*1 858 intent, preparation, apartment, doing and and in motive, control opportunity,

of or of plan, knowledge, identity, absence so did not abuse its discretion. See United ” 404(b) .... Rule For Richards, 1189, mistake or accident F.2d States v. 967 1192-93 admissible, “the evidence evidence (8th Cir.1992) (drug paraphernalia admit- ‘(1) issue; a material must be relevant to prosecution ted introduced the when (2) proved preponderance of evi by a to link other the defendant (3) dence; probative value than higher items in the trunk and found defendant’s (4) effect; prejudicial similar kind and that the defendant raise inference ” charged.’ and in time to the crime close trunk). guns knew the were in the 1429, Shoffner, v. 71 F.3d United States is conviction reversed the case (8th Cir.1995) States (quoting United is for a remanded new trial. (8th Jones, v. F.2d Cir. 1993)). district admitted the court drug paraphernalia when of Con Dale

rad testified that Johnson was also possession upstairs

control and

apartment. have serious reservations

We possession drug par about whether RAMIREZ-ALEJANDRE, Ramon aphernalia drug without evidence traf Petitioner, possession ficking is admissible show However, in illegal weapon. United v. Fuller, States Cir. ASHCROFT, Attorney John 1989), a panel relying this court General, Respondent. Eighth precedent admitted evi Circuit paraphernalia prose in the drug dence No. 00-70724.

cution of violation. Id. a federal firearms Appeals, United States Court of Simon, (citing at 147 United States Ninth Circuit. (8th Cir.1985)). Fuller, F.2d this court that in addition concluded 7, 2001. Submitted Nov. drug paraphernalia properly being admit Filed Jan. 2002. witness, it impeach ted to defense 404(b) under as pro also admissible Rule En Argued Reheard Banc possess a bative on the issue of motive to June 2002. Submitted Typically, firearm. Id. the cases which Filed Feb. 2003. type is are drug of evidence admitted is Amended trafficking cases the evidence admit Feb.

ted to show the and well-known “close

connection drugs.” between firearms and

Id.; Claxton, see also United States v. (same). (8th Cir.2002) While

the evidence supporting ‘well-known’ trafficking

connection between drug

possession gun of a in this absent

we do not find the district court abused

discretion in admitting the evidence

drug paraphernalia. The district court ad possession

mitted prove the evidence to *2 enthu- players’ game

lured into of cards siasm, a handful given would be using make bids encouraged to wild changed calls that vocabulary of weird *3 48, 60-64. Id. at round. round to from always lose but would poor cluck The game’s legitima- the of be reassured would ap- rationality of cy by the veneer Kaufman, Law Kaufman M. Jonathan sophisti- seemingly the peared overlie Francisco, CA, petition- the for Office, San game. cated er. Immigration Board of years, For (briefed) Dougherty T. Michael (“BIA”) Teg- of played a variant Appeals De- States (argued), United David Kline appeals treatment procedural inwar its Justice, Division, Office Civil partment decisions deportation suspension from Washington, Litigation, Immigration (“Us”). Un- judges issued DC, respondent. for the demonstrate who could recently, til aliens suspen- for eligible hardship were extreme unique deportation. Under sion of remedy, to this applicable directives for eligibility required to decide BIA was SCHROEDER, Judge, Chief Before: based, facts that not on the suspension TASHIMA, O’SCANNLAIN, TROTT, hearing before the time of as of existed GOULD, FLETCHER, THOMAS, W. IJ, they as existed on the facts but BERZON, PAEZ, TALLMAN issued decision. when the BIA RAWLINSON, Judges. Circuit was im- BIA’s factual determination THOMAS; Dissent Judge Opinion by time extraordinary length of by the peded TROTT. Judge decisions, peri- the IJ and between long as as lasted od that sometimes ORDER eight it took the In this decade. opinion filed Febru- The dissent Naturally, life to decide years replace hereby amended ary turn, justice the wheels of on while goes dissenting, TROTT, Judge, Circuit line that are occur inevitably developments with TROTT, Judge, dissenting, Circuit of whether relevant to the determination GOULD, O’SCANNLAIN, TALL- whom hardship. suffer extreme an alien would RAWLINSON, Judges, MAN, Circuit finding the charged Despite being join. time of its at the they existed facts as decision, BIA did not establish OPINION during procedures formal or consistent THOMAS, Judge: Circuit case submis- to this period relevant Drum, Slowly, Bang the In the book af- available that became of evidence sion Mam- York fictional New members hearing. ter the IJ drawing themselves by amused moths and practice custom The informal “Teg- as scam known dupes with card BIA in some wildly, with BIA varied Ex- “The war,” acronym which was factfin- the ultimate declaring itself cases Mark Any Rules.” citing Game Without tendered accepting der and Harris, LOWLY 8 THE DRUM S BANG cases, such forms, and in other Ine.1956). mark, Knoff, various (Alfred A. one, categorically rejecting amended 1948 “to broaden catego- the ground purely appel- that it was a ries of aliens eligible for suspension of body. late The net result was a deportation.” Chadha, U.S. rules, without with an body administrative 103 S.Ct. 2764. The 1948 amendments that morphed any consistency without also repealed Congressional override from fact-finding pure appellate review provisions and restricted the Attorney of a fixed record. General from canceling a deportation un- The remedy less both houses of Congress ap- voted to statute, has replaced by now been and the prove Chadha, the action. 462 U.S. at function of the BIA changed has now been S.Ct. *4 regulation. by presents This case question Immigration of whether the and now-repealed pro- Naturalization Act petitioner cedures to which of subjected permitted was one house of Congress right violated his to due of law. to veto the Attorney suspension General’s presented Under the by circumstances this of deportation. 934, Id. at 103 S.Ct. 2764. case, we conclude that they did and grant procedure This was stricken as an uncon petition for review. stitutional of separation violation powers, Court, by first INS, our Chadha v. I (9th Cir.1980), F.2d 408 and then Because we are concerned in this case Supreme Court, Chadha, 462 U.S. at were, things are, how about not how they 959, 103 Thereafter, S.Ct. 2764. power some historical important. context is Un- to suspend deportation solely was vested til provide law did not in General, the Attorney suspension any exceptions to a deportation order. deportation became an exclusively admin “[T]he statute unyieldingly de- istrative process. Gordon, Mailman that an illegally manded alien in the Unit- 74.07[2][e], § 74-71. The Attorney Gener deported; ed States be no deviations were al delegated the authority suspend de GORDON, mentioned in the law.” MAIL- portation to both the BIA and to IJs. YALE-LOEHR, MAN & IMMIGRA- procedure Under the applicable during the TION LAW and PROCEDURE period, relevant approval “the final aof 74.01[1], (Rev. ed.2002) § (hereinaf- 74^4.1 suspension application by an immigration “Gordon, ter referenced as Mailman” un- judge or the Board of Immigration Ap less citation is to other editions of the peals[would] treatise). prompt grant result The sole mechanism at permanent for a lawful deportable time alien to remain in residence.” Id. private 74.07[7](c), United States passed was a bill 74-129. Congress pursuant I, 7,§ to Art. of the suspension To receive a deportation, Chadha, Constitution. v. INS 462 U.S. required alien was to make a formal 103 S.Ct. 77 L.Ed.2d 317 application. The administrative determi- (1983). Confronted a large number of nation for suspension of deportation in- compassionate presented by cases aliens (1) volved steps: two a determination of

who had deep “established roots in our whether the statutory conditions had been soil,” Congress passed the Alien Registra- satisfied, generally which ques- involved a Act tion granted the Attor- law, (2) tion of a determination of ney General the authority suspend de- portation cases, whether ultimate granted certain relief would be subject to a Congressional Gordon, eligible, to those override. Mailman which involved the exer- § 74.07[2][a], 74-68. The statute was cise of discretion. Id. noted, because, both we have required always has former, Congress

toAs delegated had been the IJ BIA and prerequisites statutory specific provided deporta suspension grant deportation. authority suspension of for eligibility for Thus, noted Santana-Fi this as we applicable to period tion. time During the (9th INS, suspen- eligible v. gueroa would be an alien can (1) physically Cir.1981), been “discretion applicant had the BIA’s if sion for a continu- if the circum only States the United properly exercised years than seven con less We actually of not considered.” period ous are stances ap- See, the date preceding immediately adhered to view. sistently have (2) deportation; suspension of F.2d plication e.g., Gonzales-Batoon good Cir.1985) moral person applicant (reversing (3) re- character; deportation would for its BIA denial of remanding alien or to hardship to the sult extreme con applicant’s medical to evaluate failure who family member expressly an immediate the Ninth Circuit after dition perma- a lawful citizen or United States factor consider such BIA to instructed (re- 1254(a)(1) 8 U.S.C. nent resident. decision); Figueroa-Rin making its when pealed). supersed con *5 Cir.1985) (9th 766, 767-68 by 770 F.2d ed depor- suspension of for application

An failure remanding for BIA’s (reversing and IJ, by an be would considered tation first consid instructions to the court’s to follow grant to relief. whether would decide who hard psychological “emotional er the to applicable are of evidence The rules the by age” because complicated INS, ship v. hearings. Saidane circum present the Cir.1997) to consider (9th failed (citing 1065 F.3d 129 life). (9th applicant’s in the stances INS, 1233 709 F.2d v. Baliza Cir.1983)). Thus, hearsay example, for twen- For is not alone. over Circuit Our Olabanji v. may be considered. testimony the have courts directed ty years, federal Cir.1992). (9th INS, 1234 973 F.2d be- emerged facts newly BIA consider to be conduct- However, proceeding must the suspension application. adjudicating fore process standards with due ed “in accord INS, 94 F.3d 392 Opoka v. example, For Id. fairness.” of fundamental (7th Cir.1996), vacated the Circuit Seventh and remanded during suspension the applicable a BIA denial procedures

