Pan v. Holder, 12–1887.

• Decision Date: 17 December 2013
• Docket Number: No. 12–1887.,12–1887.
• Parties: HUI PAN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

737 F.3d 921

HUI PAN, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 12–1887.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 19, 2013.

Decided: Dec. 17, 2013.

ARGUED:Joshua A. Berman, Blaine L. Gilbert & Associates, PA, Baltimore, Maryland, for Petitioner. Stephen McCoy Elliott, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Stuart F. Delery, Principal Deputy Assistant Attorney General, Civil Division, Erica B. Miles, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit Judges.

Petition for review denied by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge MOTZ and Judge KEENAN joined.

TRAXLER, Chief Judge:

Hui Pan, a native and citizen of China's Fujian Province, petitions for review of the denial of his application for asylum and withholding of removal based on his claim that government officials will sterilize him if he returns to China. See8 U.S.C. § 1101(a)(42). Pan also seeks review of the denial of his claim under the Convention Against Torture (“CAT”). We deny his petition.

I.

In November 2008, Pan left his home in the Jin' an District of Fuzhou City for the United States. He ended up in Baltimore, Maryland, where he is living with his uncle while his application for asylum works its way through the system. Pan arrived in the United States without valid entry documents, and the Department of Homeland Security (“DHS”) detained him and conducted a credible fear interview. During the interview, Pan claimed that if he returned to China, family planning officials would forcibly sterilize him for violating China's one-child policy. Pan stated that he and his wife, Xiaojuan Chen, already had a daughter when Chen became pregnant in November 2008. According to Pan, when local family planning officials discovered the pregnancy, they forced Chen to have an abortion and beat Pan for resisting. Pan explained that officials took steps to sterilize Chen soon after the abortion but decided she was “not suitable” for sterilization and that Pan would have to be sterilized instead. J.A. 354. When the interviewing officer asked why Chen was unsuitable, Pan answered that government officials “did not explain why she was not able” to be sterilized. J.A. 354. The asylum officer determined that there was “a significant possibility that the assertions underlying [Pan's] claim could be found credible,” J.A. 350, and referred his case for a full asylum determination by an immigration judge (“IJ”).

The DHS placed Pan in removal proceedings, charging him as removable for being present in the United States without having been admitted. See8 U.S.C. § 1182(a)(7)(A)(i)(I). Pan conceded removability and applied for asylum, withholding of removal and relief under the CAT. In support of his asylum application, Pan submitted a written statement that elaborated on various statements he made during his credible fear interview. Pan stated that Chen was three months pregnant when “Birth Control Bureau” personnel appeared at his home on November 25, 2008, charging that Chen's pregnancy violated Birth Control Regulations and that an abortion was required. When Pan attempted to stop them, three men “pushed [him], beat [him] and kicked [him] with their feet.” J.A. 234. According to Pan's statement, officials then took Chen away, performed the abortion and sent her back home the following day. Pan claims, moreover, that government officials returned three days later on November 28 and took her away once again—this time to sterilize her. But as it so happened, Pan alleged, doctors did not perform “a tubal ligation because of her health reasons.” J.A. 235. Pan stated that he was not at home during this second visit by government officials, and that when he returned later that day, he found a notice in his mailbox requiring him to report for sterilization on November 30. After a discussion with his family, Pan decided to flee to the United States without his family. He claimed that he left home on the morning of November 30, 2008, and hid with friends until the middle of December, at which time he left for Beijing. Pan did not specify the location of his initial hiding place. According to his application, Pan stayed in Beijing for two days before flying to Rome. He spent one day in Rome and then flew to Mexico before arriving in the United States in January 2009. Pan's asylum application made no mention of a smuggler and did not address how, if at all, he obtained the travel documents necessary to make such a trip.

