13-203-ag Pan v. Holder 1 In the 2 United States Court of Appeals 3 For the Second Circuit 4 5 6…

13‐203‐ag
Pan v. Holder
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2014 7
8
A RGUED: A UGUST 20, 2014 9
D ECIDED: JANUARY 26, 2015 10
11
No. 13‐203‐ag 12
13
A LEKSANDR PAN, 14
Petitioner. 15
16
v. 17
18
E RIC H. HOLDER , JR ., U NITED S TATES A TTORNEY GENERAL 19
Respondent. 20
________ 21
22
Appeal from the Board of Immigration Appeals. 23
File: A 093 354 217 – New York, NY. 24
________ 25
26
Before: WALKER , WESLEY , and L IVINGSTON, Circuit Judges. 27
________ 28
29
Aleksandr Pan petitions for review of the January 7, 2013 30
order of the Board of Immigration Appeals (BIA) dismissing his 31
appeal from an immigration judge’s (IJ) denial of his applications for 32
asylum, withholding of removal, and relief pursuant to the 33

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2 No. 13‐203‐ag
Convention Against Torture (CAT). For the reasons that follow, we 1
conclude that the IJ and BIA failed to consider significant record 2
evidence related to Pan’s claim of past persecution. Therefore, we 3
grant the petition for review, vacate the BIA’s order in part, and 4
remand for further proceedings. 5
________ 6
7
JUDY R ESNICK, Law Office of Judy Resnick, Far 8
Rockaway, NY, for Petitioner. 9
JESSE D AVID L ORENZ (Stuart F. Delery, Emily 10
Anne Radford, Thanh Khiet T. Nguyen, Craig A. 11
Newell, Jr., on the brief), U.S. Department of 12
Justice, Office of Immigration Litigation, 13
Washington, DC, for Respondent. 14
________ 15
16
JOHN M. WALKER , JR ., Circuit Judge: 17
Aleksandr Pan petitions for review of the January 7, 2013 18
order of the Board of Immigration Appeals (BIA) dismissing his 19
appeal from an immigration judge’s (IJ) denial of his applications for 20
asylum, withholding of removal, and relief pursuant to the 21
Convention Against Torture (CAT). For the reasons that follow, we 22
conclude that the IJ and BIA failed to consider significant record 23
evidence related to Pan’s claim of past persecution. Therefore, we 24
grant the petition for review, vacate the BIA’s order in part, and 25
remand for further proceedings. 26

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3 No. 13‐203‐ag
BACKGROUND 1
Pan, a citizen and native of the Kyrgyz Republic, entered the 2
United States on May 9, 2008, under a visitor non‐immigrant visa. 3
On May 8, 2009, Pan filed an asylum request claiming that he was 4
persecuted because he is an ethnic Korean and an Evangelical 5
Christian. 6
At his June 28, 2010 removal proceeding, the IJ noted that Pan 7
credibly testified about several incidents in which he and his family 8
were targeted for mistreatment because of their religion and 9
ethnicity. Pan testified that in his early school years other students 10
beat him because they knew he was an Evangelical Christian. His 11
parents complained to school administrators, but the administrators 12
dismissed the complaints as a “normal phenomenon” in the school. 13
Jt. App’x 120. In 1992, when Pan was about five years old, neighbors 14
hanged his dog from his family’s fence. Later, neighbors lit the fence 15
on fire. 16
After his family moved to a new apartment, Pan’s father 17
began holding religious services in their home. When Pan was seven 18
or eight, the police interrupted his father’s services. They detained 19
and questioned his father and the other attendees for five hours. In 20
1997, the family moved again because of harassment. In 1998, Pan’s 21
father built and opened a new church outside of Bishkek, and Pan 22
began proselytizing on its behalf. 23

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4 No. 13‐203‐ag
In April 2004, during Pan’s final year of high school, some 1
classmates attacked him and called him a “sectant face.” Jt. App’x 2
302. After this attack, Pan missed a week of school. In 2005, four men 3
beat Pan and a friend as they handed out church pamphlets in the 4
marketplace. A crowd stood by and watched the men beat Pan, and 5
no one called the police. Pan explained that he did not call the police 6
after this incident because the Kyrgyz police are “very corrupt” and 7
“if they’re going to do something for you they’re going to want 8
something in exchange.” Jt. App’x 136. Pan added that he feared he 9
would only get in further trouble if the police learned that he had 10
been handing out Christian pamphlets. In July 2007, Pan left the 11
church late after helping with a youth seminar. While he was 12
walking home, an unknown assailant struck Pan from behind on the 13
head. Pan lost consciousness for a few hours, went to the hospital, 14
and was diagnosed with a concussion. Pan reported this attack to 15
the police, but they told Pan they would not investigate because he 16
had not seen his assailant. 17
Pan’s aunt, Galina Pan, also testified on Pan’s behalf. Galina 18
Pan, who lived in the same town as Pan and attended his father’s 19
church, was granted asylum in the United States in 2006. Galina Pan 20
testified to an attack on the church by five men in 2001. The attackers 21
injured her and many other many parishioners. The parishioners 22
filed a complaint with the police, but, “[t]here was no reaction 23

