Jian Lin Pan v. U.S. Attorney

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-15177
Non-Argument Calendar
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Agency No. A205-312-051
JIAN LIN PAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 2, 2021)
Before JILL PRYOR, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
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Jian Lin Pan seeks review of the Board of Immigration Appeals’ (“BIA”) final
order affirming the immigration judge’s denial of his application for asylum,
withholding of removal, and relief under the United Nations Convention Against
Torture (“CAT”). Because substantial evidence supports the BIA’s decision
affirming the immigration judge’s denial of such relief, we deny Pan’s petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pan, a native and citizen of China, entered the United States on or about May
8, 2012, through Los Angeles, California. Upon arrival, Pan was interviewed by the
Department of Homeland Security (“DHS”) through a Mandarin interpreter. Pan
stated that he was from the Fujian Province in China, that he is married, that he has
two children, and that he had fled his home country. He said that he paid a smuggler
$20,000 to bring him to the United States after he had been fined in his home country
for having a second child. When asked why he paid a smuggler instead of paying
the fine, Pan responded that “[t]he bottom line, . . . [was] for [him] to come to the
United States.” He claimed that his intention in doing so was to gain employment
in the United States to earn money to send back to his family. Pan also claimed that
he was a Roman Catholic for “[a] few months, maybe 6 months.” When asked to
make the Roman Catholic sign of the cross, however, Pan was unable to do so,
stating that “[i]t ha[d] been awhile” and that he was out of practice.
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On May 23, 2012, Pan underwent a credible fear interview conducted by an
asylum officer. During his credible fear interview, Pan stated that he left China on
August 27, 2011, and lived in Taiwan until he flew to the United States on May 8,
2012. When questioned about why his Chinese passport indicated that he had
returned to China and remained there from December 2011 to March 2012, Pan
could not provide an answer. Pan also told the asylum officer that he feared
returning to China because of the impending punishment for having a second child
and because of his Catholic faith. Concerning his second child, he stated that his
wife was sterilized after giving birth and that he too would be sentenced and
sterilized if he returned. He gave conflicting dates for when his wife was sterilized,
saying that the sterilization occurred on June 3, 2011, or June 6, 2011. When
questioned about the discrepancy, Pan responded that he must have misspoke. After
his second child’s birth, Pan claimed that village officials demanded that he pay a
fine of 50,000 Chinese Yuan for the illegal second birth. When he refused because
he lacked the funds to pay, he claimed that the officials beat him. He then went into
hiding until he could leave China.
Concerning his Catholic faith, Pan told the asylum officer that he converted
to Catholicism but provided conflicting statements about when. At first, he claimed
to have converted shortly before his daughter’s birth, then he claimed to have
become Catholic a few months into the pregnancy, and finally he claimed to have
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converted after going into hiding. Pan claimed that, on July 3, 2011, he was arrested
and detained for his attendance at a Catholic service, which his village officials
called an “evil cult.” When asked whether he had any problems with the Chinese
government, Pan responded twice that he had no problems. But when reminded that
he just conveyed several incidents involving government officials, Pan changed his
answer to yes. At the conclusion of the interview, the asylum officer memorialized
Pan’s statements and concluded that Pan’s “testimony lacked consistency both
internally and externally” and that Pan’s explanations for the inconsistencies, while
not fully addressing the issues, did “meet the much lower standard for credibility
under the credible fear standard.”
In June 2012, after the full credible fear process was completed, DHS served
Pan with a notice to appear, charging him as inadmissible as an alien not in
possession of a valid entry document, under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Pan
admitted the allegations and conceded his removability as charged. Then, in May
2013, Pan applied for withholding of removal and for asylum under the Immigration
and Nationality Act (“INA”) and for relief under the CAT. In his application, Pan
claimed that he was persecuted for violating the Chinese family planning laws and
for participating in underground Catholic church activities. Because of this past
persecution, Pan alleged that he feared future persecution upon return to China. He
also attached the following documentary evidence.
