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 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

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 well19 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
3

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

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