Under statutory to consider if the IJ found it with instructions period, relevant relief, the on the legal grant newly elected conferred status the eligibility to the INS when evaluat- then be and children applicant’s referred wife case would office, whether suspension decide claim. applicant’s who would ing district If origi- to the BIA. after legalized the IJ’s decision appeal status was wife’s the alien application, Seventh application suspension the IJ denied nal BIA. ap- the denial right that if the husband’s reasoned Circuit 74.07[7][c], Gordon, recog- § 74-130. Mailman “without were considered plication decision] [the his wife nizing the status applicable at procedures Under judi- of scarce futile and wasteful would its time, reach required BIA was The Seventh at 395. Id. cial resources.” appli grant to whether to decision as stating “[r]ather by continued Circuit suspension of based cation for to review attempting improvidently than it the time decided existing at on the facts impacted significantly that has been record by the IJ. issued appeal from the order decision,” should the decision (9th agency by INS, 1350, 1352 756 F.2d v. Chookhae all BIA to consider for the Cir.1984). be remanded examination This factual factors in the Id. case. See also Rodri the INS and this court regarding the cur INS, guez-Gutierrez v. 59 F.3d 509- rent, respective hardship that the immi (3d Cir.1995) (reversing BIA denial of nent deportation of Mrs. Chookhae would it because had failed to consid cause.” Id. recently We reaffirmed this applicant’s er exemplary behavior principle in Guadalupe-Cruz INS, years subsequent to his criminal convic (9th 1209, 1212 Cir.2001) F.3d (citing Choo- tion); INS, Cortes-Castillo khae and remanding suspension applica (7th Cir.1993) (where 1199, 1203 BIA is tion to BIA with instructions to consider given IJ, information unavailable to the the current facts and petitioners’ current equities should reexamine the and reevalu circumstances). case) (internal omitted); ate the citation Indeed, not only appellate did courts INS, (1st Luna v. F.2d 128-29 require the BIA evidence, to consider new Cir.1983) J.) (Breyer, (reversing and re appellate courts at the time invoked their manding BIA provide decision order to discretionary authority to admit new evi applicant hearing evidence to dence into pursuant the record to 28 respect what happened 2347(c) U.S.C. applicant’s years life the four since U.S.C. 1105a(a)(4) decision); 1996) the IJ issued (repealed Ravancho v. and then re Cir.1981) (re F.2d mand the entire record consideration manding matter for consideration of evi See, by the BIA. e.g., Saiyid v. BIA, dence not considered specifically (11th Cir.1998) (consid 1384-85 noting that its review of the BIA “extends ering whether remand for the consider to a least determination as to whether ation of new with respect to sus 'procedure followed in a Board *6 pension application admitted for the first particular case improper constitutes an ex time appeal on was warranted under Attorney ercise of [the General’s] discre 2347) § (superceded by statute on other tion”) added). (emphasis grounds); INS, Makonnen v. 44 F.3d Our decision in Chookhae is illustrative. (8th 1378, Cir.1995) 1384-86 (asylum); previously We petition remanded the INS, 144, v. Bernal-Garcia 852 F.2d 147 for review the BIA because had failed to (5th Cir.1988) (asylum); Becerra-Jimenez consider the relevant factors in determin- INS, 996, (10th v. 829 F.2d 1000-02 Cir. ing economic hardship. The reviewed 1987) (voluntary departure); Dolores v. the record and issued new with- decision INS, (6th 223, Cir.1985) F.2d 772 226-27 out allowing the of submission further curiam) (motion (per with re evidence. We reversed and remanded spect asylum); INS, v. Coriolan 559 with instructions that the BIA “consider (5th 993, 1002-04 Cir.1977) F.2d (reversing hardship cmrent to the citizen children denial and remanding matter under of petitioner that would result from 2347(c) for further consideration of the (em- deportation.” her 756 F.2d at 1352 claim, alien’s asylum taking judicial after phasis supplied). Chookhae, empha- we notice of a human rights report that was sized “the appropriate exercise of the record, of outside which contended cur Attorney suspend General’s discretion to persecution rent country existed deportation predicated on a properly issue). focused inquiry hardships into the claimed The direction petitioner.” consider current Id. evi- We instructed the BIA to dence not an conduct was invention appellate an examination of based on “a scope Rather, is of more -than courts. historical fully consistent Chookhae, interest children, Mrs. her practice the BIA’s own of determin- 864 should discretion Attorney General’s law the the basis admissibility “on

ing exercised. appli be time the existing at the the facts Matter finally considered.” cation is of current evi considering of practice 51, 49, 1984 WL N. Dec. I. &19 consistent with Kazemi also was dence Alar (BIA 1984); Matter see also 48583 during the rele powers general BIA’s 562, 557, 1992 WL con, Dec. 20 I. & N. time, the BIA re At that period., vant Kazemi); 1992) (BIA Mat (citing 249104 discretionary power. enormous tained 133-35, 130, Correa, I. & N. Dec. ter 19 Shaugh Accardi v. ex rel. United States (BIA 1984); Matter 1984 WL 48595 98 74 S.Ct. nessy, U.S. 283, 284, 1969 Dec. I. & N. Morgan, 13 (1954); v. Kashefi-Zihagh L.Ed. 681 1969) (“[T]he (BIA they facts as WL 16964 (9th Cir.1986) (noting F.2d determinative-”); Mat exist are now facts and power to re-find the BIA’s WL , Dec. & N. 9 I. ter appeal). K— As the accept new evidence (BIA A.G.1961), sub it, has aff'd “the Board has described BIA itself F.Supp. nom.; Esperdy, v. Klapholz in a novo authority to de engage had broad (S.D.N.Y.1961), aff'd, 298-99 Immi underlying an the record review Cir.1962) curiam); (2d (per see 928, 929 own and make its Judge’s decision gration (2d Reno, 448 n. 3 22 F.3d also Ali fact, irrespective findings of independent Kazemi). Cir.1994) (citing Judge.” Immigration those made 462, 463-64, S-H-, N. 23 I. & Dec. In re evi- of current consideration The BIA’s (BIA 2002). 2002 WL suspension making decisions its dence broad discretion itself exercises consis- completely cases fact findings of independent make its own Un- responsibility. delegated tent with its See, e.g., cases. Charles proceeding adjudicated case like a normal 1323, 1325 Act, 5 worth Procedure Administrative under the Cir.1992) (“The required to Board is not never was seq., et U.S.C. findings immigration judge’s defer to appellate adminis- acting as traditional [Applicant’s] argument au- and conclusions. with the It was vested body. trative miscompre- failed to do so the Board granted the discretion thority to exercise *7 pro immigration Board’s role hends the consistent Attorney General by the power to has the Thus, ceedings: [Board] the in mak- statutory requirements. the record, to of the a de novo review conduct appli- whether an the determination ing independently findings, own make its good moral character presently cant sufficiency of the legal the determine hardship, the suffer extreme and would (internal evidence.”) quota citations facts consider the necessarily had to BIA omitted); v. Cordoba-Chaves BIA tion marks time of at the the they existed Cir.1991) (7th INS, 1249 F.2d If, applicant 946 example, decision. reviewed (observing “[t]he that BIA killing spree a murderous gone on de novo” and record BIA deci- entire administrative the IJ and the time of between so); authority to do Castillo- its affirming sions, certainly would be relevant fact that (5th INS, 929 F.2d Rodriguez v. char- “good moral determining present Cir.1991) ex Board (observing that “the facts Similarly, new relevant acter.” im on the any reliance hardship plicitly disclaimed of extreme the determination findings”); credibility judge’s migration were the IJ decision developed that after INS, 787 F.2d indepen- Damaize-Job BIA’s necessarily material (“The Cir.1986) power (9th has Board alien’s statuto- as to an determination dent make its record de novo whether to review ry eligibility for fact, own findings including credibility on suspension applications. Judge Posner determinations.”); Neverola-Bolaina termed the practice “irresponsible” and INS, (9th 131, 135 Cir.1968) (find 395 F.2d government’s argument supporting the ing “astonishing! practice “[i]t is common of the procedure as ]” and “incoherent Board to make its own independent find Ortiz-Salas v. ] ” fact”); Edwards, ings of Matter I. 20 & Cir.1993). also, See Hazzard v. 191, 196, (BIA N. Dec. 1990 WL 385757 (1st Cir.1991) F.2d 4n. 1990) (stating that “we have reviewed the (observing that although BIA “[t]he has record on a de novo basis” and then ex the discretionary power to conduct de novo plaining parts of the record it review of an immigration judge’s decision,” weighed parts and which ignored so”). it “does not invariably do In re making Its explana decision. offered sponse to the criticism set in Yepes- forth tion for ignoring some evidence the Prado and respect Ortiz-Salas with to its record purposes was “for of expediency.”); lack of standards, consistent review , 1, 36, Matter 7 I. & N. Dec. B—of BIA clarified that “when the Board en (A.G.1956)(decision WL 8689 by Attorney gages in a review of a discretionary deter General finding power that the BIA had mination judge, rely we independent make findings of fact that are upon our own independent judgment contrary officer); to those of an inquiry deciding the disposition ultimate ROSENFIELD, GORDON & IMMIGRA- case.” of Burbano, Matter 20 I. & N. Dec. TION AND LAW PROCEDURE (BIA 1994). 1994 WL 520994 (Rev. 1.10(e), ed.1967) 1-58 (excerpting presented The issue on this case does not statement BIA Chair describing its address the adequacy of the BIA’s stan appellate function as “[u]nlike courts” and Rather, dard of review. the inquiry focus noting that the BIA conducted de novo whether, es on within its exercise of such review, not review of the findings for sub- “independent judgment,” BIA consid evidence). supporting stantial ered new evidence appeal. offered on Although charged with responsibility occasion, On accepted itself has of considering newly developed presented new See, making determinations on suspension of Charlesworth, e.g., (ob 966 F.2d at 1325 deportation, adopt failed proce- serving that BIA affirmed IJ decision after dures necessary implement respon- considering a letter that the INS submit sibility during the relevant period. Sur- brief); ted with Hazzard, its appellate seem, prising as it may there were no 437 (observing that BIA affirmed applicable regulations at per- time IJ decision considering after evidence that an applicant mitted supplement to move to applicant had requested be submitted *8 the record while the pending. was brief); appellate Matter God of Instead, the BIA elected to proceed with frey, 790, 791, 13 I. & N. Dec. 1971 WL hoc, case-by-case an ad approach. (BIA 1971) (“[W]e 24426 ordinarily confine problem our

This review to a is not one of consideration of the recent discov- record alone, ery. years Almost ten ago, although exceptional we described cases we do procedures BIA’s “schizophrenic.” as receive and consider additional affidavits Yepes-Prado 10 or other 1372 documents not previously avail (9th Cir.1993). Indeed, able.”); during the rele- Captain Matter Ss. Demosth of period, vant enes, the BIA failed to define 13 I. N. even & Dec. n. 346 1969 consistently (BIA 1969) the standard of review under WL 16979 (accepting evidence which it was considering decision). the IJ’s decision submitted after IJ

