FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SU HWA SHE,
Petitioner, No. 06-71794
v.
Agency No.
A71 582 092
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 14, 2010—San Francisco, California
Filed December 14, 2010
Before: Procter Hug, Jr. and Milan D. Smith, Jr.,
Circuit Judges, and Thomas F. Hogan, District Judge.*
Opinion by Judge Hogan
*The Honorable Thomas F. Hogan, Senior United States District Judge
for the District of Columbia, sitting by designation.
20043
20046 SHE v. HOLDER
COUNSEL
Joren Lyons, Asian Law Caucus, San Francisco, California,
for the petitioner.
James A. Hunolt and Jessica E. Sherman, Department of Jus-
tice, Washington, D.C., for the respondent.
OPINION
HOGAN, District Judge:
Petitioner Su Hwa She (“Petitioner” or “She”) seeks review
of an order of the Board of Immigration Appeals (“BIA”) dis-
missing her appeal from an Immigration Judge’s (“IJ’s”)
denial of her application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”).
Upon due consideration, we grant the petition for review in
part, deny it in part, and remand for further proceedings con-
sistent with this opinion.
I
Su Hwa She was born in Burma,1 where she and other
members of her family were allegedly persecuted by ethnic
Burmese officials from the mid-1960s until 1981, when she
traveled to Hong Kong. She entered Taiwan shortly thereafter,
1
Since 1989, Burma has been known officially as the Union of Myan-
mar. The agency decisions, like She’s passport, refer to Burma, as do we.
Cf. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 366 n.1 (2000).
SHE v. HOLDER 20047
at the age of thirty-seven. She stayed with a family friend
there and her name was put on a household register that was
used to help her obtain a Taiwanese passport. (Br. at 6.) She
remained in Taiwan for some eighteen months, ultimately
gaining recognition as a citizen of the Republic of China (i.e.,
Taiwan). On May 28, 1983, She entered the United States on
a visitor’s visa with a 1985 expiration date. A.R. 78. She
overstayed her visa and, several years after entering the
United States, filed an asylum petition in Los Angeles. She
also applied for withholding of removal to Burma and relief
under CAT.2 Id. Her asylum petition was referred to the
Immigration Court in 2003 after an asylum officer opined that
She’s treatment in Burma did not amount to persecution and
that she had firmly resettled in a third country before entering
the United States. The record indicates that She repeatedly
renewed her Taiwanese passport for over twenty years, but
remained in the United States since her entry, never returning
to Taiwan or Burma.
The Immigration Court designated Burma, Taiwan, and the
People’s Republic of China for purposes of removal. A.R. 58.
The IJ thereafter heard argument along with She’s testimony,
including testimony about her time in Taiwan. The IJ’s deci-
sion notes that
[in Taiwan] she lived with family friends or people
who put her on their family list. And by being placed
on their family list, or what is commonly known as
the household registration, she was able to get a
passport. The respondent testified that she was not
related to the people who befriended her by blood or
in any manner. But it seems to reason if the respon-
dent would pretend to be a member of that family
it’s quite likely she might embellish other facts as
well.
2
The timeliness of She’s asylum application is not contested here.
20048 SHE v. HOLDER
(A.R. 51-52.) Nonetheless, the IJ continued: “The Court in
this case makes no comment on her credibility as yet. But suf-
fice it to say that the respondent’s claim of asylum as to
Burma is moot and she can return to Taiwan as she was a citi-
zen of Taiwan.” (A.R. 52.) The IJ therefore pretermitted her
applications, noting that “[She] has a country to which she
can return, and . . . all that is necessary is that [DHS] establish
that there is a country that she could reside [in].” (Id.) Not-
withstanding the fact that the IJ’s decision does not mention
the term “firm resettlement,” the BIA affirmed the Immigra-
tion Court’s decision without argument, stating: “We agree
with the Immigration Judge that the respondent is ineligible
for asylum because she was firmly resettled in Taiwan prior
to entering the United States. . . . If Taiwan refuses to provide
valid travel documents allowing [She] to return there, she may
seek reopening to assert claims as against return to Burma.”
(A.R. 2-3.)
II
“Where the BIA adopts the findings and reasoning of the
IJ, this court reviews the decision of the IJ as if it were that
of the BIA.” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.
2003). “We review questions of law, and the application of
legal principles to facts, de novo.” Hoque v. Ashcroft, 367
F.3d 1190, 1195 (9th Cir. 2004); Vasquez-Zavala v. Ashcroft,
324 F.3d 1105, 1107 (9th Cir. 2003) (noting that due process
claims are reviewed de novo); Mengstu v. Holder, 560 F.3d
1055, 1058 (9th Cir. 2009). Factual findings, including a
determination of firm resettlement, are reviewed for substan-
tial evidence, and are overturned only where “any reasonable
adjudicator would be compelled to conclude to the contrary.”