Pan submitted several corroborating documents with his application, including a “Fuzhou Surgery Certificate” dated November 25, 2008, the day of the abortion, indicating that Chen was pregnant and that “[i]nduced abortion is to be performed,” J.A. 246; a “Fujian Women and Children Health Center Disease Explanation Form” dated November 28, 2008, stating that “[b]ecause ... Chen has [a] serious skin disease (skin damages) on her skin around the area where she had her operation, it is not advisable for her to get a tubal ligation,” J.A. 249; a notice dated November 28, 2008, that was purportedly issued by the Fuzhou Jin'an District Birth Control Bureau directing Pan to report for sterilization on November 30; a marriage certificate for Pan and Chen; and a birth certificate indicating a daughter was born to Pan and Chen on June 24, 2008.

During his asylum hearing, Pan testified he believed Chen was two months pregnant at the time she was forced to undergo the abortion, but admitted he “[could not] remember clearly.” J.A. 97. Pan recalled that when Chen returned home after the abortion, she had a bandage “[a]round [her] stomach,” looked “pale and weak,” and had difficulty walking. J.A. 99–100. Pan testified that he did not ask Chen for details about the abortion. In explaining why family planning officials decided to have him, rather than Chen, sterilized, Pan told the IJ that Chen could not undergo a sterilization procedure because of a “skin problem.” J.A. 77.

Pan also testified in greater detail regarding his flight from China to the United States. According to Pan, on the same evening he received notice that the government intended to sterilize him, his parents located and hired a smuggler to get him out of China. Pan, however, professed not to know whether or to what extent his parents compensated the smuggler.

Pan stated that on the morning of November 30, 2008, he left for the Mawei District in Fuzhou City where he hid with a friend for two days. Pan testified that after hiding in Fuzhou City for two days, he traveled to Beijing, as arranged by the smuggler, where he stayed for another two days in a house owned by someone he did not know. Finally, Pan testified that he flew to Rome using a passport issued in his actual name and obtained on his behalf from the Chinese government by someone he could not identify. Pan indicated he no longer had this Chinese passport because it was “exchanged” at some point for a Japanese passport. From Rome, Pan flew to Mexico City and then rode in a truck to the Texas border where he was detained by DHS.

The IJ asked Pan how he obtained his corroborating documents for the asylum hearing. Pan responded that friends of his parents brought the documents from China to the United States “discreetly, secretly” and left them with his aunt and uncle in Baltimore. J.A. 88. Pan was unable to name these family friends or provide any contact details for them. When asked to explain why he did not call his aunt or uncle as witnesses to verify receipt of the documents, Pan told the IJ they had to work.

The IJ found that neither Pan's testimony nor his supporting documentation was credible. The IJ offered several reasons to support the adverse credibility determination. First, the IJ found it implausible that Pan's parents could locate and hire a smuggler so quickly—on the same day, in fact, that Pan allegedly learned the government intended to sterilize him. Second, the IJ concluded Pan's testimony about where and with whom he hid in Fuzhou City was vague and inconsistent. Third, the IJ was troubled by Pan's inability to provide details about Chen's abortion beyond a general description of her physical appearance and condition following the procedure. Finally, the IJ expressed “major concern ... as to the authenticity of the documents.” J.A. 45. The IJ observed that “the documents were allegedly provided by an unknown courier to the uncle whose testimony could have been provided today, but was not provided.” J.A. 46. Based on Pan's lack of credibility and the absence of credible independent evidence supporting his claim, the IJ denied Pan's application for relief.

The Board of Immigration Appeals (“BIA”) adopted and affirmed the IJ's decision and dismissed Pan's appeal. In concluding that the adverse credibility determination was not clearly erroneous, the BIA reiterated the IJ's specific reasons and offered additional reasons to support the adverse credibility determination. First, the BIA observed that when Pan began his testimony about the events surrounding Chen's forced abortion, he did not mention being beaten by officials even though that allegation was featured in his credible fear interview and his asylum application. Second, the BIA concluded that Pan's testimony regarding how long Chen had been pregnant at the time of the abortion was inconsistent with the Fuzhou Surgery Certificate he submitted. Third, the BIA found that Pan's explanation that Chen could not be sterilized due to an unspecified skin condition was vague and unclear. Having concluded that the IJ “gave specific and cogent reasons for finding Pan's testimony incredible, which are supported by the record,” the BIA examined the “corroborating documentation [Pan] submitted” and concluded the documents...