dissenting:
I respectfully dissent. In my judgment, the Board of Immigration Appeals (BIA) acted properly within its discretion in refusing to reopen Mr. Shin’s deportation proceedings.
1
The majority’s decision rests principally upon the BIA’s failure in its October 31, 1983, order to discuss the new factor of Mr. Shin’s wife’s having become a United States citizen, an event which occurred after the BIA had denied Mr. Shin’s earlier motion to reopen. That prior motion, aimed at suspending deportation proceedings, was denied by the BIA in a comprehensive order dated January 18, 1983. In denying relief, the BIA there determined, first, that Mr. Shin had failed to establish extreme hardship and, in so concluding, took expressly into account the circumstances of Mr. Shin’s present spouse, whom the Board observed was “a lawful permanent resident of the United States.” Order of January 18, 1983 at 1.
But the Board did not stop there. After finding no extreme hardship, the Board went on to determine, second, that “significant reasons exist for denying reopening, in the exercise of discretion, based on [Mr. Shin’s] actions. [Mr. Shin] has flouted the immigration laws of the United States except when they served his purpose.” Id. at 3. In setting forth a bill of particulars in this respect, the BIA emphasized the following: (1) Mr. Shin had remained in the United States in an illegal status since 1973; (2) he was granted the privilege of voluntary departure on two occasions, in 1975 and 1976, and on each occasion failed to depart; (3) he had been under a final deportation order since January 1976; and (4) it appeared to the Board that Mr. Shin’s “various motions at this point in the proceedings [were] designed to prolong his stay in this country pending the processing of his visa in Canada.” Id. at 4. The BIA’s order, it bears noting, was final and appealable but no appeal was taken.*
It was this second ground for rejecting Mr. Shin’s earlier motion — the willful disobedience of United States law — upon which the BIA exclusively relied in denying relief in the order under review. Nothing has changed in this respect. Mr. Shin stands here now, as he did before the BIA last fall, with a final, unappealed from determination that he has “flouted the immigration laws of the United States.” He does not here, nor did he before the Board, advance any new facts in this respect; in consequence, the BIA’s second ground for denying relief in January 1983 stands unaffected and unassailable by the happy occurrence of Mrs. Shin’s having since become a U.S. citizen.
There can be no doubt that it was this second ground — willful disobedience of federal law — upon which the Board relied in denying relief in this latest round of maneuvering. The Board’s order is crystal clear:
One basis [for the January 1983 denial of relief] was our finding that his application and motion did not merit approval as a matter of discretion. For the reasons stated therein, we reach that same conclusion with regard to the in*129stant motion and application for discretionary relief.
Order of October 31,1983 (citation omitted) (emphasis added).
That explanation is entirely sufficient. In a word, Mrs. Shin’s new-found status is utterly beside the point; the Board has ruled that, as a matter of discretion, it will not entertain a request for discretionary relief because of Mr. Shin’s own checkered past of failing time after time to comply with applicable law.
2
If we must go beyond this basis for the Board’s action — a ground that I find completely adequate and independent of Mrs. Shin’s status to support the Board’s order — we then move to the significance of her new status. In my view, it is here that the majority’s reasoning is fraught with potential mischief for future cases, as opposed to reflecting simply what I believe to be a misapprehension of the basis of the Board’s action.
To begin, let us take note again of the background of this case. Mr. Shin has been illegally present in the United States for over a decade. He has evinced no intention whatever to leave, notwithstanding his illegal status and clear and binding directives to him to depart. He has been taken into custody in order to effect his departure, but through the exercise of discretion was permitted by INS to make other, voluntary arrangements for departing. He still did not leave. His present marriage (his third) occurred seven years into his period of unlawful residence, and five years after he first agreed to depart voluntarily.
And the likelihood of his wife’s eventually becoming a U.S. citizen could scarcely have been unknown to the Board in January 1983 when it denied the earlier request to reopen deportation proceedings. The BIA indicated at the outset of its opinion that Mrs. Shin was “a lawful permanent resident of the United States” and noted that she had filed a visa petition on Mr. Shin’s behalf, which had subsequently been approved. Her citizenship, coming a few months later, was no new evidence; it was, in the words of the Second Circuit, merely “the natural consequence[ ] of her earlier virtual completion of the naturalization process.” Hibbert v. INS, 554 F.2d 17, 21 (2d Cir.1977). Hibbert is, in fact, highly instructive. There, the Second Circuit upheld a BIA determination not to reopen deportation proceedings, even in the face of the petitioner’s wife’s having become a U.S. citizen and the fact that the petitioner, in the interim, had become the father of a U.S. citizen child. In language that rings true here, the court flatly rejected the attack on the Board’s refusal to reopen:
On the final application to the Board to reconsider its decision not to reopen, there was no new evidence. [The wife’s] citizenship and the birth of [the] child were the natural consequences of her earlier virtual completion of the naturalization process and her pregnancy, all of which was known to the Board at the time of the first motion to reopen.
Id. at 21. As does Mr. Shin, Mr. Hibbert strenuously maintained, correctly, that marriage to a citizen is a “factor of significance” to the INS or, in the words of In re Ibrahim, 18 I. & N. Dec. 55 (BIA 1981), relied upon here by the majority, “a special and weighty equity.” Like Mr. Shin, Mr. Hibbert argued that this new equity could support a favorable exercise of discretion by the BIA and that the ease should thus be remanded to the Board.
