Dissenting,
with whom O’SCANNLAIN, GOULD, TALLMAN, and RAWLINSON, Circuit Judges, join.“A motion to reopen is one of two ways, a motion to reopen, or just send it in. It violates due process to ignore what we sent in.”
Counsel for petitioner (explaining during oral argument the nature of his claim).
I
Ramirez-Alejandre claims that the BIA’s decision not to consider new factual information “just sent in” for the first time on appeal regarding the merits of his request for suspension of deportation constituted a denial of due process of law. There are four main reasons why his claim fails.
First, the method he chose to attempt to bring this information to the BIA was simply informational and by choice did not comply with the applicable procedure and published rules. See Matter of Coelho, 20 I. & N. Dec. 464, 471-72, 1992 WL 195806 (B.I.A.1992); 8 C.F.R. §§ 3.2, 3.8 (1991, 1996). Second, he had an opportunity pri- or to the BIA’s final decision properly to augment the record with this information, in the form at least of a motion in the alternative, but, although he was aware of this opportunity, he admits he chose not to take advantage of it. Thus, the information never became part of the record as evidence and thus was no more than hearsay. Third, he had another opportunity to move to reopen after the BIA ruled against him, but he deliberately did not do so. Fourth, his situation did not in any manner approximate “exceptional circumstances” such that the Constitution mandated reopening of the evidentiary record.
Given that he, not the BIA, is responsible for the missed opportunities that form the predicate for his claim of constitutional *879foul, we should reject out of hand his due process claim as demonstrably lacking in merit. To quote the test relied on by the majority, Ramirez-Alejandre must show that “the proceeding was so fundamentally unfair that [he] was prevented from reasonably presenting his case.” Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001) (quotation and citations omitted) (emphasis added). In a nutshell, no one and nothing prevented him from reasonably presenting his case.
Nevertheless, and with all respect, our friends in the majority have adopted an opinion that stands for the astonishing proposition that an illegal alien who is an applicant for discretionary suspension of deportation has a constitutional due process right to have the BIA, sitting as an appellate court, “consider” on the merits unverified factual information “just sent in” for the first time by the applicant on appeal, information that has not been tested, cross-examined, subjected to any of the usual forms of authentication ordinarily required in an adjudicatory setting, or made a part of the evidentiary record. Just shovel something over the BIA’s transom after the hearing conducted by the IJ, and the Constitution requires the BIA to take whatever-it-is into consideration in making its decision, even in circumstances where the party delivering the information fails to make a motion to make the information a formal part of the record. This unprecedented holding cannot be correct, as I shall attempt to demonstrate; and, because it masquerades as a constitutional imperative, it threatens all rules enacted by the BIA, old or new, governing the receipt and the consideration on appeal of potential new evidence, as well as what the record consists of in these cases.
The majority’s conclusion from this record is that “Ramirez-Alejandre was denied the opportunity to request the submission of legally relevant supplemental evidence based on a rule that was applied arbitrarily and capriciously.” (Emphasis added). Not only has Ramirez-Alejandre not made the claim to us in either his petition for review or any of his briefs that he was “denied the opportunity to request the submission of evidence,” but the majority’s conclusion is plainly wrong.
To illustrate that the problem of which Ramirez-Alejandre complains is entirely of his own making and falls a legal country mile short of supporting either (1) his constitutional due process argument, or (2) the argument the majority has plucked from thin air on his behalf, a few facts are in order.
To begin with, we have the manifestly informal manner in which Ramirez-Alejan-dre attempted to bring his new information to the BIA’s attention after the IJ had rendered his decision and the matter was on appeal. After briefing to the BIA was completed, Ramirez-Alejandre forwarded on January 7, 1993, a letter dated November 10, 1992, to the Board from his daughter’s primary care physician (indicating that she had suffered several bouts of ear infections throughout the year) with the bald request that the “letter be included in the record of proceeding and considered in support of[his] application for suspension of deportation.” The doctor’s letter itself was unauthenticated and not offered in affidavit or declaration form. The doctor’s signature was not notarized. It did not comply with the Rules. It was not “evidence.”