866 Fe- by citing to evidence occasion, supplemental not also, on remanded BIA the BIA is an proposition for reopened the matter dorenko’s or proceeding Fedorenko, 19 an IJ. Matter body); appellate new evidence of consideration of (BIA Li, 21 I. Dec. & N. 1984 WL See, I. & N. Dec. e.g., Matter of (re 1995) (BIA 1984) made request at 18-19, (rejecting 1995 WL counsel’s evaluating new after proceedings argument to submit a manding of oral the time appeal. submitted that was as “an describing itself record in the letter evi not consider review, we would “Ordinarily, is to body whose function appellate However, in first offered record”). dence create, a and not evi the issue to which-this this instance short, responsibility to despite its not fo- understandably pertains dence in sus- current relevant consider ”); Pena- .... Matter on below cused of cases, if and decided pension 845-46, Diaz, Dec. I. & N. hap- aon accept evidence it would when 1994) (BIA (granting motion WL basis, writ- hazard, without irregular of remanding for consideration reopen and procedure, and with or ten regulation equities light of the hardship extreme To to case. from case changing rules years during the by respondent accrued blunt, applicants were for counsel alien permitted affirmatively “has INS Tegwar. game in a of marks final de- failing to enforce to remain” the lack of rules and many years, For order); Flores-Gonza- Matter portation of conse- 485, 488, not have adverse 1966 WL did lez, procedures 11 I. & N. Dec. was, (BIA 1966) (remanding for most consider- quences. ap- respondent established It heard in its work. part, ation whether current from “the date character good moral with records promptly and dealt peals application However, filing delays still warm. that were final including up began hearings the IJ and BIA between application”). said adjudication problem became more lengthen, Chookhae, had been a there acute. were to IJs the BIA’s remands Some and BIA the IJ years five between gap of to mo- pursuant some were sponte; sua decisions, lengthy we too which deemed acknowledged, itself tions. As record BIA to rest on the for the mecha- provide not did regulations hearing. 756 F.2d at at the IJ existed a remand. request party nism for time of our decision By the informally “as granted The remands were Chookhae, atypical. delay such Matter practice.” See of motions a matter gave a Coelho, Attorney General year, Dec. Last 20 I. & N. 1992) (“Motions (BIA re- he called the conference press WL by the “unaccepta- expressly “shocking” addressed delays mand are not BIA’s However, such regulations. ble,” has “a massive noting Act or the that the BIA 56,000 commonly pending are addressed motions more than backlog Board.”). 10,000 “are over which over cases” of “[ejven worse, there old” years three occasions, instant as in the On other than seven ... that are more are some further to admit refused the BIA has *9 Ash- Attorney John General years old.” into suspension relief to evidence relevant croft, Announcing Administrative Speech record, it is categorically stating the Immigration Appeals to Board Change See, e.g., Matter doing from so. precluded 2002) (Feb. 6, available (transcript at 2, 2000 WL S-A-, # at Int. Dec. http://www.usdoj.gov/ag/speeches/ (BIA 2000) but late (accepting brief 2002/020602transcriptadministrativechan- § Motions under 3.2 to a BIA reopen (hereinafter getobia.htm) “Attorney subject Gen- decision were to highly restrictive Speech”); First, eral see also Board of Immi- rules. applicant was required to gration Appeals: have prima Procedural Reforms To established facie eligibility for Improve Management, Case 67 Fed.Reg. a motion before (Feb. 2002) (hereinafter reopen to granted. would be INS v. Reforms”) (“Numerous Wang, 139, 141, 101 450 U.S. “Procedural cases S.Ct. Board, (1980); L.Ed.2d 123 languished have In re before .the for Gutierrez-Lo pez, I. & N. Dec. years, more than two some for more than WL (BIA 1996). ”). years words, five .... other matter, instant motion reopen could IJ issued decision in be used to March tender establish prima and the did facie not rule on appeal eligibility. 2000, just until June eight over years la-

ter. Second, § 3.2 provided for reopening a case in which the BIA “ha[d] rendered a period

Over a eight years, much can decision.” A reopen motion to is proper change in immigrant life, family’s par- after a made, decision has been not before. ticularly in the factors relevant to a deter- By terms, its own the regulation failed to mination of hardship, extreme such as provide a procedure for an alien to supple- health, employment, and community ties. ment the administrative record before the may There also changes have been in the decision, rendered its final even facts relevant the determination good though might facts have existed at the moral positive negative. character — time of decision that were legally sufficient However, during the period, relevant to establish the alien’s for eligibility relief. BIA had no procedure formal for gov- Third, ernment or an applicant tender new neither 3.2 nor provided 3.8 relevant procedure while an for a which a party or the pending. government petition could As remand. particularly case, relevant to the instant Although the BIA failed to any establish regulations failed to contemplate any mechanism applicant gov- circumstances in which a party who had ernment to tender post-hearing relevant prevailed before seek mo- IJ.could evidence, it procedure have one did tion granting further consideration of its time for the consideration of new evi- case. post-BIA dence: a decision on a motion to Fourth, at time, the relevant regulations reopen. During period relevant governing granted relief through a motion operative there were two regula- reopen had become exceptionally tions, re- (1992). §§ 8 C.F.R. 3.2 and 3.8 Sec- strictive. For relief granted, to be a mo- granted tion' 3.2 the BIA power “on its tion had to be filed within a limited time own reopen motion[to] or reconsider period, and only one motion could be filed case has rendered a decision” throughout the duration of the case re- but limited authority by such providing gardless of what the circumstances de- that no “shall granted” motion unless manded. the alien particular establishes evidentiary procedural conditions. Section 3.8 Finally, general matter, as a enumerated filing procedures and oth- disfavored motions for reopening of immi- er administrative relating matters to mo- gration proceedings. The BIA considered tions to or reconsider. a motion to reopen post-hearing not a mat- *10 868 However, the facts. to re-find power the rather, “extraordinary an right, but

ter of to respect with inconsistent and “re- BIA “sparingly” that is used remedy” supplemental evi- of relevant exceptional situations.” treatment truly for served G-D-, 1132, have It did not 22 I. & appeal. N. Dec. See, e.g.,In re tendered dence J-J-, 1999); In re (BIA of consideration for procedures formal 1999 WL cases, accepted 1997 WL it N. Dec. In some 21 I. & such evidence. reopen 1997) to (BIA (reserving motions evidence; it remanded in other cases the situations”); In re Arie some, “exceptional like and findings; for further Shaar, 1996 WL I. & N. Dec. precluded itself it declared 1996) “compelling (BIA no (finding BIA The evidence. entertaining the from re- a motion to warranting circumstance” circum- could, restricted highly under Pena-Diaz, N. 20 I. & open); Matter of after a motion stances, consider 1994) (BIA 1994 WL Dec. Howev- granted. and filed to ac- such requesting that alien (observing to motion er, grant a would burden”). Obviously, “heavy a tion bears had previously applicant reopen unless appeal had become delays on long when statutory facie case of prima a established additional common, provide to the need relief. eligibility rou- hardship evidence was or character occurred, in this case the events Since “exceptional.” tine, than rather and both substantive changed has much placed on restrictions significant These Congress law. procedural well within reopen were to motions Reform Immigration Illegal passed the Wang, See to create. authority of the BIA of 1996 Act Immigrant Responsibility 142-43, The 101 S.Ct. at 450 U.S. 104-208, (“IIRIRA”), 110 Stat. No. Pub.L. it clear makes these restrictions nature of 1996). re- (Sept. IIRIRA 3009-546 not de- reopen was motion to remedy of statutory pealed the simply who petitioners with deal signed to case in this that is at issue evi- record with supplement sought to remedy entitled a replaced with during developed facts that dence 240A, § INA cancellation removal. restric- appeal. The pendency (1996). April After § 1229b U.S.C. intended reopen were motion a to tions on proceed- in removal placed any alien relief, and, to high a barrier to establish higher standards generally ings faces However, intended they were fact, did so. in- of removal cancellation qualify for barrier to someone high to establish require- physical presence longer clude provide seeking petitioner other than ment, of hard- standard stringent a more during pendency additional of consideration omission ship, and INA themselves. hardship to the aliens discre- sum, unique because 1229b(b). § Section 240A(b), 8 U.S.C. suspensions of authority grant tionary with 240A(d) rules provides special also by the deportation conferred interruption termination respect General, required BIA was Attorney presence. See IIR- physical, continuous exer- for the statutory eligibility determine INS, Ram v. also 309(c)(5); see IRA on current based discretion cise of such Cir.2001). 510, delega- unique of this Because evidence. re- addition, Attorney General considering ap- tion, BIA’s proce- reorganized completely cently from necessarily deviated peals IJs from Attorney Gen- BIA. by the dures used case administrative the normal contested the process concerned had, exercised, eral was procedure. *11 869 suspension BIA eligible deporta- remains under which in the case issue In law findings pre-IIRIRA tion new make factual under would regard, he observed: remedy of cancellation removal is not judi- procedural of our Because the new principle applicable. It’s a well-settled do not system appeals promulgated that courts of were regulations cial after the findings-factu- factual lightly reopen the decision in BIA issued instant this .... below trial courts findings al case, they also are not relevant normally appellate courts Consequently, in case. presented issues this trial findings of disrupt the factual rise to the only findings courts when our IIRIRA altered review the How- clearly being level of erroneous. in deportation BIA decisions ever, Appeals Immigration the Board of rules, the transitional we cases. “Under routinely ignores fundamental lack to review the jurisdiction discretion effect, appellate review. principle of ary determination whether alien seek bites at immigrants two gives the board ... ing suspension has met opportunities to apple, two requirement ‘ex statutory eligibility ” their facts. INS, hardship.’ Sanchez-Cruz v. treme (emphasis add-

Attorney Speech General (9th Cir.2001) (citing 778-79 255 F.3d ed). 1152); Kalaw, F.3d at see also 133 IIRIRA concern, the Attor- Because of this 309(c)(4)(E). jurisdiction § lack We also recognition enormous ney General’s Attorney General’s discre review immigra- delay processing by the BIA to grant suspen decision whether tionary promul- appeals, Attorney tion General eligibility sion is determined. San once September gated regulations new effective chez-Cruz, 779; Kalaw, 255 F.3d at 133 designed are to streamline ap precluded IIRIRA also F.3d at 1152. review, including appellate administrative remanding from pellate courts cases to that, exceptions, provision with certain taking of additional evidence BIA for prohibits generally the introduction 2347(c). v. under 28 U.S.G. Altawil proceed- consideration of new evidence (9th Cir.1999). Re- ings before the BIA. See Procedural forms, 7311-12, 7315. Fed.Reg. statutory Notwithstanding these pro- substantially BIA also has revised review, judicial we retain the limitations on reopen. The regarding motions to cedures power review constitutional due -are different regulations quite current decisions. San- challenges than, from, those and much more elaborate chez-Cruz, is 255 F.3d at 779. This review to the place at the time of the whether deciding agency de Id. novo. 3.2 this case. See 8 C.F.R. comport process, due we procedures (2002). agency. See Vt. Yan- do not defer However, nor the substantive neither NRDC, Power Corp. kee Nuclear to this changes applicable are procedural 55 L.Ed.2d U.S. S.Ct. initi Deportation were proceedings case. (1978) (noting administrative 4,May against Ramirez-Alejandre ated great crafting agencies have latitude on June 1990. The issued its decision “[ajbsent only procedure constitu- rules of Therefore, governed this case constraints”). tional Ka transitional rules of IIRIRA. that we have set historical con- Now Cir. law 1997). text, specifics of this case. turn Accordingly, we *12 light himself in hardship to treme both

II in and to Mexico poverty” the “grinding Ramirez-AIejandre forty-four Ramon in daughter citizen States his United Rincón, in El born and was years old decreased educational of Mexico’s light twen- Michoacan, Approximately Mexico. unavailability quality and opportunities Ramirez-AIejandre en- ago, years ty-three Ramirez- The IJ described care. health inspection without States tered the United “would who “a role model” AIejandre as gar- as a gainful employment and found poverty of grinding relegated be age thirty-four, landscaper. By dener hope for any .... ... Mexico without in his advanced Ramirez-AIejandre had deport- if were in he the future” anything fore- project a working as was career and Ramirez-AIejandre granted thus ed and main- man, supervising responsible with its exercise relief accordance condominium crew of 400-unit tenance de- appealed the IJ The INS discretion. 1980s, Ramirez-AIe- During the project. that alleging on March cision his common- family with jandre started to establish Ramirez-AIejandre had failed undocumented. also was law who wife required elements any statutory Elizabeth, child, entered Their first that, for relief and eligibility demonstrate sec- inspection and their country without had, BIA should not exer- if he even ond, Edith, States citizen became United Ra- grant relief. discretion to cise its Ramirez-Alejandre’s six by birth. Five that INS mirez-AIejandre argued have in the United States brothers live appeal, that raising new issues was Ra- legal status. permanent acquired met, and had been statutory eligibility mother, sister, re- mirez-Alejandre’s IJ’s defer to the the BIA should that Ramirez- live in Mexico. maining brother findings. in Mexi- murdered Alejandre’s father was of Ra- no record There is co 7, 1993, briefing on January after On arrested, abusing

mirez-AIejandre being and before the completed substances, public assistance. receiving or decision, Ramirez-AIejandre re- issued to his respect with that evidence quested an INS May issued