But the Second Circuit was unmoved. The court flatly rejected this request as “without merit” because, critically, Mr. Hibbert’s “immigration history amply supports the discretionary refusal to waive deportation.” 554 F.2d at 21. Under those circumstances, the court concluded, it would be pointless to remand to determine his technical eligibility since the end result was destined to be deportation.
Here, as in Hibbert, a remand to consider the “special and weighty equity” of Mr. Shin’s post-deportation-order marriage to a U.S. citizen — when the factor of that marriage had earlier been taken into account— is an exercise in futility, for the Board is properly within its broad discretion in refusing to reopen deportation proceedings of *130venerable length by virtue of the applicant’s history of flouting the immigration laws. Indeed, as the Hibbert court noted, it was on this ground that the Supreme Court reversed, in a per curiam opinion, a Court of Appeals determination that the statute required the immigration judge to make findings as to the applicant’s eligibility for the requested status (admission into the country as a permanent resident). The Supreme Court held flatly that such a determination would have been “purely advisory” and, absent a statutory requirement to the contrary, such advisory findings and conclusions simply could not be required of INS by the judiciary. INS v. Bagamasbad, 429 U.S. 24, 25-26, 97 S.Ct. 200, 201, 50 L.Ed.2d 190 (1976).
Here, in effect, the majority is directing the Board to issue an advisory opinion as to the applicability of Ibrahim. But, as in Hibbert and Bagamasbad, there is no need for the exercise, no matter how enlightening and edifying a new opinion from the Board might be, for the Board has spoken, finally and decisively. It will not hear further from Mr. Shin no matter how many equities he may amass, for he stands charged and convicted, administratively, of deliberately flouting this Nation’s laws.
3
In the judicial quest for reasoned administrative decision-making, we have today taken a salutary principle of law and applied it in a setting where, in my view, it simply does not fit. The immigration laws are unique, an act of fundamental sovereignty quite unlike administrative regulation of natural gas sales or activities in the communications industry. Congress, which continues periodically to examine this set of laws which have aptly been compared to the labyrinth of ancient Crete, has nowhere provided for the procedural vehicle invoked by Mr. Shin. One will sift through this labyrinthine maze of immigration laws and find not a word about motions to reopen deportation proceedings. Congress clearly knows how to provide for motions to reopen, such as petitions for reconsideration, in administrative settings, and has done so with regularity, but it did not do so in this unique area of sovereign national interest. It is within the inherent power of an administrative agency to reconsider its actions, see Dawson v. Merit Systems Protection Board, 712 F.2d 264, 267 (7th Cir.1983), but there is fairly to be inferred a congressional mandate that deportation proceedings, while comporting with elementary values of fairness and decency, are to be accomplished with dispatch.
That mandate is flouted daily throughout the Nation, to the point that it has become a truism in public discourse on the subject that this Nation has lost control of its borders. Not only does the Nation seem powerless to curb the tide of illegal immigration in the first instance, but the process of returning whence they came those who are now illegally here has become so protracted and complicated that the cost of an able immigration lawyer is in effect a ticket of admission permitting those unlawfully here to remain indefinitely. See, e.g., Rios-Pineda v. INS, 720 F.2d 529 (8th Cir. 1983), cert. granted, — U.S. —, 105 S.Ct. 562, 83 L.Ed.2d 503 (1984). The INS has itself contributed measurably to this enervation, as the saga of the case at hand itself shows. The INS apparently felt that it knew better than Congress, so it drew up a regulation providing administratively for the procedural vehicle that the Article I branch never saw fit to enact. (And, stays of deportation at critical junctures in this drama were granted in two instances, once by an immigration judge and once by an INS District Director.) Then, the Article III branch has seen fit over the years to incorporate a wide body of judicial teaching on administrative decision-making that seems to me wildly misplaced. Today’s decision is but part of that development, unfolding case by case, the end result of which is immobilism in enforcement of these most fundamental of laws. And even a change in today’s result would do little to eliminate the administrative and legal barnacles that have turned the immigration laws and their administration into what our elected representatives not infrequently disparage as a national disgrace.
And thus, as so frequently happens, a confession of error within the judiciary contains in it the prayer for relief from the *131representative branch whose will seems so politely but nonetheless emphatically trammeled in the inexorable extension of the administrative state.
These broader observations lead me, in closing, back to a narrower point. Since Congress itself has not, in the unique area of immigration regulation, seen fit to provide for motions to reopen deportation proceedings, I should think we would be highly deferential to the Board, particularly where, as here, the petitioner had previously, without success, availed himself of a motion to reopen. The Board’s discretion, in my view, is at its zenith in making a discretionary procedural determination which Congress did not see fit to enact. That discretion was exercised entirely appropriately here, given the blemishes of studied noncompliance with law that mar Mr. Shin’s record, laws of a Nation where he so earnestly and understandably desires to stay. He has been here illegally since 1973. He was first found deportable in 1975; now, almost a decade later as 1985 approaches, his quest to remain in the United States under the protective umbrella of the laws he chooses day by day to violate continues with what seems to be a powerful life of its own.
I would affirm the Board’s order.
I do not offer this in an effort to assert that Mr. Shin is, by virtue of preclusion doctrines, es-topped from attacking the BIA’s determination. His flouting of the laws of the United States was an alternative determination, and since either of the two alternative grounds for the BIA's decision in the Order of January 18, 1983, would have been sufficient, neither standing alone is, arguably, conclusive. Cf. Restatement (Second) of Judgments § 27 comment i (1982). However, Mr. Shin’s disrespect for United States law was specifically asserted by the BIA as the ground for denying relief in the Order of October 31, 1983. Mr. Shin’s wife's new status has, as I will seek now to show, no effect on that ground.