On November 3, 1994, Ramirez-Alejan-dre filed a supplementary brief in general support of his application for suspension of deportation, attaching 24 additional documents. He now admits that much of the information attached to his brief was not new and could have been presented to the IJ. Among the documents was a September 12, 1994, unverified letter from a doc*880tor of chiropractic associated with “The Back Doctors” indicating that Ramirez-Alejandre had suffered' — after his hearing before the IJ — an injury to his back on January 3, 1994, which triggered workers compensation. The letter represented that Ramirez-Alejandre was currently on full disability. The letter said also, “I anticipate permanent disability.” As in the case of the earlier doctor’s letter, this one, too, lacked any indicia of admissibility as evidence — no affidavit, no declaration, no notary, no anything.
I note here that Ramirez-Alejandre demonstrated in his November 3, 1994, submission that he was fully aware of his opportunity formally to augment the factual record by making a proper motion and thereby to convert his assertions into evidence, but, as he candidly admitted during oral argument, he chose not to follow this well-worn path. Instead, he merely indicated in his papers filed with the BIA that if the INS made a motion to remand, he would not object, and I quote:
However, if the INS believes it appropriate, respondent will not oppose a motion to remand the proceedings for a further evidentiary hearing so that the additional evidence can be considered.
(Emphasis added).
The INS then put Ramirez-Alejandre on actual notice that the INS opposed his casual attempts to add to the record on appeal information which was not before the IJ. On November 15, 1994, the Service filed a supplemental brief objecting to Ramirez-Alejandre’s gambit, arguing that the Board’s “review on appeal is limited to the record before the Immigration Judge.” Under the headnote “Respondent’s Additional Evidence Submitted on Appeal Should Not be Considered Part of the Record,” the Service cited three cases in support of its position: Matter of Soriano, 19 I. & N. Dec. 764, 767, 1988 WL 235429 (B.I.A.1988) (remanding for consideration of new information); Matter of C, 20 I. & N. Dec. 529, 530 n. 2, 1992 WL 200361 (B.I.A.1992) (declining to consider new evidence submitted on appeal and noting that no motion to reopen based on new evidence had been made); and Matter of Haim, 19 I. & N. Dec. 641, 642, 1988 WL 235452 (B.I.A.1988) (“A party seeking to reopen [the] proceedings must state the new facts which he intends to establish, supported by affidavits or other evidentia-ry material.”). Thus, not only was he given a warning that his information would not be considered in its present condition and was not part of the record, but he was advised what to do and how to do it: make a motion in some form to reopen.
Matter ofCoelho made it clear in 1992 to all applicants and counsel what steps were necessary to substantively and proeedurally augment factual records with respect to the merits of a claim. Here is the BIA’s description of the process:
Motions to remand are an accepted part of appellate civil procedure and serve a useful function. Where a motion to remand simply articulates the remedy requested by an appeal, we treat it as part of the appeal and do not require it to conform to the standards for consideration of motions. However, where a motion to remand is really in the nature of a motion to reopen or a motion to reconsider, it must comply with the substantive requirements for such motions. The requirements for these motions are set forth at 8 C.F.R. §§ 3.2 and 3.8 (1991). In this instance, the motion to remand is in the nature of a motion to reopen since the respondent requests additional proceedings to present evidence regarding his rehabilitation which was not available during the initial proceedings.
20 I. & N. Dec. at 471, 1992 WL 195806 (internal citations omitted).
*881The majority attempts unconvincingly to dilute Coelho by dismissing it as merely a reference to “motions practice.” Although we use case law in this fashion on a routine basis to advise litigants of the rules of the road, the majority reasons that the same practice offends the Constitution when used by the BIA.1 Why? I believe it is a mistake not to regard Coelho as authoritative precedent which controls the disposition of this case.
Nevertheless, on May 6, 1998, almost four years later, Ramirez-Alejandre submitted yet another supplemental brief in which he stated that “[i]f the Board will permit respondent another evidentiary hearing, additional evidence of the hardship he and his United States citizen child will suffer can be offered.” (Emphasis added). Notwithstanding Rules 3.2 and 3.8 requirements of a showing of materiality, unavailability, and indiscoverability at the IJ’s hearing, Ramirez-Alejandre made no attempt by affidavit or otherwise to indicate what such “additional evidence” might be or how it might affect the BIA’s decision.
The BIA handed down its decision on June 6, 2000. The Board held that Ramirez-Alejandre had not shown extreme hardship. Its decision noted also that while Ramirez-Alejandre had “submitted additional evidence on appeal that his claims support a finding of ‘extreme hardship,’ this Board as an appellate body does not consider evidence submitted for the first time on appeal. Matter of Fedorenko, 19 I & N Dec. 57, 74, 1984 WL 48585 (BIA 1984).”
