         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


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