Zhikeng Tang v. Lynch

Decision Date26 October 2016
Docket NumberNo. 15-1879,15-1879
Citation840 F.3d 176
Parties Zhikeng Tang, a/k/a Zhikeng Tansg, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

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.

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.

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

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 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 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. 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.

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 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 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...

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