18-2041 Pan v. Barr BIA Christensen, IJ A206 686 245 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 14th day of April, two thousand twenty.

PRESENT: JOSÉ A. CABRANES, SUSAN L. CARNEY, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

LAI JUN PAN, Petitioner,

v. 18-2041 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Gerald Karikari, Esq., New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Andrew N. O’Malley, Senior Litigation Counsel; Kimberly A. Burdge, 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 Lai Jun Pan, a native and citizen of the

People’s Republic of China, seeks review of a July 2, 2018

decision of the BIA affirming an August 4, 2017 decision of

an Immigration Judge (“IJ”) denying Pan’s application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Lai Jun Pan, No.

A 206 686 245 (B.I.A. July 2, 2018), aff’g No. A 206 686 245

(Immig. Ct. N.Y. City Aug. 4, 2017). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

We have reviewed both the IJ’s and the BIA’s decisions

“for the sake of completeness.” Wangchuck v. Dep’t of

Homeland Sec.,

(2d Cir. 2006). We review

the agency’s findings of fact under the substantial evidence

standard. See

(b)(4)(B); Hong Fei Gao v.

2 Sessions,

(2d Cir. 2018) (reviewing adverse

credibility determinations for substantial evidence); Yanqin

Weng v. Holder,

(2d Cir. 2009) (reviewing

factual findings for substantial evidence).

“Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on the demeanor, candor, or responsiveness of

the applicant . . . , the consistency between the applicant’s

. . . written and oral statements . . . , the internal

consistency of each such statement, [and] the consistency of

such statements with other evidence of record . . . without

regard to whether an inconsistency, inaccuracy, or falsehood

goes to the heart of the applicant’s claim, or any other

relevant factor.”

(b)(1)(B)(iii). “We defer

. . . to an IJ’s credibility determination unless, from the

totality of the circumstances, it is plain that no reasonable

fact-finder could make such an adverse credibility ruling.”

Xiu Xia Lin v. Mukasey,

(2d Cir. 2008);

accord Hong Fei Gao,

. Substantial evidence

supports the agency’s adverse credibility determination as to

3 Pan’s claim that she was persecuted in China because she

practiced Christianity.

The agency reasonably relied on Pan’s demeanor, among

other things, during her shifting testimony about the second

underground church that she allegedly attended. “We give

particular deference to credibility determinations that are

based on [the IJ’s] observation of the applicant’s demeanor,”

because the “ability to observe the witness’s demeanor places

[the IJ] in the best position to evaluate whether apparent

problems in the witness’s testimony suggest a lack of

credibility or, rather, can be attributed to an innocent cause

such as difficulty understanding the question.” Jin Chen v.

U.S. Dep’t of Justice,

(2d Cir. 2005).

Moreover, “[w]e can be still more confident in our review of

observations about an applicant’s demeanor where, as here,

they are supported by specific examples of inconsistent

testimony.” Li Hua Lin v. U.S. Dep’t of Justice,

(2d Cir. 2006). Pan’s testimony shifted as she

described the second church, and although her testimony

itself was not clearly internally inconsistent, it was

inconsistent with her application. Pan testified that she

4 went to a second church twice after she was released, but she

did not mention these visits in her asylum application, which

instead reflects that after her arrest she “could no more

continue [her] religious belief.” Certified Administrative

Record at 151. While she argues that this was a trivial

omission that did not relate to her own persecution, she

testified that a raid on the second church and arrest of

several fellow worshipers was the reason that she left China.

This is a detail that she “would reasonably have been expected

to disclose” in her application. See Hong Fei Gao,

.

After Pan’s demeanor and inconsistent statements called

her credibility into question, the agency properly determined

that her corroborating evidence failed to rehabilitate her

testimony. “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.” Biao Yang v. Gonzales,

(2d Cir.

2007). The IJ reasonably afforded diminished weight to a

letter allegedly from the underground church because it did

5 not mention any raids or arrests, it was unclear why a secret

church would use letterhead and an official stamp, and the

writer was unavailable for cross examination. See Y.C. v.

Holder,

(2d Cir. 2013) (“We generally defer

to the agency’s evaluation of the weight to be afforded an

applicant’s documentary evidence.”). Accordingly, the

agency’s adverse credibility determination is supported by

substantial evidence.

The agency also reasonably determined that Pan did not

independently establish a well-founded fear of future

persecution based on her alleged practice of Christianity in

the United States. Where, as here, an asylum applicant does

not show past persecution, she may establish eligibility for

asylum by demonstrating a well-founded fear of future

persecution.

(b). The applicant must

“present credible testimony that [s]he subjectively fears

persecution and establish that [her] fear is objectively

reasonable.” Ramsameachire v. Ashcroft,

(2d Cir. 2004). To demonstrate a well-founded fear, an

applicant must show either “a reasonable possibility . . .

she would be singled out individually for persecution” if

6 removed or that the country of removal has “a pattern or

practice” of persecuting “similarly situated” individuals.

(b)(2)(iii). Additionally, when, as here,

an applicant’s asylum claim is based on activities undertaken

in the United States, she “must make some showing that

authorities in [her] country of nationality are either aware

of [her] activities or likely to become aware of [her]

activities.” Hongsheng Leng v. Mukasey,

(2d Cir. 2008). Considering the adverse credibility

determination as to past events, the IJ reasonably determined

that Pan did not provide sufficient evidence that authorities

were aware or likely to become aware of her practice of

Christianity. The agency also did not err in finding that

Pan failed to show a pattern or practice of persecution of

similarly situated individuals because her country conditions

evidence shows that restrictions and enforcement vary by

region, and enforcement is typically focused on church

leaders. Further, her evidence does not show enforcement in

her home province of Fujian. See Jian Hui Shao v. Mukasey,

, 149–50, 165–66 (2d Cir. 2008) (upholding BIA’s

conclusion that when enforcement of a policy varies by region,

7 asylum applicants have the burden to show enforcement of the

policy in their home region).

Because the agency reasonably found that Pan’s claims of

past persecution were not credible and that she failed to

demonstrate an objectively reasonable fear of harm as

required for asylum, she also failed to establish her

eligibility for withholding of removal and CAT relief. See

Lecaj v. Holder,

(2d Cir. 2010); Paul v.

Gonzales,

(2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

8