                                                                           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                            NOT FOR PUBLICATION                             FEB 22 2011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


                                          2
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).

                                           3
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”).


                                           4
GRANTED and REMANDED.




                        5