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5 No. 13‐203‐ag
whatsoever, as [was] usually the case.” Jt. App’x 155. Galina Pan’s 1
affidavit in support of her 2006 asylum application was also received 2
into evidence. The affidavit described, among other incidents, an 3
occasion on which the police ordered Galina Pan to report to the 4
precinct and answer questions about her faith, Pan’s father, and 5
other parishioners. The police warned her that they would take 6
action against the members of the church “who attract people to 7
church” if more ethnic Kyrgyzes joined the church. The affidavit 8
also described how, in July 2004, three men attacked Galina Pan 9
outside her house and gave her a concussion. The hospital alerted 10
the police, and a policeman came to the hospital and wrote a report 11
but investigated no further. 12
Finally, Pan submitted secondary materials that included 13
reports from the U.S. State Department. In particular, the State 14
Department’s 2009 Human Rights Report describes corruption as 15
“endemic” at all levels of Kyrgyz society and how “officials engaged 16
in corrupt practices with impunity.” Jt. App’x 271. The report also 17
describes a 2009 law that banned proselytizing, religious 18
conversions, private religious education, and all activities by 19
unregistered religious organizations, while at the same time 20
enlarging the membership necessary to register as a religious 21
organization. 22

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6 No. 13‐203‐ag
On October 14, 2010, Immigration Judge Sandy K. Hom 1
denied Pan’s applications. The IJ credited Pan’s and Galina Pan’s 2
testimony, but found that the mistreatment Pan suffered 3
“represented, at best, hate crimes.” In re Aleksandr Pan, No. A 093 354 4
217 (Immig. Ct. N.Y.C. Oct. 14, 2010). The IJ also found that Pan 5
failed to establish that the Kyrgyz government failed to protect Pan, 6
Koreans, or Evangelical Christians because many of the incidents 7
were not reported to the police, and Pan was unable to identify the 8
attacker in the one incident he did report. The IJ disregarded Galina 9
Pan’s testimony and affidavit because they did not tend to establish 10
persecution of Pan. 11
The BIA affirmed the IJ’s decision and dismissed Pan’s appeal. 12
Reviewing the IJ’s decision de novo, the BIA found that “private 13
citizens targeted [Pan] on account of his Korean ethnicity or his 14
religious beliefs,” but that “the verbal and physical abuse he 15
experienced was [not] sufficiently egregious to rise to the level of 16
past persecution.” In re Aleksandr Pan, No. A 093 354 217 (B.I.A. Jan. 17
7, 2013). Like the IJ, the BIA did not discuss Galina Pan’s testimony 18
or affidavit. Based on the evidence it did consider, the BIA 19
concluded that Pan failed to demonstrate that the Kyrgyz 20
government is unable or unwilling to protect him from the harm 21
that he fears. Id. Thus, though for somewhat different reasons, the 22

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7 No. 13‐203‐ag
BIA agreed with the IJ that Pan failed to show that he suffered past 1
persecution or had a well‐founded fear of future persecution. Id. 2
Pan timely petitioned this court for review of the denial of his 3
claim for asylum and withholding of removal, but not his claim 4
under the CAT. 5
DISCUSSION 6
Because the BIA did not expressly adopt the IJ’s decision, but 7
“its brief opinion closely track[ed] the IJ’s reasoning,” we have 8
reviewed the opinions of both the IJ and the BIA “for the sake of 9
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) 10
(internal quotation marks omitted). We review the IJ’s factual 11
findings under the substantial evidence standard, treating them as 12
“‘conclusive unless any reasonable adjudicator would be compelled 13
to conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). 14
Questions of law and the agency’s application of law to fact are 15
reviewed de novo. Centurion v. Holder, 755 F.3d 115, 119 (2d Cir. 16
2014). 17
To qualify as a refugee and establish eligibility for asylum or 18
withholding of removal, an applicant must establish that he was 19
persecuted or has a “well‐founded fear of persecution on account of 20
race, religion, nationality, membership in a particular social group, 21
or political opinion.” 8 U.S.C. § 1101(a)(42). A well‐founded fear 22
involves both an objective and subjective component. The subjective 23

