As the District of Columbia Circuit stated in Shin,

The BIA unquestionably has wide discretion in determining what circumstances warrant reopening a deportation proceeding. . . . Broad as the BIA's discretion is, however, that tribunal may not act arbitrarily or irrationally. It may not proceed at whim, shedding its grace unevenly from case to case. It must explain departures from settled policies, . . . and it may not unaccountably disregard on one day considerations it held relevant on another day.

The BIA's opinion in Garcia does not give the date of Garcia's marriage, but it implies that the marriage took place after Garcia had been ordered deported. 16 I. N. Dec. at 654. The fact that the BIA granted Garcia's motion to reopen suggests that the evidence relating to his marriage could not have been presented at his original deportation hearing. See 8 C.F.R. § 3.2. Moreover, in oral argument before this court, counsel for the INS conceded that the legally relevant facts in Garcia and Israel are indistinguishable.

The new policy announced in Garcia was based on a change in the law and implementing regulations. An alien applying for adjustment of status under 8 U.S.C. § 1255 must show that he or she: (1) is admissible for permanent residence and eligible for an immigrant visa; and (2) has an immigrant visa "immediately available." 8 U.S.C. § 1255(a); Ahwazi v. INS, 751 F.2d 1120, 1122 n. 1 (9th Cir. 1985). Before 1977, the INS would routinely deny adjustment applications submitted simultaneously with visa petitions because the visa in such cases would by definition not be immediately available. The petition had to be first processed and approved for the visa to become "available." Garcia, 16 I. N. Dec. at 654.
In 1976 Congress amended section 1255's provision for dating the adjustment application, and the INS accordingly amended its regulation to provide for the simultaneous filing of a visa petition and an adjustment application. 8 C.F.R. § 245.2(a)(2) (1985); Garcia, 16 I. N. Dec. at 654-55. The BIA in Garcia recognized that the new simultaneous filing provision would be nullified if the INS continued its previous practice of requiring already-available visas. Accordingly, the BIA established a new policy for simultaneously filed adjustment applications and visa petitions: unless it is clear from the record that the petition would not be approved, or that the adjustment application would be denied on statutory grounds, or as a matter of discretion notwithstanding approval of the petition, the motion to reopen should be granted and the adjustment application retained pending a ruling on the visa petition. Id. at 657.

See also Matter of Cavazos, 17 I. N. Dec. 215, 217 (BIA 1980) (the fact that the alien was married to a citizen and had a citizen child outweighed the adverse factor of having entered the United States with a preconceived intent to remain); Matter of Ibrahim, 18 I. N. Dec. 55, 57-58 (BIA 1981) (distinguishing Cavazos and stating that marriage to a citizen is "a special and weighty equity" accorded "most favorable status" by Congress and therefore outweighs even such a "serious adverse factor" as entry with preconceived intent to remain); Matter of Zangwill, 18 I. N. Dec. 22, 28 (BIA 1981) (explicitly following Garcia policy and implying that the alien's last-minute marriage outweighed several adverse factors, including having stayed in this country for years after the expiration of his original visitor's visa and having been convicted of passing bad checks).

A footnote in Guiragossian explains that the Garcia policy relates solely to one factor in deciding an application for adjustment of status: the "immediate availability" of the applicant's visa. If the visa petition is prima facie approvable, the adjustment application should not be denied solely because the visa petition has not yet been approved. Applicants still have the burden of showing both that they satisfy the statutory requirements and that relief is warranted as a matter of discretion. Guiragossian, 17 I. N. Dec. at 164 n. 5; See also Matter of Rodriguez, 17 I. N. Dec. 105, 107 (BIA 1979).
This is no change from Garcia. See supra note 3. The question here is whether aliens in Israel's situation must present additional equities — beyond the fact of being married to a citizen — to satisfy their burden of showing that relief is warranted as a matter of discretion. Neither Guiragossian nor Rodriguez addresses that question.

In addition to having overstayed their initial student visas, both aliens in Ahwazi failed to leave the country when ordered to do so. Ahwazi, 751 F.2d at 1121. Similarly, the alien in Vasquez both overstayed his initial visitor visa and later violated a grant of voluntary departure. Vasquez, 767 F.2d at 600.

Israel entered the country legally, and the INS does not suggest she entered with a preconceived intent to remain. She did violate immigration law by overstaying her visa, but any alien submitting a motion to reopen will have been found to have violated the immigration statute that was the basis of deportability.
Nor does it appear that Israel was attempting to hide from the INS. On the contrary, she states that she went to an INS office twice in July 1983 and once in September 1983 to seek an extension of her visa. Indeed, it appears that the only reason the INS was able to take her into custody so soon after her visa expired was that she was attempting to comply with immigration law.

Israel's motion to reopen was initially denied by the IJ, who relied primarily on what he deemed Israel's "breach of faith" and "misrepresentation to the Court": i.e., the inconsistency between Israel's marriage and her earlier promise that she would not marry. The BIA may have viewed this as an adverse factor, but it did not say so in its opinion, and this court reviews BIA decisions only on the basis of stated rationale. Cardoza-Fonseca v. INS, 767 F.2d 1448, 1454-55 (9th Cir. 1985); See also Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983).
The IJ's conduct in this case, however, calls for special comment. The IJ conditioned his grant of voluntary departure on Israel's promise not to marry a United States citizen during that period. Despite making this promise, she married a United States citizen eleven days later. When she subsequently moved to reopen her deportation hearing to allow consideration of her marriage, the IJ found Israel guilty of a "breach of faith and misrepresentation to the Court" and denied her motion.
The Supreme Court has ruled that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause. Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 680, 54 L.Ed.2d 618 (1978). In Zablocki, the Court stated: "While the outer limits of [the right of personal privacy] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage. . . .'" Id. at 385, 98 S.Ct. at 680. State action that interferes directly and substantially with the fundamental right to marry must be "supported by sufficiently important state interests" and must be "closely tailored to effectuate only those interests." Id. at 388, 98 S.Ct. at 682.
The IJ's act of conditioning his grant of voluntary departure on Israel's promise not to marry represents unjustified government interference in a personal decision relating to marriage. Furthermore, although a promise not to marry may serve the important state interest of discouraging sham marriages, it is imprecise in furthering that interest. A factual inquiry into the legitimacy of the marriage upon reopening of the case speaks more pointedly and straight-forwardly to the state's interest in determining the genuineness of the marriage and the immigration consequences for the alien spouse.