Lising v. Immigration & Naturalization Service

Opinion by Judge REINHARDT; Concurrence by Judge BOOCHEVER REINHARDT, Circuit Judge: ORDER The opinion filed May 23, 1997, is withdrawn.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 United States in 1982 claiming to be the unmarried son of a lawful permanent resident. In doing so he misrepresented his marital status. He concealed his 1975 marriage as well as the existence of two children from that marriage. Petitioner returned to the Philippines in 1984 and remarried his wife. He claimed this second marriage as his first in his applications for visa and naturalization. In declining to grant Lising a waiver of deportation, the BIA found two adverse factors relating to misrepresentations he made on two documents: (1) his 1984 application for visas for his wife and children and (2) his 1988 application for naturalization. With respect to the 1984 application, the BIA found that petitioner failed to list his 1975 marriage. Regarding the second application, the BIA again found that he failed to list the earlier marriage but this time also found that he concealed the fact that he had two children from that marriage. The adverse finding with respect to the 1988 application, is erroneous in significant part. Lising, in fact, did list his children on his application for naturalization. Because the BIA relied in part on an erroneous adverse factor, we remanded for a proper determination. In view of the INS’s petition for rehearing, we vacate our opinion and stay further proceedings in this court in order to permit the filing and consideration of a motion to reopen before the BIA. II. There is one additional point. Petitioner’s 1988 naturalization application was not a part of the administrative record in the proceeding before the BIA. A purported copy was attached by the petitioner to his brief on this appeal and we then requested a certified, true copy from the INS. The INS now argues that, in hght of Fisher v. INS, 79 F.3d 955 (9th Cir.1996) (en banc), we cannot consider the application. Although the government’s reliance on Fisher is understandable, it is misplaced. In Fisher we said that “[w]e may review out-of-record evidence only where (1) the Board considers the evidence; or (2) the Board abuses its discretion by failing to consider such evidence upon the motion of an applicant.” Id. at 964. Fisher accurately sets forth the general rule. New rules, however, are absolute and wholly inflexible; for, it is impossible for courts when purporting to establish a general rule to foresee all of the manifold circumstances to which it might later be deemed applicable if applied unreasoningly. Fisher is illustrative of this point. Almost all rules require the establishing of some exceptions, minor though they may be. When a rule does not appear to make sense in the context in which we are asked to enforce it, we must examine the facts involved in the case that established the rule and the subsequent cases applying it, as well as the reasoning that supported our decision. That way, we can determine the purpose of the rule and consider whether in light of that purpose the rule can sensibly be applied in the circumstances before us. Here, we conclude it cannot. Fisher relates to evidentiary material that either party could have presented to the BIA but that the petitioner simply failed to introduce at the hearing. The Fisher rule was intended to ensure that petitioners present all outside documents, reports, or information during the course of the administrative proceedings and not offer them for the first time before this court. Fisher does not treat the issue of a court’s taking judicial notice of the agency’s own records — and particularly of an official INS form that serves as the very basis for the BIA’s decision. We do not believe that the rule was intended to preclude our consideration of such a form. Here, the BIA erroneously concluded that Lising lied on his application by failing to fist his children, despite the fact that the INS had the application in its possession and the application directly disproved that charge. It then based its decision in part on the naturalization application. Under the circumstances, we do not believe that the Fisher rule, when read in light of its purpose, — 999 — precludes us from acknowledging the existence of the document in question and allowing the BIA to reconsider its decision. Accordingly, we stay further proceedings in this court so that the BIA may consider a petition to reopen its proceedings in light of the official 1988 naturalization application. PROCEEDINGS IN THIS COURT STAYED PENDING FURTHER ORDER OF THE COURT. Footnotes [1] Our original disposition, relying on this court’s opinion in Yang v. INS, 58 F.3d 452 (9th Cir. 1995) overruled by INS v. Yang, - U.S. -, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996), held that the BIA impermissibly relied upon a narrow definition of the "entry fraud” exception in denying Lising a waiver of deportation. In Yang, the Supreme Court held that the Attorney General, when deciding whether to grant a discretionary waiver of deportation, may define the "entry fraud” exception "as it pleases” even if in an extremely narrow manner. Id. at-, 117 S.Ct. at 353. [2] Section 241 provides that: [t]he section of this paragraph relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens, described in section 1182(a)(6)(C)(i) of this title, whether wilful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph 4(D)) who — (i) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and (ii) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such entry except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation. A waiver of deportation for fraud or misrepresentation granted under this subparagraph — 998 — shall also operate to waive deportation based on the inadmissibility at entry directly resulting from such fraud or misrepresentation.