17-41 Jiang v. Sessions BIA Hom, IJ A077 718 901

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of December, two thousand eighteen.

PRESENT: PIERRE N. LEVAL, REENA RAGGI, RICHARD C. WESLEY, Circuit Judges. _____________________________________

YAN JIANG,

Petitioner,

v. 17-41 NAC

MATTHEW G. WHITAKER, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Dehai Zhang, Esq., Flushing, New York. FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Briena L. Strippoli, Senior Litigation Counsel; Timothy Bo Stanton, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Yan Jiang, a native and citizen of the

People’s Republic of China, seeks review of the BIA’s

affirmance of an Immigration Judge’s (“IJ’s”) denial of

Jiang’s application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). See In

re Yan Jiang, No. A077 718 901 (B.I.A. Dec. 23, 2016), aff’g

No. A077 718 901 (Immig. Ct. N.Y.C. Jan. 15, 2016). Under

the circumstances of this case, we review both the IJ’s and

the BIA’s decisions “for the sake of completeness,” Wangchuck

v. Dep’t of Homeland Sec.,

(2d Cir. 2006),

applying well-established standards of review, see

(b)(4)(B); Yanqin Weng v. Holder,

(2d

Cir. 2009); Xiu Xia Lin v. Mukasey,

(2d

Cir. 2008). In so doing, we assume the parties’ familiarity

2 with the underlying facts and procedural history of this case,

which we reference only as necessary to explain our decision

to deny the petition for review.

I. Late-Filed Evidence

Jiang challenges the exclusion of evidence filed after a

set deadline. The argument fails because “[i]f a[] . . .

document is not filed within the time set by the Immigration

Judge, the opportunity to file that . . . document shall be

deemed waived.”

(c); see Dedji v. Mukasey,

(2d Cir. 2008). Jiang faults the IJ for

not setting a submission deadline 30 days before her merits

hearing, as she contends most IJs in New York City do, which

would have resulted in her evidence being timely. The

argument fails because “an IJ has broad discretion to

set . . . filing deadlines.” Dedji v. Mukasey, 525 F.3d at

191–92 (reiterating “wide latitude” accorded IJs in calendar

management (internal quotation marks omitted)); see also

Immig. Ct. Practice Manual Ch. 3.1(b) (according IJs

discretion to set evidence filing deadlines). Here, Jiang

does not dispute that, despite having notice and more than

two years to gather evidence, she filed such evidence after

the deadline set by the IJ. Moreover, Jiang’s argument that

3 the IJ selectively relied on the late-filed evidence is

undermined by the IJ’s decision, which shows that the only

piece of late-submitted evidence on which the IJ relied was

the State Department’s 2013 International Religious Freedom

Report, of which the IJ can properly take administrative

notice in any event. See Qun Yang v. McElroy,

,

163 n.4 (2d Cir. 2002). Accordingly, Jiang fails to

demonstrate error.

II. Past Persecution

The governing REAL ID Act provides that the agency,

“[c]onsidering the totality of the circumstances,” may base

a credibility finding on an applicant’s “demeanor, candor, or

responsiveness,” the plausibility of her account, and

inconsistencies or omissions in her or her witness’s

statements, “without regard to whether an inconsistency,

inaccuracy, or falsehood goes to the heart of the applicant’s

claim.”

(b)(1)(B)(iii); see Xiu Xia Lin v.

Mukasey,

. “We defer . . . to an

IJ’s credibility determination unless . . . it is plain that

no reasonable fact-finder could make such an adverse

credibility ruling.” Xiu Xia Lin v. Mukasey,

.

4 Here, substantial evidence supports the agency’s

determination that Jiang was not credible. While in her

application Jiang stated that she was slapped several times

causing her mouth to bleed; was deprived of sleep, food, and

water; and was handcuffed to a chair, it was only on cross

examination that she testified to police jabbing her with an

electric prod and beating her so severely with a baton that

her shoulder continues to feel dislocated. The agency

reasonably relied on the omission of these most severe forms

of mistreatment from Jiang’s application in making its

adverse credibility finding. See Hong Fei Gao v. Sessions,

, 77–79 (2d Cir. 2018) (acknowledging that “IJs may

rely on non-material omissions and inconsistencies” upon

assessment of “probative value of the omission of certain

facts” and consideration of whether omitted “facts are ones

that a credible petitioner would reasonably have been

expected to disclose under the relevant circumstances”).

While “asylum applicants are not required to list every

incident of persecution” in an application, Pavlova v. INS,

(2d Cir. 2006), Jiang’s cross-examination

testimony did not simply furnish additional details; it

painted a qualitatively different picture of her physical

5 mistreatment and injuries, see Majidi v. Gonzales,

(2d Cir. 2005) (relying on omission from application

of significant facts asserted in hearing testimony to reject

credibility).

Jiang further argues that the agency erred in faulting

her for being unable to identify where she was hit with the

police baton, when the hearing transcript reflects that she

was asked no such question. We need not address the point

because, even were we to identify such error, remand would be

futile given the identified omissions concerning the very

core of Jiang’s past persecution claim. See Li Hua Lin v.

U.S. Dep’t of Justice,

(2d Cir. 2006)

(recognizing remand futile where agency’s “reliance on an

erroneous aspect of its reasoning is so tangential that there

is no realistic possibility that the outcome would be

different on remand” (internal quotation marks omitted)).

Finally, Jiang argues that the agency erred in denying

her application for lack of corroboration without first

ensuring that such corroboration was reasonably available.

While “in certain circumstances, an IJ may not deny relief

for failure to produce corroborative evidence” without

showing such evidence “was reasonably available to the

6 petitioner,” we have explained that the requirement applies

only when the agency “cites inadequate corroboration as a

basis for denying relief to an applicant who is otherwise

credible.” Xiao Ji Chen v. U.S. Dep't of Justice,

(2d Cir. 2006) (emphasis in original) (alteration

and internal quotation marks omitted). That is not this case,

because the agency had already determined Jiang was not

credible based on her application omissions.

III. Future Persecution

To secure asylum absent past persecution, an applicant

must demonstrate an independent well-founded fear of future

persecution, which “is a subjective fear that is objectively

reasonable.” Dong Zhong Zheng v. Mukasey,

(2d Cir. 2009) (internal quotation marks omitted). “In the

absence of solid support in the record,” however, a fear of

persecution “is speculative at best.” Jian Xing Huang v.

U.S. INS,

(2d Cir. 2005).

Jiang does not meaningfully challenge the agency’s

conclusion that she did not establish a well-founded fear of

future persecution on account of her practice of

Christianity, and therefore, any such challenge is waived.

See Xia Fan Huang v. Holder,

(2d Cir. 2010).

7 In any event, even if we were to reach the issue, the agency’s

conclusion is reasonable because the State Department’s 2013

International Religious Freedom Report reflects local

variation in China’s treatment of Christians, and shows no

persecution of Christians in Jiang’s home region. See Jian

Hui Shao v. Mukasey,

(2d Cir. 2008)

(upholding BIA’s no well-founded fear of future persecution

determination where enforcement of policy at issue varied by

region, and petitioner did not show enforcement in home region

amounting to persecution).

Because the agency reasonably found that Jiang failed to

demonstrate a well-founded fear of persecution, it did not

err in denying asylum or in concluding that she necessarily

failed to meet the higher burdens for withholding of removal

and CAT relief. See Y.C. v. Holder,

(2d

Cir. 2013).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

8 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

FOR THE COURT: Catherine O’Hagan Wolfe,Clerk

9