Zhikeng Tang v. Loretta Lynch

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1879

ZHIKENG TANG, a/k/a Zhikeng Tansg,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals.

Argued: September 20, 2016 Decided: October 26, 2016

Before GREGORY, Chief Judge, and KING and AGEE, Circuit Judges.

Petition denied by published opinion. Judge Agee wrote the

opinion, in which Chief Judge Gregory and Judge King joined.

ARGUED: Gary Jay Yerman, YERMAN & JIA, LLC, New York, New York,

for Petitioner. Sarah Elizabeth Crockett, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON

BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney

General, Civil Division, Leslie McKay, Assistant Director,

Office of Immigration Litigation, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent.

AGEE, Circuit Judge:

Petitioner Zhikeng Tang, a native and citizen of China,

seeks review of the decision of the Board of Immigration Appeals

(the “Board”) denying his requests for asylum, withholding of

removal, and protection under the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (“CAT”). Because

substantial evidence supports the Board’s decision, we deny

Tang’s petition for review.

I.

Tang entered the United States in July 2009 without

admission or inspection. His wife and child remained behind in

Fuzhou City, China, located within the Fujian Province. In

August 2011, a coworker introduced Tang to Catholicism, and he

began to attend a local church. He filed for asylum later that

year, and the government initiated removal proceedings. 1

1 Although Tang filed his asylum application more than two

years after entering the United States, the immigration judge

ruled that Tang’s application was timely. An application for

asylum must be filed within one year after the alien enters the

country, unless the alien shows “either the existence of changed

circumstances which materially affect the applicant’s

eligibility for asylum or extraordinary circumstances relating

to the delay in filing an application within the period

specified.” See 8 U.S.C. § 1158(a)(2)(B), (D) (2012). The

immigration judge found that Tang’s adoption of Catholicism was

a changed circumstance and that he filed his application within

(Continued)

2

During a hearing before an immigration judge (“IJ”), Tang

conceded removability, but sought asylum, withholding of

removal, and CAT protection based on his new-found religion.

Tang testified that his faith was genuine and that he shared his

religious teachings with his family and friends. He submitted

letters and other documents evidencing his membership in the

Catholic Church. Despite China’s recognition of Catholicism,

Tang claimed his faith obliged him to attend an underground

Catholic church, rather than a state-approved church. Tang

maintained that he would proselytize if he were removed to

China, and he feared persecution by the Chinese government for

participation in an underground church. In support of his claim

that he would be persecuted, Tang proffered letters from his

wife and a friend, both in China, which represented that there

were some instances of persecution of underground Catholic

churches in that country. Tang also provided the IJ with two

State Department reports that he viewed as critical of China’s

treatment of certain religious groups.

The IJ determined that Tang’s testimony was credible, but

that Tang had not met his burden of showing that he would be

persecuted in China for practicing Catholicism. The IJ

a reasonable time period following his conversion. The

Government did not contest this holding before the Board or on

appeal. Thus, the timeliness of Tang’s filing is not before us.

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suggested that Tang would be able to join the Catholic Church

sanctioned by the Chinese government and noted that Tang had not

explained how this church was not authentic. Despite Tang’s

testimony and the other evidence submitted in the case, the IJ

did not “find enough evidence to establish that [Tang] faces an

objectively reasonable risk of persecution on account of his

Roman Catholicism.” J.A. 49. Because Tang could not meet the

standard for asylum eligibility, the IJ concluded that he also

failed to satisfy the higher standard for withholding of

removal. Finally, with respect to CAT protection, the IJ

determined that Tang had “not shown even an objectively

reasonable chance that he will face torture in China, much less

the requisite ‘more likely than not’ chance of torture.” J.A.

50. The IJ ordered Tang’s removal to China.

On administrative appeal, the Board agreed with the IJ that

Tang “did not meet his burden to establish his eligibility for

asylum or withholding of removal under the Act based on his

conversion to Roman Catholicism while in the United States.”

J.A. 3. The Board found that Tang had not shown that the

Chinese government was aware or would become aware of his

Catholic faith, nor had he “established that there is a pattern

or practice of persecution in China of persons similarly

situated to him.” J.A. 3. The Board also noted that Tang did

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not challenge the IJ’s CAT ruling and, thus, that claim was

waived.

II.

When the Board adopts and supplements an IJ decision, as it

did here, we review both rulings. See Hernandez-Nolasco v.