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8 No. 13‐203‐ag
component may be based on the applicant’s reaction to events, while 1
the objective component must be supported by “proof or objective 2
facts that lend support to the applicant’s subjective fear.” Melgar de 3
Torres v. Reno, 191 F.3d 307, 311 (2d Cir. 1999). A showing that the 4
applicant was a victim of past persecution creates a presumption 5
that a well‐founded fear of future persecution exists. Id. (citing 8 6
C.F.R. § 208.13(b)(1)(i)). Persecution by government actors does not 7
encompass simple harassment, but “violent conduct [amounting to 8
persecution] generally goes beyond the mere annoyance and distress 9
that characterize harassment.” Ivanishvili v. U.S. Depʹt of Justice, 433 10
F.3d 332, 342 (2d Cir. 2006). Private acts can also constitute 11
persecution if the government is unable or unwilling to control such 12
actions. Pavlova v. I.N.S., 441 F.3d 82, 91 (2d Cir. 2006). 13
Here, there was no issue as to Pan’s credibility and the IJ 14
found that Pan indeed suffered the mistreatment to which he 15
testified. The IJ concluded, however, that Pan was not a victim of 16
persecution because “the offending events, individually or 17
collectively, represented, at best, hate crimes.” The IJ added that “[a] 18
hate crime, per se, is a criminal act that is not a sufficient basis to find 19
persecution.” In re Aleksandr Pan, No. A 093 354 217, slip op. at 13. 20
Similarly, although the BIA found that Pan was targeted for 21
mistreatment “on account of his Korean ethnicity or his religious 22
beliefs,” it found that the abuse he experienced was insufficiently 23

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9 No. 13‐203‐ag
egregious to rise to the level of persecution. In re Aleksandr Pan, No. 1
A 093 354 217, slip op. at 2. 2
In our view, the record does not support either the IJ’s or the 3
BIA’s characterization of the abuse Pan suffered. Pan credibly 4
testified about three beatings he received over a four‐year period, 5
the last of which resulted in a two‐week hospitalization. The BIA has 6
concluded elsewhere that an asylum applicant who suffered similar 7
violence was a victim of persecution. See In re O‐Z‐ and I‐Z‐, 22 I. & 8
N. Dec. 23, 25‐26 (B.I.A. 1998) (finding persecution where a father 9
was beaten three times and his son was beaten and humiliated by 10
his classmates). We have also indicated that similar allegations of 11
violence, if found credible, would preclude a finding of mere 12
harassment. See Ivanishvili, 433 F.3d at 342 (three violent attacks 13
accompanied by death threats). 14
The IJ and BIA made no attempt to explain how the violence 15
Pan suffered differed from that suffered by other applicants who 16
have been granted asylum. That failure is significant because “it is a 17
fundamental principle of justice that ‘similarly situated individuals 18
be treated similarly.’” Zhang v. Gonzales, 452 F.3d 167, 173 (2d Cir. 19
2006) (quoting Njuguna v. Ashcroft, 374 F.3d 765, 771 n.4 (9th Cir. 20
2004)); see also Davila‐Bardales v. I.N.S., 27 F.3d 1, 5 (1st Cir. 1994) (“If 21
an administrative agency decides to depart significantly from its 22

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own precedent, it must confront the issue squarely and explain why 1
the departure is reasonable.”). 2
We also take issue with the IJ’s view that “a hate crime, per se, 3
is a criminal act that is not a sufficient basis to find persecution.” In 4
re Aleksandr Pan, No. A 093 354 217, slip op. at 13. Although some 5
hate crimes may not amount to persecution, conduct that rises to the 6
level of persecution either by the government or with its 7
acquiescence may also be a hate crime. Indeed, hatred of a group 8
that manifests itself in violent crimes against members of that group 9
would seem to be at the core of persecution. 10
We also reject the BIA’s alternative finding that Pan failed to 11
establish that the Kyrgyz government was unable or unwilling to 12
protect him. Cf. Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 161 13
(2d Cir. 2006) (denying a petition challenging a rejection of an 14
asylum claim despite errors committed by the IJ where, inter alia, 15
“the IJ explicitly relie[d] on a valid alternative ground for denying 16
relief that [was] not tainted by error”). The IJ observed that Pan 17
failed to report some of the mistreatment to the police and that he 18
was unable to identify his attacker when he did file a report, and the 19
BIA found that the evidence Pan presented failed to establish that 20
the government was unable or unwilling to protect him. 21
We need not decide whether Pan’s unwillingness to confront 22
the police is fatal to his asylum claim because we find that both the IJ 23

