dissenting:

I respectfully dissent from the majority’s holding that we lack jurisdiction to review a BIA decision not to reopen deportation proceedings sua sponte. I would grant the petition for review and remand to the BIA. In my view, this is a case where the interest of justice demands that an administrative agency be held accountable for its decisions. The liberty interests of the Ekimian family, who have now been living in the United States for nearly nine years, require no less.

In its brief to this panel, the Immigration and Naturalization Service (“INS”) writes,

In this country and under our laws, we typically do not leave individuals’ liberty interests to the “grace” of bureaucrats, even well-intentioned bureaucrats. It is only the rarest of cases where discretion is left entirely unfettered. See, e.g., Abbott Lab. v. Gardner, 387 U.S. 136, 139-41 , 87 S.Ct. 1507 , 18 L.Ed.2d 681 (1967) (discussing the general presumption that all agency decisions are reviewable absent clear and convincing evidence of contrary legislative intent). Appellate review is the hallmark of our judicial system. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166, 2 L.Ed. 60 (1803) (“[Wjhere a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear, that the individual who considers himself injured, has the right to resort to the laws of his country for a remedy.”).

The BIA denied the Ekimians’ motion to reopen in a single, cursory paragraph:

As the majority opinion acknowledges, the decision does not discuss Mr. Ekimi-an’s recently approved Labor Certification, it provides no indication that the BIA considered the Department of Labor’s two-year delay in processing Mr. Ekimian’s *1161 certification, and it does not provide any explanation as to why the BIA declined to exercise its sua sponte power to reopen this case where the petitioner had become eligible to remain legally in the country as a permanent resident. All we know is that the BIA considered the date on which the Ekimians filed their motion to reopen.

The majority accepts the INS’s argument that federal appellate review is precluded because there is no meaningful judicial standard under which we can review the BIA’s power to reopen deportation proceedings on its own motion. In my view, there is an adequate standard by which we can review the BIA’s discretionary decision.

It is true that the regulation promulgated by the Attorney General in 1996, 8 C.F.R. § 3.2 (a), does not specify when the BIA should exercise its sua sponte power. 1 However, the BIA has ruled that it will reopen cases in “exceptional situations.” See Matter of J-J-, 21 I. & N. Dec. 976, 984 , 1997 WL 434418 (1997) (explaining that 8 C.F.R. § 3.2 (a) allows the BIA “to reopen proceedings sua sponte in exceptional situations ... [but] is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship.”); see also In re G-D- 22 I. & N. Dec. 1132 , 1999 WL 1072237 (1999) (“As a general matter, we invoke our sua sponte authority sparingly, treating it not as a general remedy for any hardships created by enforcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations.”); In re L-V-K, 22 I. & N. Dec. 976 , 1999 WL 607159 (1999) (same); In re X-G-W-, 22 I. & N. Dec. 71, 73 , 1998 WL 378104 (1998) (explaining that the sua sponte authority to reopen can be exercised “in unique situations where it would serve the interest of justice”). See generally Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18,900 , 18,902 (1996) (“Election 3.2(a) of the rule provides a mechanism that allows the Board to reopen or reconsider sua sponte and provides a procedural vehicle for the consideration of cases with exceptional circumstances.”)

Certainly this body of agency law combined with the other cases cited by the majority pertaining to exceptional circumstances ought to be sufficient for us to unearth a meaningful standard of review; especially, when the alternative is to leave matters to the “unfettered” “grace” of the agency. In a slightly different context, we have determined that when a decision is committed to the BIA’s discretion, “[t]his court has required the Board to ‘state its reasons and show proper consideration to all factors when weighing equities and denying relief.’ ” Tukhowinich v. INS, 64 F.3d 460, 463 (9th Cir.1995) (quoting Hassan v. INS, 927 F.2d 465, 467 (9th Cir.1991)) (reviewing the BIA’s denial of Tuk-howinich’s application for the suspension of deportation for lack of extreme hardship). *1162 Furthermore, the BIA “must indicate how it weighed the factors involved and how it arrived at its conclusions” because “[m]ere conclusory statements are not sufficient.” Georgiu v. INS, 90 F.3d 374, 375-76 (9th Cir.1996) (reviewing the BIA’s denial of Georgiu’s petition for relief under 8 U.S.C. § 1182 (c) (now repealed)). See also Arrozal v. INS, 159 F.3d 429, 432 (9th Cir.1998) (“The BIA abuses its discretion when it fails to state its reasons and show proper consideration of all factors when weighing equities and denying relief.”) (emphasis in original) (citations omitted).

