Zhikeng Tang v. Loretta Lynch , 840 F.3d 176 ( 2016 )

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.
3
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.
7
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
8
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.
9
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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