09-2262-ag
Ni v. Holder
BIA
Hom, IJ
A 079 691 533
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 A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 18 th day of February, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 JIN LI NI,
14 Petitioner,
15
16 v. 09-2262-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: H. Raymond Fasano, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; David V. Bernal, Assistant
29 Director; Jennifer Paisner Williams,
30 Senior Litigation Counsel, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, and DECREED that the petition for review
4 is DENIED.
5 Petitioner Jin Li Ni, a native and citizen of China,
6 seeks review of the April 28, 2009 order of the BIA denying
7 his motion to remand and affirming the August 27, 2007
8 decision of Immigration Judge (“IJ”) Sandy K. Hom denying
9 his application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Jin Li Ni, No. A 079 691 533 (B.I.A. Apr. 28, 2009), aff’g
12 No. A 079 691 533 (Immig. Ct. N.Y. City Aug. 27, 2007). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history.
15 Under the circumstances of this case, we consider both
16 the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4); Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 The BIA did not violate Ni’s due process rights in
22 denying his motion to remand because the factual record was
2
1 adequately developed at his hearing before the IJ. See Shu
2 Wen Sun v. BIA, 510 F.3d 377, 381 n.5 (2d Cir. 2007). As
3 the BIA properly noted, Ni “had an opportunity at the
4 hearing to provide any evidence of his choosing,” and a
5 “[f]ear of harm on account of his alleged ‘other resistance’
6 to the population control law was a ground that he could
7 have pursued at the hearing.”
8 Furthermore, contrary to Ni’s assertion, the BIA did
9 not run afoul of 8 C.F.R. § 1003.1(d)(3) by engaging in
10 impermissible fact finding. The BIA concluded that the
11 evidence Ni submitted was inadequate to warrant remanding
12 his proceedings to the IJ. This legal determination was
13 well within the scope of the BIA’s authority. 8 C.F.R.
14 § 1003.1(d)(3)(ii); see also Matter of Coelho, 20 I. & N.
15 Dec. 464 (BIA 1992).
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any pending motion
18 for a stay of removal is DISMISSED as moot. Any pending
19 request for oral argument in this petition is DENIED in
20 accordance with Federal Rule of Appellate Procedure 34(a)(2)
21 and Second Circuit Local Rule 34.1.
22
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
26
27
28
3