To illustrate the folly of accepting “for consideration” Ramirez-Alejandre’s “evidence” at face value, one need look no deeper than his November 3, 1994, supplementary brief and the attached unverified letter from “The Back Doctors” claiming, without proof, that “Mr. Ramirez is suffering from an acute upper thoracic and cervical spine condition.... The patient at the present time is on full disability and is expected to remain so for the next two months. I anticipate permanent disability and the patient to be eligible for re-habili-tation.” This letter is dated September 12, 1994, and gives the date of Ramirez Alejandre’s injury as “January 3, 1994.” Yet, a mere fifteen pages later in the same submission we find a letter dated September 28, 1994, — 16 days after the date of The Back Doctors’ letter- — which reads,
Ramon Ramirez works for Heather Farms Landscape, Inc.[] He has been an excellent worker and has been a project foreman for approximately 3 years. He has been responsible for the over all maintenance [sic] of a 400 unit condominium complex. To include the supervision of three other workers and/or maintenance crew. We look forward to seeing Ramon continue employment with Heather Farms Landscape. Ramon has been employed with Heather Farms Landscape for four years.
Given the date of Ramirez-Alejandre’s injury specified in The Back Doctors’ letter, January 3, 1994, and that letter’s claims of “acute” condition, “full disability,” and “anticipate^] permanent disability,” someone has some explaining to do. Counsel’s supplementary brief accompanying these mutually impeaching letters calls Ramirez-Alejandre “permanently disabled” and claims it is “unlikely that he will be able to do manual labor again.” Yet, in “support” of his dire description and prediction, the same counsel included in this same package yet another suspicious unverified letter, this one from Jose *882Juan Bernal, the “Pastoral Administrator” of Ramirez-Alejandre’s church. Pastor Bernal tells us in this letter of August 30, 1994, that Ramirez-Alejandre “is in charge of getting the group going and singing, every Monday that they have their meetings. He is also the one in charge of putting things in order and cleaning the halls. He does this with joy and enthusiasm.”
When it helps his case to be hurt and permanently disabled, he is hurt and disabled. When it helps his case to be a good worker and permanently employed, he is just that. But both at once? I repeat, not one of these letters was verified, notarized, or tendered in affidavit form. Can this be information which the BIA has a constitutional duty to consider unless and until it is part of the record?
The Service opposed Ramirez-Alejan-dre’s request for suspension of deportation in large measure based on record evidence of lies, deception, and dishonesty on his part. The INS asserted that he had failed to establish good moral character as required by the Immigration and Nationality Act in that during his illegal tenure in the United States he had used at least four false names, four false Social Security cards, had purchased and used a fake alien registration card, and had lied about several material issues to immigration officers when he was arrested, including whether he or his family had ever received public assistance benefits. Suffice it to say here that none of this uncontested evidence of Ramirez-Alejandre’s life outside the law helps his dubious assertion of inability to work and permanent disability. The point of this discussion is not to cast aspersions at Ramirez-Alejandre, but to call attention to the fact that the only place these issues can be adequately sorted out and made a part of the record is in a proper hearing, not helter-skelter on appeal. In a hearing setting, information does not become part of the evidentiary record until it is properly offered and received.
Ramirez-Alejandre might as well have dropped off this untested, unverified, unauthenticated, and untrustworthy material in a plain brown wrapper. With all respect to counsel, this informal method of attempting to inform the Board on appeal of new facts is hardly the stuff of which how-to-do-it continuing education of the Bar courses, or, for that matter, constitutional claims are made.
But, now, as we probe for persuasive evidence that Ramirez-Alejandre was “prevented from reasonably presenting his case,” Sanchez-Cruz, 255 F.3d at 779 (citation and quotation omitted) (emphasis added), or “denied” this opportunity, we get to the heart of the problem with his claim and with the majority’s constitutional holding. When counsel for Ramirez-Alejandre was asked during oral argument why prior to the Board’s decision he had not tried to augment the evidentiary record by filing a motion to reopen or to remand, his answer was quite revealing:
(Mr. Kaufman) If he [Ramirez-Alejan-dre] was required to submit a motion to reopen, or in this case it would be treated as a motion to remand, he would have to give up the win. He’d have to throw in the towel and ask for.... Well, if he’s asking to reopen the case, then he’s saying that I no longer want to have this win.