On condition daughter Edith’s medical Cause, charging Ramirez- Order Show hearing be subsequent to the IJ had arisen entering AIejandre with United and considered in the record included in violation inspection States without Ra- suspension application. support of his 1251(a)(2) 241(a)(2), INA U.S.C. his re- mirez-AIejandre submitted (1990). 9, 1992, Ramirez-AIe- March On from his 1992 letter quest a November IJ, conceded before jandre appeared physician care attest- primary daughter’s applied for deportability, and reoccurring Edith suffered ing that carefully consid- deportation. The IJ past year. over the of otitis media bouts Ra- ered the record and determined receive able Although she had been physical mirez-AIejandre established States, in the United adequate treatment “since in the States presence United if condi- cautioned that such physician de- insignificant despite before” or even untreated, reoccurring ear tion were he country; that estab- from the partures hearing could result “severe infections despite using moral character good lished learning delay and developmental loss and employment, to secure false documents his stated be- physician impairment.” forms, fail- file income tax failing to Mexico, returned to if Edith were lief that INS ing to disclose information at best treatment to medical her access arrest; he demonstrated and that likely that it inadequate and would be in ex- result that his would treat- she would unable receive dre and his citizen daughter had de- veloped years ment for the condition. since the date of the original hearing. 3, 1994, Ramirez-Alejan- On November twenty- supplemental dre filed a brief and rendered its decision on June four documents. Ramirez-Ale- additional 6, 2000, affirming the IJ’s conclusions with *13 jandre that made contended the IJ no respect physical to presence and good granting error in relief. He nonetheless moral character. agreed The BIA that if the BIA that requested that determined Ramirez-Alejandre had demonstrated error, decision in the BIA the IJ made its physical presence but established the date issuing before a de- consider the evidence “May 5, of commencement to be 1979” cision. finding rather than the IJ’s that Ramirez- supplemental Alejandre evi- Ramirez-Alejandre’s resided the country records that Ramirez-Ale- dence included “since 1983 or even before.” jandre history of criminal arrests had no BIA, however, The grant reversed the convictions, that residing or he had been relief after that determining Ramirez-Ale- continuously the United since States jandre had not demonstrated extreme 1979, taxes, paid that back that he was he conclusion, hardship. reaching its regular an active and volunteer member that, BIA noted Ramirez-Alejandre while church, his that landlord attested to his had “submitted additional ap- evidence on tenant, reliability many as a that peal, he supports claims a finding of involve- friends and relatives wrote of his hardship,’ appel- this Board as an ‘extreme pre- ment in lives. The record also their body late does not consider evidence sub- ambiguity respect sented an to the for appeal.” mitted the first time on The Ramirez-Alejandre’s status of It health. opinion did not state that it had Ramirezr-Alejandre undisputed to consider refused the evidence because January back injury suffered a severe form in of the which it was submitted. 3, him to be Two causing disabled. Rather, simply it said that does not Ramirez-Alejandre’s letters from chiro- consider evidence for submitted the first however, practor employer, make it time on As our historical examina- fully unclear Ramirez-Alejandre whether indicates, clearly tion BIA’s statement recovered, to was able work with continued was untrue. rehabilitation, or remained disabled. On Ramirezr-Alejandre timely petitioned for November a re- INS filed of the A review BIA’s decision. three- sponse requesting not consid- judge panel peti- of this denied his Court er this evidence. split tion in decision. See Ramirez- requested On March v. Alejandre Ashcroft, 276 F.3d 517 supplemental briefing with to respect Cir.2002). Thereupon, majority Ramirez-Alejandre whether eli- remained judges non-recused active of this Court gible suspension deportation. The voted to rehear en banc. the case Ra- responded INS arguing that Ramirez- mirez-Alejandre Ashcroft, Alejandre years only had established two (9th Cir.2002). physical pursuant provi- presence within sions contained IIRIRA. Ramirez- Ill Alejandre that IIRIRA was not contended question in this case is wheth- applicable circumstances er, the law again provide procedure applicable evi- under offered relevant time, hardship Ramirez-Alejan- dence of facing categorical at the the BIA’s refusal procedure avail- no there was established Ramirez- by which procedure provide could whereby evidence rele- able new Alejandre might tender prima legally facie into the record introduce to the establishment seek to vant deportation vi- or relating changed eligibility significant had, of law. due right olated his The BIA circumstances. additional discussed, supplemental accepted we have recently affirmed Supreme Court However, in this in other cases. all applies clause Due that “the Process so, claiming falsely do it refused to States, includ- ‘persons’ within United body does appellate Board as an that “this aliens, presence here their whether ing for the submitted not consider evidence unlawful, perma- lawful, temporary, or Thus, appeal.” Ramirez- Davis, time on first 533 U.S. Zadvydas nent.” (2001) ways that oth- Alejandre precluded, L.Ed.2d 653 121 S.Ct. *14 omitted). not, (citations presenting vio- from “A BIA decision were applicants er so proceeding was if the to the establishment process lates due evidence relevant new was that the alien fundamentally unfair prima eligibility facie his reasonably presenting from prevented him unable to “rea- This deportation. left (ci- Sanchez-Cruz, at 779 255 F.3d case.” present[] case.” Sanchez- sonably marks omit- quotation internal tation and (internal Cruz, quotation F.3d at 779 INS, 222 F.3d ted); v. also Zahedi see omitted). Thus, denied due he was marks (9th Cir.2000) (stating that n. 6 process of law. are as a whole” proceedings “immigration Larita-Martinez, considering a Due Amendment’s governed “by Fifth at similar to the one process challenge due Clause”). a asserting alien An Process bar, that recognized presumption we preju- challenge must show process due ap BIA reviewed all the evidence 779; Sanchez-Cruz, F.3d at dice. evidence. peal, including supplemental Campos-Sanchez contrast, in By at 1095-96. See 220 F.3d Cir.1998). noted, de- we have As case, affirmatively and the instant “[tjhere no adminis- spite the fact sup rejected consideration categorically the Board to review requiring rule trative noted in Lari evidence. As we plemental ap- submitted on all relevant evidence ta-Martinez, at 1095: ... that the beyond argument, peal[,][i]t is requiring no rule There is administrative of a ‘full requirement Due Process Clause all relevant evi- the Board to review that the Board hearing’ fair mandates beyond It is dence submitted on reviewing tribu- capacity a do so its as however, Pro- that the Due argument, INS, 220 F.3d Larita-Martinez nal.” ‘a full and requirement of cess Clause (9th Cir.2000) (internal citation that the Board do hearing’ fair mandates omitted). tribunal, capacity reviewing a so as case, the BIA violated In the instant omitted). (citation due Ramirez-Alejandre’s right to course, obligated is not BIA Of entirely pre- stating it was of law party tendered a accept all materials evidence on new considering cluded from hearing. Agencies after noted, BIA was we appeal. As have formula- in the afforded wide latitude are cur- considering charged at the time with procedure. Ver- tion of administrative hardship. extreme rent evidence as to Power, at 435 U.S. Yankee Nuclear mont However, Chookhae, 1352. 756 F.2d at may place 524-25, S.Ct. RamireznAlejandre sub- occasions evi- type on the BIA, restrictions appropriate supplemental mitted it will dence consider and set post-hearing § standards for 3.2 motion to reopen pro- relevancy However, and admissibility. vided Ramirez-Alejandre with an adequate charged when it is with the determination means of presenting his evidence. Howev- they of facts as er, exist the time the case is First, it did not. noted, as we have decided, finally may it not categorically reopen motion to was not available unless any refuse to supple- consider tendered applicant has first prima established a mental evidence at all. Here, facie case. the BIA held that Ra- mirez-Alejandre had not pri- established a In the instant the evidence ten- case; thus, ma facie a motion to reopen by Ramirez-Alejandre dered was not re- was not available to him aas matter of law jected form, because of concerns about under operative BIA regulations. Sec- relevancy, admissibility, or his failure to ond, noted, as we have also 3.2 motion demonstrate exceptional circumstances ex- was available only after the BIA isted. It rejected was because decision; issued its it a vehicle stated that it precluded aas matter for tendering new it, relevant evidence law from considering despite prior deci- the BIA’s prior consideration to reaching sions requiring to consider such evidence decision. Finally, earlier, as we noted despite fact that it was receiving need to new Thus, such evidence in a long- other cases. we delayed appeal assume, can hardly be must have in past we characterized under *15 as circumstances, “exceptional” similar or “extraordinary.” that any purported comply procedural failure to with require- The INS also argued that Ramirez-Ale- ments was not the stated reason for the jandre could have reopen to moved the BIA’s failure to the consider new evidence. IJ’s decision to additional evidence See, e.g., INS, Ubau-Marenco 67 F.3d while the case was pending on appeal. (9th Cir.1995), 757-58 n. 9 overruled First, § under 3.2 it existed at the on grounds other by Fisher v. time, relevant purpose the of a motion to (9th Cir.1996) (en banc). reopen was to obtain further relief. Ra Perhaps important, more on many other mirez-Alejandre already had obtained fa occasions, the accepted BIA has IJ, vorable relief from the so there was no appeal on presented that was in the same further Indeed, relief to sought. be the format by petitioner. used In Charles- INS been any has unable to cite case in tuorth, for example, the BIA relied on a which a reopen motion to was allowed to just letter that the sent in INS on be by filed a prevailing party pur for the Hazzard, 966 F.2d at 1325. In the BIA poses placing additional favorable evi considered appeal documents on that were Second, dence in the record. the filing of just sent in with an appellate brief. 951 such a motion required would have Ra F.2d at 437. In the case of In re Min mirez-Alejandre to forfeit the relief he had Song, Int. Dec. # 2001 WL 1030900 won. The BIA has held that “where an (BIA 2001), the BIA relied on unverified alien moves reopen to her pro documents that just were sent with ceedings, she is effectively asking that the petitioner’s Lee, brief. In Matter Lin previous decision ordering deported her 19 I. & N. Dec. 1987 WL 108941 set aside so may present that she new (BIA 1988), the BIA relied on new docu- support to an application for re ments submitted appeal in granting deportation.” M-S-, lief from In Re Int. relief. (BIA 1998). Dec. # 1998 WL 769392