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In a written statement, Pan claimed that he and his wife went into hiding when
they learned that she was pregnant with a second child. While in hiding, they were
introduced to Christianity and converted to Catholicism. On June 3, 2011, his wife
gave birth to their second child in a private hospital, which upon learning that the
child was their second, “immediately performed the sterilization operation” on his
wife. A week later, family planning officials came to Pan’s home and fined him
50,000 Chinese Yuan for the second birth. When he refused to pay, he was beaten
and was threatened that his continued failure to pay the fine would result in his
sterilization and conviction. A few weeks later, on July 3, 2011, Pan attended a
Catholic wedding service that was raided by the police. Pan claimed that he was
detained and beaten by police. He was not released until his family intervened and
he agreed to reporting restrictions. After initially complying with these reporting
restrictions, he departed to Taiwan to flee what he feared would be future persecution
for his faith and his second child. He claimed that local officials came to his home
to arrest him after he fled to Taiwan and failed to report.
In a written statement, Pan’s mother stated that members of an underground
Catholic Church aided Pan and his wife by hiding them when Pan’s wife became
pregnant with their second child. While in hiding, Pan and his wife became members
of the underground church. When Pan’s wife gave birth, she was immediately
sterilized and family planning officials came to her home and ordered police to beat
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Pan “on the spot,” which left Pan bloodied. Pan’s mother also relayed that Pan was
arrested in the summer of 2011 for attending an underground church, during which
time he was repeatedly interrogated and beaten. Pan’s mother said that Pan fled
because he feared that he would be “arrested again, beaten again, and sterilized every
single time.” Pan’s wife also submitted a written statement, which stated the
following. On June 3, 2011, she went to a private hospital when she awoke with
stomach pains. The private hospital contacted family planning officials, who
“rushed to the hospital” and required her to be sterilized immediately after she gave
birth. The hospital required her to consent to sterilization or else the doctor would
refuse to deliver the child. Having no other option, she agreed and was sterilized
following the birth.
At his October 17, 2017, merits hearing, Pan testified about his home and his
upbringing. He provided contradictory statements about his siblings—he first stated
that he has two sisters, then later claimed to have three siblings, and finally, after the
immigration judge referred him to his asylum application, he stated that he has four
older sisters. Following this inconsistent testimony, the immigration judge warned
Pan about the importance of accurate, credible, and consistent testimony. Pan then
testified about his family. He initially claimed to have married his wife in 2015, but
then stated that their marriage was on November 20, 2001. He testified that he has
two children—a son and a daughter—and that it was his daughter’s birth that gave
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rise to the events leading to his seeking asylum. Concerning the events surrounding
his daughter’s birth, Pan’s testimony largely tracked his written statement. But his
testimony regarding when his wife was sterilized and what they had to sign at the
hospital contradicted his and his family members’ prior statements on those events.
As to his Catholic faith, Pan initially testified that he first attended the
underground church before his daughter was born, specifically stating that he
attended before his wife got pregnant. But he then backtracked and stated that his
first church attendance was in March 2011 while he and his wife were in hiding
during her pregnancy. He stated that no one else in his family is Catholic or attended
church services, but he later testified that both his wife and his son are Catholic and
attend church regularly. Pan’s testimony about the Catholic wedding service and his
arrest on June 3, 2011, mirrored his written statement, but there were inconsistencies
between his testimony and the written statements about when and how often he was
beaten. Shortly after his release in August 2011, Pan testified that he left China for
Taiwan, where one of his sisters lives. Pan remained in Taiwan for three months
before travelling to Hong Kong for a week. He then returned to Taiwan in February
2012 and stayed there for three more months before travelling to the United States
in May 2012. After he left China, authorities came to his home. Pan testified that
he believes that he would be arrested if he returns to China. On cross-examination,
DHS questioned Pan about the various inconsistencies throughout the statements he
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made in his initial interviews, the written statements he provided, and his testimony
at the hearing, including Pan’s inability to show the sign of the cross, inconsistencies
relating to his Catholic faith, and inconsistencies in his asylum interview.
On March 15, 2018, the immigration judge found Pan removable as charged.