When pressed on this point, he struck with this unpersuasive excuse, stating,
(Mr. Kaufman) There is no clear rule that says that a motion to reopen is the only vehicle that an applicant can use to supplement the record when a case is before the BIA.
‡ ‡ $ H*
*883(Mr. Kaufman) Rule 3.2(c) says that an alien who wishes to introduce new facts may file a motion to reopen.
ifc ;■« s-i H* ❖
(Mr. Kaufman) A motion to reopen is one of two ways, a motion to reopen, or just send it in. We just sent it in. It violates due process to ignore what we sent in.
s{: # ❖ # %
(Mr. Kaufman) Whether the evidence comes to the BIA in a motion to reopen under 3.2, or if the evidence comes to the BIA appended to an appellate brief, its job is the same. It has to assess the evidence.
(Emphasis added).
Chief Judge Schroeder asked counsel why he persisted in claiming he had to “throw in the towel” and “give up his win” when he could easily have made his motion in the alternative, i.e., “rule for me on the INS’s appeal, or, in the alternative, if you are inclined to rule for the Service, consider my new evidence as a motion to remand so that I can introduce new evidence that will bring a stale factual record up-to-date.” Ramirez-Alejandre’s answer to our Chiefs sensible question was to stick doggedly with his I-can-just-send-it-in-and-they-have-to-consider-it refrain. His briefs and his answers to our questions show without a doubt that he knew how properly to reopen the factual record to preserve his point, but he chose not to do so.
It gets worse. Judge Thomas, the author of the majority’s opinion, asked him at oral argument whether his remedy was not “to reopen after the BIA rendered its decision?” Ramirez-Alejandre’s counsel’s answer to this question drives a stake through both the heart of his claim and the majority’s conclusion that he was “denied” this opportunity:
(Mr. Kaufman) Petitioner had the option of asking the Board to reopen but it was clear to me that the BIA’s decision dictated what they would do with that.
I then asked counsel if I understood him correctly to have made the choice not to exercise his known option to file a motion to reopen, and his answer, delivered with a shrug of his shoulders, was, “I decided to file the petition for review.”
What all of this boils down to is a textbook example of a number of knowing and deliberate decisions Ramirez-Alejandre’s counsel made not to exhaust the adequate remedies that he confesses were available to him to augment the record. The record as properly considered thoroughly impeaches the majority’s conclusion that Ramirez-Alejandre was “denied the opportunity to request the submission” of legally relevant evidence that had developed in the eight years after his hearing before the immigration judge. Ramirez-Alejandre says he knew he had this very opportunity by following the procedure established by Coelho as controlling case law and the Rules, but he decided to forego it, and he did so more than once. Not once did he assert in his briefs that the Rules and practice gave him no avenue to augment the record.
We have been here before, with different results. In Roque-Carranza v. INS, 778 F.2d 1373 (9th Cir.1985), we said the following:
INS regulations set out a mechanism for the reopening or reconsideration of deportation hearings. The petitioner must submit a motion to reopen to the BIA and state the new facts to be proved at the reopened hearing. 8 C.F.R. § 3.8(a) (1985). The BIA is vested with the discretion to determine when a hearing should be reopened ... based upon its evaluation of whether the evidence sought to be introduced is material and was previously unavailable. 8 C.F.R. § 3.2 (1985). We have held that *884in circumstances such as at bar we will not supersede this ordinary reopening procedure by compelling the BIA to reopen the hearing. Thus, the petitioner must follow the INS regulations and file a motion to reopen or for reconsideration with the BIA.
Id. at 1373-74 (internal citations omitted).
Given Ramirez-Alejandre’s position as he explains it to us, in contrast to how the majority’s opinion remodels it, it is clear that the majority has decided a hypothetical case. The majority goes out of its way to try to assert that somehow he could not have made these motions had he tried, but Ramirez-Alejandre’s rationale for his choices not to make such motions makes the majority’s effort utterly irrelevant. The path to full consideration of his evidence was clear, but Ramirez-Alejandre chose not to take it.