The INS Third, contended for the first time Ramirez-Alejandre time oral argument availability of made attempt supplement his third to Rodri are the same. and the two treated § be- 3.2 relief

record, application Cir. guez precluded. The was IJ fore 1996, 1987). Thus, per the restrictions all of regulations operative changed decision, reopen applied § motion to taining to a 3.2 it issued before years four limited to motion. In was to a remand applicant equal force with providing pro and such motion held that the the BIA has particular, to one motion after the date days applied § only “90 3.2 to applicable to be made under cedures decision remand, administrative including require final which the motions to C.F.R. proceeding.” 8 days rendered filed within that motions be ment (1996). 3.2(c)(2) regulatory ARAR, Further § 2000 WL the decision. re OP applicant 2000) that no (BIA also stated amendments B File A71 reopen or reconsider may file a motion not avail page references are (publication jur- the BIA assumes once the IJ decision document.); also 8 C.F.R. for this see able 3.23(b) 8 C.F.R. of the case. isdiction (1998). 3.2(c)(4) Thus, time Ra at the 1996). 1996, Ra- Thus, as of (Apr. supplement mirez-Alejandre wanted to file right had lost his mirez-Alejandre record, to remand would have any motion immi- reopen or reconsider motion time-barred. been no well-worn hearing. There was gration short, regulations operative failed him; had been paths all path available provide closed. which he could re- avenue procedural Ramirez- also contends The INS sup- BIA consider relevant that the quest remedy on Alejandre had another the time prior to plemental evidence the case to remand in the form of motion acknowledgment decision. His made its Coelho, to Matter pursuant IJ procedures at oral the existence for the first time described they fact that does alter argument *16 haphazard motion informal BIA’s him at to the legally not available were However, 20 I. & N. Dec. practice. operative time. Coelho, was a remand BIA stated as the question is not before us is What presented unless the “evidence not allowed Ramirez-Alejandre submitted the whether in the case.” likely change the result would using form or proper evidence short, remedy In of re- Id. at 473. reject not procedure. The did proper a vehicle for not as mand was intended evidence on Ramirez-Alejandre’s proffered supplement the record. party to prevailing conceded at grounds, and the INS those Rather, a method it as designed material Ramirez-Ale- that the argument present new losing party could to the record would sought to add jandre might reconsider so the IJ immigration at an have been admissible Thus, it did plainly original decision. fact, material ten- similar hearing. as Ramirez- petitioners such apply to not fact, was, in admit- in the same dered form relief had won favorable Alejandre, who Ramirez-Alejandre’s at ted IJ, to bol- simply wanted before hearing. new, previ- on appeal ster the record ously unavailable evidence. with the are confronted We also not the BIA should have of whether question a motion

Moreover, construed the BIA because case the evidence considered of a equivalent remand as the functional circumstances.” “exceptional presented at 471. Under reopen. motion Id. evidence at reject the BIA did not meet must a motion to remand procedure, standard; it failing to meet issue as of a motion requirements all the . simply announced it never evi- had developed considered eight years after his appeal any dence on under circumstances. hearing before the IJ. The BIA did so on the basis of a purported rule, not found in Further, the case us before does hot regulations, that it categorically would contain issues for us to con decide not accept supplemental evidence on ap- cerning Ramirez-VUejandre’s eligibility for peal, despite the fact that it required relief. The BIA and IJ both affirmed to determine the application findings that" based on Ramirez-Alejandre cur- pos facts, rent sessed the it qualifying good power moral retained charac ter, rendering any only to 'accept new second-guessing appeal, evidence on but character moot. respect With “re-find” the facts as determined findings of IJ, extreme hardship, the evalua and that it had accepted supplemental tion of relevant evidence must be reserved other cases. By precluding for the BIA on v. Ventura, remand. INS from any means of — U.S. -, 353, 355-56, 123 S.Ct. 154 tendering evidence it under these cir- (2002). addition, L.Ed.2d the BIA cumstances, deprived the BIA him of due has discretion to determine when pro^ process of law. ceeding IJ, should be remanded to the see INS v. Doherty, U.S. IV (1992), S.Ct. L.Ed.2d predicate aAs to obtaining relief nothing in analysis should con for a violation procedural process due strued as limiting that discretion. Howev rights in immigration proceedings, an alien er, rejected the evidence issue that, must show prejudiced violation on the sole ground precluded that it was Sanchez-Cruz, him. 779; 255 F.3d at a matter it; of law from considering Campos-Sanchez, 164 F.3d at 450. This that exclusive basis that we must standard is met under circumstances in consider Ramirez-Alejandre’s whether due which an rights. alien’s are “in violated process rights were violated. We do not way such a as to affect potentially the hold applicant that an" for discretionary outcome deportation of their proceedings.” has a constitu Cerda-Pena, United States v. tional due right to require the BIA (9th Cir.1986) (citation and em to consider any supplemental information omitted). *17 phasis In prejudice assessing in the alien wishes to submit after the IJ context, this we need not with determine However, hearing. it is thing reject one certainty whether the outcome would have tendered evidence because of form or irre different, been but rather whether the vio levance; it quite is prevent another to one potentially lation affected the outcome of

party from it presenting at all based on a the proceedings. this question the purported rule, categorical accepting while is whether the tendered the supplemental evidence from others with potential to affect the BIA’s determination alacrity. of extreme hardship. Thus, applied'to petitioner, BIA As procedures Supreme noted, the that Court existed at the has time violat- ed his right hardship,” to due- “extreme of as used in Al- law. words statute, though the BIA determined' “are not eligibility self-explanatory, and rea the basis of the they facts as sonable easily at the men could differ as to existed their construction;” decision, time of the BIA the BIA Wang, denied 450 at 101 U.S. Ramirez-Alejandre opportunity Thus, to ten- S.Ct. 1027. Attorney General der relevant supplemental evidence that has been vested authority with the to con-

87 6 phrase. (noting Id. at 101 S.Ct. abuses its discretion strue in As the BIA observed the instant if it consider all relevant fails to factors bearing hardship); case: on extreme Santana- (9th Figueroa not an hardship” easily “Extreme is de Cir.1981) can precise (finding term of or inflexible con finable “discretion Instead, required the elements tent. if the circum properly only exercised hardship” depen establish “extreme are actually stances are considered. When im upon an of the facts and dent evaluation portant aspects of the claim are individual peculiar to each case. circumstances disregarded, denial of relief distorted or I. Chumpitazi, 16 & N. Dec. Matter (internal omitted). arbitrary.”) citation of (BIA 1978); 1978WL Matter supplemental evidence that Kim, 15 I. N. Dec. & 1974 WL attempted to tender (BIA 1974). See also Jara-Na these establishing relevant factors. varrete v. Cir. eight years It involved additional 1986). States, updated residence the United Ramirez-Alejandre, re No. A 70 450 concerning financial im- information (Jun. 2000). 725, at 2 States, pact departure from the United However, in evaluating hardship in sus- presented concerning and it facts his com- cases, the BIA has identified a pension Kao, munity involvement. See 23 I. & N. relevant As number of factors. (enumerating Dec. such factors ex- has stated: determinations). hardship treme In addi- respondents, age consider the We tion, grants weight significant entry at the time their both well-being the health of a whether relief; application family their ties in adversely by child would be affected de- abroad; States and their United if portation, especially child is a such Unit- length of residence in the United States See, Kao, I. e.g., ed citizen. States & the minimum their requirement; over (stating couple N. alien Dec. 45 health, as well as that of own their Unit- suspen- “can their eligibility establish children; political ed States citizen if deportation they sion of demonstrate native [their economic conditions that their would result ex- country]; impact depar- the financial hardship treme on their citi- United States States; possi- from the ture United L-O-G-, children”); zen In re 21 I. & N. bility of other their adjusting means (BIA 421-22, Dec. 1996 WL States; in the in- status United their 1994) (finding in dem- likelihood of success position volvement and their local onstrating hardship extreme based on four community; immigration his- and their exclusively factors. The first three dealt tory. hardship a six child year likely old *18 Kao, 45, In re 23 I. & N. Dec. 2001 WL deported.). will if encounter (BIA 2001) (citing 534294 Matter of Anderson, Ramirez-Alejandre tendered evi- 16 I. also & N. Dec. 1978 WL (BIA 1978)). demonstrating dence that he had been ac- 36475 in community tive in his church have held that consistently We because nearly fives of friends and relatives for hardship is the determination of extreme in other years. We have held cir- twenty basis, on a incum- fact-specific made is that the BIA had abused cumstances all upon bent the BIA to consider factors considering similar evi- by not discretion bearing on that Ordonez v. determination. (9th Cir.1998) INS, community dence ties. Santana-Fi- 137 F.3d 1357; gueroa, 644 F.2d at see also Urbi States would impacted by deportation); (9th INS, na-Osejo INS, v. F.3d (9th Prapavat v. 662 F.2d Cir.1997); INS, v. Gutierrez-Centeno 99 Cir.1981) (establishing that factors that ad- (9th Cir.1996). 1529, 1534 We also versely impact a citizen child such as “de- if have determined that errs it portation an underdeveloped country petition fails to consider the health of the opportunities offers minimal for suit- petitioner’s family, including er and the able employment, the child’s lack of knowl- Ramirez-Alejandre’s evidence such as de edge of country’s language, her health pendence on the medical treatment he re problems, and the economic loss from the problems. ceived for his back See Batoon liquidation forced of the [aliens’] assets INS, (9th Cir.1983). v. 707 F.2d combination”). must all be in assessed We have further held that errone Thus, any fair consideration of the evi ously disregards any concerning tendered, dence in light applicable of the hardship separation of the alien standards, law and the BIA’s own shows family from members in living the United it was relevant and significant to a States, which would include evidence that determination hardship. of extreme In Ramirez-Alejandre living has been in the deed, similar factors to those found in the twenty years United States over instant case were sufficient to establish Ramirez-Alejandre’s that five of seven sib that an alien heightened met the more lings permanent legal have status this hardship extreme operative standard country. Salcido-Salcido 138 F.3d See, (9th the new Cir.1998) curiam). remedy. cancellation 1292, 1293 e.g., In (per Recinas, re 23 I. & N. Dec. 2002 WL give We also have directed the BIA to (BIA 2002). Such similarities particular deporta attention to whether a in light are notable of the fact that it is children, disrupt tion will the lives of espe undisputed that the tendered evidence cially those who have remained would have been admissible before an IJ country during early years their formative or the BIA. delay due to the caused or INS and, BIA. country Edith was born Perhaps important, more this was an issued, opinion the time that the BIA extremely close case. Even without the years was nine old. Elizabeth was six at by Ramirez-Alejandre evidence submitted original time of the hearing and was appeal, the IJ determined that he had years fourteen old at the time of the BIA’s established the element of extreme hard- decision. Evidence with respect ship. When the BIA reversed on the same skills, daughters’ language educational at record, panel split 2-1. tainment, conditions, medical ties to the indisputable It is supple- that all of the community, ability adapt foreign to a evidence, particular mental the evi- country, impact opportunities on life dence pertaining to the health and well- are factors that the BIA compelled being Ramirez-Alejandre’s daughters, See, e.g., consider. Casem would have greatly bolstered Ramirez- Cir.1993) (reversing and re Alejandre’s claim that he would face ex- manding for BIA impact to consider de hardship if deported. treme or Whether portation would have on child who aged supplemental absolutely years five suspension application while would entitle to sus- appeal); Gutierrez-Centeno, 99 F.3d at *19 pension say. is not for us to (finding part BIA failing erred for However, unquestionably poten- to consider how it had the spent children who seven of their years formative in the tial likely altering United for the outcome under TROTT, Judge, Dissenting, with Circuit case law precedent our

the BIA’s own GOULD, Thus, O’SCANNLAIN, type this of relief. whom applicable to RAWLINSON, TALLMAN, Circuit Ramirez-Alejandre provided has sufficient to warrant prejudice join. Judges, evidence to show Cerda-Pena, at 1378- a remand. reopen ways, one of two “A motion to is just it in. It reopen, a motion to or send what we ignore violates due to

