     10-3519-ag
     Pan v. US DOJ
                                                                                     BIA
                                                                                Weisel, IJ
                                                                             A089 253 745
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
     ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
     RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
     A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
     FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
     A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Daniel Patrick Moynihan
 3   United States Courthouse, 500 Pearl Street, in the City of New
 4   York, on the 25th day of April, two thousand twelve.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            ROSEMARY S. POOLER,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   ZI BIN PAN,
14            Petitioner,
15
16                   v.                                      10-3519-ag
17                                                           NAC
18   UNITED STATES DEPARTMENT OF JUSTICE,
19   ATTORNEY GENERAL, IMMIGRATION &
20   NATURALIZATION SERVICE,
21            Respondents.
22   _______________________________________
23
24   FOR PETITIONER:                Cora J. Chang, New York, New York.
25
26   FOR RESPONDENTS:               Tony West, Assistant Attorney General;
27                                  Keith I. McManus, Senior Litigation
28                                  Counsel; Jessica E. Sherman, Trial
29                                  Attorney,    Office   of   Immigration
30                                  Litigation, United States Department
31                                  of Justice, Washington, D.C.
32
 1          UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review is

 4   GRANTED.

 5          Petitioner Zi Bin Pan, a native and citizen of the

 6   People's Republic of China, seeks review of an August 24,

 7   2010, order of the BIA, affirming the July 16, 2008, decision

 8   of Immigration Judge (“IJ”) Robert Weisel, which denied his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).                  In re Zibin

11   Pan, No. A089 253 745 (B.I.A. Aug. 24, 2010), aff’g No. A089

12   253 745 (Immig. Ct. N.Y. City July 16, 2008).                We assume the

13   parties’ familiarity with the underlying facts and procedural

14   history in this case.

15          Under the circumstances of this case, we have reviewed

16   both    the   IJ’s    and   the   BIA’s    opinions   “for   the   sake   of

17   completeness.”        Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008).        The    applicable    standards    of    review    are   well-

19   established.         See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

20   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21          After concluding that Pan suffered minor injuries during

22   his brief detention based on his “other resistance” to China’s

23   family planning policy, the IJ determined that Pan failed to

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 1   establish     past   persecution   because       "[p]ersecution         .   .   .

 2   requires a showing that the injury is severe and long-lasting.

 3   Neither [Pan's] detention nor the injuries allegedly suffered

 4   by [him] in the Court's view are so severe and so long-lasting

 5   that they amount to injuries that could be fairly described

 6   that resulted in the [his]           persecution."           However, only

 7   grants   of     "humanitarian      asylum"        under      8     C.F.R.       §

 8   1208.13(b)(1)(iii)(A) require the applicant to demonstrate

 9   "long-lasting physical or mental effects of his persecution."

10   Jalloh   v.   Gonzales,   498   F.3d      148,   152   (2d       Cir.   2007).

11   Persecution in the context of an asylum application under 8

12   U.S.C. § 1158, in contrast, may be based on harm other than

13   threats to life or freedom, including non-life-threatening

14   violence and physical abuse.        Beskovic v. Gonzales, 467 F.3d

15   223, 226 n.3 (2d Cir. 2006).             We have noted that "a minor

16   beating or, for that matter, any physical degradation designed

17   to cause pain, humiliation, or other suffering, may rise to

18   the level of persecution if it occurred in the context of an

19   arrest or detention on the basis of a protected ground."                    Id.

20   at 226 (quotation omitted).

21       In requiring Pan to demonstrate severe and long-lasting

22   injuries in order to establish past persecution, the IJ


                                        -3-
 1   improperly       applied    the   heightened       standard      applicable   to

 2   claims for humanitarian asylum.                Where, as here, we "cannot

 3   determine whether the IJ correctly assessed [Pan's] claim of

 4   past persecution . . . remand [is necessary] since we cannot

 5   predict with confidence that, applying the correct legal

 6   standards, the agency would again deny relief."                      Id. at 227

 7   (citing Rafiq v. Gonzales, 458 F.3d 36, 38-39 (2d Cir. 2006)

 8   (per curiam)).

 9         The BIA appears to have noted the IJ's error in citing

10   the standard for humanitarian asylum, and attempted to cure it

11   by explaining that "the [IJ] concluded that [Pan] did not show

12   that any injury occurred in this case, [and therefore, he] did

13   not meet any of the applicable standards for establishing past

14   persecution." However, this statement is not supported by the

15   record,     as   the   IJ   specifically         found    that   Pan    suffered

16   "injuries [that] were minor."                 Moreover, to the extent that

17   the BIA attempts to make an independent factual determination

18   that Pan did not suffer any injury, it is barred from doing

19   so.   See Xian Tuan Ye v. DHS, 446 F.3d 289, 296 (2d Cir. 2006)

20   (noting     that   "the     BIA   may   only     review    the   IJ's   factual

21   findings to determine whether they are clearly erroneous, and

22   may   not    engage    in     fact-finding")        (citing      8   C.F.R.   §§

23   1003.1(d)(3)(i), (iv)).

                                             -4-
 1       In addition, the BIA's decision is flawed because it was

 2   predicated on the mistaken belief that "in the instant case

 3   [Pan] was not detained." Contrary to the BIA's statement, the

 4   IJ specifically concluded that Pan was subjected to “detention

 5   [that]   was   brief.”   Therefore,   because   the   BIA   did   not

 6   consider Pan's testimony that he was detained, "its decision

 7   is fatally flawed and we are unable adequately to consider

 8   whether substantial evidence supports the BIA's determination

 9   that [Pan] failed to establish either past persecution or a

10   well-founded fear of future persecution."       Tian-Yong Chen v.

11   U.S. I.N.S., 359 F.3d 121, 128 (2d Cir. 2004).

12       Lastly, the agency's finding that Pan failed to establish

13   a well-founded fear of future persecution does not obviate the

14   need to remand.      An applicant who has demonstrated past

15   persecution is entitled to a presumption of the likelihood of

16   future persecution, thereby shifting the burden of proof to

17   the government to rebut the presumption.         See 8 C.F.R. §

18   1208.16(b)(1)(i); Makadji v. Gonzales, 470 F.3d 450, 458 (2d

19   Cir. 2006).     Thus, because the agency failed to properly

20   consider Pan's claim of past persecution, his failure to

21   demonstrate a well-founded fear of future persecution does not

22   preclude remand.    See Beskovic, 467 F.3d at 227 ("Whether or

23   not [the applicant] is entitled to a presumption of future
                                   -5-
 1   persecution requires a determination, based on the correct

 2   legal standard, of whether he suffered past persecution.")

 3        For the foregoing reasons, the petition for review is

 4   GRANTED and the case is REMANDED to the BIA for further

 5   proceedings consistent with this order.        As we have completed

 6   our review, any stay of removal that the Court previously

 7   granted in this petition is VACATED, and any pending motion

 8   for a stay of removal in this petition is DENIED as moot. Any

 9   pending request for oral argument in this petition is DENIED

10   in   accordance   with   Federal   Rule   of   Appellate   Procedure

11   34(a)(2), and Second Circuit Local Rule 34.1(b).

12                                  FOR THE COURT:
13                                  Catherine O’Hagan Wolfe, Clerk
14
15




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