Additionally, because the immigration judge determined that Pan lacked credibility,
he denied Pan’s request for asylum, withholding of removal, and protection under
the CAT. As to Pan’s credibility, the immigration judge concluded that Pan was
“not credible because his testimony contained numerous inconsistencies and
omissions, both internally and with the evidence of record.” Specifically, the
immigration judge found that Pan had great difficulty in testifying consistently about
basic biographical facts about himself, including the date of his marriage, how many
siblings he has, and the date that he left China, and that he failed to adequately
explain the inconsistencies. The immigration judge also found that Pan was
inconsistent about his Catholic faith, such as being unable to identify when he began
practicing Catholicism and being unable to show the sign of the cross. The
immigration judge further found unreliable Pan’s later contradictory statements that
he had difficulty in understanding the various translators provided to him as excuses
for contradictions in his statements. And the immigration judge found that Pan’s
corroborating evidence—the written statements from him, his mother, and his
wife—failed to cure the many issues and contradictions in his statements. The
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immigration judge explained that they contained inconsistencies and were
“suspicious” because they were “substantially similar in form, structure, and
vocabulary,” indicating they were written by the same person. Because of these
inconsistencies, the immigration judge found Pan was not credible and denied his
application for asylum, withholding of removal, and CAT protection and ordered
him removed to China.
Pan appealed the immigration judge’s determination to the BIA. On
December 4, 2019, the BIA dismissed the appeal, finding that the immigration
judge’s adverse credibility determination was not clearly erroneous. The BIA
highlighted various inconsistencies that made Pan’s credibility suspect, including
statements made relating to Pan’s Catholic faith, statements made about issues with
the Chinese government, and statements relating to the events that followed his
second child’s birth. Pan timely petitioned this Court for review.
II. STANDARD OF REVIEW
We review only the decision of the BIA, except to the extent that the BIA
expressly adopts or explicitly agrees with the immigration judge’s opinion. Ayala
v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th Cir. 2010). Here, we review both the
immigration judge’s and the BIA’s decisions as they relate to the credibility finding.
Id.
We review credibility determinations under the highly deferential substantial
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evidence standard. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230–31 (11th Cir.
2006). “The trier of fact must determine credibility, and [we] may not substitute
[our] judgment for that of the BIA with respect to credibility findings.” D-Muhumed
v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004); see also 8 U.S.C.
§ 1252(b)(4)(D). Under the substantial evidence test, we must affirm the BIA’s
decision if it is “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th
Cir. 2004). “[W]e view the record evidence in the light most favorable to the
agency’s decision and draw all reasonable inferences in favor of that decision.” Id.
at 1027. “[T]he mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the [agency’s] findings.” Id. Indeed, we will reverse
the immigration judge’s credibility findings “only if the evidence ‘compels’ a
reasonable fact finder to find otherwise.” Chen, 463 F.3d at 1230–31 (quoting
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005)).
III. ANALYSIS
Pan argues that the BIA erred in affirming the immigration judge’s adverse
credibility determination. We disagree.
An alien who arrives in the United States may apply for asylum. D-Muhumed,
388 F.3d at 818. To qualify for asylum, an alien must be a “refugee” within the
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meaning of 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1). Under §
1101(a)(42)(A), a “refugee” is defined, in relevant part, as
any person who is outside any country of such person's nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion . . . .
“The asylum applicant carries the burden of proving statutory ‘refugee’ status.” D-
Muhumed, 388 F.3d at 818. To establish asylum eligibility, “the alien must establish
a ‘well-founded fear’ that his or her [race, religion, nationality, membership in a
particular social group, or political opinion] will cause harm or suffering that rises
to the level of ‘persecution.’” Id. “Establishing a history of past persecution creates
a presumption that an alien has a well-founded fear of future persecution, although
that presumption can be rebutted by the government.” Forgue v. U.S. Att’y Gen.,
401 F.3d 1282, 1286 (11th Cir. 2005).
An asylum applicant must establish eligibility for asylum by offering
“credible, direct, and specific evidence in the record.” Id. at 1287 (quoting Sangha
v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997)). If found to be credible, an applicant’s
testimony, even if uncorroborated, may be sufficient on its own to establish
eligibility. Forgue, 401 F.3d at 1287; D-Muhumed, 388 F.3d at 818–19.
Conversely, if the applicant is found not credible, an adverse-credibility
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determination may be sufficient to support the denial of such a claim. Forgue, 401
F.3d at 1287. But even if an alien is found to be not credible, the immigration judge
has a duty to consider all other evidence produced by an asylum applicant. Id.