Lynch, 807 F.3d 95, 97 (4th Cir. 2015). Our review is “narrow

and deferential,” Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir.

2011), and we will uphold the Board’s removal decision unless it

is “manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(C)

(2012). The alien has the burden of proving that he or she is

entitled to asylum, withholding of removal, or protection under

CAT. See 8 U.S.C. § 1158(b)(1)(B) (2012) (asylum); id.

§ 1231(b)(3)(C) (withholding of removal); 8 C.F.R.

§ 1208.16(c)(2) (CAT). 2

We review the Board’s factual rulings under the substantial

evidence standard, which dictates that “findings of fact are

conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2012).

In other words, “[w]e uphold factual findings unless no rational

factfinder could agree with the [Board’s] position.” Temu v.

2

Unless otherwise indicated, all citations to the Code of

Federal Regulations are to the version in effect at the time the

described events took place.

5

Holder, 740 F.3d 887, 891 (4th Cir. 2014). The Board’s removal

“decisions must remain undisturbed if they are supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.” Tassi v. Holder, 660 F.3d 710, 719 (4th

Cir. 2011). We may not reweigh the evidence, see Lin v. Holder,

736 F.3d 343, 351 (4th Cir. 2013), and, “[e]ven if the record

‘plausibly could support two results: the one the IJ chose and

the one [the petitioner] advances, reversal is only appropriate

where the court find[s] that the evidence not only supports [the

opposite] conclusion, but compels it.’” Mulyani v. Holder, 771

F.3d 190, 197 (4th Cir. 2014) (quoting Niang v. Gonzales, 492

F.3d 505, 511 (4th Cir. 2007)). We review the Board’s legal

conclusions de novo. See Hernandez-Nolasco, 807 F.3d at 97.

III.

Tang challenges the Board’s denial of asylum, withholding

of removal, and CAT protection. We address each in turn.

A.

Tang argues primarily that the Board’s decision to deny his

asylum request is erroneous. Specifically, he takes issue with

the Board’s determination that he did not meet his burden of

showing a well-founded fear of future persecution. Tang

contends that this holding is not supported by substantial

evidence.

6

The Immigration and Nationality Act empowers the Attorney

General to grant asylum to aliens who qualify as refugees under

the statutory definition, at her discretion. See 8 U.S.C.

§ 1158(b)(1)(A) (2012); Hernandez-Avalos v. Lynch, 784 F.3d 944,

948 (4th Cir. 2015). The alien has the burden of proving that

he or she is a refugee, 8 U.S.C. § 1158(b)(1)(B), defined as

“any person who is outside any country of such person’s

nationality . . . and who is unable or unwilling to return to,

and is unable or unwilling to avail himself or herself of the

protection of, that country because of persecution or a well-

founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1101(a)(42)(A). “The applicant

may qualify as a refugee . . . because he or she has a well-

founded fear of future persecution.” 8 C.F.R. § 1208.13(b). 3

“Persecution takes the form of ‘threats to life, confinement,

torture, and economic restrictions so severe that they

constitute a threat to life or freedom.’” Singh v. Holder, 699

F.3d 321, 332 (4th Cir. 2012) (quoting Fatin v. INS, 12 F.3d

1233, 1240 (3d Cir. 1993)). Actions “less severe than threats

3

An applicant can raise a rebuttable presumption of future

persecution by showing that he or she has suffered past

persecution. However, Tang did not allege past persecution at

any stage of the proceedings and therefore must show a well-

founded fear of future persecution to qualify as a refugee for

asylum purposes.

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to life or freedom” may rise to the level of persecution, but

they must be something more than “mere harassment.” Li v.

Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (quoting Dandan v.

Ashcroft, 339 F.3d 567, 573 (7th Cir. 2003)) (internal quotation

marks omitted).

Based on the applicable statutory provisions, an applicant

“must show (1) that he has a subjective fear of persecution

based on race, religion, nationality, social group membership,

or political opinion, (2) that a reasonable person would have a

fear of persecution in that situation, and (3) that his fear has

some basis in objective reality.” Rusu v. INS, 296 F.3d 316,

324 (4th Cir. 2002). “The subjective component is satisfied ‘by

presenting candid, credible, and sincere testimony demonstrating

a genuine fear of persecution,’” while “‘[t]he objective element

requires the asylum [applicant] to show, with specific, concrete

facts, that a reasonable person in like circumstances would fear

persecution.’” Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir.

