dissenting.
I disagree with the majority’s determination that the INS successfully rebutted the statutory presumption of future persecution. In order for the INS to have rebutted the presumption, the BIA would first have to apply it. 8 C.F.R. § 208.16(b)(1). Because the BIA did not apply the presumption, we should remand the matter so that it may first do so and it may then determine whether the presumption has been overcome. Del Carmen Molina v. INS, 170 F.3d 1247, 1250 (9th Cir.1999) (remanding to the BIA where the BIA, having erroneously found that an asylum applicant had not suffered from past persecution, never applied the presumption in deciding his case). This is similar to an agency’s applying the wrong burden of proof. We do not apply the correct burden ab initio and determine on our own what the agency would have done. We ordinarily let the agency reconsider the issue applying the proper standard. Also, there can be no doubt that Turina’s mother, father, sister, and brother-in-law were afforded asylum on the identical claim several months before she was denied asylum. That goes directly to the question of whether country conditions had indeed changed sufficiently to rebut the presumption, which, erroneously, was never applied. For these reasons, I respectfully dissent.