dissenting:
Regardless of one’s view of the rule set forth in Larita-Martinez v. INS, that decision directly controls the disposition of this case and requires the contrary result: the reinstatement of the IJ’s grant of relief to Ramirez.
The majority asserts that we did not reach the due process question in Larita-*522Martinez. This cannot be squared with the plain language of Laritar-Martinez itself:
We first examine whether the Board committed an error constituting a due 'process violation. There is no administrative rule requiring the Board to review all relevant evidence submitted on appeal. It is beyond argument, however, that the Due Process Clause requirement of a “full and fair hearing,” mandates that the Board do so in its capacity as a reviewing tribunal. Indeed, it is so expected that a court would review all relevant materials in the record that reviewing courts have presumed it.
Larita-Martinez, 220 F.3d at 1095(cita-tions and internal quotation marks omitted) (emphasis added). The necessary predicate to the Laritar-Martinez panel’s conclusion that the Board fulfilled its due process obligations is the holding that a due process requirement exists.
Under this rule, it is of no consequence whether the supplemental material was submitted before the IJ or whether it was submitted on appeal to the BIA. In this regard, however, Larita-Martinez and Ramirez-Alejandre are factually indistinguishable. In Laritar-Martinez, the petitioner filed supplemental evidence, not available at the time of his hearing before the IJ, to support his claim of extreme hardship pending before the BIA. Here, .Ramirez filed his supplemental evidence, not available at the time of his hearing before the IJ, to support his claim of extreme hardship pending before the BIA. In Laritar-Martinez, we concluded that because Larita could not establish that the BIA had failed to review this supplemental evidence, his due process argument failed. 220 F.3d at 1096. Ramirez has no such obstacle. Here, the BIA expressly stated, “[although we note that the respondent has submitted additional evidence on appeal that he claims supports a finding of ‘extreme hardship,’ this Board as an appellate body does not consider evidence submitted for the first time on appeal.”
In point of fact, the Board as an appellate body routinely considers evidence submitted for the first time on appeal in immigration cases. While the BIA often chooses to limit review to the evidence presented before the IJ, it has and does review new evidence submitted on appeal, and not only by taking administrative notice of commonly known facts, as the majority suggests. See, e.g., Matter of Li, 21 I & N Dec. 13, 18 (BIA 1996) (reviewing, on appeal, evidence regarding the legal effect of the termination of adoption in China); Matter of Godfrey, 13 I & N Dec. 790, 791 n. 1 (BIA 1971) (“in exceptional cases [the BIA will] receive and consider additional affidavits or other documents not previously available”); Matter of Ss. Captain Demosthenes, 13 I & N Dec. 345, 346 n. 1 (BIA 1969) (considering new evidence mitigating fine for violation of INA § 254(a)(2)). The BIA has been upheld both when it decided to consider new evidence not presented to the IJ, Hazzard v. INS, 951 F.2d 435, 440 (1st Cir.1991), and when it decided not to consider new evidence, Ghassan v. INS, 972 F.2d 631, 638 (5th Cir.1992). Indeed, in Larita-Mar-tinez, we base our holding on the conclusion that the BIA had considered Larita’s supplemental evidence submitted on appeal. 220 F.3d at 1096.
There was no reason for Ramirez to file a motion to reopen under 8 C.F.R. § 3.2, the route preferred by the majority. As the majority states, because “[t]here was no question that he had seven years physical presence in the United States and that he was a person of good moral character; the focus by both the IJ and the BIA was on whether his deportation would cause *523extreme hardship to a qualifying relative.” Opinion at 394. The IJ had already found in Ramirez’s favor and the BIA had not yet ruled. Accordingly, there was nothing to reopen. Consistent with INS precedent, Ramirez submitted additional evidence of his daughter’s recurring ear infections and his own back injury, which could only bolster the Id’s conclusion that deportation would have resulted in extreme hardship to Ramirez and his family. Instead of following its own procedures, the BIA simply decided to ignore them.
Although one might reasonably question whether an appellate body is required by due process to consider evidence submitted for the first time on appeal, one might equally reason that the BIA is not strictly an appellate body and given the BIA’s sui generis and ever-evolving processes, due process requires it to consider such evidence. This debate, however, is beside the point because Laritar-Martinez has already held that due process requires such consideration, and we are bound to follow Laritar-Martinez until it is overruled by an en banc panel of this court. See Roundy v. Commissioner, 122 F.3d 835, 837 (9th Cir.1997) (“A three-judge panel is bound by a prior judgment of this court unless the case is taken en banc and the prior decision is overruled.”). We cannot simply ignore the holding of a prior panel decision.
It is telling what the government says— and does not say — about Laritar-Martinez in its briefing of this case. The government does not attempt to distinguish Lari-tar-Martinez or even argue that it is not applicable. The government instead characterizes the mental state of the Larita-Martinez panel (Judges Wallace, Trott, and Gould) as “confused” and declares that the panel did not intend to say what it did. Because it has been my experience that the judges of our court say what they mean and mean what they say in published decisions, I find this argument wholly unpalatable. We may not rely on mind-reading when we have the words of our colleagues before us.
Because the majority opinion creates an intra-circuit conflict, I dissent.