2010) (quoting Yong Hao Chen v. INS, 195 F.3d 198, 201-02 (4th

Cir. 1999)).

Tang has satisfied the subjective component of his claim

based upon the IJ’s favorable credibility finding. See, e.g.,

Ai Hua Chen v. Holder, 742 F.3d 171, 181 (4th Cir. 2014)

(“Again, both Li and Chen were found to be credible witnesses.

Their task, therefore, was to establish that their genuine

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subjective fear of persecution based on their religious faith is

objectively reasonable . . . .”). The only issue, then, is

whether he can demonstrate an objective fear of persecution.

An objective fear of persecution exists when “[t]here is a

reasonable possibility of suffering such persecution if [the

applicant] were to return to that country.” 8 C.F.R.

§ 1208.13(b)(2)(i)(B). The alien is required “to provide

evidence that there is a reasonable possibility he or she would

be singled out individually for persecution” unless “[t]he

applicant establishes that there is a pattern or practice [of

persecution on account of the applicant’s religion] in his or

her country of nationality.” Id. § 1208.13(b)(2)(iii); see also

Yong Hao Chen, 195 F.3d at 203-04. To establish a pattern or

practice of persecution, “[t]he key for the applicant is to show

the thorough or systematic nature of the persecution he fears.”

Yong Hao Chen, 195 F.3d at 203.

Here, Tang has not argued that he will be singled out for

persecution in China, nor has he asserted that the Chinese

government has any awareness of his religious affiliation. In

fact, the Board observed that Tang had presented no evidence

suggesting the Chinese government was in any way cognizant of

him or his religious beliefs. Tang, therefore, has waived any

challenge to the Board’s conclusion that he failed to prove he

would be singled out for persecution. See Suarez-Valenzuela v.

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Holder, 714 F.3d 241, 248-49 (4th Cir. 2013) (“Consequently, by

neglecting to challenge the BIA’s findings . . . in his opening

brief, Suarez-Valenzuela waived this argument.”). In any event,

the record contains no evidence that would support that

argument.

Thus, Tang can satisfy his burden of proof only by showing

a pattern or practice of persecution in China against persons

similarly situated to him. He fails to do so.

The determination that Tang did not face “an objectively

reasonable chance (at least a ten percent chance) of persecution

in China” is supported by Tang’s own evidence in the record.

Tang, for instance, submitted two State Department documents: a

2012 International Religious Freedom Report (J.A. 197-244) and a

2012 Human Rights Report (J.A. 246-405). 4 These documents

confirm that the Chinese government recognizes the Roman

Catholic Church, millions of Catholics attend registered

Catholic churches, the government “has allowed the Vatican

discreet input into selecting some bishops” of the registered

Catholic Church, and “an estimated 90 percent of [registered]

4

Tang offered the State Department’s 2014 International

Religious Freedom Report, published in late 2015, to this Court

in a filing pursuant to Federal Rule of Appellate Procedure

28(j). However, “the court of appeals shall decide the petition

only on the administrative record on which the order of removal

is based.” 8 U.S.C. § 1252(b)(4)(A) (2012). We decline to

consider this evidence as it was not part of the administrative

record on which the Board and IJ relied.

10

bishops have reconciled with the Vatican.” J.A. 201. Moreover,

if Tang wishes to attend an underground church instead of an

officially recognized church, the State Department documents

provide that individuals who do not participate in the

recognized church are generally permitted to worship at home

without registration, and “[i]n parts of the country, local

authorities tacitly approved of or did not interfere with the

activities of unregistered groups.” J.A. 204. The Board’s

observation that the State Department reports “do not show that

there is a pattern or practice of persecution in China of

persons similarly situated to him, ordinary lay practitioners

who attend underground Catholic churches” is substantially

supported by the record in this case. J.A. 3.

Tang counters with several isolated examples of

mistreatment recited in the State Department documents of those

who attend unsanctioned Catholic churches and unregistered

churches in general. For example, the documents suggest that

some local governments “pressure unregistered Catholic priests

and believers to renounce all ordinations approved by the Holy

See.” J.A. 201-02. Tang’s arguments are similar to those we

rejected in Ai Hua Chen v. Holder, 742 F.3d 171 (4th Cir. 2014).