“Once an adverse credibility finding is made, the burden is on the applicant alien to
show that the [immigration judge’s] credibility decision was not supported by
‘specific, cogent reasons’ or was not based on substantial evidence.” Id. (quoting
D-Muhumed, 388 F.3d at 819).
Here, we find that substantial evidence supports the BIA’s opinion affirming
the immigration judge’s finding that Pan’s testimony was not credible based on the
inconsistencies within his testimony and between his testimony and the record,
including his application, sworn statement, credible fear interview, and the
corroborating evidence he submitted. The BIA and the immigration judge provided
specific and cogent reasons for the adverse credibility determination, which is
supported by substantial evidence. And nothing in the record compels the opposite
conclusion.
As highlighted by the BIA and the immigration judge, several inconsistencies
existed that cast doubt on Pan’s claims. First, there were inconsistencies in Pan’s
testimony related to his Catholic faith, such as giving differing dates as to when he
converted to Catholicism and differing answers as to whether any of his family was
also Catholic and attended church. Pan’s credibility as to the statements made about
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his faith was further undermined when he was unable to show border officials the
Catholic sign of the cross. Second, there were contradictions in Pan’s testimony and
the other record evidence relating to his July 3, 2011, arrest. In his credible fear
interview, Pan did not claim to have been interrogated or beaten while detained. At
his merits hearing, Pan testified that he was beaten once, and his mother’s statement
claimed that he was beaten frequently. And Pan gave conflicting testimony about
whether he had faced any issues with the Chinese government, answering that he
had not when just describing issues with government officials.
Third, Pan provided conflicting testimony about the events surrounding his
wife’s sterilization after giving birth. He provided different dates for when the
procedure was done and was inconsistent and nonresponsive about the alleged form
they were required to sign and its purpose. Finally, the record contains various
inconsistencies related to basic information about Pan and his life. He provided
different dates for his marriage and different numbers for how many siblings he has,
i.e., initially claiming to have two sisters, then changing that figure to three sisters,
before settling on four sisters. There were further inconsistencies and omissions
related to Pan’s financial means—Pan claimed to be unable to afford the 50,000
Chinese Yuan fine—equivalent to about $8,000—but he then claimed to have paid
a smuggler $20,000 to get him out of China. He also failed to provide a coherent
timeline for the period from when he left his hometown in China to when he arrived
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in the United States. And Pan offered no sufficient explanation nor sufficient
corroborative evidence to cure these inconsistencies and omissions. See Chen, 463
F.3d at 1233. The record supports the BIA and immigration judge’s adverse
credibility determination. We therefore deny Pan’s petition.
As to Pan’s claim of withholding of removal, we find that “he cannot show
that his life or freedom would ‘more likely than not’ be threatened or persecuted
upon return to his country.” D-Muhumed, 388 F.3d at 819 (quoting Mendoza v. U.S.
Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003)); accord 8 U.S.C. § 1231(b)(3); 8
C.F.R. § 208.16(b)). This standard for withholding of removal is more stringent than
the “well-founded fear” standard for asylum. D-Muhumed, 388 F.3d at 819. As
such, because Pan cannot meet the standard for asylum, he cannot meet the
withholding of removal standard. See id.
We likewise find that Pan cannot meet the standard for CAT protection. In
making out a claim under CAT, “[t]he burden of proof is on the applicant . . . to
establish that it is more likely than not that he or she would be tortured if removed
to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). In turn, “torture” is
defined as:
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession, punishing
him or her for an act he or she or a third person has committed or is
suspected of having committed, or intimidating or coercing him or her
or a third person, or for any reason based on discrimination of any kind,
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when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person
acting in an official capacity.
Id. § 208.18(a)(1). Like with the withholding of removal standard, the burden to
establish “torture” for CAT protection is higher than the burden to establish a “well-
founded fear” of future persecution for asylum. See Lapaix v. U.S. Att’y Gen., 605
F.3d 1138, 1145 (11th Cir. 2010); see also 8 C.F.R. § 208.16(c)(2). Because Pan
failed to demonstrate a “well-founded fear of persecution” sufficient to support his
asylum claim, he likewise cannot establish “torture” sufficient to warrant relief under
CAT.
IV. CONCLUSION
Because there is substantial evidence to support the BIA’s decision affirming
the immigration judge’s adverse-credibility determination, we deny Pan’s petition
for review.
PETITION DENIED.
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