Moreover, as mentioned earlier, Ramirez-Alejandre never made the claim to the BIA that their Rules, practices, and procedures were so arbitrary and capricious that they denied him due process by refusing to accept his information. He did not do so before the BIA ruled, and he did not do so in a motion to reopen. Furthermore, he did not make this claim to us, not in his petition for review, and not in any of his briefs. In fact, his position was that he could have made a motion to remand or reopen, but was not required to do so. I quote from his opening brief:
8 C.F.R. Section 3.2(e) (1999) permits petitioner to present evidence to the BIA on appeal.... At least some of the evidence petitioner offered the BIA on appeal satisfied the requirements [for reopening the record] of Section 3.2(c) because it was both material and new.
I quote next from his petition requesting rehearing en banc:
While 8 C.F.R. § 3.2 certainly permits the BIA to consider evidence offered on appeal, the panel erred in finding that petitioner was required to invoke it’s [sic] provisions in a formal motion in order to compel the BIA to consider all of his evidence, or to vest this Court with jurisdiction to review the BIA’s decision when it refused.
First, petitioner did not have to “reopen” his proceeding under 8 C.F.R. § 3.2 to compel the BIA to consider his evidence. When the evidence was offered petitioner was the prevailing party in the proceeding. The IJ had approved his application for suspension of deportation. The appeal to the BIA was made by the INS, not petitioner. For petitioner then, the proceedings were already “open”.
Ramirez-Alejandre has conceded that he had a right to move to reopen the record. Why the majority feels empowered when Ramirez-Alejandre concedes he had the right to reopen to tell him he did not is peculiar indeed. The Rules were in place when Ramirez-Alejandre made his choices, Coelho had been published, and controlling case law was clear, Ramirez-Alejandre knew what he could do, he was on notice that the INS had objected, but he did not want to “throw in the towel and give up his win.” If he now regards his situation as a predicament, it was entirely self-inflicted. Parenthetically, Ramirez-Alejandre does not dispute that the 1999 Amendment to 8 C.F.R. § 3.2 simply codified the standard practice of which he was fully aware.
Ramirez-Alejandre’s counsel’s only justification for his conduct is his incorrect interpretation of an inapposite case decided after his final submission to the BIA, Larita-Martinez v. INS, 220 F.3d 1092 (9th Cir.2000). He argues that Larita-Martinez “holds that the due process requirement of a ‘full and fair hearing’ ‘mandates ’ that the BIA consider ‘all ’ relevant evidence submitted on appeal.” This “just *885send it in and the BIA must consider it” position is both a skewed view of Larita-Martinez’s holding and a novel concept of what is evidence. In that case, unlike this one, the BIA made no mention on its decision of information submitted on appeal by the., petitioner. Thus, the three-judge panel invoked the presumption that all evidence is considered unless the tribunal says otherwise, and the panel simply did not reach that petitioner’s due process issue. The panel’s opinion cannot be read for the position argued by Ramirez-Ale-jandre, and it did nothing to sweep away the BIA’s regulations governing the reopening of the factual record. To the extent that Larita-Martinez can be misread to support Ramirez-Alejandre’s argument, we should take this opportunity to set the record straight. We are left with a situation where the record is whatever counsel happens to include in letters to the Board. One can only wonder if we have destroyed the concept of an evidentiary administrative record in BIA cases.
The majority seems also to be mistaken as to what the BIA means when it refers to “reviewing facts de novo.” This description does not mean that the BIA routinely creates a new factual record and entertains new and untested factual information in connection with its decision. All de novo means in that context is that the BIA re-weighs and re-evaluates historical facts already in the record in order to arrive at its own factual findings, giving no deference to the IJ’s interpretation of them. Evaluation de novo is and was not an open invitation willy-nilly to submit new untested facts not in the record made by the IJ.
We come next to the majority’s assertion that “on occasion” the BIA has accepted and considered new evidence on appeal. This “on occasion” assertion is true, but it tells only part of the story of this exceptional practice, and in so doing, it distorts by omission what the BIA “on occasion” has done, and why. Here, using the meager handful of cases cited by the majority, is the whole story.
In Matter of Ss. Captain Demosthenes, 13 I. & N. Dec. 345, 1969 WL 16979 (B.I.A.1969), the official immigration status of an alien crewman of a ship, whose inappropriate behavior had resulted in monetary fines against his vessel, had changed between the time the district director made his decision to fine his vessel and the BIA’s consideration of the ship’s appeal. To quote the BIA regarding this change,
At the time the district director considered the case, [the crewman Koumout-sos] was still at large in this country. However, information has now been received by this Board that he was eventually apprehended by immigration authorities in Boston, Massachusetts, and deported to Greece at the expense of the vessel’s owners.
