Filed: Sep. 18, 2013
Latest Update: Feb. 12, 2020
Summary: 11-3915 Pan v. Holder BIA Cheng, IJ A087 462 992 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 NOTATI
Summary: 11-3915 Pan v. Holder BIA Cheng, IJ A087 462 992 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 NOTATIO..
More
11-3915
Pan v. Holder
BIA
Cheng, IJ
A087 462 992
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 18th day of September, two thousand thirteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROSEMARY S. POOLER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 XIAO SHI PAN,
14 Petitioner,
15
16 v. 11-3915
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, N.Y.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Cindy S. Ferrier,
27 Assistant Director; Tracie N. Jones,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
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
4 is DENIED.
5 Xiao Shi Pan, a native and citizen of the People’s
6 Republic of China, seeks review of a September 2, 2011,
7 decision of the BIA affirming the March 4, 2010, decision of
8 Immigration Judge (“IJ”) Mary Cheng, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Xiao
11 Shi Pan, No. A087 462 992 (B.I.A. Sept. 2, 2011), aff’g No.
12 A087 462 992 (Immig. Ct. N.Y. City Mar. 4, 2010). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as modified and supplemented by the BIA.
17 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 The applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.
20 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
21 For applications such as Pan’s, governed by the REAL ID
22 Act of 2005, the agency may, considering the totality of the
23 circumstances, base a credibility finding on the applicant’s
2
1 “demeanor, candor, or responsiveness,” the plausibility of
2 his account, and inconsistencies in his statements, without
3 regard to whether they go “to the heart of the applicant’s
4 claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v.
5 Mukasey, 534 F.3d 162, 163-64, 165 (2d Cir. 2008) (per
6 curiam). We will “defer . . . to an IJ’s credibility
7 determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such” a ruling. Xiu Xia
Lin, 534 F.3d at 167.
10 The IJ reasonably based her credibility finding on
11 inconsistent testimony and omissions in Pan’s supporting
12 documentation, including the following: (1) Pan’s testimony
13 that his mother introduced him to her church in December
14 2006, though he later testified that he first attended
15 church in April 2007; (2) Pan’s testimony that he and his
16 family attended the same church and then “split” into
17 different churches, though he later testified that he had
18 never attended his mother’s or siblings’ church; (3) Pan’s
19 testimony that his parents paid a fine to release him from
20 jail though he later testified that his mother alone had
21 paid the fine and the fine receipt reflected that he himself
22 had paid the fine; (4) an omission in a letter from Pan’s
3
1 pastor, which did not mention Pan’s alleged arrest for
2 distributing religious flyers in China; and (5) an omission
3 in a letter from Pan’s father, which did not mention the
4 alleged fine imposed against Pan. See 8 U.S.C.
5 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d
6 at 167. The IJ was not required to credit Pan’s
7 explanations for these inconsistencies. See Majidi v.
8 Gonzales,
430 F.3d 77, 81 (2d Cir. 2005). In addition, the
9 adverse credibility determination is further supported by
10 the IJ’s demeanor finding based on Pan’s non-responsive and
11 hesitant testimony. See Li Hua Lin v. U.S. Dep’t of
12 Justice,
453 F.3d 99, 109 (2d Cir. 2006).
13 Given the inconsistent testimony, omissions, and the
14 IJ’s demeanor finding, the totality of the circumstances
15 supports the agency’s adverse credibility. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167. Because
17 the only evidence of a threat to Pan’s life or freedom from
18 persecution or torture depended upon his credibility, the
19 adverse credibility determination in this case necessarily
20 precludes success on his claim for withholding of removal
21 and CAT relief. See Paul v. Gonzales,
444 F.3d 148, 156 (2d
22 Cir. 2006)
4
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
