Cheng Ni v. United States Attorney General

368 F. App'x 237

• Court: Court of Appeals for the Second Circuit
• Decided: March 5, 2010
• Docket: 09-0695-ag
• Status: Unpublished

Opinion

SUMMARY ORDER

Cheng Ni, a native and citizen of the People’s Republic of China, seeks review of a January 29, 2009 order of the BIA affirming the May 17, 2007 decision of Immigration Judge (“IJ”) Javier Balas-quide, which pretermitted his application for asylum and denied his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Cheng Ni, No. A097 550 283 (B.I.A. Jan. 29, 2009), aff'g No. A097 550 283 (Immig. Ct. N.Y. City May 17, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (internal quotation marks omitted). The applicable standards of review are well-established. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008); Manzur v. U.S. Dep’t of Homeland See., 494 F.3d 281, 289 (2d Cir.2007).

Because Ni does not challenge the agency’s pretermission of his application for asylum or its denial of his application for CAT relief, we consider only his challenge to the agency’s denial of his application for withholding of removal. The agency denied that relief upon its finding that Ni had not provided adequate corroboration of his claim that he continued to practice Falun Gong in the U.S. The agency, however, made no findings as to whether Ni demonstrated past persecution based on what he testified was a 15-day detention for his practice of Falun Gong in China, during which he was “beaten” and “tortured.” If this alleged mistreatment was determined to be past persecution, Ni was entitled to a rebuttable presumption that he was more likely than not to face persecution in the future. 8 C.F.R. § 1208.16(b)(l)(i). The burden would then shift to the government to rebut that presumption. See Makadji v. Gonzales, 470 F.3d 450, 458 (2d Cir.2006). It is clear, however, that the IJ never made a finding with respect to the credibility of petition er’s testimony about his past treatment. Nor did the agency determine whether such treatment constituted past persecution. Instead both the BIA and the IJ allocated to Ni the burden of proving the likelihood he would suffer future persecution. Absent a clear finding by the agency as to past persecution, it is impossible to determine whether this allocation of the burden of proof was proper. See Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir.2006) (“Whether or not [the applicant] is entitled to a presumption of future persecution requires a determination, based on the correct legal standard, of whether he suffered past persecution.”). Accordingly, the agency’s failure to assess whether petitioner suffered past persecution frustrates the Court’s review, and remand is necessary for findings in accordance with the appropriate burden-shifting framework. See Beskovic, 467 F.3d at 227; see also Makadji, 470 F.3d at 458.

For the foregoing reasons, the petition for review is GRANTED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).