Farah, 348 F.3d at 1156; 8 U.S.C. § 1252(b)(4)(B) (defining
the substantial evidence standard); cf. INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992) (holding that an asylum eligibility
determination “must be upheld if ‘supported by reasonable,
substantial, and probative evidence on the record considered
as a whole.’ ”) (quoting 8 U.S.C. § 1105a(a)(4) (1992)). But
SHE v. HOLDER 20049
we lack jurisdiction to review an IJ’s resolution of certain dis-
puted facts. See 8 U.S.C. § 1158(a)(3); see also Ramadan v.
Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam)
(finding jurisdiction only over questions of law or mixed
questions of fact and law insofar as determinations within the
scope of 8 U.S.C. § 1158(a)(2) are concerned).
III
[1] Asylum may not be granted to an alien who the Attor-
ney General determines to have “firmly resettled in another
country prior to arriving in the United States.” 8 U.S.C.
§ 1158(b)(2)(A)(vi) (2010); 8 C.F.R. § 208.13(c)(2)(i)(B)
(2010). An alien is considered to be firmly resettled if, prior
to arriving in the United States, she “entered another country
with, or while in that country received, an offer of permanent
resident status, citizenship, or some other type of permanent
resettlement.” 8 C.F.R. § 208.15 (2010). The definition of
firm resettlement does not encompass an alien who can dem-
onstrate that “his or her entry into that country was a neces-
sary consequence of his or her flight from persecution, that he
or she remained in that country only as long as was necessary
to arrange onward travel, and that he or she did not establish
significant ties in that country.” Id. at § 208.15(a). So far as
we are aware, based on the parties’ briefs, Department of
Homeland Security (“DHS”) regulations do not define “sig-
nificant ties” or otherwise elaborate on the interpretation of
this exception. “DHS bears the initial burden of showing that
the government of the third country issued to the alien a for-
mal offer of some type of official status permitting the alien
to reside in that country indefinitely.” Maharaj, 450 F.3d 961,
976 (9th Cir. 2006); see also Ali v. Ashcroft, 394 F.3d 780,
789-90 (9th Cir. 2005). If the government establishes firm
resettlement, the burden shifts to the alien to show, by a pre-
ponderance of the evidence, “that the nature of his stay and
ties was too tenuous . . . for [her] to be firmly resettled.”
Maharaj, 450 F.3d at 969, 976-77; Cheo v. INS, 162 F.3d
1227, 1229 (9th Cir. 1998) (“A duration of residence in a
20050 SHE v. HOLDER
third country sufficient to support an inference of permanent
resettlement in the absence of evidence to the contrary shifts
the burden of proving absence of firm resettlement to the
applicant.”); see also 8 C.F.R. § 208.13(c)(2)(ii) (2000); Mus-
sie v. INS, 172 F.3d 329 (4th Cir. 1999). Firm resettlement
does not preclude eligibility for withholding of removal.
Siong v. INS, 376 F.3d 1030, 1040-41 (9th Cir. 2004).
A
[2] She first argues that the BIA and IJ improperly con-
cluded that she had firmly resettled in Taiwan because she
fraudulently obtained her Taiwanese passport and household
registration. She points to Ali for the proposition that a person
unlawfully in a third country cannot be found to be firmly
resettled there. 394 F.3d at 789. But She miscasts Ali, wherein
the petitioner testified that “she never received an offer of per-
manent residence.” Id. at 790. In Ali, a panel of this Court
explained that “the fact that [Petitioner] Ali fortuitously
evaded detection by the government while living illegally in
Ethiopia does not allow for a finding that Ali was firmly
resettled in Ethiopia. . . . Absent some government dispensa-
tion, an immigrant who surreptitiously enters a nation without
its authorization cannot obtain official resident status . . . .”
Id. at 790 (emphasis added) (citation and internal quotation
marks omitted). Here, there has been some government dis-
pensation: She’s recognition as a national of Taiwan. She’s
argument that her status in Taiwan should be disregarded
because it was fraudulently obtained is hence unfounded. She
also argues that the BIA erred on the Taiwan resettlement
question by ignoring her testimony before the Immigration
Court, although that testimony must be accepted as true. More
specifically, Petitioner argues that she satisfied the burden of
establishing that she falls under an exception to firm resettle-
ment definition. In support of this argument, Petitioner cites
her testimony that (1) her entry into Taiwan was a necessary
consequence of her flight from persecution, (2) she remained
there only long enough to obtain a passport and arrange
SHE v. HOLDER 20051
onward travel, and (3) she did not establish significant ties in
Taiwan.
