concurring and dissenting:
I concur in much of what is stated, but I respectfully dissent from a portion of Judge Reinhardt’s forceful majority opinion. I do so on a narrow ground.
It is, in my view, inappropriate for this court to direct the granting of the petitioner’s motion, be it denominated a motion to reopen or to remand. We should merely *630reverse for further proceedings and direct that the BIA reconsider and apply Cardoza-Fonseca. The decision to reopen or remand should be made in the first instance by the BIA.
The second requirement for reopening has never been addressed by the BIA and, on this record, it is doubtful that Corado-Rodriguez has satisfied that second requirement. There is no evidence to support her failure to present evidence at the previous hearing. See, e.g., Aviles-Torres, 790 F.2d 1433, 1436 (9th Cir.1986), 8 C.F.R. 3.2 and 3.8. There are allegations of ineffective assistance of counsel which may have prevented it. However, the BIA never decided that issue, holding instead that even assuming there was ineffective assistance of counsel, she did not establish a prima facie case. If we direct a grant of the motion to remand (reopen), we are saying, rather directly, that she satisfied the second factor because of ineffective assistance of counsel. This we should not, and, in my view, cannot do. See Roque-Carranza v. INS, 778 F.2d 1373 (9th Cir.1985). That issue has not been litigated nor decided and we should not do so on the basis of an incomplete appellate record.