18-2041
Pan v. Barr
BIA
Christensen, IJ
A206 686 245
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 TO 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 Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 14th day of April, two thousand twenty.
PRESENT:
JOSÉ A. CABRANES,
SUSAN L. CARNEY,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
LAI JUN PAN,
Petitioner,
v. 18-2041
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gerald Karikari, Esq., New York,
NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Andrew N. O’Malley,
Senior Litigation Counsel;
Kimberly A. Burdge, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
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 DENIED.
Petitioner Lai Jun Pan, a native and citizen of the
People’s Republic of China, seeks review of a July 2, 2018
decision of the BIA affirming an August 4, 2017 decision of
an Immigration Judge (“IJ”) denying Pan’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Lai Jun Pan, No.
A 206 686 245 (B.I.A. July 2, 2018), aff’g No. A 206 686 245
(Immig. Ct. N.Y. City Aug. 4, 2017). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We have reviewed both the IJ’s and the BIA’s decisions
“for the sake of completeness.” Wangchuck v. Dep’t of
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
the agency’s findings of fact under the substantial evidence
standard. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
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Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
credibility determinations for substantial evidence); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing
factual findings for substantial evidence).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of
the applicant . . . , the consistency between the applicant’s
. . . written and oral statements . . . , the internal
consistency of each such statement, [and] the consistency of
such statements with other evidence of record . . . without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
. . . to an IJ’s credibility determination unless, from the
totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.”
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence
supports the agency’s adverse credibility determination as to
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Pan’s claim that she was persecuted in China because she
practiced Christianity.
The agency reasonably relied on Pan’s demeanor, among
other things, during her shifting testimony about the second
underground church that she allegedly attended. “We give
particular deference to credibility determinations that are
based on [the IJ’s] observation of the applicant’s demeanor,”
because the “ability to observe the witness’s demeanor places
[the IJ] in the best position to evaluate whether apparent
problems in the witness’s testimony suggest a lack of
credibility or, rather, can be attributed to an innocent cause
such as difficulty understanding the question.” Jin Chen v.
U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005).
Moreover, “[w]e can be still more confident in our review of
observations about an applicant’s demeanor where, as here,
they are supported by specific examples of inconsistent
testimony.” Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d
99, 109 (2d Cir. 2006). Pan’s testimony shifted as she
described the second church, and although her testimony
itself was not clearly internally inconsistent, it was
inconsistent with her application. Pan testified that she
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went to a second church twice after she was released, but she
did not mention these visits in her asylum application, which
instead reflects that after her arrest she “could no more
continue [her] religious belief.” Certified Administrative
Record at 151. While she argues that this was a trivial
omission that did not relate to her own persecution, she
testified that a raid on the second church and arrest of
several fellow worshipers was the reason that she left China.
This is a detail that she “would reasonably have been expected
to disclose” in her application. See Hong Fei Gao, 891 F.3d
at 78.
After Pan’s demeanor and inconsistent statements called
her credibility into question, the agency properly determined
that her corroborating evidence failed to rehabilitate her
testimony. “An applicant’s failure to corroborate his or her
testimony may bear on credibility, because the absence of
corroboration in general makes an applicant unable to
rehabilitate testimony that has already been called into
question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
2007). The IJ reasonably afforded diminished weight to a
letter allegedly from the underground church because it did
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not mention any raids or arrests, it was unclear why a secret
church would use letterhead and an official stamp, and the
writer was unavailable for cross examination. See Y.C. v.
Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer
to the agency’s evaluation of the weight to be afforded an
applicant’s documentary evidence.”). Accordingly, the
agency’s adverse credibility determination is supported by
substantial evidence.
The agency also reasonably determined that Pan did not
independently establish a well-founded fear of future
persecution based on her alleged practice of Christianity in
the United States. Where, as here, an asylum applicant does
not show past persecution, she may establish eligibility for
asylum by demonstrating a well-founded fear of future
persecution. 8 C.F.R. § 1208.13(b). The applicant must
“present credible testimony that [s]he subjectively fears
persecution and establish that [her] fear is objectively
reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178
(2d Cir. 2004). To demonstrate a well-founded fear, an
applicant must show either “a reasonable possibility . . .
she would be singled out individually for persecution” if
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removed or that the country of removal has “a pattern or
practice” of persecuting “similarly situated” individuals.
8 C.F.R. § 1208.13(b)(2)(iii). Additionally, when, as here,
an applicant’s asylum claim is based on activities undertaken
in the United States, she “must make some showing that
authorities in [her] country of nationality are either aware
of [her] activities or likely to become aware of [her]
activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
(2d Cir. 2008). Considering the adverse credibility
determination as to past events, the IJ reasonably determined
that Pan did not provide sufficient evidence that authorities
were aware or likely to become aware of her practice of
Christianity. The agency also did not err in finding that
Pan failed to show a pattern or practice of persecution of
similarly situated individuals because her country conditions
evidence shows that restrictions and enforcement vary by
region, and enforcement is typically focused on church
leaders. Further, her evidence does not show enforcement in
her home province of Fujian. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 149–50, 165–66 (2d Cir. 2008) (upholding BIA’s
conclusion that when enforcement of a policy varies by region,
7
asylum applicants have the burden to show enforcement of the
policy in their home region).
Because the agency reasonably found that Pan’s claims of
past persecution were not credible and that she failed to
demonstrate an objectively reasonable fear of harm as
required for asylum, she also failed to establish her
eligibility for withholding of removal and CAT relief. See
Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010); Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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