For its part, the government emphasizes that She remained
in Taiwan longer than the one year necessary to obtain a pass-
port and arrange onward travel, pointing out that by staying
an additional six months, she was able to obtain status as a
Taiwanese national. Duration of residence is undoubtedly an
important consideration in the firm resettlement analysis,
Cheo, 162 F.3d at 1229-30, but it must be weighed against
Petitioner’s testimony that she remained just long enough to
arrange travel to the United States. Absent from the record is
any discussion of how She arranged onward travel or whether
she could have prudently done so within six months of obtain-
ing a passport. The government also attacks She’s claim that
she had no significant ties to Taiwan, emphasizing that She
“was recognized as a national of Taiwan and was granted the
protection of that country for two decades.” (Gov’t’s Br. 22.)
B
[3] Due process and this court’s precedent require a mini-
mum degree of clarity in dispositive reasoning and in the
treatment of a properly raised argument. See Movsisian v.
Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (“The BIA
abuses its discretion when it fails to provide a reasoned expla-
nation for its actions.”); see also Sagaydak v. Gonzales, 405
F.3d 1035, 1040 (9th Cir. 2005) (“Immigration judges,
although given significant discretion, cannot reach their deci-
sions capriciously and must indicate how they weighed fac-
tors involved and how they arrived at their conclusion.”
(internal quotation marks and alternation omitted)); Franco-
Rosendo v. Gonzales, 454 F.3d 965, 967-68 (9th Cir. 2006)
(remanding for explanation of the BIA’s reasoning); Singh v.
Gonzales, 416 F.3d 1006, 1015 (9th Cir. 2005). It bears
repeating that the IJ never entered a finding of firm resettle-
ment, nor did he even mention the term. Although the IJ did
not put it in so many words, the BIA surmised that the IJ had
20052 SHE v. HOLDER
properly made a finding of firm resettlement. Unfortunately,
we lack the clairvoyance necessary to confidently infer the
reasoning behind the BIA’s conclusion.3 Rather than counte-
nance a decision that leaves us to speculate based on an
incomplete analysis, we remand the case to the BIA for clarifica-
tion.4
C
[4] Absent an adverse credibility finding, the BIA is
required to “presume the petitioner’s testimony to be credible.”5
Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 662 (9th Cir.
2003) (citation omitted); see also Navas v. INS, 217 F.3d 646,
3
The BIA apparently considered direct evidence of citizenship to be tan-
tamount to a significant tie, such that She’s evidentiary burden on that ele-
ment of the firm resettlement exception was impossible to bear, regardless
of her testimony. The BIA may have assumed that nationalization effec-
tively denotes firm resettlement, per se. To be sure, direct evidence of
nationalization is sufficient for the government to meet its initial burden.
See Maharaj, 450 F.3d at 976. But it does not necessarily carry the day,
and the law requires more than a cursory explanation on this point, partic-
ularly where a petitioner’s credible testimony may refute the significance
of nationalization. See Kalubi v. Ashcroft, 364 F.3d 1134, 1140-41 (9th
Cir. 2004) (criticizing conclusory statements as insufficient and holding
that the BIA must provide an explanation showing that it “heard, consid-
ered, and decided” the issue (internal quotation marks omitted)).
4
Before the BIA, She argued that the IJ improperly applied a presump-
tion of firm resettlement and improperly found that she had firmly reset-
tled despite her credible testimony to the contrary. The BIA properly
addressed She’s appeal insofar as a presumption of firm resettlement goes,
but it failed to address her argument that the IJ’s finding must be reversed
due to its inconsistency with her testimony that she remained in Taiwan
only so long as necessary. The BIA’s failure to fully address She’s firm
resettlement argument is an error that warrants remand. See Sagaydak, 405
F.3d at 1040 (“IJs and the BIA are not free to ignore arguments raised by
[a party].”).
5
The REAL ID Act amendments to the Immigration and Nationality Act
provide for a rebuttable presumption of credibility on appeal, 8 U.S.C.
§ 1158(b)(1)(B)(iii), but that provision does not apply retroactively, see
Pub. L. 109-13 (May 11, 2005), and is therefore inapplicable here.
SHE v. HOLDER 20053
652 n.3 (9th Cir. 2000) (“Where the BIA does not make an
explicit adverse credibility finding, we must assume that the
applicant’s factual contentions are true.”); Prasad v. INS, 101
F.3d 614, 616 (9th Cir. 1996); cf. Aguilera-Cota v. INS, 914
F.2d 1375, 1383 (9th Cir. 1990) (“The mere statement that a
petitioner is ‘not entirely credible’ is not enough.”). Addition-
ally, the BIA may not simply treat inconsistencies between
the IJ’s findings and She’s testimony to be tantamount to an
explicit adverse credibility finding. Mendoza Manimbao, 329
F.3d at 662 (concluding that the BIA violated petitioner’s
right to due process by “implying” an adverse credibility find-
ing on review “without either remanding for a legally suffi-
cient determination or otherwise affording him notice and an
opportunity to respond”). Yet by disregarding She’s testi-
mony, which directly contradicts a finding of firm resettle-
ment based on the exception set forth at 8 C.F.R. § 208.15(a),
the BIA effectively did just that.6 On remand, unless the BIA
bases its determination on grounds which respect and recog-
nize Petitioner’s testimony as credible, due process requires
that she receive a hearing.