In Ai Hua Chen, the petitioners were “practicing

Christians” who claimed that, if removed to China, they “would

be compelled by [their] beliefs to attend an unsanctioned

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‘underground’ or ‘house’ church rather than an ‘official

registered church’ that ‘preach[es] about the . . . government’s

policies.’” Id. at 181-82. In support of those assertions, the

petitioners recited isolated incidents noted in State Department

documents, like those upon which Tang now relies. We observed,

“[a]lthough these materials certainly reported isolated cases of

official harassment, the general picture presented by both

reports was simply that official treatment of Christians who

attend unregistered house churches varies substantially based on

locale and that such Christians in many regions practice their

religion without interference.” Id. at 183. Like Tang here,

the petitioners failed to “direct[] us to any portion of these

reports suggesting widespread persecution of Christians

attending house churches in the Fujian Province.” Id. Thus, we

concluded that their “evidence [was] not so compelling that we

cannot defer to the agency’s factual determinations.” Id. 5

Likewise, Tang’s reliance on random instances of harassment in

State Department documents does not demonstrate the widespread

persecution he needs to satisfy his burden. 6

5 We ultimately granted the petition for review on grounds

of “China’s one-child policy,” but we denied the petition “to

the extent it [was] grounded on the religious faith of the

petitioners.” Ai Hua Chen, 742 F.3d at 174.

6 Tang also references the letters of his wife and a friend,

but, at best, these letters show only isolated and sporadic

instances of actions related to an underground church.

12

Accordingly, we conclude -- as we did in Ai Hua Chen --

that the accounts in the State Department reports, which

document only isolated instances of harassment and disparate

treatment of unregistered Catholic churches in different

locations, substantially support the Board’s finding of a lack

of widespread persecution. We cannot say that “the applicant’s

evidence ‘was such that a reasonable factfinder would have to

conclude that the requisite fear of persecution existed.’”

Djadjou, 662 F.3d at 273 (quoting INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992)). Therefore, we cannot disturb the Board’s

conclusion that Tang failed to establish a well-founded fear of

persecution. See Ai Hua Chen, 742 F.3d at 184.

B.

Next, Tang contends that the Board erred in denying his

application for withholding of removal. Tang asserts that the

evidence that supports his claim for asylum likewise allows him

to satisfy the withholding of removal requirements.

The withholding of removal eligibility standard requires an

applicant to “establish that if she is removed, there is a clear

probability that her ‘life or freedom would be threatened . . .

because of [her] race, religion, nationality, membership in a

particular social group, or political opinion.’” Marynenka, 592

F.3d at 600 (quoting 8 U.S.C. § 1231(b)(3)(A) (2012)) (emphasis

added). “To establish clear probability, the alien must prove

13

‘it is more likely than not that [his] life or freedom would be

threatened in the country of removal.’” Lizama v. Holder, 629

F.3d 440, 446 (4th Cir. 2011) (quoting Gomis v. Holder, 571 F.3d

353, 359 (4th Cir. 2009)). This burden of proof is more

demanding than that of asylum, and therefore “an applicant who

fails to meet the lower standard for showing eligibility for

asylum will be unable to satisfy the higher standard for showing

withholding of removal.” Mirisawo v. Holder, 599 F.3d 391, 396

(4th Cir. 2010). Because Tang failed to meet his burden of

proof for asylum, we necessarily hold that Tang has not shown

that he is entitled to withholding of removal. See Ai Hua Chen,

742 F.3d at 184.

C.

Finally, Tang appeals the Board’s refusal to extend

protection under CAT. He argues that the evidence he presented

shows that the government torture of unregistered church members

is prolific in China.

An alien may qualify for CAT protection if he or she shows

that “it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.” 8

C.F.R. § 1208.16(c)(2). Although Tang brought a claim under CAT

before the IJ, he failed to appeal the IJ’s denial of that claim

to the Board. A final order of removal is reviewable only if

“the alien has exhausted all administrative remedies available

14

to the alien as of right.” 8 U.S.C. § 1252(d)(1) (2012).

Because Tang failed to exhaust his administrative remedies on

this claim, we lack jurisdiction to review it. See Cordova v.

Holder, 759 F.3d 332, 336 n.2 (4th Cir. 2014).

IV.

For all these reasons, Tang’s petition for review of the

Board’s decision is

DENIED.

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