Appellate review of the BIA’s decision not to reopen would be necessarily limited in scope. Generally, BIA decisions that provide adequate reasons for not reopening would be summarily upheld, but appellate review would allow for cases like that at bar to be revisited when the interest of justice demands it. For example in the Ekimians’ case, the question would be whether it was an abuse of discretion for the BIA to deny reopening with only a conclusory statement and without any indication that it considered all the equities of the case.

Under this standard, I would reverse the BIA’s decision because it gave no indication of considering certain pertinent factors in denying the Ekimians’ relief. Specifically, the BIA did not consider any of Mr. Ekimian’s arguments for reopening, including his argument that the two-year delay in processing his labor certification prevented him from timely filing his motion to reopen. Nor did the BIA consider the fact that because Mr. Ekimian possessed an approved employment-based visa petition with a current priority date he could adjust status to become a permanent resident immediately, thereby ending the matter. Nor did the BIA consider the impact of its denial on Mr. Ekimian or his wife and son or the fact that, if deported, all three would be barred from the United States for ten years.

The majority finds guidance in Heckler v. Chaney, 470 U.S. 821, 831-33 , 105 S.Ct. 1649 , 84 L.Ed.2d 714 (1985). I believe that the majority’s reliance on Heckler is misplaced because the decision not to reopen deportation proceedings sua sponte significantly differs from Heckler v. Chaney’s, agency decision not to enforce a federal regulation prohibiting the use of a particular drug. The Supreme Court concluded that the FDA’s decision not to enforce the regulation should be presumed immune from judicial review because the agency is better equipped than the courts to determine its administrative enforcement actions and because the refusal to act has no coercive impact on an individual’s liberty or property rights. Id. at 832 , 105 S.Ct. 1649 . 2

In the instant case, however, the BIA’s decision not to reopen deportation proceedings was a coercive act. The BIA decision lifted the stay on the Ekimians’ deportation. In effect, the BIA’s decision results in the Ekimians’ deportation. In this regard, the BIA’s action cannot be analogized to situations of prosecutorial discretion where there has been a decision not to institute proceedings. In the BIA *1163 context, proceedings are already underway and any action taken by the BIA will alter the status quo. The Court in Heckler was concerned that when an agency does not act, there will be no “focus for judicial review.” 470 U.S. at 823 , 105 S.Ct. 1649 . In the instant case, the BIA’s decision not to reopen when Mr. Ekimian was able to present a recently granted Labor Certification Petition presents a clear focus for judicial review.

Finally, the majority is taking a position that no circuit court has previously held. In Luis v. INS, 196 F.3d 36 (1st Cir.1999), the First Circuit’s discussion of the BIA’s sua sponte power to reopen is only dicta because the petitioner in that case had failed to exhaust her administrative remedies.

For these reasons, I would conclude that the BIA abused its discretion and remand to the BIA for further proceedings.

. The majority opinion points out that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 codified § 3.2(c)(2)'s ninety-day time limitation for party-initiated motions to reopen, but the 1996 Act did not codify the regulation's grant of BIA sua sponte authority to reopen. While this is certainly worth noting, the current regulation still authorizes the BIA to reopen deportation hearings on its own motion at any time. Furthermore, Congress’ apparent decision not to codify a particular regulation in statute is not sufficient “clear and convincing evidence” of legislative intent to restrict judicial review. See Abbott Lab., 387 U.S.' at 141, 87 S.Ct. 1507 (requiring clear and convincing evidence to restrict access to judicial review).

. A more comprehensive analysis of why Heckler v. Chaney is inapposite in the context of the BIA's decisions not to reopen deportation proceedings is available in Socop-Gonzalez v. INS, 208 F.3d 838, 843-45 (9th Cir.2000). In this case, the Ninth Circuit granted a petition for rehearing en banc and vacated the panel opinion. Reh'g en banc granted, No. 98-70782, 2000 WL 1468772 (Sept. 29, 2000). The en banc court held that the ninety-day filing period is subject to equitable tolling, but did not "reach the question whether the BIA should have exercised its sua sponte power to reopen.” 272 F.3d 1176, 1183 (9th Cir.2001) (en banc).