13‐203‐ag Pan v. Holder

1

2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 ________ 6 7 AUGUST TERM, 2014 8 9 ARGUED: AUGUST 20, 2014 10 DECIDED: JANUARY 26, 2015 11 12 No. 13‐203‐ag 13 14 ALEKSANDR PAN, 15 Petitioner. 16 17 v. 18 19 ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL 20 Respondent. 21 ________ 22 23 Appeal from the Board of Immigration Appeals. 24 File: A 093 354 217 – New York, NY. 25 ________ 26 27 Before: WALKER, WESLEY, and LIVINGSTON, Circuit Judges. 28 ________ 29 30 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 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 JUDY RESNICK, Law Office of Judy Resnick, Far 9 Rockaway, NY, for Petitioner.

10 JESSE DAVID LORENZ (Stuart F. Delery, Emily 11 Anne Radford, Thanh Khiet T. Nguyen, Craig A. 12 Newell, Jr., on the brief), U.S. Department of 13 Justice, Office of Immigration Litigation, 14 Washington, DC, for Respondent.

15 ________ 16 17 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

1 BACKGROUND

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.

6 DISCUSSION

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,

(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.’”

(quoting

(b)(4)(B)).

15 Questions of law and the agency’s application of law to fact are

16 reviewed de novo. Centurion v. Holder,

(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.”

(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,

(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.

(citing 8

(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. Depʹt of Justice, 433

(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.,

(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,

(2d Cir.

20 2006) (quoting Njuguna v. Ashcroft,

, 771 n.4 (9th Cir.

21 2004)); see also Davila‐Bardales v. I.N.S.,

(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,

, 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,

(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,

(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,

(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

(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.,

, 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,

, 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,

. 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.

13 CONCLUSION

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.