Id. at 346.
Attached to this recitation regarding Koumoutsos’s fate at the hands of the INS, we find this qualifying footnote:
Ordinarily, we would remand the case to have this information introduced into evidence and considered by the District Director, but we will not do so here because of the unavoidable administrative delay involved; because the authenticity of the information does not appear to be subject to question; and because the present posture of the case calls for final resolution of all aspects of the problems presented, at one and the same time.
Id. at 346 n. 1.
Next, we come to Matter of Godfrey, 13 I. & N. Dec. 790, 1971 WL 24426 (B.I.A.1971), a case involving a deportation order against an alien who entered into a sham marriage. In this case, new counsel asked *886the BIA on appeal to allow oral testimony explaining his client’s earlier written incul-patory statement received at the hearing from which the appeal was being taken. The BIA rejected this unusual request with this explanation:
We did not permit her to testify at oral argument for two reasons. First, this Board is not equipped to receive oral testimony. Second, we ordinarily confine our review to a consideration of the record alone, although in exceptional cases we do receive and consider additional affidavits or other documents not previously available.
Id. at 791 (emphasis added). This statement, too, is the subject of a footnote in the BIA’s opinion, a footnote that cites authority for the “exceptional circumstances” exception. That authority is Matter of Ss. Captain Demosthenes.
As for Hazzard v. INS, 951 F.2d 435, 440 (1st Cir.1991), that court’s authority in that case for the proposition that the BIA “may consider” new evidence not presented to the IJ is Matter of Ss. Captain Demosthenes and Matter of Godfrey. All Hazzard does is confirm what I have already exposed as the holdings and reasoning of those “exceptional circumstances” cases. The other circuit court case the majority cites is Charlesworth v. INS, 966 F.2d 1323 (9th Cir.1992). Charlesworth involves our approval of a BIA decision to reopen a case pursuant to 8 C.F.R. § 3.2. If anything, Charlesworth hurts Ramirez-Alejandre’s argument.
We find the same exceptional circumstances principles at work in Matter of Flores-Gonzalez, 11 I. & N. Dec. 485, 1966 WL 14281 (B.I.A.1966). Here, the BIA concluded that an error of law adverse to Flores-Gonzalez had been made during a deportation hearing in connection with his application for suspension of deportation. Given this conclusion, the BIA remanded the case “to the special inquiry officer for a reappraisal and reevaluation of the evidence concerned with the respondent’s application for suspension of deportation and a decision as to whether suspension of deportation is warranted as a matter of discretion.” Id. at 488. One cannot miss the remedy: remand for consideration of the evidence in the light of the proper law.
In re Min Song, 23 I. & N. Dec. 173, 2001 WL 1030900 (B.I.A.2001), is consistent with the BIA’s view that it has discretion in extraordinary cases to consider new evidence. The issue involved a removal order based on the alien’s conviction of an aggravated felony. In the interim, by an act of the state court in which Min Song had been convicted, the felony had lost its aggravated nature. The BIA’s decision speaks for itself.
In his brief on appeal, he presents new evidence relating to the reduction of his criminal sentence and requests termination of these proceedings, asserting that the theft offense of which he was convicted no longer falls within the definition of an aggravated felony. In support of his request to terminate, he has submitted a copy of an order dated April 4, 1999, issued by the Circuit Court for Montgomery County, Maryland, which vacated nunc pro tunc the district court’s February 2,1992, sentence in the criminal case and ordered the sentence revised nunc pro tunc to 360 days, which was suspended. The Immigration and Naturalization Service has not indicated any objection to this evidence of the revision of the respondent’s sentence.
Id.
In re Xiu Hong Li, 21 I. & N. Dec. 13, 1995 WL 239563 (B.I.A.1995), is yet another illustration of the BIA’s consistent exercise of discretion in exceptional cases. After clarifying a relevant principle controlling its ultimate decision, the BIA referenced new evidence in connection with *887its decision to remand for further consideration of the petitioner’s application for a visa. The BIA said,
Ordinarily, we would not consider evidence first offered on appeal. See Matter of Soriano, 19 I & N Dec. 764, 1988 WL 235429 (BIA 1988); Matter of Obaigbena, 19 I & N Dec. 533, 1988 WL 235440 (BIA 1988). However, in this instance the issue to which this evidence pertains was understandably not focused on below, inasmuch as no standard had yet been articulated regarding the treatment of terminations of adoption for immigration purposes. In light of our decision, accordingly, we find it appropriate to remand this matter to the RSC director to allow the petitioner a full and fair opportunity to meet his burden of establishing that the natural parental relationship has been reestablished under Chinese law such that it can be recognized for immigration purposes.