V in.” sent narrow con- comes to us This case (explaining during petitioner Counsel text, now-repealed procedures involving claim). nature of his argument oral the remedy in- now-repealed to a applicable in the unusual petitioner who was I volving IJ, the but position prevailing before the claims the record cur- supplement to wished factual not to consider new BIA’s decision lengthy appeal during information rent “just in” for the first time information sent discretionary consideration. for the BIA’s re- appeal regarding the merits of his on presented by this the circumstances Under deportation consti- quest for case, procedures applica- and law and the process of law. tuted a denial of due time, petitioner denied at the ble why main reasons his claim There are four reasonably his case right fails. applicable hearing. a full and fair Under First, attempt to the method he chose to law, to determine required the BIA was bring this information to the time it decided hardship as of the extreme informational and choice did not simply years elapsed since Eight the case. comply applicable procedure with the IJ; however, Ra- before the hearing Coelho, published rules. Matter See mirez-Alejandre arbitrarily was denied the 464, 471-72, I. N. 1992 WL 195806 & Dec. opportunity request submission 3.2, (1991, (B.I.A.1992); §§ 8 C.F.R. 3.8 relevant, supplemental legally 1996). Second, opportunity pri- he had arbitrari- applied on a rule that was based properly final decision or to the BIA’s capriciously. ly and information, augment the record with this petition for review and grant We in the form at least of a motion to the BIA for reconsideration remand alternative, but, aware of although he was application tendered evidence without not to opportunity, he admits he chose upon categorical exclusion rule Thus, it. advantage take informa- namely in this relied part of the record as tion never became body not appellate Board as an does “this than hear- evidence and thus was no more for the first consider evidence submitted Third, say. opportunity he had another express an appeal.” time on We neither after ruled move ac- opinion to whether the BIA should him, do deliberately but he did not against reject cept or the tendered evidence Fourth, did not so. his situation basis, preclude the any other nor do we circum- approximate “exceptional manner appropriate taking any BIA from other man- that the Constitution stances” such respect action with administrative evidentiary record. reopening of the dated express opinion evidence. no We petition. ultimate merits of the BIA, he, responsi- Given that that form opportunities ble for the missed RE- AND PETITION GRANTED his claim of constitutional predicate MANDED. *20 foul, a reject applied we should out of hand his due based on rule that was arbitrari- demonstrably added). in lacking ly claim as and capriciously.” (Emphasis by the test relied on the quote merit. To only Not has not made Ramirez-Alejandre must majority, show the claim to petition us either his for proceeding fundamentally that “the was so any review or of his briefs that he was prevented unfair that was rea [he] opportunity “denied the request from sonably presenting his case.” Sanchez- evidence,” submission but the majority’s Cruz v. Cir. conclusion is plainly wrong. 2001) omitted) (quotation and citations To problem illustrate that the of which added). nutshell, In a (emphasis no one Ramirez-Alejandre complains entirely nothing prevented him from reason making his own and falls a legal country ably presenting his case. (1) supporting mile short of either his con- Nevertheless, respect, and with all our (2) stitutional process argument, due or majority adopted friends in the have argument majority plucked has opinion astonishing that stands for the behalf, from thin air on his a few facts are proposition illegal that an alien who is an in order. applicant discretionary suspension for with, To begin we have the manifestly pro- has a constitutional due informal Ramirez-Alejan- manner which BIA, right sitting cess to have the as an attempted dre to bring his new informa- court, appellate “consider” on the merits tion to the BIA’s attention after the IJ had “just unverified information sent factual rendered his decision and the matter was in” by applicant for the first time on briefing After appeal, information that has not been test- completed, Ramirez-Alejandre forwarded ed, cross-examined, subjected of the 7, 1993, January a letter dated Novem- ordinarily usual forms of authentication re- 10, 1992, ber to the Board from his daugh- quired adjudicatory in an or setting, made primary physician ter’s (indicating care part evidentiary a record. Just that she had suffered several bouts of ear something shovel over the BIA’s transom throughout year) infections with the IJ, hearing conducted after request bald that the “letter be included in requires the Constitution the BIA to take of proceeding record and considered in whatever-it-is into consideration in making support application suspension of[his] decision, even circumstances where deportation.” The doctor’s letter itself party delivering the information fails unauthenticated not offered to make motion to make the information affidavit or declaration form. The doctor’s part unprece- a formal of the record. This signature was not notarized. It did not correct, I holding dented cannot be shall comply with the Rules. It was not “evi- demonstrate; and, attempt because it dence.” masquerades impera- as a constitutional

tive, it threatens all rules enacted 3, 1994, Ramirez-Alejan- On November BIA, new, governing old or the receipt and supplementary dre in general filed brief potential the consideration on support application of his evidence, new as well as what the record deportation, attaching 24 additional docu- consists of these cases. ments. He now admits that much of the information attached to his brief was not majority’s conclusion from this rec- presented new and could have been “Ramirez-Alejandre ord is that was denied opportunity Among Septem- IJ. request the submission documents was legally supplemental relevant evidence ber unverified letter from a doc- *21 information); C, I. new Matter 20 & chiropractic associated with “The tor of indicating that Ramirez- Back Doctors” Dec. 530 n. 1992 WL 200361 N. hearing (B.I.A.1992) Alejandre had suffered' —after his (declining to consider new evi- injury on the IJ —an to his back before appeal noting and dence submitted on 3, 1994, triggered which workers January reopen on new evi- no motion to based represented compensation. The letter made); had been and Matter dence Ramirez-Alejandre currently on Haim, 641, 642, 19 I. & N. Dec. 1988 WL also, disability. full letter said “I The (B.I.A.1988) (“A party seeking to anticipate permanent disability.” As must state the reopen proceedings [the] letter, the case of the earlier doctor’s establish, new facts which he intends one, too, admissibility indicia of lacked supported by affidavits or other evidentia- affidavit, declaration, no as evidence—no material.”). Thus, ry only giv- was he anything. notary, no no warning en a that his information would I note here that present not be considered condition 3, 1994, in his November demonstrated record, part and was not of the but he was fully he was aware of submission that his what and it: make advised to do how to do factu- opportunity formally augment reopen. a motion in form to some by making proper al record a motion and made it clear in 1992 to Matter ofCoelho thereby to convert his assertions into evi- applicants steps all counsel what were dence, but, candidly during as he admitted necessary substantively proeedural- argument, oral he chose not to follow this ly augment respect factual records with Instead, path. merely well-worn he indi- of a claim. Here is the BIA’s merits papers cated in his filed with the BIA that description process: of the remand, made a motion to he INS if accepted part Motions to remand are an object, I quote: would not appellate procedure civil a serve However, appro- if the INS believes useful function. a motion to re- Where priate, respondent oppose will not a mo- simply remedy mand articulates the re- proceedings tion to remand the quested by appeal, part we treat it as evidentiary that the hearing further so appeal require and do not it to additional evidence can be considered. conform to the standards for consider- added). (Emphasis However, ation of motions. where put Ramirez-Alejandre The then INS really motion to remand is the nature opposed actual notice that the INS reopen of a motion to or a motion to attempts casual to add to the record on reconsider, comply it must with the sub- appeal information which was not before requirements stantive for such motions. 15, 1994, the IJ. On November the Service requirements for these motions are supplemental objecting filed a brief to Ra- §§ forth at 8 3.2 and 3.8 set C.F.R. mirez-Alejandre’s gambit, arguing that the (1991). instance, In this the motion to Board’s “review on is limited to the remand is the nature of a motion to Immigration record before the Judge.” respondent requests since “Respondent’s Under headnote Addi- proceedings evi- additional Appeal tional Evidence Submitted regarding his rehabilitation dence Not Part Should be Considered pro- the initial during was not available Record,” the Service cited three cases ceedings. Soriano, support position: of its Matter of 1992 WL 195806 I. 20 I. & N. Dec. 19 & N. Dec. 1988 WL 235429 omitted). (B.I.A.1988) (internal citations (remanding for consideration attempts unconvincingly to letter from majority “The Back Doctors” claiming, by dismissing merely it as dilute Coelho proof, without that “Mr. Ramirez is suffer- *22 practice.” Although to “motions reference ing upper from an acute thoracic and cer- law in this fashion on a routine we use case spine vical patient condition.... The at litigants of the rules of the basis advise disability time is on full and is road, majority reasons the same expected to remain so for the next two practice offends the Constitution when anticipate months. I permanent disability I Why? used the BIA.1 believe it is a patient and the eligible for re-habili- regard mistake not to Coelho as authorita September tation.” This letter is dated precedent disposi tive which controls the 12, 1994, gives and the date of Ramirez tion of this case. Alejandre’s injury “January 1994.” Nevertheless, 6, 1998, May almost Yet, a pages mere fifteen later in the same later, years Ramirez-Alejandre four sub- submission we find Septem- a letter dated yet supplemental mitted another brief in 28, 1994, days ber after the date of —16 which he stated that the Board will “[i]f reads, The Back Doctors’ letter-—which permit respondent evidentiary another Ramon Ramirez works for Heather hearing, additional of hard- Landscape, Farms He has Inc.[] been ship he and his United States citizen child an excellent pro- worker and has been a (Emphasis will suffer can be offered.” ject foreman for approximately years. added). Notwithstanding Rules 3.2 and responsible He has been for the over all requirements showing 3.8 of a of materiali- maintenance of a 400 unit [sic] condo- ty, unavailability, indiscoverability and complex. minium super- To include the hearing, Ramirez-Alejandre the IJ’s made vision of three other workers and/or attempt by no affidavit or otherwise maintenance crew. We look forward to indicate what such “additional evidence” seeing Ramon employment continue might might be or how it affect the BIA’s Landscape. with Heather Farms Ra- decision. employed mon has been with Heather The BIA down handed its decision on Landscape years. Farms for four June 2000. The Board held that Ra- Ramirez-Alejandre’s the date of Given mirez-Alejandre shown extreme injury specified in The Back Doctors’ let- hardship. Its decision noted also that ter, 3, 1994, January and that letter’s Ramirez-Alejandre while had “submitted condition, claims of “acute” “full disabili- additional evidence on that his ty,” “anticipate^] permanent disabili- support finding claims of ‘extreme hard- ty,” explaining someone has some to do. ship,’ appellate this body Board as does supplementary accompany- not consider evidence submitted for the Counsel’s brief Fedorenko, first time on Matter ing mutually impeaching these letters calls (BIA 57, 74, I N 19 & Dec. 1984 WL 48585 “permanently dis- 1984).” “unlikely abled” and claims it is that he will be able to do manual again.” labor folly

