This appeal concerns the Board of Immigration Appeals' ("BIA") denial of an alien's motion to remand his case so that he could apply, under 8 U.S.C. § 1186a(c)(4)(A), for an extreme hardship waiver of the ordinary requirement that a conditional permanent resident file a joint petition with his spouse to remove the conditional designation of his residency status. See 8 U.S.C. § 1186a(c)(1). Because the reasoning of the BIA's decision contradicts the plain language of its own regulations, and because petitioner's motion to remand was premised on evidence that was previously unavailable, we conclude that the BIA erred in denying the motion. The petition for review is therefore granted, and the case is remanded to the BIA for further proceedings.

Yadvender Singh, a native and citizen of India, married a United States citizen on July 11, 1986. On the basis of this marriage, Singh became a conditional permanent resident on December 2, 1986. Under Section 216 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1186a, Singh could have removed the conditional limitation on his status by filing a joint application with his spouse during a ninety-day period preceding the second anniversary of his lawful entry into the country as a conditional permanent resident. See 8 U.S.C. § 1186a(c)(1)(A), (d)(2). On August 18, 1987, however, Singh's first wife obtained an annulment of the marriage. This led petitioner to apply, on September 16, 1988, for a waiver of the joint filing requirement on the ground that he had entered into the marriage in good faith, see 8 U.S.C. § 1186a(c)(4)(B). The Immigration and Naturalization Service ("INS") denied Singh's application on March 24, 1989, and began deportation proceedings against him on May 27, 1990, by which time, Singh's conditional resident status had lapsed.

Singh reasserted his request for a good faith marriage waiver before an immigration judge ("IJ") throughout a series of hearings that ran from August 1990 until July 1998. During the pendency of these proceedings, Singh's family circumstances changed significantly. On August 22, 1992, Singh married Harmeet Basra Kaur, a U.S. citizen with whom he subsequently had two children. Their first child was born in November 1996 and a second child in March 2000. Although Singh's lawyer suggested in June 1996 — several months before the birth of Singh's first child — that Singh was considering filing an application for an extreme hardship waiver on the basis of his family situation, Singh did not, in fact, apply for such a waiver before the IJ.

Ultimately, on September 25, 2000 — two years after the IJ adjourned the hearings and reserved decision — the IJ issued a written opinion denying petitioner's application for a good faith marriage waiver. The IJ concluded that, in light of testimony (by, among others, Singh's first wife) disputing the legitimacy of the marriage, Singh had not satisfied his burden of demonstrating that he had entered into his first marriage in good faith.1

Singh appealed the IJ's decision to the BIA in January 2001. Singh conceded, in his argument to the BIA, that he could not establish by a preponderance of the evidence that his first marriage was entered into in good faith. Instead, he requested a remand in order to pursue an extreme hardship waiver based on his second marriage and his U.S.-born children.

On April 9, 2003, the BIA denied Singh's motion for a remand essentially on two grounds. First, the BIA explained that the waiver application Singh sought to make was premised on purported hardships that arose after his period of conditional residency ended; as a result, these circumstances, the BIA found, could not be considered for the purposes of an extreme hardship waiver. Second, the BIA emphasized that Singh had decided not to seek a hardship waiver before the IJ, opting to apply for a good faith marriage waiver instead. Accordingly, the BIA concluded that a remand was not proper, and dismissed the appeal.

Singh subsequently filed a timely petition for review with us.

Singh's motion to remand, since it "does not simply articulate the remedy sought on appeal," but also purports to "rel[y] on newly available evidence," is analyzed under the substantive standards applicable to motions to reopen. See Li Yong Cao v. U.S. Dep't of Justice, 421 F.3d 149, 156 (2d Cir.2005). Hence, we review the BIA's denial of Singh's motion for abuse of discretion. See id. at 157. Such an abuse may be found if "the Board's decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Id. (internal quotation marks omitted). Thus, although the BIA retains broad discretion to deny such a motion, its discretion is "not unfettered." See id. (quoting Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 86 (2d Cir. 2001)); see also INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 116 L. Ed. 2d 823 (1992).2

In defense of the BIA's denial of Singh's motion, the government argues both of the reasons given by the BIA in its opinion. Because we conclude that neither rationale is correct, we vacate and remand the BIA's decision.3

First, the government claims that, under 8 U.S.C. § 1186(c)(4), extreme hardship waivers may be premised only on circumstances that occurred during the alien's period of conditional residency. Because Singh married his second wife and had his two children after May 1990 — by which time Singh's conditional residency had been terminated and deportation proceedings had begun — the government argues that the BIA correctly found that Singh's family situation could not be the basis of his waiver application.

The BIA's decision, and the government's defense of it, expose a clear conflict between the relevant statute and the agency's corresponding regulation, which, to date, as far as we have found, has not been acknowledged let alone reconciled. On the one hand, the position taken by the government is consistent with the statutory language it cites. Section 216 of the INA, 8 U.S.C. § 1186a(c)(4), which Congress enacted as part of the Immigration Marriage Fraud Amendments of 1986, Pub.L. No. 99-639, 100 Stat. 3537, states: "In determining extreme hardship, the Attorney General shall consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis." 8 U.S.C. § 1186a(c)(4) (emphasis added). On the other hand, the government's argument runs directly contrary to the implementing regulation promulgated by the agency, which says that, "[i]n considering an application for a waiver based upon an alien's claim that extreme hardship would result from the alien's removal from the United States, the director shall take into account only those factors that arose subsequent to the alien's entry as a conditional permanent resident." 8 C.F.R. § 216.5(e)(1) (emphasis added).

