedure

Bush, 946
____
112 S.

Ct.

Act provides,

-99

however, that the Board

its "discretion."
we

give

the

Board

may not act arbitrarily

U.S.C.

706(2)(A).

considerable

leeway,

or "abuse"

And,

even though

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

strongly suggests that it will

____
cases of this sort.
"[t]he Board

may . .

permit motions to reopen

The regulation first makes

. reopen

regulations

or reconsider

in

clear that
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)

then says

the

(emphasis

added).

The

regulation

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
-1010

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
right

to

means that

anyone

ever

it does not
to

ask

to

explicitly grant
reopen

any

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).

authority to reopen
but
to

Coupled

any case, what

that the alien does have

____
ask for
___

which
See
___

have

Butros v.
______

Board's explicit

could those words

mean

a right to move for reopening

"discretionary relief

circumstances
rehearing"?

with the

. .

arisen

on the

basis of

subsequent

INS, 990 F.2d

___

to

the

1142, 1144

(9th

Cir. 1993) (en banc) ("Board's regulations do say[] that you

may have a second round").
1067, 1073 n.6 (3d Cir.
language is "hardly a
of" using "evidence

But cf. Katsis v.

_______ ______

INS, 997 F.2d

___

1993) (arguing that the

emphasized

rousing encouragement for or approval

manufactured after
-11-

the fact .

. .

to

11

support a motion
every

to reopen").

right to interpret its

United States, 113

______________

S.

own rules.

Ct. 1913,

Seminole Rock & Sand Co., 325

_________________________
there are limits, set
Credit Co.
___________

v.

An agency,

1919

of course,

E.g., Stinson v.
____ _______
(1993); Bowles
______

v.

414 (1945).

But

U.S. 410,

by what is "reasonable."

Milhollin,
_________

444 U.S.

555,

Ford Motor
__________

565-66

(1980);

Commonwealth of Massachusetts, Dept. of Public Welfare

________________________________________________________
Secretary of Agriculture, 984 F.2d 514, 524
________________________
("an

administrative

agency

enjoys

has

great

v.

(1st Cir. 1993)

latitude

to

interpret its own rules as long as those interpretations are

____________________________________
reasonable") (emphasis
__________
its own rules,

added).

as reasonably

And the

agency must follow

interpreted. Arizona Grocery

________________

Co. v. Atchison, T. & S.F. Ry. Co., 284

____________________________________

U.S. 370,

389-90

(1932).
Second,
exception

is

regulation,

the

reasonable

reached

complicated logical

Board,

that

while

claiming

"interpretation"

interpretation

by

syllogism that, in our

irrelevant or erroneous.

that

its

of

its

following

view, is either

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.
_____

-1212

(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
discretionary relief.

to a request

for

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
not

lead to step (5).

(within reason) when

The

different purposes.

(discussing the

does

law permits the Board to decide

a "change of status" takes

it also permits the Board

____
for

syllogism is that step (4)

place, but

to decide that moment differently

___________
Cf.
___

"fallacy of . .

Butros,
______

990 F.2d

. the belief that

at

1145

what is

-1313

final for

certain administrative purposes is

purposes").

In Lok
___

(the source of the problem),

considered a substantive question,

person

ordered

deported after

lawful residence
magic

"seven

appeal.
held

years"

while

than

deportation.

Vargas, 938
______

seven years

It

found

of

time towards the

his deportation

year" clock stopped

"changed" at that moment

See
___

less

Lok, 18 I. & N. Dec. at 102-05.

___

ordered

the Board

namely, whether or not a

could continue to accrue

that the "seven

Board

final for all

case

was

on

The Board sensibly

ticking once the
that his

"status"

for the purpose of accruing time.

_________________________________

F.2d at

361

stands only for the proposition

("Matter of Lok, therefore,

______________
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
___
"status"

does

must
also
___________

eligibility

to

itself agrees

that the

Dec. 3161,

after entry
_____

mean, however,

"change"

ask for

reconsideration.
_______________
Int.

not

reopening.

the

the

alien's

purpose

After all,

alien remains eligible

8 C.F.R.

of

his

the Board
to ask

for

3.2 (1993); Matter of Cerna,

________________

slip op. at

of the

for

that

5 (BIA

Oct. 7,

Board's "final" deportation

1991).

Even

order, the

-1414

alien can call to the Board's

the record

attention evidence already in

in an effort to show

discretionary

relief

is

that the Board's denial of

unlawful

or to

convince

it

to

exercise its
5-6.

"discretion" differently.

Cerna,
_____

slip op. at

Moreover, the alien remains free to appeal the denial

of discretionary relief
Board's final order
purpose

to the

courts.

The

entry of

the

does not "change" his "status" for this

(if it did, it

would moot the

impossible for the alien

appeal by making it

to receive "discretionary

even if he wins).

See Butros, 990 F.2d at 1145.

___ ______

Lok's
___

conclusion may

substantive

or

may

relief"
In short,

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

not compel step (5) (i.e., that Lok and

___
change

of

status

present position
understand

that.

precedents
on
If

motions to
it does

do not

step (4)

does

other "substantive"
legally

reopen),
not, then

compel
______

its

does

not

or it
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

significant part,

(1943) (where
upon an

agency's decision

incorrect view
-1515

of what

rests, in
the law

requires, court should set forth the correct view and remand
the
that

case for new agency

its procedural

decision).

exception does

from Lok, then it has failed to

___
exception, for its

and a

syllogism -statute, 8
Board

does

statute to

it does understand
____

not follow

syllogism that

is basically

1101(20)

not need

and its efforts

in court, rely in large

to refer

because the

the "change

justify its procedural "no

That

"change of status"

-- is irrelevant
to

part upon

irrelevant.

based upon the substantive

U.S.C.

inevitably

explain why it adopted that

___

opinions on the matter,

to justify the exception

Lok
___

If

of status"

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.
______________________________
reasonableness of

The basic

the exception, not the

relationships between

question is

the

intricate maze of

it and the substantive

statute.