Accordingly, this matter will be remanded to the RSC director for further consideration of the visa petition.
Id. at 18-19.
In summary, what we see is a rare practice engaged in “on occasion” by the BIA under clearly extraordinary circumstances involving uncontested and incontestable information. What the majority has done with the BIA’s rational practice is to turn it into a practice that must be available to every appellant such as Ramirez-Alejandre, whether exceptional circumstances are present or not. The majority has converted the BIA’s discretionary use of that rare practice into a constitutional right. This is not only unprecedented, but it is wrong.
Moreover, I fail to see how we can construe Ramirez-Alejandre’s statement on November 3, 1994, that he would “not oppose” a motion by the Service to remand as a motion by him to remand. It wasn’t. But then to conclude that the BIA’s failure to so construe the government’s remand motion set the stage for a due process claim violation is to build the top floor of a house of cards on a missing layer.
When all is said and done, however, and speaking of TEGWAR, where have we left the BIA? In the body of the majority’s opinion, the holding is that the BIA had a constitutional duty to “consider” Ramirez-Alejandre’s “tendered evidence information.” What does “consider” mean? What does this do to the record? Will it be consistent with the majority’s opinion for the BIA to say, ‘We have construed Ramirez-Alejandre’s numerous references to new evidence as a motion to reopen the record, and we have denied that motion because even accepting his information as true, it is not sufficient to establish ‘extreme hardship.’ ”? Or would this consideration fall short of what the majority demands?
The irony in our resolution of this case, of course, is that had the BIA construed Ramirez-Alejandre’s submissions as a motion to remand or to reopen and then denied it, we would be without jurisdiction to entertain this issue. Why? Because our standard of review with respect to motions to reopen is for abuse of discretion, see Israel v. INS, 785 F.2d 738, 740 (9th Cir.1986), and in transitional Rules cases, “abuse of discretion claims recast as due process violations do not constitute color-able due process claims over which we may exercise jurisdiction in deportation suspension cases _” Sanchez-Cruz, 255 F.3d at 779 (citation omitted). See also INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (alteration in original) (quoting INS v. Abudu, 485 U.S. 94, 99 n. 3, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)) (“We also noted in Abudu that the abuse-of-discretion standard applies to mo*888tions to reopen ‘regardless of the underlying basis of the alien’s request [for relief].’ ”).
II
The latest example from the Supreme Court of our excessive zeal on behalf of petitioners is Ventura v. INS, 264 F.3d 1150 (9th Cir.2001). The Court summarily reversed us in a unanimous per curiam opinion, concluding that we “exceeded [our] authority” when we made a decision that properly belonged to the BIA. INS v. Ventura, — U.S. -, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). See also Chen v. INS, 266 F.3d 1094 (9th Cir.2001), judgment vacated by INS v. Chen, - U.S. -, 123 S.Ct. 549, 154 L.Ed.2d 423 (2002). I fear we have made a similar mistake here. To resurrect the words of Judge Kozinski in Abovian v. INS, 257 F.3d 971 (9th Cir.2001) (Kozinski, J., dissenting from denial of rehearing en banc, representing the views of eight concurring judges), the Ninth Circuit “overthrows ... perfectly reasonable BIA decision[s]” in asylum and withholding of removal cases “by invoking novel rules divorced from administrative law, Supreme Court precedent and common sense[,]” and thus has “whittled away the authority and discretion of immigration judges and the BIA.” Judge Graber made a similar observation in Cardenas v. INS, 294 F.3d 1062, 1069 (9th Cir.2002) (Graber, J., dissenting): “[T]he majority resolves every ambiguity in favor of [the asylum applicant], whereas [the correct] standard of review requires us to resolve every ambiguity in favor of the decision-maker below.”
