         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




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