And

the reasonableness
the fact

exception seems

doubtful, given

that its finely-spun distinctions

(e.g., allowing

reconsideration

of the

but

not

explanation apart from

reopening)

have

virtually

those based on the syllogism.

no
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

-1616

question
It says

"why is the 'no reopening' exception reasonable?."

_______________________________________________
that the

prevent aliens
removing

the

exception is reasonable

because it

from "stringing out" their

possibility

of

the

will

claims, i.e., by

alien's

asking

for

reopening, the exception also removes the alien's temptation

to

withhold

reopening

some evidence

after

an adverse

initially
decision.

in

order to
Some courts

obtain
have

accepted this justification.

1072,

1074.

We cannot

Board seems to
upon this

rely more

See, e.g., Katsis, 997 F.2d at

___ ____ ______

do so,

however, both

upon its

practical justification,

because the

logical syllogism
see, e.g.,
___ ____

than

Cerna, slip
_____

op. at 3-7, and because the explanation itself raises fairly

obvious questions that the Board has not yet answered.
Why,
regulation

for

example,

-- limiting

isn't

the

reopenings to

circumstances that have arisen

hearing,"

see
___

p.

10 --

temptation to withhold evidence,

practical
greater

concern?

Why

is

where "discretionary

printed

those sought

"basis of

supra
_____

Board's

on the

subsequent to the

sufficient

to

remove the

thus obviating the Board's

the

"stringing out"

relief" involving

problem

seven year

resident aliens is at issue than in other deportation cases?

Why

is the

than where

"stringing out" problem

greater in

other "discretionary relief" matters,

-1717

such cases
such as a

request for
are

at

suspension of

issue?

3.1(b)(2),

See
___

deportation under INA

U.S.C.

242.8(a), 242.22,

Gordon & Mailman, supra,

_____
Board

absolutely
__________

discretionary

74.07[5][e], [7].

forbid motions

(1993);
Why

to reopen

relief applications?

most heroic, public

8 C.F.R.

242.21(a), 244.1

that circumstances could never

_____

seven

1254(a);

244(a),

does the

section 212(c)

Does it really believe

change enough, that even the

spirited, self-sacrificing action

year resident

alien, after

the

by a

"final" deportation

order, could not alter the outcome of the "equity" calculus?

We

do

not

say

that

questions exist, but

no

satisfactory

answers

we do say that the Board

to

these

seems not to

have asked them.

We

stress,

exigencies of
work

to

we

well

the practical world

require that we

Board

and

answer

regarding its

do not, and
every

we will not,

expect the

relevant

More fundamentally, the Board

directly
________

the

particular

basic

question of

procedure before

us

question

the problem goes

has left obvious

unanswered.
on

the

Board must

Here, however,

that the Board

that

in which the

potentially

procedures.

beyond the fact

understand,

questions

has not focused

_______________

whether

is desirable,

or

not

nor has

the
it

clearly

explained its

position.

Further, it

has instead

-1818

unnecessarily

relied

on a

logical

syllogism involving

theoretical analysis of its own cases interpreting a statute

of

only

squarely

marginal relevance
facing

procedural

the

to

practical

the

question

exception is good or bad.

in the face

of a

problem, rather
of

whether

than
the

Finally, it has acted

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.

find no legally
departed from
therefore

adequate explanation of

That is to say,

we

why the Board

has

the rule set forth in its own regulation.

conclude

that the

Board's

departure

regulation is "arbitrary," and we set it aside.

III

We

from that

Relief
______
Having
absolutely

set

forbids

aside
motions

the

Board's

to

reopen,

exception
we

remand

that
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.

have now split three to two

The

circuit courts

about the lawfulness of the "no

-1919

reopening" exception.
to

ask

for Supreme

simpler way.

Why

Obviously,

the Board will be tempted

Court review.

There is,

does the Board not consider

procedural regulations

to reach

the procedural

which it argues here?

Cf. Butros,
___ ______

however, a
amending its
result for

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.").
its exception makes sense,
all

courts would respect the result.

not make sense, the Board

be

and it explains why that

the end

of

This

is so,

If the exception does

will not adopt it, and

the matter.

suggestion

that will
is not,

course, legally binding, and there may be sound reasons

to follow it.
way

out of

Yet it seems to us to
what has

If

become something

of
not

offer a fairly simple

of a

legal morass,

involving five courts of appeals threading their way through

minor procedural details of a highly complex subject.
The
Board of
case is
this

petition in

No.

92-2272 for

Immigration Appeals' decision is

remanded

opinion.

for further

We do not

review of

the

granted, and the

proceedings consistent

with

reach the issues presented in No.

92-1122.
So ordered.
___________
-2020

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
aliens

Joseph
______
Francis
_______

to resident

who have temporarily left the United States and seek

readmission,
resident

this section applies only

case

law

has

extended

aliens who have not

v. INS,
___
v.

909

INS, 532
___

its

application

left the United

States.

F.2d 605,

606

n.1 (1st

F.2d 268

(2d

Cir. 1976);

Silva, 16 I. & N. Dec. 26, 30 (BIA 1976).

_____

Cir.

to
See
___

1990);

Matter of
_________

-2121