Zhongwen Tang v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 2022
• Docket: 17-71471
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ZHONGWEN TANG, AKA Ken Chan, No. 17-71471 AKA Andrew Tang, AKA Zhong Tang, Agency No. A070-041-799 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 15, 2022** Las Vegas, Nevada

Before: RAWLINSON and BENNETT, Circuit Judges, and COGAN,*** District Judge.

The Board of Immigration Appeals (“BIA”) affirmed the Immigration Judge’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation. (“IJ”) denial of Petitioner Zhongwen Tang’s application for withholding of removal.

Tang, a native and citizen of China, seeks review of the denial of withholding of

removal. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition in part

and dismiss in part.1

We review questions of law de novo. Lopez v. I.N.S., 184 F.3d 1097, 1099

(9th Cir. 1999). “The court must uphold the BIA’s findings unless the evidence

presented would compel a reasonable finder of fact to reach a contrary result.”

Singh-Kaur v. I.N.S., 183 F.3d 1147, 1149–50 (9th Cir. 1999). “Where the BIA

issues its own decision but relies in part on the [IJ’s] reasoning, we review both

decisions.” Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014) (citation omitted).

“A person seeking withholding of removal must prove not only that his life or

freedom will be threatened in his home country, but also that the threat is ‘because

of’ one of the five listed reasons.” Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th

Cir. 2017); see also id. at n.5 (citing 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)).

“To establish eligibility for withholding of removal in the absence of past

persecution, an applicant must demonstrate both that he has a subjective fear of

persecution in the future, and that this fear is objectively reasonable—which, in the

withholding context, means that the chance of future persecution is ‘more likely than

1 The IJ noted that “with respect to any application for post-conclusion voluntary departure, the respondent is not eligible for this form of relief.” Tang did not challenge this finding before the BIA or this Court.

2 not.’” Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009) (quoting 8 C.F.R.

§ 208.16(b)(2)).

Substantial evidence supports the BIA’s affirmance of the IJ’s finding that

Tang failed to establish past persecution or a clear probability of future persecution

in China. For example, Tang claims that “he was not permitted to attend college” in

China because he “attended a Baptist church, presumably one not aligned with or

otherwise sanctioned by the [Chinese] government.” But Tang provided no

evidence for this claim and described the church he allegedly attended once a week

in Shanghai only as “some kind of . . . Baptist Church or something.” Tang concedes

that “the Chinese government has allowed Christianity . . . to be practiced within its

borders,” and gives no evidence that the churches he attended or the Christian beliefs

he held and practiced were “presumably . . . not aligned with” the Chinese

government.

In fact, other than his unsubstantiated claim that he was barred from attending

university in China, Tang did not claim to have suffered any negative treatment from

the Chinese government because of his practice of Christianity. Tang conceded that

he was never “beaten or physically abused” by the Chinese government. Tang also

acknowledged that he did not fear going back to China when he first arrived in the

United States and claimed that he later developed a fear of returning to China

because his passport expired. There is no evidence that Tang’s failure to obtain a

3 passport is due to his Christian beliefs; Tang merely speculates that “the possibility

also exists that . . . no passport has been or will be issued because he has been deemed

undesirable and unwelcome in his own country.”

Tang also claims that his grandparents “were detained for at least one year”

for “their practice of religions not sanctioned by the [Chinese] government.” But

Tang apparently conceded that he did not know why his grandparents were detained.

Tang also acknowledged that his grandparents continued to live in China after their

release, and Tang never argued that the Chinese government harmed them further.

See Sinha v. Holder, 564 F.3d 1015, 1022 (9th Cir. 2009) (“[A] petitioner’s fear of

future persecution ‘is weakened, even undercut, when similarly-situated family

members’ living in the petitioner’s home country are not harmed.”) (citation

omitted). Tang also claimed that his mother “had been denied retirement benefits,

presumably due to her or her parents’ exercise of religion.” But Tang provided no

evidence for this claim and failed to exhaust it before the BIA. See Zara v. Ashcroft,

383 F.3d 927, 930 (9th Cir. 2004) (“We have held that ‘[f]ailure to raise an issue in

an appeal to the BIA constitutes a failure to exhaust remedies with respect to that

question and deprives this court of jurisdiction to hear the matter.’”) (citations

omitted).

Finally, Tang claims that the Chinese authorities may “renew . . . [their]

interest . . . in [his] history of religious practice” or that he may be “already well

4 known” to them. Tang testified before the IJ that he continues to attend a church in

Las Vegas “almost like once a week” and that he has friends there. But Tang stated

that he “forget[s] the name, the whole name” of the church and identified it only as

being “by the Chinatown” in Las Vegas. Tang also had no letters or testimony to

support his claim, from the church leadership or anyone with whom he attended

church. And Tang admitted that he has not suffered physical harm from the Chinese

government in the past. Thus, substantial evidence supported the IJ’s finding that

Tang failed to “establish a ‘clear probability’ of future persecution in China” due to

“any religious activities in which he has been participating in the United States,” and

that it was “unclear whether the respondent’s fear of return to China on account of

his religion is subjectively genuine.” See Wakkary, 558 F.3d at 1060 (“To establish

eligibility for withholding of removal in the absence of past persecution, an applicant

must demonstrate both that he has a subjective fear of persecution in the future, and

that this fear is objectively reasonable.”).

PETITION DENIED IN PART, DISMISSED IN PART.