It is common knowledge that when Congress placed new limitations in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) on our authority to review certain BIA decisions, Congress did so in response to documented, unwarranted sorties by the judiciary onto the BIA’s administrative turf. The impact of IIRIRA on our role in this process was draconian. To quote Kalaw v. INS,
IIRIRA dramatically altered this court’s jurisdiction to review final deportation and exclusion orders. It introduced sweeping changes into our immigration laws, including the specific repeal of the judicial review procedures previously provided under' INA § 106. IIRIRA’s replacement section for judicial review, new INA § 242, purports to vest the BIA with final appellate jurisdiction for most INS deportation proceedings. See IIRIRA § 306 (now codified at 8 U.S.C. § 1252).
133 F.3d 1147, 1149 (9th Cir.1997).
Ramirez-Alejandre’s petition for review demonstrates the impact of these new restrictions imposed by Congress on our authority. As the majority demonstrates, we no longer have jurisdiction to review the “discretionary determination whether an alien seeking suspension of deportation ... has met the statutory eligibility requirement of ‘extreme hardship.’ ” Sanchez-Cruz, 255 F.3d at 778 (citing Kalaw, 133 F.3d at 1152); see also IIRIRA § 309(c)(4)(E) (1996). In addition, we have no longer any power to review the Attorney General’s discretionary decision to grant suspension once eligibility is determined. So what have we done here? With all respect to the majority, we have indulged in an end-run around IIRIRA and improperly inserted ourselves once again into the administrative prerogative of the BIA, where we do not belong. In so doing, we have decimated the concept of a record of evidence renewable and controlling on appeal and ordered the BIA to consider whatever counsel sends in.
Ill
Congress has authorized the Executive Branch in the person of the Attorney Gen*889eral to establish “requirements and procedures” governing asylum applications. 8 U.S.C. § 1158(b)(1); see also 8 U.S.C. §§ 1158(b)(2)(C), (d)(1), (d)(5)(B). Moreover, Congress has charged the Attorney General, not us, with the primary responsibility for administering the immigration laws. See 8 U.S.C. § 1103(a), as amended by Pubhc Law 107-296 § 1102 (2002). Our assigned limited role is to review the workings of the BIA, not to run the INS. When we exceed our authority, separation and allocation of powers in a constitutional sense are clearly implicated. “In this government of separated powers, it is not for the judiciary to usurp Congress’ grant of authority to the Attorney General by applying what approximates de novo appellate review.” INS v. Rios-Pineda, 471 U.S. 444, 452, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985). This excursion beyond our warrant is particularly troubhng here because of the connection between immigration law, foreign affairs, and national defense. Nevertheless, once again we aspire to be all things to all people. Over the years, we have established a body of law in this Circuit that is at odds with what Congress has asked us to do.
As one final example of our repeated errors, we have the Supreme Court’s opinion in INS v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981), summarily reversing our en banc opinion. In that case, we had overruled the BIA’s decision not to reopen a request for suspension of deportation based on extreme hardship. In reversing our holding, the Court said,
By requiring a hearing on such a motion, the Court of Appeals circumvented [the regulation], which was obviously designed to permit the Board to select for hearing only those motions reliably indicating the specific recent events that would render deportation a matter of extreme hardship for the alien or his children.
Id. at 143, 101 S.Ct. 1027 (emphasis added). The Court then castigated us for extending our “ ‘writ beyond its proper scope.’ ” Id. at 145, 101 S.Ct. 1027 (quoting Sneed, J., dissenting from our en banc opinion).
I regret the majority’s inappropriate and unnecessary decision to liken the BIA to a fictional comedy. Our warrant to entertain petitions for review does not contemplate this kind of critical judgment. Moreover, the majority does so on the basis of a handful of unusual cases out of tens of thousands of cases decided by that agency. It is time to accept the limits of our role. The due process violation shoe does not fit Ramirez-Alejandre’s foot, but nonetheless, we allow him to use it to kick open the door that he chose not to open with the handle he knew was there and which the INS explicitly brought to his attention. When all is said and done, he has prevailed. If counsel just sends it in to the BIA, the Constitution requires that appellate body to consider it on the merits.
I respectfully dissent.
. For example, ordinarily we do not entertain an issue raised for the first time on appeal, even if that issue has merit. However, we claim the discretion to do so as we see fit. A-1 Ambulance Serv., Inc. v. County of Monterey, 90 F.3d 333, 338-39 (9th Cir.1996).