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.
2

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)
3

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.
4

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 
5

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.
6

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.
7

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 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 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 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 wellfounded fear of future persecution to qualify as a refugee for 

asylum purposes.
8

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 
9

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. 
10

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.
11

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 
12

‘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.
13

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 
14

‘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 
15

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.