    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., 448 F.3d 524, 528 (2d Cir. 2006),

applying well-established standards of review, see 8 U.S.C.

§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

Cir. 2009); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (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.” 8 C.F.R. § 1003.31(c); see Dedji v. Mukasey,

525 F.3d 187, 191 (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, 277 F.3d 158,

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.”      8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v.

Mukasey, 534 F.3d at 163-64, 166-67.              “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, 534 F.3d at

167.


                                     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,

891 F3d 67, 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,

441 F.3d 82, 90 (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, 430 F.3d

77, 79-80 (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, 453 F.3d 99, 106-07 (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, 471 F.3d

315, 341 (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, 552 F.3d 277, 284

(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, 421 F.3d 125, 129 (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, 591 F.3d 124, 130 (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, 546 F.3d 138, 148-49 (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, 741 F.3d 324, 335 (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




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