(concurring in part and dissenting in part).
I concur wholeheartedly in the majority’s conclusion that the Board member who authored the pivotal opinion committed a legal error that undermines the Board’s decision. If the majority opinion stopped there — vacating the Board’s decision and remanding for a further’ hearing- — I would be content. But the majority presses on, deciding for itself that Fergiste has a well-founded fear of future persecution should he return to his homeland. That determination is both fact-sensitive and time-sensitive, and, in my view, ought to be made by the Board on a full record, not gleaned by an appellate court from bits and pieces of an administrative record that has produced an inharmonious cacophony of rulings by three members of the BIA. The case law, while less than crystalline, supports this position. See, e.g., Osorio v. INS, 99 F.3d 928, 932-33 (9th Cir.1996) (holding that “[f]ailure to recognize the existence of a presumption in [petitioner’s] favor — much less to rebut' that presumption in an individualized manner — constitutes an abuse of discretion requiring remand ”) (emphasis supplied); Singh v. INS, 94 F.3d 1353, 1361 (9th Cir.1996) (holding that “because the BIA never applied the regulatory presumptions, we think it appropriate to remand”); Tarvand v. INS, 937 F.2d 973, 977 (4th Cir.1991) (“When an alien’s request for asylum has been erroneously evaluated by application of the [wrong legal standard], remand is appropriate.”).
To be sure, in some cases the record may be so pellucid that remand would be an empty exercise. But, I see no indication that this is such a ease. Though the .petitioner probably could not put forth any additional proof, I have every reason to believe that, in this very fluid situation, the INS might well bring forward material evidence to rebut the presumption that operates in Fergiste’s favor. In my judgment, this uncertainty necessitates a more open-ended, remand than the majority is willing to gi;aht.
The majority notes that a more open-ended remand would give the INS an opportunity to muster evidence to rebut the presumption in favor of the petitioner. Fair enough — but it will also serve to document *22the true state of affairs. In the last analysis, the fact that the parties will have a second bite of the apple is a byproduct of virtually all remand orders that entail further factfind-ing, and thus, not entitled to much weight. If the BIA believes the record is adequate to permit a principled decision, that is their call to make — not ours.
Because the court takes too much upon itself, and leaves too little to the Board, I respectfully dissent from so much of the opinion as forecloses the INS from attempting to show that Fergiste has no legally sufficient basis for a well-founded fear of future persecution should he be returned to Haiti.