Pan v. Holder, No. 13-203 (2d Cir. 2015)
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Petitioner, a citizen and native of the Kyrgyz Republic, petitioned for review of the BIA's order dismissing his appeal from the IJ's denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Petitioner claimed that he was persecuted because he is an ethnic Korean and an Evangelical Christian. The court granted the petition for review because the IJ and the BIA failed to adequately explain why the significant violence petitioner suffered was insufficiently egregious to constitute persecution and failed to consider record evidence of petitioner's aunt's testimony and affidavit, which tended to prove that the Kyrgyz police are unwilling or unable to protect petitioner from private persecutors.
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13 203 ag Pan v. Holder 1 2 In the 3 United States Court of Appeals 4 For the Second Circuit 30 ________ AUGUST TERM, 2014 ARGUED: AUGUST 20, 2014 DECIDED: JANUARY 26, 2015 No. 13 203 ag ALEKSANDR PAN, Petitioner. v. ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL Respondent. ________ Appeal from the Board of Immigration Appeals. File: A 093 354 217 – New York, NY. ________ Before: WALKER, WESLEY, and LIVINGSTON, Circuit Judges. ________ Aleksandr Pan petitions for review of the January 7, 2013 31 order of the Board of Immigration Appeals (BIA) dismissing his 32 appeal from an immigration judge’s (IJ) denial of his applications for 33 asylum, withholding of removal, and relief pursuant to the 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 2 No. 13 203 ag 1 Convention Against Torture (CAT). For the reasons that follow, we 2 conclude that the IJ and BIA failed to consider significant record 3 evidence related to Pan’s claim of past persecution. Therefore, we 4 grant the petition for review, vacate the BIA’s order in part, and 5 remand for further proceedings. 6 7 8 9 10 11 12 13 14 15 16 17 ________ JUDY RESNICK, Law Office of Judy Resnick, Far Rockaway, NY, for Petitioner. JESSE DAVID LORENZ (Stuart F. Delery, Emily Anne Radford, Thanh Khiet T. Nguyen, Craig A. Newell, Jr., on the brief), U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent. ________ JOHN M. WALKER, JR., Circuit Judge: 18 Aleksandr Pan petitions for review of the January 7, 2013 19 order of the Board of Immigration Appeals (BIA) dismissing his 20 appeal from an immigration judge’s (IJ) denial of his applications for 21 asylum, withholding of removal, and relief pursuant to the 22 Convention Against Torture (CAT). For the reasons that follow, we 23 conclude that the IJ and BIA failed to consider significant record 24 evidence related to Pan’s claim of past persecution. Therefore, we 25 grant the petition for review, vacate the BIA’s order in part, and 26 remand for further proceedings. 3 No. 13 203 ag BACKGROUND 1 2 Pan, a citizen and native of the Kyrgyz Republic, entered the 3 United States on May 9, 2008, under a visitor non immigrant visa. 4 On May 8, 2009, Pan filed an asylum request claiming that he was 5 persecuted because he is an ethnic Korean and an Evangelical 6 Christian. 7 At his June 28, 2010 removal proceeding, the IJ noted that Pan 8 credibly testified about several incidents in which he and his family 9 were targeted for mistreatment because of their religion and 10 ethnicity. Pan testified that in his early school years other students 11 beat him because they knew he was an Evangelical Christian. His 12 parents complained to school administrators, but the administrators 13 dismissed the complaints as a “normal phenomenon” in the school. 14 Jt. App’x 120. In 1992, when Pan was about five years old, neighbors 15 hanged his dog from his family’s fence. Later, neighbors lit the fence 16 on fire. 17 After his family moved to a new apartment, Pan’s father 18 began holding religious services in their home. When Pan was seven 19 or eight, the police interrupted his father’s services. They detained 20 and questioned his father and the other attendees for five hours. In 21 1997, the family moved again because of harassment. In 1998, Pan’s 22 father built and opened a new church outside of Bishkek, and Pan 23 began proselytizing on its behalf. 