dissenting:

It has been universally understood that before an administrative body can exercise its considerable, almost unfettered, discretion over the lives of those placed before it, the agency has an initial obligation to address the equities that it is required to consider. The majority appears to adopt, for the first time, the proposition that the INS can make a determination of the equities in a particular case without bothering to consider the facts which define these equities. With all due respect for the concerns expressed by the majority, I dissent.

Both petitioners have made out a prima facie case for reopening the BIA’s consideration of their petition to adjust their immigration status under 8 U.S.C. § 1255 (a). The INS admits this. Both petitioners filed timely motions to reopen their deportation proceedings for the purpose of applying for discretionary relief from the Board of Immigration Appeals’ (BIA) order of deportation. Both motions to reopen fell within the narrow definition set forth at 8 C.F.R. § 3.2 , promulgated by the INS to identify those cases worthy of reopening. That is to say, both motions to the BIA were supported by undisputed affidavits containing evidence which was “material” and “could not have been discovered or presented at the former [deportation] hearing.” 8 C.F.R. § 3.2 .

Instead of deciding the narrow question that the petitioners placed before it— whether the new evidence was sufficient to justify a factual hearing to address the significance of these changed circumstances — the BIA assumed the task of weighing these changed circumstances to determine whether it would have eventually granted an adjustment of status to the petitioners. In so doing, the BIA did more than just short circuit the normal administrative pro *1124 cess that the petitioners had attempted to invoke. The BIA violated its own regulations. It exercised equitable discretion in a factual vacuum. In affirming the practice, the conclusion reached today ignores the fundamental concepts essential to the principled exercise of administrative discretion and transgresses a basic limitation on the principled exercise of judicial discretion— stare decisis.

A. Abuse of Administrative Discretion.

In the BIA’s haste to give expression to their a priori judgments on the legitimacy of the petitioners’ marriages, the BIA violated its own regulations. It also chose a starkly unfair means of decision.

Just as it is an abuse of discretion for the BIA to ignore the statutory factors that Congress has devised to govern the BIA’s substantive administrative task, Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir.1983), it is an abuse of discretion for the BIA to disregard its own regulatory procedures regarding the method and criteria for considering motions to reopen deportation proceedings. The petitioners did not ask for final relief in their motions to reopen; instead, they asked for an opportunity to present more material evidence in order to seek a favorable reconsideration of their cases. Rather than decide the narrow question that the petitioners had, in accordance with the administrative process set forth in 8 C.F.R. § 3.2 and 3.8, placed before it, the Board embarked upon some sort of hybrid inquiry. This hybrid inquiry, combining a consideration of the necessary predicate for a successful motion to reopen with an inquiry into the petitioners’ likelihood of success in obtaining final discretionary relief, is neither recognized nor authorized by the BIA’s own regulations. See 8 C.F.R. § 3.2 . Conversely, the petitioners’ motion to reopen was an authorized and widely used procedure for initiating the reconsideration of the BIA’s prior deportation decision. Thus, the BIA failed to comply with its own procedures, the only procedures that were then available to the petitioners, when it declined to answer the limited question of whether the petitioners’ affidavits contained a prima facie case for reopening, that is, the existence of material information that could not have been presented at the petitioners’ former hearing.

The BIA’s unauthorized consideration of the petitioner’s likelihood of success in obtaining eventual relief was more than just an ultra vires procedural mechanism from the standpoint of the regulations governing motions to reopen deportation hearings. As the Supreme Court has noted, INS v. Wang, 450 U.S. 139 , 143 n. 5, 101 S.Ct. 1027 , 1030 n. 5, 67 L.Ed.2d 123 (1981), Section 3.2 is framed in the negative and mandates that “[mjotions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not” previously available. § 3.2. (emphasis added). In other words, the BIA is prohibited from reopening a case unless these two criteria are met. The only evi-dentiary basis for the BIA’s reopening determination are the affidavits presented by petitioners under 8 C.F.R. § 3.2 . The BIA is prohibited from reopening the deportation proceedings unless a prima facie case is contained in these affidavits. The BIA cannot, by itself, reweigh and reconsider the equities of a petitioner’s case under the auspices of a motion to reopen.

