Ramirez-Alejandre

Opinion by Judge Thomas; Dissent by Judge Trott.

OPINION

In the book Bang the Drum Slowly, members of the fictional New York Mammoths amused themselves by drawing in dupes with a card scam known as “Teg-war,” which was an acronym for “The Exciting Game Without Any Rules.” Mark Harris, Bang the DRUM Slowly 8 (Alfred A. Knopf, Inc.1956). The mark, lured into the game by the players’ enthusiasm, would be given a handful of cards and encouraged to make wild bids using a weird vocabulary of calls that changed from round to round. Id. at 48, 60-64. The poor cluck would always lose but would be reassured of the game’s legitimacy by the veneer of rationality that appeared to overlie the seemingly sophisticated game.

For years, the Board of Immigration Appeals (“BIA”) played a variant of Teg-war in its procedural treatment of appeals from suspension of deportation decisions issued by immigration judges (“Us”). Until recently, aliens who could demonstrate extreme hardship were eligible for suspension of deportation. Under the unique directives applicable to this remedy, the BIA was required to decide eligibility for suspension based, not on the facts that existed as of the time of the…