4 No. 13 203 ag 1 In April 2004, during Pan’s final year of high school, some 2 classmates attacked him and called him a “sectant face.” Jt. App’x 3 302. After this attack, Pan missed a week of school. In 2005, four men 4 beat Pan and a friend as they handed out church pamphlets in the 5 marketplace. A crowd stood by and watched the men beat Pan, and 6 no one called the police. Pan explained that he did not call the police 7 after this incident because the Kyrgyz police are “very corrupt” and 8 “if they’re going to do something for you they’re going to want 9 something in exchange.” Jt. App’x 136. Pan added that he feared he 10 would only get in further trouble if the police learned that he had 11 been handing out Christian pamphlets. In July 2007, Pan left the 12 church late after helping with a youth seminar. While he was 13 walking home, an unknown assailant struck Pan from behind on the 14 head. Pan lost consciousness for a few hours, went to the hospital, 15 and was diagnosed with a concussion. Pan reported this attack to 16 the police, but they told Pan they would not investigate because he 17 had not seen his assailant. 18 Pan’s aunt, Galina Pan, also testified on Pan’s behalf. Galina 19 Pan, who lived in the same town as Pan and attended his father’s 20 church, was granted asylum in the United States in 2006. Galina Pan 21 testified to an attack on the church by five men in 2001. The attackers 22 injured her and many other many parishioners. The parishioners 23 filed a complaint with the police, but, “[t]here was no reaction 5 No. 13 203 ag 1 whatsoever, as [was] usually the case.” Jt. App’x 155. Galina Pan’s 2 affidavit in support of her 2006 asylum application was also received 3 into evidence. The affidavit described, among other incidents, an 4 occasion on which the police ordered Galina Pan to report to the 5 precinct and answer questions about her faith, Pan’s father, and 6 other parishioners. The police warned her that they would take 7 action against the members of the church “who attract people to 8 church” if more ethnic Kyrgyzes joined the church. The affidavit 9 also described how, in July 2004, three men attacked Galina Pan 10 outside her house and gave her a concussion. The hospital alerted 11 the police, and a policeman came to the hospital and wrote a report 12 but investigated no further. 13 Finally, Pan submitted secondary materials that included 14 reports from the U.S. State Department. In particular, the State 15 Department’s 2009 Human Rights Report describes corruption as 16 “endemic” at all levels of Kyrgyz society and how “officials engaged 17 in corrupt practices with impunity.” Jt. App’x 271. The report also 18 describes a 2009 law that banned proselytizing, religious 19 conversions, private religious education, and all activities by 20 unregistered religious organizations, while at the same time 21 enlarging the membership necessary to register as a religious 22 organization. 6 No. 13 203 ag 1 On October 14, 2010, Immigration Judge Sandy K. Hom 2 denied Pan’s applications. The IJ credited Pan’s and Galina Pan’s 3 testimony, but found that the mistreatment Pan suffered 4 “represented, at best, hate crimes.” In re Aleksandr Pan, No. A 093 354 5 217 (Immig. Ct. N.Y.C. Oct. 14, 2010). The IJ also found that Pan 6 failed to establish that the Kyrgyz government failed to protect Pan, 7 Koreans, or Evangelical Christians because many of the incidents 8 were not reported to the police, and Pan was unable to identify the 9 attacker in the one incident he did report. The IJ disregarded Galina 10 Pan’s testimony and affidavit because they did not tend to establish 11 persecution of Pan. 12 The BIA affirmed the IJ’s decision and dismissed Pan’s appeal. 13 Reviewing the IJ’s decision de novo, the BIA found that “private 14 citizens targeted [Pan] on account of his Korean ethnicity or his 15 religious beliefs,” but that “the verbal and physical abuse he 16 experienced was [not] sufficiently egregious to rise to the level of 17 past persecution.” In re Aleksandr Pan, No. A 093 354 217 (B.I.A. Jan. 18 7, 2013). Like the IJ, the BIA did not discuss Galina Pan’s testimony 19 or affidavit. Based on the evidence it did consider, the BIA 20 concluded that Pan failed to demonstrate that the Kyrgyz 21 government is unable or unwilling to protect him from the harm 22 that he fears. Id. Thus, though for somewhat different reasons, the 7 No. 13 203 ag 1 BIA agreed with the IJ that Pan failed to show that he suffered past 2 persecution or had a well founded fear of future persecution. Id. 3 Pan timely petitioned this court for review of the denial of his 4 claim for asylum and withholding of removal, but not his claim 5 under the CAT. DISCUSSION 6 7 Because the BIA did not expressly adopt the IJ’s decision, but 8 “its brief opinion closely track[ed] the IJ’s reasoning,” we have 9 reviewed the opinions of both the IJ and the BIA “for the sake of 10 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) 11 (internal quotation marks omitted). We review the IJ’s factual 12 findings under the substantial evidence standard, treating them as 13 “‘conclusive unless any reasonable adjudicator would be compelled 14 to conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). 