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11 No. 13‐203‐ag
and BIA ignored ample record evidence tending to show that the 1
Kyrgyz police were unwilling to investigate the abuse suffered by 2
Pan and his family. See Yan Chen v. Gonzales, 417 F.3d 268, 272 (2d 3
Cir. 2005) (granting petition for review and remanding where the IJ 4
and BIA failed to consider relevant evidence). 5
First, Pan testified that he did not report the 2005 marketplace 6
beating because the police were corrupt and would not help without 7
receiving something in exchange and because such a report might 8
get him into further trouble. Pan’s testimony about police 9
corruption—which was deemed credible by the IJ—is corroborated 10
by the State Department’s 2009 Human Rights report. See Hong Ying 11
Gao v. Gonzales, 440 F.3d 62, 71 (2d Cir. 2006) (country report stating 12
that efforts to combat trafficking were hampered by corruption 13
supported a finding that government would not protect applicant 14
from private abuse), judgment vacated on other grounds sub nom. 15
Keisler v. Hong Yin Gao, 552 U.S. 801 (2007). Neither the IJ nor the 16
BIA analyzed the impact of police corruption on the government’s 17
willingness and ability to protect Pan. 18
Second, the IJ disregarded Galina Pan’s testimony because she 19
lacked personal knowledge of Pan’s experiences. To be sure, each 20
asylum claim must be considered on its own merits. In re Mogharrabi, 21
19 I. & N. Dec. 439, 446 (B.I.A. 1987). However, police unwillingness 22
to protect a similarly‐situated refugee may establish that the 23

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12 No. 13‐203‐ag
government is unable or unwilling to protect the applicant. See, e.g., 1
Abankwah v. I.N.S., 185 F.3d 18, 25‐26 (2d Cir. 1999) (minister’s 2
testimony about inability of Ghanaian government to prevent female 3
genital mutilation supported applicant’s claim that she would be 4
subject to FGM); Mashiri v. Ashcroft, 383 F.3d 1112, 1117‐18 (9th Cir. 5
2004) (police inaction in response to attacks against sons supported 6
mother’s asylum claim). 7
Galina Pan testified (and, again, was found to be credible by 8
the IJ) that the police, as usual, did nothing in response to the 2001 9
attack on her (and Pan’s) church. Her affidavit also described how 10
the police failed to do anything other than write a report after her 11
2004 beating. Such police inaction in response to the significant 12
violence Galina Pan suffered tends to prove that the government is 13
unwilling to protect its citizens and should have been considered by 14
the adjudicating authorities below. See in re O‐Z‐ & I‐Z‐, 22 I. & N. 15
Dec. at 23 (“[g]overnment was unable or unwilling to control the 16
[applicant’s] attackers” where “police . . . took no action beyond 17
writing a report”). Given the similarities between Pan’s and Galina 18
Pan’s claims of persecution on account of their Korean ethnicity and 19
Evangelical Christianity, it was error for the IJ and BIA to ignore 20
record evidence that the Kyrgyz authorities were unwilling to 21
protect Galina Pan from persecution. See Yan Chen, 417 F.3d at 272. 22

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13 No. 13‐203‐ag
In sum, we grant Pan’s petition for review because the IJ and 1
BIA: (1) failed to adequately explain why the significant violence 2
Pan suffered was insufficiently egregious to constitute persecution 3
and (2) failed to consider record evidence of Galina Pan’s testimony 4
and affidavit, which tend to prove that the Kyrgyz police are 5
unwilling or unable to protect Pan from private persecutors. We 6
therefore vacate the BIA’s findings that Pan was not a victim of past 7
persecution and did not have a well‐founded fear of future 8
persecution. 9
Accordingly, we vacate the denial of asylum and the 10
derivative denial of withholding of removal. We leave undisturbed 11
the denial of Pan’s CAT claim, which was not appealed. 12
CONCLUSION 13
For the reasons stated above, we GRANT the petition for 14
review, VACATE the judgment of the Board of Immigration 15
Appeals in part, and REMAND for further proceedings consistent 16
with this opinion. 17

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