Pan v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT QINGYAN PAN; YUTONG No. 22-46 HE; KUNYUN HE; YUJIN HE, Agency Nos. A206-345-608 Petitioners, A206-345-611 A206-345-609 v. A206-345-610 MERRICK B. GARLAND, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted August 16, 2023 Pasadena, California Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges. Pan Qingyan, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of her applications for asylum, withholding, and protection under the Convention Against Torture (“CAT”). Pan’s husband, He Kunyun, and two * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. foreign-born children, Yujin and Yutong, are derivative beneficiaries of Pan’s asylum application. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition. 1. Substantial evidence does not support the BIA’s conclusion that Pan did not have a well-founded fear of future persecution by the Chinese government on account of her membership in the Local Church. Pan has a well-founded fear if (1) she has a fear of persecution in China on account of her religion; (2) there is a reasonable possibility of suffering persecution if she returns to China; and (3) she is unable or unwilling to return to China because of such fear. See 8 C.F.R. § 1208.13(b)(2). Pan credibly testified to her subjective fear and unwillingness to return to China. But the BIA rejected Pan’s claim and found that she did not provide evidence that “she is a member of the banned Shouters Church or that she faces a reasonable possibility of persecution.” The record compels the opposite conclusion. Pan submitted a report from the U.S. Department of State establishing that the “Shouters” are a religious group criminally banned by the Chinese government and “those belonging to them can be sentenced up to life in prison.” U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., International Religious Freedom Report for 2016 (2016). Neither the agency nor the government questions whether the Chinese government persecutes the Shouters. 2 Instead, the government argues that Pan did not objectively establish a connection between her church and the Shouters. To the contrary: The record compels the conclusion that Pan’s church is the same religious group as the “Shouters.” Pan credibly testified that she belonged to the Local Church, which is called the Shouters in China. And ample evidence in the record supports Pan’s testimony that the Local Church is the same religious group as the Shouters. Pan submitted congressional records showing that the Local Church and the Shouters originated from the same founders and ministry, who are labeled “dangerous” “cult leader[s]” by the Chinese government. 160 Cong. Rec. E621 (daily ed. Apr. 29, 2014) (statement of Rep. Pitts). Further, the congressional records reveal that the Local Church …

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