Zhikeng Tang v. Loretta Lynch

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: A205-096-656. [999955492]. [15-1879]

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

the

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.

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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”).
substantial

evidence

supports

the

Board’s

decision,

Because
we

deny

Tang’s petition for review.

I.
Tang

entered

the

admission or inspection.
Fuzhou

City,

China,

United

States

in

July

2009

without

His wife and child remained behind in

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

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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.
Tang

claimed

Catholic

his

church,

maintained

that

Despite China’s recognition of Catholicism,
faith

obliged

rather
he

than

would

a

him

to

attend

state-approved

proselytize

if

he

an

underground

church.

were

Tang

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

churches in that country.

persecution

of

underground

Catholic

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.
3

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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

removal.

Finally,

with

determined

that

Tang

higher

standard

respect

had

“not

to

for

CAT

shown

withholding

protection,
even

an

of

the

IJ

objectively

reasonable chance that he will face torture in China, much less
the requisite ‘more likely than not’ chance of torture.”
50.

J.A.

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.

Chinese

The

Board

government

found
was

that

aware

or

Tang

had

would

not
become

shown

that

aware

the

of

his

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

practice

of

situated to him.”

persecution
J.A. 3.

in

China

of

persons

similarly

The Board also noted that Tang did

4

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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

Lynch, 807 F.3d 95, 97 (4th Cir. 2015).

Hernandez-Nolasco

v.

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

(2012).

contrary

to

law.”

8

U.S.C.

§

1252(b)(4)(C)

The alien has the burden of proving that he or she is

entitled to asylum, withholding of removal, or protection under
CAT.

See

8

§ 1231(b)(3)(C)

U.S.C.

§ 1158(b)(1)(B)

(withholding

of

(2012)
removal);

(asylum);
8

id.

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.”

2

Temu v.

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

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Holder, 740 F.3d 887, 891 (4th Cir. 2014).
“decisions

must

remain

undisturbed

if

The Board’s removal

they

are

supported

by

reasonable, substantial, and probative evidence on the record
considered as a whole.”
Cir. 2011).

Tassi v. Holder, 660 F.3d 710, 719 (4th

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)).
conclusions de novo.

We review the Board’s legal

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
contends

a

well-founded

that

this

fear

holding

of
is

evidence.
6

future

not

persecution.

supported

by

Tang

substantial

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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 wellfounded

fear

nationality,

of

persecution

membership

political opinion.”

in

on
a

account
particular

of

race,

social

8 U.S.C. § 1101(a)(42)(A).

religion,
group,

or

“The applicant

may qualify as a refugee . . . because he or she has a wellfounded 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

constitute a threat to life or freedom.’”

severe

that

they

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 wellfounded fear of future persecution to qualify as a refugee for
asylum purposes.
7

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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.”
324 (4th Cir. 2002).

Rusu v. INS, 296 F.3d 316,

“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.
Ai

Hua

Chen

v.

Holder,

742

F.3d

171,

181

(4th

See, e.g.,
Cir.

2014)

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

task,

therefore,

was

to
8

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
applicant]

possibility
were

to

§ 1208.13(b)(2)(i)(B).

of

suffering

return

to

The

such

that

alien

persecution

country.”

is

if
8

required

“to

[the

C.F.R.
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.
9

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

support

record

contains

no

evidence

that

would

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

confirm

Rights

that

the

Catholic

Church,

Catholic

churches,

Report
Chinese
millions
the

(J.A.

246-405). 4

government
of

recognizes

Catholics

government

“has

These

attend
allowed

documents
the

Roman

registered
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.
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bishops have reconciled with the Vatican.”

J.A. 201.

Moreover,

if Tang wishes to attend an underground church instead of an
officially
provide

recognized

that

church,

individuals

the

who

State

do

not

Department

documents

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”

supported by the record in this case.
Tang

counters

with

is

substantially

J.A. 3.

several

isolated

examples

of

mistreatment recited in the State Department documents of those
who

attend

unsanctioned

churches in general.

Catholic

churches

and

unregistered

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
11

to

attend

an

unsanctioned

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or

‘house’

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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

attending house churches in the Fujian Province.”

of
Id.

Christians
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.
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Accordingly, we conclude -- as we did in Ai Hua Chen -that

the

document
treatment

accounts
only

in

isolated

of

the

State

instances

unregistered

Department
of

reports,

which

harassment

and

disparate

churches

in

different

Catholic

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
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‘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.”
(4th Cir. 2010).

Mirisawo v. Holder, 599 F.3d 391, 396

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

protection under CAT.

the

Board’s

refusal

to

extend

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

would

be

tortured if removed to the proposed country of removal.”

8

C.F.R. § 1208.16(c)(2).

than

not

that

he

or

she

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
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the

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alien

Filed: 10/26/2016

as

of

right.”

Pg: 15 of 15

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.

15