dissenting:

The majority adopts a standard of review for denials of motions to reopen which substantially, and unwisely, restricts the discretion of the Immigration and Naturalization Service (INS) in deciding when to reopen a case. I concur in Judge Goodwin’s dissent in Wang v. INS, 9 Cir., 622 F.2d 1341 , ante 622 F.2d at 1351 , and I agree with Judge Sneed’s conclusion, in his dissent to that same opinion, that the discretion of the INS should be broad. I write separately to indicate my disagreement with the majority’s holding that a prima facie showing of eligibility for discretionary relief is sufficient to require reopening.

Motions to reopen are created by regulation; they have no origin in statute. They permit the INS to take a fresh look at a case which it has previously decided, but in which significant developments have occurred since the case was last opened:

8 C.F.R. § 3.2 (1980). By requiring material new developments in a case, this regulation, which stipulates when the INS cannot reopen rather than when it must reopen, suggests that reopening should occur when the old deportation order would be unfair in the light of new developments. Identification of such cases is not regulated; it is left to INS discretion. This circuit has repeatedly recognized the discretionary nature of INS rulings on motions to reopen. Lee v. INS, 550 F.2d 554, 555 (9th Cir. 1977); Hun Chak Sun v. INS, 415 F.2d 791, 792 (9th Cir. 1969), cert. denied, 397 U.S. 908 , 90 S.Ct. 905 , 25 L.Ed.2d 89 (1970); Greene v. INS, 313 F.2d 148, 151 (9th Cir.), cert. denied, 374 U.S. 828 , 83 S.Ct. 1869 , 10 L.Ed.2d 1052 (1963).

The majority opinion purports to recognize the discretionary nature of decisions to reopen. See ante 1357-1358. However, the majority holding states that INS discretion ends when prima facie extreme hardship has been alleged. Thus, the sole determination that the INS may now make in ruling upon a motion to reopen is whether prima facie eligibility has been alleged. Refusal to reopen and hold a full hearing in the face of such an allegation will, in the future, constitute an abuse of discretion.

If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations. There can be no doubt that the majority opinion eliminates the INS discre *1363 tion anticipated by the regulations creating the motion to reopen.

By requiring, as a matter of law, that the INS reopen the case when an alien alleges prima facie extreme hardship, the majority disregards a workable rule that preserves INS discretion. Under this rule, which is mentioned by the majority but never applied, an alien moving to reopen his proceedings must not only establish prima facie eligibility for the discretionary relief that he or she will seek, but must also demonstrate that a reopening of the proceeding would likely produce a result different from that produced by the previous proceeding. See Ballenilla-Gonzalez v. INS, 546 F.2d 515, 520 (2d Cir. 1976), cert. denied, 434 U.S. 819 , 98 S.Ct. 58 , 54 L.Ed.2d 75 (1977); 1 C. Gordon & H. Rosenfield, Immigration Law & Procedure § 1.10g, at 1-82 (1979). This standard permits the INS to deny reopening when, because of circumstances such as the litigious nature of the alien or the fact that all hardship factors arose after he or she was under an order of deportation, it is obvious that discretionary relief will not be granted even though prima facie extreme hardship has been established. See, e. g., In re Lam, 14 I. & N. Dec. 98, 100 (1972). Such discretion is clearly foreclosed by the majority opinion.

The majority compounds its error by stating that the INS should consider not only the facts alleged in the current motion to reopen but also those alleged in previous motions. See ante at n. 7. Regulations state that motions to reopen exist to permit the INS to consider information that it has not previously considered. Specifically, 8 C.F.R. §§ 3.2 , 103.5, and 242.22 (1980) state that motions to reopen must be based upon information arising subsequent to the INS’ last consideration of the case. Thus, not only does the majority unduly restrict the discretion of the INS by requiring a reopening every time facts are alleged that amount to prima facie hardship, it also expands the factual basis that the INS must consider when looking for such hardship.

The majority’s disregard of the necessarily discretionary nature of decisions to reopen will, as Judge Goodwin states, provide a blueprint for aliens wishing to prolong their illegal presence in this country. In my opinion, the majority holding “elevate[s] thrift [, fertility,] and industry above immigration policy,” and is “an affront to those overseas aliens who are abiding by the law and waiting with whatever patience they can muster for an opportunity to enter legally as a permanent resident.” Lee v. INS, supra, 550 F.2d at 556 . I am not suggesting that we should be insensitive to the genuine hardships of aliens facing deportation. I am simply suggesting that the government agency responsible for maintaining order in the immigration process should have the discretion to deny a formal hearing to those individuals who prolong their unlawful presence in this country more on the basis of legal maneuvering than on the basis of genuine need. Therefore, I respectfully dissent.