Pan v. Holder
2015 U.S. App. LEXIS 1095
| 2d Cir. | 2015Background
- Aleksandr Pan, a Kyrgyz national and ethnic Korean/Evangelical Christian, applied for asylum, withholding of removal, and CAT relief after entering the U.S. in 2008; IJ denied relief in 2010 and BIA affirmed in 2013.
- Pan credibly testified to repeated religious/ethnic-targeted mistreatment from childhood: school beatings, neighbors killing his dog and arson, police interruption of home services, multiple assaults (including a 2007 attack causing concussion and hospitalization), and harassment while proselytizing.
- Pan’s aunt, Galina Pan, an asylee in the U.S., testified and submitted an affidavit recounting violent attacks on church members (2001) and her own 2004 beating that resulted in only a police report and no investigation.
- Country evidence (U.S. State Department human rights report) documented endemic corruption in Kyrgyz police and a 2009 law restricting religious activities.
- IJ and BIA credited Pan’s and Galina’s testimony but concluded the abuse amounted to hate crimes or harassment not rising to persecution and found insufficient proof the Kyrgyz government was unable or unwilling to protect Pan.
- The Second Circuit granted review, finding the IJ and BIA failed to (1) explain why Pan’s violence was not persecution and (2) consider Galina’s testimony and affidavit showing police unwillingness to protect; the court vacated the denials of asylum and withholding and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pan suffered past persecution | Pan: multiple violent attacks, hospitalization, and longstanding targeted harassment constitute past persecution | Gov: incidents are hate crimes/harassment not sufficiently egregious to be persecution | Court: Agency failed to explain why similar violence here is not persecution; vacated and remanded |
| Whether government was unwilling/unable to protect | Pan: police corruption, refusal to investigate, and aunt’s incidents show state can’t/won’t protect | Gov: Pan didn’t report many incidents; failure to identify attacker when reported shows no state failure | Court: Agency ignored record evidence (country report and aunt’s testimony) tending to show police unwillingness; remand required |
| Proper consideration of corroborating third‑party testimony | Pan: Galina’s testimony on police inaction is relevant despite limited personal knowledge of Pan’s assaults | Gov: Each claim must stand on its own; Galina lacks direct knowledge of Pan’s incidents | Court: Third‑party evidence about state response is relevant and was improperly disregarded; must be considered on remand |
| Standard for distinguishing hate crimes from persecution | Pan: violent hate crimes can be persecution when severe and/or with state acquiescence | Gov: Hate crimes alone do not automatically equal persecution | Court: Rejected blanket rule that hate crimes never suffice; violent hate crimes may be at core of persecution; agency must analyze severity/context |
Key Cases Cited
- Zaman v. Mukasey, 514 F.3d 233 (2d Cir. 2008) (reviewing both IJ and BIA opinions when BIA tracks IJ reasoning)
- Melgar de Torres v. Reno, 191 F.3d 307 (2d Cir. 1999) (past persecution creates presumption of well‑founded fear)
- Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332 (2d Cir. 2006) (three violent attacks can preclude a finding of mere harassment)
- Pavlova v. I.N.S., 441 F.3d 82 (2d Cir. 2006) (private persecution can be asylum basis if government unable/unwilling to control it)
- Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) (remand warranted where agency failed to consider relevant evidence)
- Hong Ying Gao v. Gonzales, 440 F.3d 62 (2d Cir. 2006) (country reports showing corruption can support finding government won’t protect applicant)