concurring in part and dissenting in part.
The majority decides that an amendment to the Immigration and Nationality Act that *1018became effective after Lahmidi was personally served with an order to show cause but before he was three times notified of hearing dates should not be applied. The BIA concluded otherwise, ruling that the amendment applies whenever service or attempted service of the notice of hearing was made after the effective date. The BIA did so based on its own prior decisions, but it could also have relied on Ninth Circuit precedent stating that “[s]ection 242B applies if notice of the hearing was provided after June 13, 1992.” Sharma v. INS, 89 F.3d 545, 547 n. 2 (9th Cir.1996). Nevertheless, notwithstanding the deference we owe to the Board’s interpretation of the Act, see Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc), and our own prior statement regarding the applicability of § 242B, I do not disagree with the majority’s conclusion that the amendment should not apply to Lahmidi’s circumstances. The interrelations of the various subsections of § 242B support the majority’s conclusion that Congress intended to implement a single integrated process..
I do disagree with the majority’s decision to decide the factual question of whether Lahmidi has demonstrated “reasonable cause” for missing his deportation hearing. The majority concludes “as a matter of law” that reasonable cause exists because Lahmidi did not know that he was required to notify the INS of his address change. The Immigration Judge in this ease, however, found that Lahmidi failed to show “good cause” for failing to appear, reasoning that Lahmidi knew of his obligation to keep the INS informed of any address changes, and “at best ... did not take reasonable steps to insure that he received the notice that he expected to receive” and “at worst ... acted in bad faith, hoping to avoid the hearing.” The majority ignores these factual findings, electing instead to review only the BIA’s decision which does not decide this factual issue but turned solely on the legal issue of whether the new law applies.
The majority acknowledges that a remand is ordinarily required to allow the BIA to apply the law to a given case. The majority reasons, however, that Urbina-Osejo v. INS, 124 F.3d 1314 (9th Cir.1997), excuses that requirement and permits this court in the first instance to find that Lahmidi had reasonable cause sufficient to compel the BIA to reopen his deportation proceedings. In Urbina-Osejo, a majority of the panel held that there is reasonable cause for failure to appear at a deportation hearing when “the alien was not informed of a requirement to advise the INS of any change of address.” 124 F.3d at 1317. Even that panel, however, found it necessary to remand to the BIA “because such a factually intensive question cannot be resolved on appeal.” Id. at 1318. I would do so here. Not only should the INS be permitted to make a record if necessary and the IJ to make findings based on that record, but the BIA should be given first opportunity to decide if Urbina-Osejo is applicable to the facts that are found.
In Urbina-Osejo, for instance, the alien was a minor who was moved cross-county by her family. In contrast, here the IJ found that Lahmidi, then 28 years old, “is obviously an educated person, as he was a student for several years, and is evidently able to read and write in the English language.” I would give the INS the chance to argue the importance of such distinctions and the BIA the opportunity to rule on the issue. Accordingly, having corrected the Board’s legal error, we should now remand to allow the Board in the first instance to apply law to facts.