     09-0695-ag
     Ni v. U.S. Attorney General
                                                                                            BIA
                                                                                   Balasquide, IJ
                                                                                   A097 550 283
                               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.

          At a stated term of the United States Court of Appeals for
     the Second Circuit, held at the Daniel Patrick Moynihan United
     States Courthouse, 500 Pearl Street, in the City of New York, on
     the 5th day of March, two thousand ten.

     PRESENT:
               REENA RAGGI,
               PETER W. HALL,
               DEBRA ANN LIVINGSTON,
                      Circuit Judges.
     ______________________________________

     CHENG NI,
                        Petitioner,

                          v.                               09-0695-ag
                                                                NAC
     UNITED STATES ATTORNEY GENERAL,
               Respondent.
     ______________________________________

     FOR PETITIONER:                    Gang Zhou, New York, New York.

     FOR RESPONDENT:                    Tony West, Assistant Attorney General;
                                        John C. Cunningham, Senior Litigation
                                        Counsel; Juria L. Jones, Trial Attorney,
                                        Office of Immigration Litigation, United
                                        States Department of Justice,
                                        Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review is
GRANTED.

     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 Balasquide, 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 Sec., 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)(1)(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
petitioner’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.

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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).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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