MEMORANDUM **
Petitioner Ali Hussein Ali Al Gburi, a native and citizen of Iraq, petitions for review of a Board of Immigration Appeals decision affirming an Immigration Judges determination that he “firmly resettled” in Brazil, and is therefore ineligible for asylum under 8 C.F.R. § 208.13(c)(2)(i)(B).
1
As discussed below, we conclude that the BIAs decision is not supported by substantial evidence, and remand for further proceedings.
We have jurisdiction under 8 U.S.C. § 1252(a). A finding of firm resettlement is a factual determination, reviewed for substantial evidence. Maharaj v. Gonzales, 450 F.3d 961, 967 (9th Cir. 2006) (en banc).
2
Under substantial evidence review, we uphold factual determinations that are “supported by reasonable, substantial and probative evidence on the record considered as a whole.” Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010) (quoting INS v. Elias–Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
The government bears the burden of establishing a prima facie case that an offer of firm resettlement has been made. Maharaj, 450 F.3d at 973; Matter of A-G-G-, 25 I. & N. Dec. 486, 501 (BIA 2011). “[T]o make a prima facie showing that an offer of firm resettlement exists, the DHS should first secure and produce direct evidence of governmental documents indicating an aliens ability to stay in a country indefinitely.” Matter of A-G-G-, 25 I. & N. Dec. at 501. “If direct evidence of an offer of firm resettlement is unavailable, indirect evidence may be used,” id. at 502, but only if the government shows that “direct evidence is unobtainable.” Maharaj, 450 F.3d at 976.
Here, the government did not introduce direct evidence of an offer of firm resettlement or contend, let alone show, that direct evidence is unavailable or unobtainable.
3
In such circumstances, we have concluded that the government fails to carry its burden, and that the resettlement bar does not apply. See, e.g., Mengstu v. Holder, 560 F.3d 1055, 1059 (9th Cir. 2009) (noting that the government did not meet its burden “to offer proof of permanent residence, or, in its absence, to make an offer of proof that such evidence was unobtainable,” and thus there was no presumption of resettlement for the petitioner to rebut). Further, absent a showing that direct evidence is unavailable, the BIA erred when it considered the governments circumstantial evidence. Maharaj, 450 F.3d at 976.
Because the government failed to carry its burden to provide direct evidence of an offer of firm resettlement or show that such evidence was unobtainable, substantial evidence does not support the BIAs determination that the resettlement bar renders Petitioner ineligible for asylum. We therefore grant the petition for review and remand for further proceedings consistent with this disposition.
PETITION FOR REVIEW GRANTED AND REMANDED.
FOOTNOTES
1
. The BIA did find that Petitioner suffered past persecution, and remanded to the IJ to reconsider Petitioners claims for withholding of removal and relief under the Convention Against Torture. On remand, the IJ granted Petitioner withholding of removal, but did not revisit the question of eligibility for asylum.
2
. The government does not discuss our controlling decision in Maharaj.
3
. Indeed, at argument before the BIA, the government made reference to a Brazilian visa and another document in Portuguese. The government did not, however, introduce either document into the record. Moreover, Petitioner credibly testified that his “permit” did not allow him to travel freely.