The BIA’s attempt to combine consideration of the ultimate merits of the petitioners’ cases with consideration of their motions to reopen is not only beyond the permissible scope of a motion to reopen, it is patently unfair. This is self-evident in the “findings” of the BIA on the import of petitioner Ahwazi’s marriage:

Order denying motion to reopen, at 2 (emphasis added). Without an iota of familiarity with the four year relationship between petitioner Ahwazi and his wife, the BIA is able to conclude that the “equity created by the petitioner’s marriage” is insubstantial. Absent any further factual foundation, the BIA’s conclusions can represent only the exercise of administrative whim, not administrative discretion. If the BIA suspects that the petitioner’s marriage is a sham, then it has ample administrative discretion to deny ultimate relief based on a reconsideration of the relevant equities. Decisions in the abstract, however, have nothing to do with equity or administrative discretion; rather, they are the quintessential example of an abuse of discretion.

B. The Law of This Circuit.

This circuit has already held that it is an abuse of discretion for the BIA to deny a motion to reopen where an alien has presented a prima facie case for relief. Urbano de Malaluan v. INS, 577 F.2d 589, 592-93 (9th Cir.1978); Samimi v. INS, 714 F.2d 992, 995 (9th Cir.1983); Villena v. INS, 622 F.2d 1352, 1359 (9th Cir.1980). I consider myself bound by this precedent and would accordingly reverse the BIA’s decisions in these cases as an abuse of discretion. The only cases the majority cites do not contradict his precedent. For example, Obitz v. District Director, 623 F.2d 1331 (9th Cir.1980), is not only distinguishable from the facts of this case, it is consistent with the prior precedent which I find binding on this court. In Obitz , the petitioner’s first motion to reopen involved an application for a stay of deportation or reinstatement of voluntary departure. 623 F.2d at 1332 . The motion was based on her marriage to a United States citizen and a pending visa application. Id. The BIA denied the motion, and this court affirmed, holding, inter alia, that the BIA did not abuse its discretion by denying reinstatement of voluntary departure, because it had considered Obitz’s immigration history and the equities created by her marriage before denying her motion. 623 F.2d at 1333 n. 2.

Obitz’s visa petition was subsequently approved, and Obitz made another motion to reopen to apply for adjustment of status for which she was therefore eligible. In reviewing the BIA’s denial of the motion, this court found that Obitz had not presented evidence sufficient to change the previous consideration of the situation. Id. at 1333 . Aside from the approval of the visa, which the court denominated “an essentially ministerial act,” it found that the facts remained substantially as they were when it had previously reviewed the BIA’s refusal to reopen Obitz’s deportation hearing. Id. Under these circumstances, the court found that if the BIA had not abused its discretion in denying Obitz’s first motion to reopen, its refusal to do so in the second proceeding was also no abuse. Id. In essence, Obitz received a consideration of her equities in the context of her first reopening petition, albeit with respect to voluntary departure rather than adjustment of status.

Reinstatement of voluntary departure is entirely discretionary. If the alien can show compelling reasons or circumstances that caused his or her failure to depart, voluntary departure may be reinstated at the discretion of the BIA. Matter of Onyedibia, 15 I & N Serv. 37 (BIA 1974). See also Riasati v. INS, 738 F.2d 1115, 1119 (10th Cir.1984).

Because there are no statutory prerequisites for the relief requested by Obitz, the BIA and the court looked at her immigration history and the equities created by her marriage. Both considered all the factors presented and denied Obitz relief. Therefore, when Obitz made her second motion to reopen to apply for adjustment of status, the BIA and the court had already considered all the evidence she offered. The only new evidence was the approval of her visa petition, which the court discounted as “an essentially ministerial act of the Service.” Obitz, 623 F.2d at 1333 . The Obitz *1126 court stated that the BIA need not hold a hearing, even when a prima facie case is presented, if the alien presents no “new evidence that bears on whether the Attorney General should exercise his discretion to adjust her status [once] her statutory eligibility has been established.” Id. at 1333 .

If the alien makes a subsequent motion to reopen for adjustment of status based on new evidence that consists of nothing more than a ministerial act of the INS, the BIA need not grant the motion even though the alien has made a prima facie showing of statutory eligibility. In both of the cases before this court, however, the BIA has not previously considered the evidence that forms the basis of the reopening petition. In virtually every case previously decided by this court in which the alien presented a prima facie case for relief the new evidence had to be considered by the BIA before it could grant or deny discretionary relief. The same rule should apply here.

The BIA’s own regulations, the law of this circuit, and equity itself demand that the BIA cannot determine the merits of a prima facie case without some elementary familiarity with the facts in a given case. Without such a foundation, administrative discretion becomes administrative abuse.