Jin Li Ni v. Holder

366 F. App'x 235

• Court: Court of Appeals for the Second Circuit
• Decided: February 18, 2010
• Docket: 09-2262-ag
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioner Jin Li Ni, a native and citizen of China, seeks review of the April 28, 2009 order of the BIA denying his motion to remand and affirming the August 27, 2007 decision of Immigration Judge (“IJ”) Sandy K. Horn denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jin Li Ni, No. A 079 691 533 (B.I.A. Apr. 28, 2009), affg No. A 079 691 533 (Immig. Ct. N.Y. City Aug. 27, 2007). We assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009).

The BIA did not violate Ni’s due process rights in denying his motion to remand because the factual record was adequately developed at his hearing before the IJ. See Shu Wen Sun v. BIA, 510 F.3d 377, 381 n. 5 (2d Cir.2007). As the BIA properly noted, Ni “had an opportunity at the hearing to provide any evidence of his choosing,” and a “[f]ear of harm on account of his alleged ‘other resistance’ to the population control law was a ground that he could have pursued at the hearing.”

Furthermore, contrary to Ni’s assertion, the BIA did not run afoul of 8 C.F.R. § 1003.1(d)(3) by engaging in im permissible fact finding. The BIA concluded that the evidence Ni submitted was inadequate to warrant remanding his proceedings to the IJ. This legal determination was well within the scope of the BIA’s authority. 8 C.F.R. § 1003.1(d)(8)(ii); see also Matter of Coelho, 20 I. & N. Dec. 464 (BIA 1992).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34.1.