15 Questions of law and the agency’s application of law to fact are 16 reviewed de novo. Centurion v. Holder, 755 F.3d 115, 119 (2d Cir. 17 2014). 18 To qualify as a refugee and establish eligibility for asylum or 19 withholding of removal, an applicant must establish that he was 20 persecuted or has a “well founded fear of persecution on account of 21 race, religion, nationality, membership in a particular social group, 22 or political opinion.” 8 U.S.C. § 1101(a)(42). A well founded fear 23 involves both an objective and subjective component. The subjective 8 No. 13 203 ag 1 component may be based on the applicant’s reaction to events, while 2 the objective component must be supported by “proof or objective 3 facts that lend support to the applicant’s subjective fear.” Melgar de 4 Torres v. Reno, 191 F.3d 307, 311 (2d Cir. 1999). A showing that the 5 applicant was a victim of past persecution creates a presumption 6 that a well founded fear of future persecution exists. Id. (citing 8 7 C.F.R. § 208.13(b)(1)(i)). Persecution by government actors does not 8 encompass simple harassment, but “violent conduct [amounting to 9 persecution] generally goes beyond the mere annoyance and distress 10 that characterize harassment.” Ivanishvili v. U.S. Dep t of Justice, 433 11 F.3d 332, 342 (2d Cir. 2006). Private acts can also constitute 12 persecution if the government is unable or unwilling to control such 13 actions. Pavlova v. I.N.S., 441 F.3d 82, 91 (2d Cir. 2006). 14 Here, there was no issue as to Pan’s credibility and the IJ 15 found that Pan indeed suffered the mistreatment to which he 16 testified. The IJ concluded, however, that Pan was not a victim of 17 persecution because “the offending events, individually or 18 collectively, represented, at best, hate crimes.” The IJ added that “[a] 19 hate crime, per se, is a criminal act that is not a sufficient basis to find 20 persecution.” In re Aleksandr Pan, No. A 093 354 217, slip op. at 13. 21 Similarly, although the BIA found that Pan was targeted for 22 mistreatment “on account of his Korean ethnicity or his religious 23 beliefs,” it found that the abuse he experienced was insufficiently 9 No. 13 203 ag 1 egregious to rise to the level of persecution. In re Aleksandr Pan, No. 2 A 093 354 217, slip op. at 2. 3 In our view, the record does not support either the IJ’s or the 4 BIA’s characterization of the abuse Pan suffered. Pan credibly 5 testified about three beatings he received over a four year period, 6 the last of which resulted in a two week hospitalization. The BIA has 7 concluded elsewhere that an asylum applicant who suffered similar 8 violence was a victim of persecution. See In re O Z and I Z , 22 I. & 9 N. Dec. 23, 25 26 (B.I.A. 1998) (finding persecution where a father 10 was beaten three times and his son was beaten and humiliated by 11 his classmates). We have also indicated that similar allegations of 12 violence, if found credible, would preclude a finding of mere 13 harassment. See Ivanishvili, 433 F.3d at 342 (three violent attacks 14 accompanied by death threats). 15 The IJ and BIA made no attempt to explain how the violence 16 Pan suffered differed from that suffered by other applicants who 17 have been granted asylum. That failure is significant because “it is a 18 fundamental principle of justice that ‘similarly situated individuals 19 be treated similarly.’” Zhang v. Gonzales, 452 F.3d 167, 173 (2d Cir. 20 2006) (quoting Njuguna v. Ashcroft, 374 F.3d 765, 771 n.4 (9th Cir. 21 2004)); see also Davila Bardales v. I.N.S., 27 F.3d 1, 5 (1st Cir. 1994) (“If 22 an administrative agency decides to depart significantly from its 10 No. 13 203 ag 1 own precedent, it must confront the issue squarely and explain why 2 the departure is reasonable.”). 3 We also take issue with the IJ’s view that “a hate crime, per se, 4 is a criminal act that is not a sufficient basis to find persecution.” In 5 re Aleksandr Pan, No. A 093 354 217, slip op. at 13. Although some 6 hate crimes may not amount to persecution, conduct that rises to the 7 level of persecution either by the government or with its 8 acquiescence may also be a hate crime. Indeed, hatred of a group 9 that manifests itself in violent crimes against members of that group 10 would seem to be at the core of persecution. 11 We also reject the BIA’s alternative finding that Pan failed to 12 establish that the Kyrgyz government was unable or unwilling to 13 protect him. Cf. Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 161 14 (2d Cir. 2006) (denying a petition challenging a rejection of an 15 asylum claim despite errors committed by the IJ where, inter alia, 16 “the IJ explicitly relie[d] on a valid alternative ground for denying 17 relief that [was] not tainted by error”). The IJ observed that Pan 18 failed to report some of the mistreatment to the police and that he 19 was unable to identify his attacker when he did file a report, and the 20 BIA found that the evidence Pan presented failed to establish that 21 the government was unable or unwilling to protect him. 22 We need not decide whether Pan’s unwillingness to confront 23 the police is fatal to his asylum claim because we find that both the IJ 11 No. 13 203 ag 1 and BIA ignored ample record evidence tending to show that the 2 Kyrgyz police were unwilling to investigate the abuse suffered by 3 Pan and his family. See Yan Chen v. Gonzales, 417 F.3d 268, 272 (2d 4 Cir. 2005) (granting petition for review and remanding where the IJ 5 and BIA failed to consider relevant evidence). 6 First, Pan testified that he did not report the 2005 marketplace 7 beating because the police were corrupt and would not help without 8 receiving something in exchange and because such a report might 9 get him into further trouble. Pan’s testimony about police 10 corruption—which was deemed credible by the IJ—is corroborated 11 by the State Department’s 2009 Human Rights report. See Hong Ying 12 Gao v. Gonzales, 440 F.3d 62, 71 (2d Cir. 2006) (country report stating 13 that efforts to combat trafficking were hampered by corruption 14 supported a finding that government would not protect applicant 15 from private abuse), judgment vacated on other grounds sub nom. 16 Keisler v. Hong Yin Gao, 552 U.S. 801 (2007). Neither the IJ nor the 17 BIA analyzed the impact of police corruption on the government’s 18 willingness and ability to protect Pan. 19 Second, the IJ disregarded Galina Pan’s testimony because she 20 lacked personal knowledge of Pan’s experiences. To be sure, each 21 asylum claim must be considered on its own merits. In re Mogharrabi, 22 19 I. & N. Dec. 439, 446 (B.I.A. 1987). However, police unwillingness 23 to protect a similarly situated refugee may establish that the 12 No. 13 203 ag 1 government is unable or unwilling to protect the applicant. See, e.g., 2 Abankwah v. I.N.S., 185 F.3d 18, 25 26 (2d Cir. 1999) (minister’s 3 testimony about inability of Ghanaian government to prevent female 4 genital mutilation supported applicant’s claim that she would be 5 subject to FGM); Mashiri v. Ashcroft, 383 F.3d 1112, 1117 18 (9th Cir. 6 2004) (police inaction in response to attacks against sons supported 7 mother’s asylum claim). 8 Galina Pan testified (and, again, was found to be credible by 9 the IJ) that the police, as usual, did nothing in response to the 2001 10 attack on her (and Pan’s) church. Her affidavit also described how 11 the police failed to do anything other than write a report after her 12 2004 beating. Such police inaction in response to the significant 13 violence Galina Pan suffered tends to prove that the government is 14 unwilling to protect its citizens and should have been considered by 15 the adjudicating authorities below. See in re O Z & I Z , 22 I. & N. 16 Dec. at 23 (“[g]overnment was unable or unwilling to control the 17 [applicant’s] attackers” where “police . . . took no action beyond 18 writing a report”). Given the similarities between Pan’s and Galina 19 Pan’s claims of persecution on account of their Korean ethnicity and 20 Evangelical Christianity, it was error for the IJ and BIA to ignore 21 record evidence that the Kyrgyz authorities were unwilling to 22 protect Galina Pan from persecution. See Yan Chen, 417 F.3d at 272. 13 No. 13 203 ag 1 In sum, we grant Pan’s petition for review because the IJ and 2 BIA: (1) failed to adequately explain why the significant violence 3 Pan suffered was insufficiently egregious to constitute persecution 4 and (2) failed to consider record evidence of Galina Pan’s testimony 5 and affidavit, which tend to prove that the Kyrgyz police are 6 unwilling or unable to protect Pan from private persecutors. We 7 therefore vacate the BIA’s findings that Pan was not a victim of past 8 persecution and did not have a well founded fear of future 9 persecution. 10 Accordingly, we vacate the denial of asylum and the 11 derivative denial of withholding of removal. We leave undisturbed 12 the denial of Pan’s CAT claim, which was not appealed. CONCLUSION 13 14 For the reasons stated above, we GRANT the petition for 15 review, VACATE the judgment of the Board of Immigration 16 Appeals in part, and REMAND for further proceedings consistent 17 with this opinion.
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