To of accepting illustrate the “for Yet, “support” description dire Ramirez-Alejandre’s consideration” “evi- prediction, the same counsel included value, dence” at face one no need look package yet suspi- in this same another deeper than his supple- November letter, mentary brief and the attached unverified cious unverified this one from Jose example, ordinarily 1. For we do not entertain claim the we A- discretion to do so as see fit. Serv., appeal, County Monterey, an issue raised for the first time on 1 Ambulance Inc. v. However, (9th Cir.1996). even if that issue has merit. we 338-39 evidentiary proper- until it is record Bernal, the “Pastoral Administrator” Juan church. Pastor Ramirez-Alejandre’s ly offered and received. August in this letter of tells us Bernal well have Ramirez-Alejandre might as charge Ramirez-Alejandre “is unverified, untested, un- dropped off this singing, group going getting authenticated, untrustworthy material they have their meet- every Monday that all re- wrapper. With plain in a brown charge He is also the one ings. counsel, informal method of spect things cleaning in order and putting *23 the Board on attempting to inform joy and He this with enthusi- halls. does hardly is the stuff of of new facts asm.” education of the continuing how-to-do-it helps case to be hurt and it his When courses, or, matter, constitu- for that Bar disabled, he is hurt and dis- permanently are made. tional claims helps good it to be a When his case abled. permanently employed, he is worker and But, now, probe persuasive as we repeat, But at once? I just that. both Ramirez-Alejandre was notarized, verified, these letters was one of reasonably presenting his “prevented from this be affidavit form. Can or tendered (cita- case,” Sanchez-Cruz, at 779 which the BIA has a constitu- information omitted) (emphasis add- quotation tion and it duty to consider unless and until is tional ed), opportunity, getwe or “denied” this record? part of the problem with his claim the heart of the Ramirez-Alejan- opposed The Service majority’s constitutional hold- and with request dre’s counsel for ing. When based on record evidence large measure why prior during argument was asked oral lies, dishonesty on his deception, he had not tried to to the Board’s decision had failed part. The INS asserted he evidentiary by filing record augment re- good moral character as to establish remand, reopen motion to or to his answer Nationality Immigration quired quite revealing: during illegal tenure in the Act in that his Kaufman) (Mr. at four [Ramirez-Alejan- he had used least United States If he names, Security four false Social false a motion to required to submit dre] cards, purchased and used fake alien treat- reopen, or in this case it would be card, and had lied about sever- registration remand, a motion to he would have ed as immigration officers al material issues to give up the win. He’d have to throw arrested, including he was whether when Well, for.... if he’s the towel and ask family public had ever received he or his reopen he’s asking to then say here Suffice assistance benefits. longer that I no want to have this saying that none of this uncontested evidence win. Ramirez-Alejandre’s life the law outside pressed point, on this he struck When inability helps his dubious assertion excuse, unpersuasive stating, with this disability. point permanent work and aspersions of this discussion is not to cast Kaufman) (Mr. no clear rule There is Ramirez-Alejandre, call but to attention reopen that a motion to is says only place fact that the these issues applicant can use to only vehicle that adequately out and made a can be sorted when a case is supplement the record proper hearing, of the record in a part is BIA. before the hearing In a not helter-skelter ‡ ‡ part $ H* setting, information does not become 3.2(c) (Mr. Kaufman) says that an clear Rule to me that the BIA’s decision dic- new alien who wishes to introduce facts tated what they would do with that. reopen. may file motion to I then asked if I counsel understood him ; n « v s-i ifc H* correctly to have made the choice not to Kaufman) (Mr. reopen A motion to exercise known option to file a motion ways, reopen, of two a motion to or one answer, reopen, and his delivered with a just just it in. it in. send We sent It shoulders, was, shrug of his “I decided to ignore violates due what we petition file the for review.” in. sent What all of this down boils to is a text- v s{: % # # example book of a number of knowing and (Mr. Kaufman) Whether the evidence Ramirez-Alejandre’s deliberate decisions BIA a comes to the in motion to counsel made not adequate to exhaust the 3.2, under or the evidence comes to the if remedies that he were available confesses appellate brief, to an appended to him to augment the record. The record *24 job is the It has same. to assess the properly as thoroughly considered im- evidence. peaches majority’s the conclusion Ra- added). (Emphasis mirez-Alejandre opportu- was “denied the Judge Chief Schroeder asked counsel nity request to legally the submission” of persisted in why claiming he he had to relevant evidence developed that had “give up “throw the towel” and his win” eight years the after his hearing before the easily when he could have made his motion immigration judge. Ramirez-Alejandre alternative, i.e., in the “rule for me on the says he knew he very opportunity had this or, alternative, you if appeal, INS’s the by following procedure the established Service, are inclined to rule consid- controlling Coelho as case law and the my er new a evidence as motion to remand Rules, it, but he forego decided to and he so that I can introduce new evidence that did so more than once. Not once did he will bring up-to- stale factual record assert in his briefs that the Rules and Ramirez-Alejandre’s date.” answer to our him practice gave augment no avenue to question Chiefs sensible dog- was to stick the record. gedly I-can-just-send-it-in-and- with his before, have been We here with differ- they-have-to-consider-it refrain. His ent results. Roque-Carranza briefs questions and his answers to our (9th Cir.1985), 778 F.2d 1373 we said show without a doubt that he knew how following: properly reopen to the factual record to regulations INS set out a mechanism

preserve point, his but he chose not to do reopening so. for the or reconsideration of deportation hearings. petitioner The Thomas, gets Judge It worse. the au- must submit a to reopen motion to opinion, thor of the majority’s asked him at BIA and state the new to facts argument oral remedy whether his was not proved reopened hearing. reopen “to rendered its deci- after 3.8(a) (1985). § C.F.R. The BIA is vest- Ramirez-Alejandre’s sion?” an- counsel’s ed with the discretion determine question swer to this drives stake hearing reopened when a should be ... through both the heart of his claim and the majority’s upon its conclusion he was “denied” based evaluation of whether opportunity: this sought ma- to be introduced is (Mr. Kaufman) previously terial was unavailable. 8 option Petitioner had the (1985). asking reopen the Board to but it was C.F.R. 3.2 We have held that to invoke it’s petitioner required as at bar we will such in circumstances ordinary reopening provisions in a formal motion supersede not [sic] BIA re- by compelling the procedure all compel the BIA to consider order Thus, petitioner open hearing. evidence, or to vest this Court of his and file regulations follow the INS must jurisdiction to review the BIA’s reopen or for reconsidera- a motion to decision when it refused. BIA. tion with the First, petitioner have to “re- did not omitted). (internal citations

Id. at 1373-74 open” proceeding his under 8 C.F.R. Ramirez-Alejandre’s position his compel 3.2 to to consider Given us, in explains it to contrast to how the he evidence. When the evidence was of- it, clear majority’s opinion remodels petitioner prevailing party fered was the hypotheti- majority that the has decided proceeding. approved in the The IJ had way majority goes cal out case. depor- application try to assert that somehow he could not tation. The tried, motions had he but have made these petitioner. For made Ramirez-Alejandre’s rationale for his then, petitioner proceedings were makes choices not to make such motions already “open”. utterly majority’s effort irrelevant. Ramirez-Alejandre has conceded that full of his evi- path consideration right he had a to move to clear, Ramirez-Alejandre dence was but Why empow- majority record. feels it. chose not to take ered when concedes he *25 Moreover, earlier, mentioned Ra- him right had the to to tell he did mirez-Alejandre claim to never made the peculiar not is indeed. The Rules were Rules, practices, the BIA that their and place when made his procedures arbitrary capri- were so and choices, published, had and Coelho been they process by denied him due cious that clear, controlling case law was Ramirez- refusing accept to his information. He did do, Alejandre knew what he could he was ruled, BIA did not do so before the and he objected, on notice that the INS had but reopen. not do so in a motion to Further- want in the he did not to “throw towel more, us, claim he did not make this to up win.” If he now his give regards his review, and not in petition his predicament, entirely it situation as fact, position his his was that he briefs. Parenthetically, self-inflicted. Ramirez- could have made a motion to remand or Alejandre dispute does not the 1999 I reopen, required was not to do so. but simply Amendment to 8 C.F.R. 3.2 codi- quote opening from his brief: practice he fied the standard of which was (1999) 3.2(e) per- 8 C.F.R. Section fully aware. petitioner mits evidence appeal.... At Ramirez-Alejandre’s only jus- on least some counsel’s petitioner offered the BIA conduct is incorrect tification his his requirements satisfied the [for interpretation inapposite of an case decid- 3.2(c)

reopening the record] Section BIA, final ed after his submission it material and new. because was both Larita-Martinez 220 F.3d 1092 (9th Cir.2000). that Larita- argues He quote petition requesting I next from his process re- rehearing en banc: Martinez “holds that the due hearing’ ‘man- of a ‘full and fair quirement certainly permits While 8 C.F.R. 3.2 ’ ’ dates that the BIA consider ‘all relevant the BIA to offered on consider evidence “just appeal, panel appeal.” submitted on This finding erred by it” distorts omission what the BIA in and the BIA must consider “on send it done, of Larita- position Here, is both a skewed view why. using occasion” has concept and a novel holding Martinez’s meager by handful of cited cases case, In that unlike this what is evidence. majority, story. is the whole one, BIA made no mention on its Demosthenes, Captain Matter Ss. ap- information submitted decision of (B.I.A. 345, 1969 I.13 & N. Dec. WL 16979 the., Thus, the three- petitioner. peal 1969), the official status of an panel presumption invoked the judge ship, inappropri alien crewman of a whose tribu- is considered unless the all evidence monetary ate behavior had resulted in otherwise, panel simply says nal and the vessel, against changed fines his be petitioner’s reach that due did not tween the time the district director made cannot read panel’s opinion issue. decision to fine his vessel Ramirez-Ale- position argued by for the ship’s appeal. BIA’s consideration of the jandre, nothing sweep away and it did quote regarding change, To this governing the re- regulations the BIA’s At the time the district director consid- To opening of the factual record. the ex- ered the crewman [the Koumout- that Larita-Martinez can be misread tent large country. was still at in this sos] Ramirez-Alejandre’s argument, support However, information has now been re- opportunity to set the we should take this ceived this Board that he was eventu- are left with a situa- straight. record We ally apprehended by immigration au- tion the record is whatever counsel where Boston, Massachusetts, thorities in to the Board. happens to include letters if only destroyed deported expense wonder we have to Greece at the One can concept evidentiary of an administra- vessel’s owners. in BIA cases. tive record Id. majority seems also to be mistaken recitation regarding Attached this as to what the means when refers Koumoutsos’s fate at the hands of the novo.” This de- “reviewing facts de qualifying we footnote: find *26 the BIA rou- scription does not mean that would remand the case Ordinarily, we tinely creates a new factual record and this information introduced into to have entertains new and untested factual infor- by the District considered All in with its decision. mation connection Director, will not do so here but we in that is that the de novo means context the unavoidable administra- because of re-weighs BIA and re-evaluates historical involved; the authen- delay tive because already in the record in order to facts ticity appear of the information does not findings, giving at its factual no arrive own subject question; to be and because interpretation of deference to the IJ’s for present posture of the case calls and was not them. Evaluation de novo is aspects of all of the final resolution open willy-nilly an invitation to submit new problems presented, at one and the by in untested facts not the record made same time. the IJ. Id. at 346 n. 1. majority’s come next to the asser-