[5] In sum, we agree that the government met its initial
burden of showing firm resettlement and we accept that the
IJ’s decision describes a finding of resettlement, but we do
not agree that the IJ adequately described a finding of firm
resettlement. Neither the IJ nor the BIA explained why She
fell short of carrying her burden of showing that she meets an
exception to the definition. Taking her testimony as credible,
She may be able to carry that burden. We accordingly hold
that the BIA’s decision affirming the dismissal of She’s asy-
lum petition based on a firm resettlement determination is not
supported by substantial evidence. Because the BIA’s deci-
6
Although the presumption of credible testimony applies to factual
assertions, not legal conclusions, the BIA could have credited She’s testi-
mony. Despite the presumption that the BIA considered the evidence
before it, see Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir.
2000), the record reveals that it failed to do so.
20054 SHE v. HOLDER
sion lacks a proper explanation of its firm resettlement finding
and improperly implies an adverse credibility finding, we
grant the petition, and remand for clarification or further fac-
tual development regarding She’s claim that she never firmly
resettled in Taiwan. See generally INS v. Ventura, 537 U.S.
12, 16-17 (2002); Mendoza Manimbao, 329 F.3d at 662.
IV
[6] The IJ granted DHS’s motion to pretermit She’s appli-
cations for asylum, withholding of removal and CAT relief
based on the order of removal to Taiwan. A.R. 52. She claims
that the BIA erred in countenancing the IJ’s refusal to con-
sider her application for withholding of removal to Burma,
such that she was denied a full and fair hearing in violation
of the Fifth Amendment’s Due Process Clause. Pet’r’s Br. 7-
8. According to She, her ability to seek reopening of proceed-
ings in the event that Taiwan refuses to admit her is inade-
quate, apparently because there is no guarantee that the matter
would be reopened in time to prevent her removal to Burma.
Although She raises an understandable concern, her argument
lacks merit. See generally Rodriguez-Lariz v. INS, 282 F.3d
1218, 1227 (9th Cir. 2002) (remanding motion to reopen to
the BIA). As the BIA explained, the applicant must “establish
that his or her life or freedom would be threatened in the pro-
posed country of removal . . . .” 8 C.F.R. § 1208.16(b)
(emphasis added). Under the plain wording of 8 C.F.R.
§ 1208.16, an applicant is not entitled to adjudication of an
application for withholding of removal to a country that
nobody is trying to send them to. Here, the proposed country
of removal is Taiwan, not Burma, despite the IJ’s designation
of both nations. To be sure, an eligible petitioner may apply
for asylum and withholding of removal to countries desig-
nated by an IJ pursuant to 8 C.F.R. § 1240.10(f). See 8 C.F.R.
§ 1240.11(c) (2010). It follows that a failure to provide notice
and, upon request, stay removal or reopen the case for adjudi-
cation of She’s applications as to Burma would constitute a
due process violation if Burma becomes the proposed country
SHE v. HOLDER 20055
of removal (as opposed to an alternative country of removal),
but not otherwise.7 Compare 8 C.F.R. § 1240.10(f) (referring
to “the country of removal” and “alternative countries of
removal”) with 8 C.F.R. § 1208.16(b) (referring to “the pro-
posed country of removal”). We therefore conclude that the
BIA properly upheld the IJ’s decision to pretermit She’s
applications for withholding of removal and CAT relief.
V
For the reasons stated herein, it is hereby ORDERED that
the petition for review of the BIA decision is GRANTED IN
PART, DENIED IN PART, and REMANDED for proceed-
ings consistent with this opinion.
Each party shall bear its own costs on appeal.
PETITION GRANTED IN PART, DENIED IN PART,
and REMANDED.
7
She is concerned that she will not have an opportunity for a full hear-
ing if Taiwan denies her entry and DHS thereafter sends her to Burma
before the BIA (or Immigration Court) acts on a motion to reopen pro-
ceedings or a motion to stay removal. She shows no basis for this concern
other than the absence of a rule that specifically requires DHS to facilitate
an automatic stay of removal in that circumstance. She’s proposed solu-
tion to this alleged loophole would allow petitioners to waste time by adju-
dicating applications regardless of the proposed nation of removal. The
IJ’s treatment of the matter as moot, or, more properly, unripe, is therefore
not only permissible, but more sensible.