         13-702
         Weng v. Holder
                                                                                         BIA
                                                                                  Vomacka, IJ
                                                                                 A099 993 943


                               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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of April, two thousand fourteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                GERARD E. LYNCH,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       QISING WENG, AKA QI FENG,
14                Petitioner,
15
16                        v.                                     13-702
17                                                               NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Gerald Karikari, New York, New York.
24
25       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
26                                      General; Mary Jane Candaux, Assistant
27                                      Director; Stephanie A. Svoren-Jay,
28                                      Trial Attorney, Office of Immigration
29                                      Litigation, United States Department
30                                      of Justice, Washington, D.C.
 1          UPON DUE CONSIDERATION of this petition for review of a

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

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is GRANTED.

 5          Qising Weng, a native and citizen of the People’s

 6   Republic of China, seeks review of a January 29, 2013,

 7   decision of the BIA affirming a May 27, 2011, decision of an

 8   Immigration Judge (“IJ”), which denied his application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Qising Weng, No.

11   A099 993 943 (B.I.A. Jan. 29, 2013), aff’g No. A099 993 943

12   (Immig. Ct. N.Y. City May 27, 2011).    We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15          Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented and modified by the

17   BIA.    See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

18   2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

19   522 (2d Cir. 2005).    The applicable standards of review are

20   well-established.     See 8 U.S.C. § 1252(b)(4)(B); see also

21   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

22



                                     2
 1       Weng asserted eligibility for asylum based on his

 2   arrest, detention, and beatings for his practice of Falun

 3   Gong in China, and his fear of future harm due to his

 4   continuing practice of Falun Gong.   The agency failed to

 5   clearly state its justification for rejecting Weng’s past

 6   persecution claim.   It is unclear to what extent the IJ’s

 7   analysis was based on credibility concerns.     And although

 8   the BIA assumed credibility, and concurred with the IJ’s

 9   decision that Weng failed to meet his burden of proof as to

10   his fear of future persecution, it failed to analyze Weng’s

11   allegations of past persecution.

12       Where an asylum applicant demonstrates past persecution

13   he is entitled to a rebuttable presumption of a well-founded

14   fear of future persecution.   See 8 C.F.R. § 1208.13(b)(1).

15   The burden then is not on the alien but the government to

16   rebut the presumption.   See Li Hua Lin v. U.S. Dep’t of

17   Justice, 453 F.3d 99, 105 (2d Cir. 2006).     Only where there

18   has been no past persecution does the burden remain on the

19   applicant to demonstrate a well-founded fear.     See Baba v.

20   Holder, 569 F.3d 79, 86 (2d Cir. 2009).     The IJ appeared to

21   base his past persecution finding on credibility concerns

22   combined with a lack of evidence regarding Weng’s current


                                   3
 1   practice of Falun Gong, but the BIA assumed credibility and

 2   then gave no explanation of how the future fear finding or

 3   failure to meet the burden of proof applied to past harm.

 4   This lack of clarity with respect to Weng’s allegations of

 5   past harm hinders our review.       See Beskovic v. Gonzales, 467

 6   F.3d 223, 227 (2d Cir. 2006) (requiring a certain minimal

 7   level of analysis from agency decisions denying asylum to

 8   enable meaningful judicial review).      Accordingly, we remand

 9   for the agency to determine whether Weng met his burden of

10   establishing past persecution based on a protected ground

11   and, in turn, whether he was entitled to a presumption of a

12   well-founded fear of persecution on that basis.       See 8

13   C.F.R. § 1208.13(b)(1).

14       For the foregoing reasons, the petition for review is

15   GRANTED.   The case is REMANDED for further proceedings, and

16   the pending motion for a stay of removal in this petition is

17   DENIED as moot.

18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk
20
21




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