09 -22 62 -ag

Ni v. Holder BIA Hom, IJ A 079 691 533 

### UNITED STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY 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 day of February, two thousand ten. th 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.2 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 1 0 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 1 2 No. A 079 691 533 (Immig. Ct. N.Y. City Aug. 27, 2007). We 1 3 assume the parties’ familiarity with the underlying facts 1 4 and procedural history. 1 5 Under the circumstances of this case, we consider both 1 6 the IJ’s and the BIA’s opinions “for the sake of 1 7 completeness.” Zaman v. Mukasey , 514 F.3d 233, 237 (2d Cir. 1 8 2008). The applicable standards of review are well1 9 established. See 8 U.S.C. § 1252(b)(4); Yanqin Weng v. 20 Holder , 562 F.3d 510, 513 (2d Cir. 2009). 2 1 The BIA did not violate Ni’s due process rights in 2 2 denying his motion to remand because the factual record was3 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 1 0 impermissible fact finding. The BIA concluded that the 1 1 evidence Ni submitted was inadequate to warrant remanding 1 2 his proceedings to the IJ. This legal determination was 1 3 well within the scope of the BIA’s authority. 8 C.F.R. 1 4 § 1003.1(d)(3)(ii); see also Matter of Coelho, 20 I. & N. 1 5 Dec. 464 (BIA 1992). 1 6 For the foregoing reasons, the petition for review is 1 7 DENIED. As we have completed our review, any pending motion 1 8 for a stay of removal is DISMISSED as moot. Any pending 1 9 request for oral argument in this petition is DENIED in 2 0 accordance with Federal Rule of Appellate Procedure 34(a)(2) 2 1 and Second Circuit Local Rule 34.1. 22 2 3 FOR THE COURT: 2 4 Catherine O’Hagan Wolfe, Clerk 25 26 27 28