To our knowledge, neither the BIA, nor any Court of Appeals, has addressed the conflict between the statute and the regulation.4 And commentators have, without discussion, referred to both formulations in describing the state of the law.5 To decide the case before us, however, we need not, and hence do not, seek to resolve the conflict.6 This is because, in deciding the instant case, the BIA has disregarded its own regulations, and that it cannot do.

At least since United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681 (1954), the Supreme Court has held that an administrative agency must adhere to its own regulations. See also Morton v. Ruiz, 415 U.S. 199, 235, 94 S. Ct. 1055, 39 L. Ed. 2d 270 (1974) ("Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures."); Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 422, 62 S. Ct. 1194, 86 L. Ed. 1563 (1942) (holding that agencies are bound to follow regulations on which individuals justifiably rely). In Montilla v. INS, 926 F.2d 162 (2d Cir.1991), we expressly adopted the Accardi doctrine, interpreting it to hold that, "[t]he failure of the [BIA] and of the Department of Justice to follow their own established procedures [constituted] reversible error." Montilla, 926 F.2d at 167. We stressed that, even without proof of prejudice to the objecting party, this doctrine "has continued vitality, particularly where a petitioner's rights are `affected.'" Id. at 167, 169 (quoting Morton, 415 U.S. at 235, 94 S. Ct. 1055); see also Acosta-Montero v. INS, 62 F.3d 1347, 1351 (11th Cir.1995) ("We must hold the [BIA] to the regulations the INS has adopted.").

In the case before us, the relevant regulation plainly states that an extreme hardship waiver application may take account of "factors that arose subsequent to the alien's entry as a conditional permanent resident." 8 C.F.R. § 216.5(e)(1) (emphasis added). Singh sought a remand in order to apply for an § 1186a(c)(4)(A) waiver based on his marriage to a U.S. citizen and his two U.S.-born children. Because the basis of his proposed application "arose subsequent to [his] entry as a conditional permanent resident," they were, under the governing regulations, permissible considerations on which his waiver request could be grounded. The BIA panel's holding to the contrary contravenes regulations issued by the INS. If the agency wishes to rescind or revise these regulations to render them facially consistent with the relevant statute, it has the authority and the means to do so. See Butros v. INS, 990 F.2d 1142, 1146 (9th Cir.1993) (Fernandez, J., concurring) ("All we need to do is hold the BIA to the regulations the INS has adopted. If the INS now wishes to adopt different regulations, that route is available to it."). Until it does so, however, because the BIA's decision in this case "inexplicably departs from established policies," Li Yong Cao, 421 F.3d at 157, it constitutes an abuse of discretion.

The government's second argument — which, if valid, would provide an independent, alternate basis for the BIA's decision — is that Singh's motion to remand his case was correctly denied because Singh could have applied earlier for a hardship waiver, but decided not to. Neither the BIA nor the government provides any authority for the proposition that an alien cannot pursue a waiver for which he did not originally apply. Cf. Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir.2006) (per curiam) (finding that the BIA abused its discretion in denying a motion to reopen based on changed circumstances for which there are "no time or numeric limitations"). And, as we stated earlier, a motion to remand premised on purportedly new evidence is subject to the same strictures that apply to motions to reopen. Accordingly, the BIA's conclusion that Singh only sought a good faith marriage waiver, even though he "was provided numerous opportunities by the Immigration Judge to apply for the separate [hardship] waiver," is tantamount to a finding that Singh's motion failed to "articulate material, previously unavailable evidence that would be introduced at a new hearing," Li Yong Cao, 421 F.3d at 156.

But even if interpreted this way, the BIA's reasoning is still unavailing. As recently explained in Norani, "in reviewing the BIA's determination of whether previously unavailable evidence supported [a petitioner's] motion to reopen, we must inquire whether the evidence could have been presented at the hearing before the IJ." Norani, 451 F.3d at 294 (citing Li Yong Cao, 421 F.3d at 157). In Norani, we concluded that the BIA abused its discretion in failing to consider whether the proffered evidence was available at the time when the hearings were closed. See id. ("In this case, the hearing was closed on July 9, 1998, so the BIA was required to determine whether the [applicants] had supported their motion to reopen with any evidence unavailable prior to that July 1998 date.").

In the appeal before us, Singh's proposed waiver application is premised on the alleged hardships he and his family would endure if he was deported from the United States. The question, therefore, is whether Singh was seeking to present material evidence of hardship that was not available when the IJ closed his hearings. The record shows that the IJ adjourned the hearings, and reserved decision, on July 6, 1998. At that time, Singh and his wife were raising their first child, who was not yet two years old. By the time Singh asked the BIA for a remand to pursue a hardship waiver — in January 2001 — he and his wife had two children, the youngest of whom was born in March 2000. It is not for us to assess — at least not in the first instance — whether the change in Singh's family circumstances between July 1998 and January 2001 constituted material evidence that was previously unavailable when the IJ closed hearings two and a half years earlier.7 That is a question the BIA needed to address before denying Singh's motion to remand. Its failure to do so "devoid of reasoning," and therefore also constitutes an abuse of discretion.

For the foregoing reasons, we GRANT Singh's petition for review, we VACATE the BIA's denial of petitioner's motion to reopen, and we REMAND the case for further proceedings consistent with this opinion.