Qiu Qing Pan v. Holder

11-1179-ag
Pan v. Holder
BIA
Schoppert, IJ
A099 673 108
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16th day of February, two thousand twelve.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 QIU QING PAN,
14 Petitioner,
15
16 v. 11-1179-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Ethan B. Kanter, Senior
27 Litigation Counsel; Paul F. Stone,
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 Qiu Qing Pan, a native and citizen of the People’s
6 Republic of China, seeks review of a March 2, 2011, order of
7 the BIA, affirming the March 6, 2009, decision of an
8 Immigration Judge (“IJ”) denying his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Qiu Qing Pan, No. A099 673
11 108 (B.I.A. Mar. 2, 2011), aff’g No. A099 673 108 (Immig.
12 Ct. N.Y. City Mar. 6, 2009). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, this Court
16 reviews the IJ's decision as supplemented and modified by
17 the BIA, i.e., minus the adverse credibility determination
18 not reached by the BIA. See Xue Hong Yang v. U.S. Dep't of
19 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
20 standards of review are well established. See 8 U.S.C.
21 § 1252(b)(4)(B); see also, e.g., Yan Chen v. Gonzales, 417
22 F.3d 268, 271 (2d Cir. 2005).
23
2
1 The BIA reasonably concluded that Pan failed to
2 demonstrate a well-founded fear of persecution based on his
3 claim of resistance to the family planning policy. See Shi
4 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 313 (2d
5 Cir. 2007) (en banc). Here, Pan asserts that his vocal
6 objection when the family planning officials visited his
7 home and his act of going into hiding thereafter constitute
8 such “resistance.” Even assuming that Pan established
9 “resistance,” the BIA did not err in finding that he failed
10 to establish he had a well-founded fear of future harm
11 amounting to persecution on account of that resistance.
12 Based on Pan’s admission that he did not know if the family
13 planning officials were still seeking to punish him in
14 China, Pan failed to demonstrate that his fear of future
15 persecution was objectively reasonable. See Jian Xing Huang
16 v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the
17 absence of solid support in the record . . . [a] fear is
18 speculative at best.”). The agency also did not err in
19 concluding that Pan’s assertion of a fear of persecution was
20 undermined by the fact that both his wife and his parents
21 continued to live in China and had not been further punished
22 or sanctioned beyond his wife’s alleged forced abortion. See
23 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).
3
1 The agency also reasonably concluded that Pan did not
2 have a well-founded fear of persecution based on his
3 practice of Christianity. Because Pan did not become a
4 Christian until after he left China and did not allege that
5 he was personally subjected to past persecution on account
6 of his faith, he was required to show either that he would
7 be “singled out individually for persecution” or that there
8 was a pattern or practice of persecution of similarly
9 situated persons in China. See Hongsheng Leng v. Mukasey,
10 528 F.3d 135, 142 (2d Cir. 2008). As the agency concluded,
11 Pan failed to make this showing. As Pan presented no
12 evidence to the agency that he will proselytize to other
13 Chinese citizens, the agency reasonably concluded that the
14 Chinese government was not likely to become aware of his
15 activities. See Jian Xing Huang, 421 F.3d at 129.
16 In addition, the record does not compel the conclusion
17 that there is a pattern of persecution so systematic or
18 pervasive that all Christians in China are at risk. Cf.
19 Santoso v. Holder, 580 F.3d 110, 112 (2d Cir. 2009)
20 (concluding that substantial evidence supported the agency’s
21 determination that the mistreatment of some ethnic Chinese
22 in Indonesia did not establish a pattern or practice of
23 persecution in part because Indonesia is a large country).
4
1 In making this determination, the agency reasonably
2 considered the country conditions evidence in the record,
3 recognizing that, while the evidence indicated that
4 government officials sometimes harass Chinese Christians who
5 attend unregistered churches, freedom to participate in
6 religious activities continued to increase in many areas.
7 See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341
8 (2d Cir. 2006). Indeed, contrary to Pan’s claim of an
9 objectively reasonable fear of persecution, his wife and her
10 family, who were practicing Christians, have remained in
11 China unharmed. See Melgar de Torres, 191 F.3d at 313. The
12 IJ also considered the letter submitted by Pan’s father, in
13 which he indicated that some individuals in his community
14 who participate in underground churches have been harmed by
15 the Chinese government, but reasonably gave it diminished
16 evidentiary weight because Pan’s father was an interested
17 witness not subject to cross-examination. See Xiao Ji Chen
18 v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).
19 Because the agency reasonably found that Pan failed to
20 establish that he had a well-founded fear of persecution
21 based on his resistance to China’s family planning policy
22 and his Christianity, it did not err in denying him asylum,
23 withholding of removal, and CAT relief because those claims
5
1 were based on the same factual predicate. See Paul v.
2 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2) and Second
10 Circuit Local Rule 34(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
6