Filed: Oct. 16, 2018
Latest Update: Mar. 03, 2020
Summary: 17-815 Pan v. Sessions BIA Poczter, IJ A077 997 552 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 NOT
Summary: 17-815 Pan v. Sessions BIA Poczter, IJ A077 997 552 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 NOTA..
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17-815
Pan v. Sessions
BIA
Poczter, IJ
A077 997 552
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 16th day of October, two thousand eighteen.
PRESENT:
JOHN M. WALKER, JR.,
BARRINGTON D. PARKER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
BIAO QING PAN,
Petitioner,
v. 17-815
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Anthony C.
Payne, Assistant Director; Colette
J. Winston, 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 Biao Qing Pan, a native and citizen of the
People’s Republic of China, seeks review of a March 14, 2017,
decision of the BIA affirming a July 21, 2016, decision of an
Immigration Judge (“IJ”) denying Pan’s application for
withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Biao Qing Pan, No. A 077 997
552 (B.I.A. Mar. 14, 2017), aff’g No. A 077 997 552 (Immig.
Ct. N.Y. City July 21, 2016). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
F.3d 524, 528 (2d Cir. 2006). The standards of review are
well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
2
Under the standards set forth in the REAL ID Act, the
agency must “[c]onsider[] the totality of the
circumstances,” and may base an adverse credibility ruling
on any inconsistencies in an applicant’s oral and written
statements or other record evidence. 8 U.S.C.
§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
credibility determination unless . . . it is plain that no
reasonable fact-finder could make such an adverse
credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. As
discussed below, substantial evidence supports the agency’s
determination that Pan was not credible.
The agency reasonably concluded that Pan’s testimony
about when he started practicing Falun Gong was internally
inconsistent and conflicted with statements he made to an
asylum officer during his reasonable fear interview. 8
U.S.C. § 1158(b)(1)(B)(iii). Pan initially testified that
he began practicing Falun Gong in 1999 and was arrested for
the first time in 2001, but then he testified that he
practiced Falun Gong for only a few months before his arrest.
During his reasonable fear interview, Pan stated that he only
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practiced Falun Gong for one month before the authorities
pursued him.1
The agency’s remaining findings are also supported by
the record and undermine both Pan’s Falun Gong claim and his
alleged fear of sterilization under China’s family planning
policy. Pan testified that he practiced Falun Gong to
alleviate pain and for fun, but during his reasonable fear
interview, he stated that he practiced Falun Gong so he could
go to heaven. Pan’s explanation that he did not know very
much about Falun Gong at the time of his 2014 interview was
implausible, given that he allegedly began practicing Falun
Gong in 1999. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2005) (explaining that a petitioner must offer not only a
“plausible” explanation, but one that “a reasonable fact-
finder would be compelled to credit”). Pan testified that
his wife told him that the police continued to look for him
1The IJ concluded that the record of Pan’s reasonable fear
interview was reliable because a telephonic Mandarin interpreter
was used, the transcript reflected questions and answers nearly
verbatim, the questions posed were designed to elicit the
details of Pan’s claims, and the record did not show that Pan
had any difficulty understanding or answering the questions.
See Ming Zhang v. Holder,
585 F.3d 715, 723-25 (2d Cir. 2009)
(discussing indicia of reliability for credible fear
interviews). Pan did not challenge the record’s reliability
before the BIA and has not done so in this Court.
4
in order to sterilize him, but his wife’s letter omitted this
information. See Xiu Xia Lin, 534 F.3d at 166-67. And Pan
testified that his father was a long-term Falun Gong
practitioner who was imprisoned and mistreated for his
practice, but Pan did not include this information in his
application or reasonable fear interview. See
id. Any
challenges to these discrepancies are both unexhausted and
waived because Pan did not challenge them before the BIA or
in his brief to this Court. See Shunfu Li v. Mukasey,
529
F.3d 141, 146 (2d Cir. 2008).
Pan argues that the IJ improperly discounted the letters
and affidavits he submitted from his relatives, but the weight
of the evidence is generally left to the agency’s discretion.
Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring
to agency’s decision to give minimal weight to letter from
spouse in China). And regardless, the letters and affidavits
do not rehabilitate Pan’s problematic testimony because they
do not resolve any inconsistencies: Pan’s sister and uncle
attested to Pan’s current practice of Falun Gong but did not
discuss when in China he started practicing, his father’s
alleged Falun Gong practice, or, in the case of Pan’s sister,
his previous detention. Pan’s wife did not provide any
5
details about his Falun Gong claim or state that the police
are still looking for Pan. See Biao Yang v. Gonzales, 496
F.3d 268, 273 (2d Cir. 2007) (“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.”).
The above discrepancies provide substantial evidence
for the adverse credibility ruling. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67.
Because Pan’s claims were all based on the same factual
predicate, the adverse credibility determination is
dispositive of asylum, withholding of removal, and CAT
relief. Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir.
2006). For this reason, we do not reach Pan’s arguments
that, assuming his credibility, he has established past
persecution and a well-founded fear of future persecution.
See INS v. Bagamasbad,
429 U.S. 24, 25 (1976) (“As a
general rule courts and agencies are not required to make
findings on issues the decision of which is unnecessary to
the results they reach.”).
6
For the foregoing reasons, the petition for review is
DENIED. 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 of Court
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