We Next, Godfrey, to Matter we come ac- tion that “on occasion” the has (B.I.A. 790, 1971 I. & N. Dec. WL evidence on cepted and considered new 1971), involving deportation a a order case is appeal. This “on occasion” assertion an alien who entered into a sham true, against only part story but it tells of the In new counsel asked practice, doing, marriage. and in so this exceptional testimony reappraisal appeal the BIA on to allow oral and reevaluation of the evi- ap- client’s earlier written incul- explaining respondent’s dence concerned with the hearing at the patory statement received plication suspension for being from which the taken. a as to whether decision rejected request this unusual deportation is warranted as a matter of explanation: with this at discretion.” Id. 488. One cannot miss permit testify We did not her to remedy: remand for consideration First, oral argument two reasons. light proper the evidence in the law. equipped this Board is not receive I. Song, re Min 23 & N. Dec. Second, testimony. ordinarily oral we (B.I.A.2001), 2001 WL 1030900 is consis- confine our to a consideration of review tent with the BIA’s view that it has discre- alone, although exception- the record in extraordinary tion cases to consider new al cases we do consider ad- receive and evidence. issue involved removal ditional affidavits or other documents order based on the alien’s an conviction of previously available. interim, aggravated felony. In the an added). (emphasis Id. at 791 This state Song act of the state court which Min ment, too, subject is the of a footnote convicted, had been felony had lost its opinion, the BIA’s a footnote that cites aggravated nature. The BIA’s decision authority “exceptional circum speaks for itself. exception. authority stances” That appeal, presents In his brief on he new Captain Matter Demosthenes. of Ss. relating to the reduction of his As for Hazzard v. criminal requests sentence and termi- (1st Cir.1991), authority court’s nation of these proceedings, asserting proposition that case for the that the BIA that the theft offense of which he was “may present- consider” new evidence not longer convicted no falls within the defi- Captain ed to the IJ is Matter Ss. felony. sup- nition of an aggravated Godfrey. Demosthenes and All Matter of terminate, port request of his he has Hazzard does is confirm what I have al- copy April submitted order dated ready exposed holdings as the reason- issued the Circuit Court for ing “exceptional of those circumstances” Montgomery County, Maryland, which cases. The other circuit court case the nunc pro vacated tunc the district majority cites is Charlesworth 2,1992, February court’s sentence (9th Cir.1992). F.2d 1323 Charlesworth criminal case and ordered the sentence approval involves our of a BIA decision to pro days, revised nunc tunc to 360 pursuant case to 8 C.F.R. 3.2. *27 suspended. Immigration If anything, Charlesworth hurts Ramirez- Naturalization Service has not indicated Alejandre’s argument. any objection to this evidence of the We find exceptional the same circum- respondent’s revision of the sentence. principles stances at work in Matter of Id. Flores-Gonzalez, 11 I. & N. Dec. Li, In re 21 I. Hong Xiu & N. Dec. (B.I.A.1966). Here, WL 14281 (B.I.A.1995), yet is 1995 WL anoth- concluded that an error of law adverse to er illustration of the BIA’s consistent ex- Flores-Gonzalez during had been made a exceptional ercise of discretion in cases. deportation hearing in connection with his principle clarifying After a relevant con- application deportation. for of conclusion, decision, trolling Given this the BIA remanded its ultimate ref- special the case “to the officer a inquiry for erenced new evidence connection with him It for further consid- as a motion to remand. wasn’t. to remand its decision petitioner’s application for But then to conclude that the BIA’s failure eration said, The BIA visa. government’s to so construe the remand stage process we would not consider evi- motion set the for a due Ordinarily, See Mat- first offered top dence claim violation is to build the floor of a Soriano, 764, 1988 19 I & N Dec. ter missing layer. on a house cards (BIA 1988); Matter WL however, done, When all is said and I Obaigbena, 19 & N Dec. WL TEGWAR, speaking of where have we left 1988). (BIA However, in this body the BIA? In the majority’s this evidence instance the issue which opinion, holding that the BIA is understandably not fo- pertains was duty to constitutional “consider” Ramirez- below, inasmuch as no stan- cused on Alejandre’s “tendered evidence informa- regarding articulated yet dard had been tion.” What does “consider” mean? What adop- of terminations of the treatment does this do to the record? it be Will immigration purposes. light for tion opinion consistent majority’s with decision, accordingly, we find of our BIA say, ‘We have construed Ra- to remand this matter appropriate mirez-Alejandre’s numerous references to petitioner to allow the the RSC director reopen new evidence as motion to opportunity to meet his a full and fair record, and we have denied that motion natural establishing that the burden information accepting because even relationship parental has been reestab- true, it is not sufficient to establish ‘ex- law such that it lished under Chinese hardship.’ treme ”? Or would this consid- pur- recognized can be majority eration fall short of what poses. demands? this matter will be re- Accordingly, director for further manded to the RSC irony in our resolution of this petition. of the visa consideration course, that had the BIA construed is Ramirez-Alejandre’s submissions as a mo Id. at 18-19. reopen or to and then tion remand summary, what we see is a rare it, jurisdiction would be without denied we practice engaged “on occasion” Why? this issue. Because our to entertain extraordinary circum- clearly BIA under respect to motions standard review and incon- involving stances uncontested discretion, for abuse of see majority What the testable information. 738, 740 Israel v. 785 F.2d Cir. prac- rational has done with the BIA’s 1986), cases, Rules transitional practice turn it into a tice is to due “abuse of discretion claims recast as appellant every must be available to color- Ramirez-Alejandre, process ex- violations do constitute such as whether may are or we ceptional circumstances able due claims over which majority converted the not. The has jurisdiction deportation suspen exercise _” discretionary Sanchez-Cruz, BIA’s use of that rare sion cases right. a constitutional This practice omitted). into (citation also INS v. at 779 See *28 only unprecedented, but is not 719, 112 S.Ct. Doherty, 502 U.S. wrong. (1992) (alteration in origi 116 L.Ed.2d 823 nal) Abudu, v. 485 U.S. (quoting INS

Moreover, I fail to see how we can con- 90 n. S.Ct. 99 L.Ed.2d 108 Ramirez-Alejandre’s on strue statement (1988)) (“We in that the also noted Abudu op- “not November that he would mo- applies standard to remand abuse-of-discretion pose” by a motion the Service in underly- impact pro- of the of IIRIRA on our role reopen ‘regardless tions to request the alien’s re- ing [for basis of quote cess was draconian. To Kalaw v. ”). lief].’ INS, IIRIRA dramatically altered this II jurisdiction court’s to review final de- example Supreme from the The latest in- portation and exclusion orders. It of our excessive zeal on behalf of Court im- sweeping changes troduced into our INS, petitioners is Ventura v. 264 F.3d laws, migration including specific (9th Cir.2001). summarily Court repeal judicial procedures of the review per in a curiam reversed us unanimous § previously provided under' INA 106. opinion, concluding that we “exceeded judi- replacement IIRIRA’s section for authority” when we made decision [our] review, 242, purports § cial new INA properly belonged to the BIA. INS v. appellate juris- BIA with vest the final — Ventura, U.S. -, 123 S.Ct. deportation pro- diction for most INS (2002). INS, L.Ed.2d See also Chen (now ceedings. § IIRIRA See codi- (9th Cir.2001), judgment 266 F.3d 1094 1252). fied at 8 U.S.C. - Chen, -,

vacated INS U.S. (9th 1147, 1149 Cir.1997). 133 F.3d (2002). S.Ct. 154 L.Ed.2d 423 I fear we have made a similar mistake here. To Ramirez-Alejandre’s petition for review Judge resurrect the words of Kozinski impact demonstrates the of these new re- Abovian v. 257 F.3d 971 Cir. imposed by Congress strictions on our au- 2001) (Kozinski, J., dissenting from denial demonstrates, thority. majority As the we banc, rehearing representing en longer jurisdiction no have to review the eight concurring judges), views of “discretionary determination whether an Ninth ... perfectly Circuit “overthrows seeking suspension alien asylum reasonable BIA decision[s]” statutory ... has met eligibility re- withholding “by invoking of removal cases ” quirement hardship.’ of ‘extreme San- novel rules divorced from administrative chez-Cruz, Kalaw, (citing 255 F.3d at 778 law, Supreme precedent Court and com 1152); IIRIRA see also sense[,]” away mon and thus has “whittled 309(c)(4)(E) (1996). addition, we authority and discretion of longer any power have no to review the judges Judge and the BIA.” Graber made Attorney discretionary General’s decision similar observation Cardenas v. grant suspension eligibility once is de- (9th Cir.2002) 1062, 1069 (Graber, termined. So what have we done here? J., dissenting): majority “[T]he resolves respect majority, allWith we have every ambiguity asylum [the favor of indulged in an end-run IIRIRA around applicant], whereas standard [the correct] and improperly inserted ourselves once requires every of review am us resolve again prerogative into the administrative biguity favor of the decision-maker be BIA, belong. of the where we do not so low.” doing, concept we have decimated It knowledge is common that when Con- record of evidence renewable and control- placed gress Illegal new limitations in the ling and ordered the BIA to Immigration Reform and Re- Immigrant in. consider whatever counsel sends (“IIRIRA”) sponsibility Act our of 1996 decisions, authority to review certain Ill Congress response did so in to document- ed, Congress has authorized the Executive judiciary unwarranted sorties onto person Attorney the BIA’s administrative turf. The Branch in the Gen- *29 143, proce- (emphasis Id. at 101 S.Ct. 1027 add- “requirements eral to establish ed). applications. 8 asylum castigated The Court then us for governing dures” “ 1158(b)(1); extending beyond see also 8 U.S.C. our ‘writ its proper U.S.C. ” (d)(1), (d)(5)(B). 1158(b)(2)(C), §§ More- scope.’ (quot- Id. at 101 S.Ct. 1027 over, charged Attorney Sneed, J., Congress has ing dissenting from our en banc us, General, primary responsi- with the opinion). administering

bility for I regret majority’s inappropriate 1103(a), as amended laws. See 8 U.S.C. unnecessary decision to liken the BIA (2002). § 1102 by Pubhc Law 107-296 comedy. to a fictional Our warrant is to review the assigned limited role Our petitions entertain for review does not con- BIA, not to run the INS. workings of the template kind of judgment. critical separation authority, we exceed our When Moreover, majority does so on the powers in a constitutional and allocation of of a handful of basis unusual cases out of implicated. gov- “In this clearly sense are tens of thousands of cases decided that powers, it is not for separated ernment agency. It is time to accept limits of judiciary usurp Congress’ grant our role. The due violation shoe by ap- authority Attorney to the General foot, Ramirez-Alejandre’s does not fit but appel- approximates de novo plying what nonetheless, we allow him to use it to kick Rios-Pineda, 471 INS v. late review.” open open that not to door he chose L.Ed.2d 105 S.Ct. U.S. with the handle he knew was there and (1985). our beyond This excursion explicitly brought INS particularly troubhng here be- warrant is done, attention. When all is said and he immigra- of the connection between cause If prevailed. just has counsel sends it in affairs, law, foreign tion and national de- BIA, requires the Constitution that Nevertheless, aspire we again fense. once appellate body to consider it on the merits. people. things to be all to all Over respectfully I dissent. body we of law years, have established with what Con- this Circuit odds

gress has asked us to do. example repeated of our

As one final

errors, opin- Supreme we have the Court’s Wang, ion in 450 U.S. INS America, UNITED STATES (1981), sum- S.Ct. 67 L.Ed.2d Plaintiff-Appellee, marily reversing opinion. our en banc BIA’s we had overruled the request for sus- decision not SHWAYDER, Swan, Keith Michael G. pension deportation on extreme based Orton, Defendants- and Kevin reversing holding, our hardship. Appellants. said,

Court 01-10156, Nos. 01-10176 and 01-10186. hearing a mo- By requiring such Appeals, United States Court of tion, Appeals the Court of circumvented Ninth Circuit. regulation], obviously which was de- [the Board select for signed permit Argued May 2002. Submitted hearing only reliably those motions in- Opinion Filed Dec. 2002. dicating specific recent events Amended Feb. a matter of would render hardship for the alien or his extreme Cline, Freedman, Boyd, Dan- D. John children. Hollander, P.A., iels, Goldberg & Cline