Zhikeng Tang v. Loretta Lynch
2016 U.S. App. LEXIS 19324
| 4th Cir. | 2016Background
- Tang, a Chinese national, entered the U.S. in 2009 and converted to Catholicism in 2011; he applied for asylum, withholding of removal, and CAT protection based on his underground church practice.
- He conceded removability; the IJ found his testimony credible but denied relief, concluding he had not shown objective risk of persecution or torture.
- Tang relied primarily on State Department country reports and letters from contacts in China describing isolated incidents involving unregistered/underground churches.
- The IJ and Board found the reports showed only sporadic, locale-specific harassment and that China officially recognizes registered Catholic churches; neither the IJ nor Board found evidence the government knew of or would target Tang individually.
- Tang did not appeal the IJ’s denial of CAT protection to the Board (administrative exhaustion issue); he did not claim past persecution.
- The Fourth Circuit reviewed for substantial evidence and denied Tang’s petition for review, affirming the Board’s determinations.
Issues
| Issue | Tang's Argument | Government's Argument | Held |
|---|---|---|---|
| Asylum — well‑founded fear of future persecution (religion) | Tang argued State Dept. reports and letters show objective risk to underground Catholics and thus a reasonable possibility of persecution if returned | Government argued reports show only isolated, location‑specific harassment and China recognizes registered Catholicism; no evidence Tang would be singled out | Denied — substantial evidence supports Board that Tang failed to show objective risk or a pattern/practice of persecution for similarly situated persons |
| Withholding of removal — clear probability of persecution | Tang argued same evidence supporting asylum also meets the higher withholding standard | Government argued withholding requires more likely‑than‑not showing, higher than asylum, which Tang did not meet | Denied — because Tang failed asylum, he necessarily failed the higher withholding standard |
| CAT — likelihood of torture if returned | Tang asserted government torture of unregistered church members is widespread, so CAT relief warranted | Government argued evidence did not show likely torture; Board not given opportunity to review IJ’s CAT ruling because Tang did not administratively appeal | Not reviewed on merits — court lacked jurisdiction due to Tang’s failure to exhaust administrative remedies before the BIA |
| Jurisdiction/Exhaustion (procedural) | Tang did not contest exhaustion for asylum/withholding; he failed to appeal IJ’s CAT denial to the Board | Government contended failure to exhaust bars judicial review of CAT claim | Held — CAT claim dismissed for lack of jurisdiction due to failure to exhaust administrative remedies |
Key Cases Cited
- Rusu v. INS, 296 F.3d 316 (4th Cir. 2002) (elements of asylum claim: subjective fear, objective reasonableness, and basis in objective reality)
- Yong Hao Chen v. INS, 195 F.3d 198 (4th Cir. 1999) (pattern or practice showing requires demonstration of thorough or systematic persecution)
- Ai Hua Chen v. Holder, 742 F.3d 171 (4th Cir. 2014) (State Dept. reports showing isolated harassment do not compel finding of widespread persecution)
- Djadjou v. Holder, 662 F.3d 265 (4th Cir. 2011) (substantial‑evidence standard in immigration review)
- Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010) (withholding standard is more demanding than asylum)
- INS v. Elias‑Zacarias, 502 U.S. 478 (1992) (review limitations where evidence does not compel opposite conclusion)
- Cordova v. Holder, 759 F.3d 332 (4th Cir. 2014) (jurisdictional bar where administrative remedies not exhausted)