FILED
NOT FOR PUBLICATION FEB 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
YUEHUA HE, No. 06-73819
Petitioner, Agency No. A097-854-167
v.
MEMORANDUM *
ALBERTO R. GONZALES, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2011 **
Pasadena, California
Before: RYMER and BYBEE, Circuit Judges, and QUIST, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for Western Michigan, Grand Rapids, sitting by designation.
Petitioner Yuehua He, a Chinese national, petitions for review of a Board of
Immigration Appeals (“BIA”) decision that denied her application for asylum on
the ground that she had firmly resettled in Venezuela. We grant the petition and
remand for further development of the record.
Where the BIA conducts its own review of the evidence and law rather than
adopting the IJ’s decision, our review “is limited to the BIA’s decision, except to
the extent that the IJ’s opinion is expressly adopted.” Hosseini v. Gonzales, 471
F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v.INS, 204 F.3d 985, 990
(9th Cir.2000)). We must uphold the BIA’s finding of firm resettlement “if
supported by reasonable, substantial, and probative evidence on the record
considered as a whole, and we will reverse only if a reasonable fact-finder would
have been compelled to reach a different conclusion.” Maharaj v. Gonzales, 450
F.3d 961, 967 (9th Cir. 2006) (en banc) (internal quotation marks and citation
omitted).
Here, the BIA found Petitioner firmly resettled in Venezuela because
Petitioner stated in her asylum application that she was granted “long-term resident
status” in Venezuela and because Petitioner resided in Venezuela for over 9 years.
However, Petitioner testified at her asylum hearing that she was not permitted to
remain in Venezuela permanently and that by “long-term resident status” she
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meant a tourist visa requiring yearly renewal. Presuming, as we must, that
Petitioner’s factual contentions are true 1, we cannot conclude that substantial
evidence supports the BIA’s firm resettlement finding; a tourist visa requiring
yearly renewal suggests temporary, rather than permanent, resettlement. See 8
C.F.R. § 1208.15 (“An alien is considered to be firmly resettled if, prior to arrival
in the United States, he or she entered into another country with, or while in that
country received, an offer of permanent resident status, citizenship, or some other
type of permanent resettlement.” (emphasis added)); Maharaj, 450 F.3d at 964
(stating that the above regulation “plainly requires . . . a threshold showing that the
alien had an offer of some type of official status permitting him to reside in the
third country indefinitely”) (emphasis added).
The government argues substantial evidence supports the BIA’s decision
because Petitioner’s Chinese passport contains a five-year Venezuelan residence
stamp. Although we acknowledge that Petitioner’s five-year Venezuelan residence
stamp represents stronger evidence of firm resettlement, we cannot accede to the
government’s argument for two reasons. First, because the BIA did not discuss or
1
The IJ found Petitioner credible and the BIA did not make an adverse
credibility determination. “Where the BIA does not make an explicit adverse
credibility finding, we must assume that the applicant’s factual contentions are
true.” Navas v. INS, 217 F.3d 646, 652 n.3 (9th Cir. 2000).
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rely upon Petitioner’s residence stamp, we cannot affirm the BIA’s firm
resettlement finding on this ground. See Azanor v. Ashcroft, 364 F.3d 1013, 1021
(9th Cir. 2004) (“[W]e must decide whether to grant or deny the petition for review
based on the Board’s reasoning rather than our own independent analysis of the
record.”). Second, even if we could consider this evidence, we cannot tell on the
present record whether a five-year residence stamp from Venezuela represents an
offer of permanent resettlement; it may very well represent such an offer but the
answer, of course, depends on the significance that Venezuelan law attaches to this
residence stamp.
Accordingly, we hold that substantial evidence does not support the BIA’s
firm resettlement finding and that the government has not yet met its “initial
burden of showing that the government of the third country issued to the alien a
formal offer of some type of official status permitting the alien to reside in that
country indefinitely.” Maharaj, 450 F.3d at 976 (emphasis added). However,
because the record does not foreclose the conclusion that Petitioner firmly resettled
in Venezuela, we remand to the BIA to permit further development the record. See
id. at 964 (remanding to investigate whether, under Canadian law, petitioner’s
eligibility for work and benefits “means that Canadian authorities thereby
recognized a right to stay indefinitely in that country”).
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GRANTED and REMANDED.
5