Lising

Opinion by Judge REINHARDT; Concurrence by Judge BOOCHEVER

ORDER

The opinion filed May 23, 1997, is withdrawn.

OPINION

We grant the petition for rehearing. Petitioner Alexander Maeam Lising appealed the decision of the Board of Immigration Appeals (BIA) denying him a waiver of deportation under Section 241(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1251 (a)(1)(H). We withheld final action on our original disposition pending the outcome of the Supreme Court’s decision in INS v. Yang, — U.S. —, 117 S.Ct. 350 , 136 L.Ed.2d 288 (1996). 1 In light of the Supreme Court’s opinion, we vacated our disposition and ordered that the case be remanded to the Board of Immigration Appeals (BIA) for a determination of whether the remaining adverse factor warrants a denial of waiver of deportation. On the basis of the INS’s petition for rehearing, we now stay the proceedings in this court and withdraw the prior opinion to permit the filing and consideration of a motion to reopen before the BIA.

I.

There is a checkered history to this case. Petitioner conceded that he is deporta-ble but requested a waiver of deportation under Section 241(a)(1)(H). 2 Lising entered *998 the…

Concurring:

While I agree that almost all rules may be subject to exceptions for unforeseen contingencies, I do not believe it is necessary in this case to carve even the narrow exception to Fisher v. INS, 79 F.3d 955 (9th Cir.1996) (en banc), proposed by the majority. As the opinion states, under Fisher “[w]e may review out-of-record evidence only where (1) the Board considers the evidence____” Id. at 964 .

The Board’s decision in this ease relied in part on Lising’s mistaken testimony that he had not listed his two children on his application for naturalization. While a narrow construction of the provision of Fisher quoted above might indicate that the Board only considered Lising’s testimony about the application, I believe it is preferable to interpret the provision more broadly, and would conclude that the Board considered the application for naturalization, which was in the INS files. In other words, when the Board bases a decision on testimony regarding the contents of a document in the INS files, I believe that it considers that document, and accordingly that “[w]e may review [that] out-of-record evidence.”