15-3071 Ni v. Whitaker BIA Nelson, IJ A043 657 835

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 TO 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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 18th day of December, two thousand 5 eighteen. 6 7 PRESENT: 8 JON O. NEWMAN, 9 DENNIS JACOBS, 10 PIERRE N. LEVAL, 11 Circuit Judges. 12 _____________________________________ 13 14 WEN XIAN NI, AKA SHA NI, AKA WEN 15 NI, AKA WENXAIN NI, AKA NI XIAN, 16 Petitioner, 17 18 v. 15-3071 19 NAC 20 MATTHEW G. WHITAKER, ACTING 21 UNITED STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Theodore N. Cox, New York, NY. 26 27 FOR RESPONDENT: Benjamin C. Mizer, Principal 28 Deputy Assistant Attorney General; 29 Douglas E. Ginsburg, Assistant 30 Director; Benjamin Mark Moss,

06152016-10 1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DENIED.

10 Petitioner Wen Xian Ni, a native and citizen of the

11 People’s Republic of China, seeks review of a September 10,

12 2015, BIA decision that affirmed the January 8, 2014, decision

13 of an Immigration Judge (“IJ”) denying asylum, withholding of

14 removal, and relief under the Convention Against Torture

15 (“CAT”). In re Wen Xian Ni, No. A043 657 835 (B.I.A. Sept.

16 10, 2015), aff’g No. A043 657 835 (Immig. Ct. N.Y. City Jan.

17 8, 2014). We assume the parties’ familiarity with the

18 underlying facts and procedural history in this case.

19 Ni challenges the agency’s denial of withholding of

20 removal and CAT relief only. Under these circumstances, we

21 have reviewed both the IJ’s and the BIA’s opinions “for the

22 sake of completeness.” Wangchuck v. Dep’t of Homeland

23 Sec.,

(2d Cir. 2006). Given that Ni is

24 removable for an aggravated felony conviction, our

25 jurisdiction is limited to constitutional claims and

2 07102018-3 1 questions of law, see

(a)(2)(C), (D), which

2 we review de novo, Pierre v. Gonzales,

, 113

3 (2d Cir. 2007).

4 Ni sought withholding of removal and CAT relief,

5 asserting a likelihood of persecution and torture based on

6 the birth of her second child in the United States purportedly

7 in violation of China’s population control program. Contrary

8 to Ni’s contention, the BIA applied the correct standard in

9 reviewing the IJ’s findings for clear error. See Hui Lin

10 Huang v. Holder,

(2d Cir. 2012) (“A

11 determination of what will occur in the future and the degree

12 of likelihood of the occurrence has been regularly regarded

13 as fact-finding subject to only clear error review.”). Nor

14 did the agency err as a matter of law in noting that

15 sterilization likely was not necessary to prevent pregnancy

16 given Ni’s age. See Siewe v. Gonzales,

, 168-69

17 (2d Cir. 2007) (“The speculation that inheres in inference is

18 not ‘bald’ if the inference is made available to the

19 factfinder by record facts, or even a single fact, viewed in

20 the light of common sense and ordinary experience.”). For

21 largely the same reasons as set forth in Jian Hui Shao v.

22 Mukasey, we find no error in the agency’s determination that

23 Ni failed to satisfy her burden for withholding of removal 3 07102018-3 1 and CAT relief based on her family planning claim.

138, 158-67 (2d Cir. 2008); see also Paul v. Gonzales, 444

, 156-57 (2d Cir. 2006).

4 As to Ni’s assertion that she will likely be tortured

5 for her involvement in a money laundering scheme with her

6 husband, who was detained and beaten in detention in China,

7 she argues only that the agency’s consideration of that

8 claim was cursory and inadequate for meaningful judicial

9 review. We find no error in the agency’s denial of CAT

10 relief on this ground because Ni admitted only to

11 speculating that Chinese officials knew of her involvement

12 in money laundering and provided no evidence that the

13 Chinese government is likely to arrest her on return to

14 China. See Jian Xing Huang v. U.S. INS,

, 129

15 (2d Cir. 2005) (“In the absence of solid support in the

16 record . . . , [an applicant’s] fear is speculative at

17 best”); see also Savchuck v. Mukasey,

(2d

18 Cir. 2008) (“[A]n alien will never be able to show that he

19 faces a more likely than not chance of torture if one link

20 in the chain cannot be shown to be more likely than not to

21 occur. It is the likelihood of all necessary events coming

22 together that must more likely than not lead to torture,

23 and a chain of events cannot be more likely than its least 4 07102018-3 1 likely link.” (quoting In re J-F-F-,

,

2 918 n.4 (A.G. 2006))).

3 For the foregoing reasons, the petition for review is

4 DENIED. As we have completed our review, the pending motion

5 for a stay of removal in this petition is DISMISSED as moot.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe 8 Clerk of Court

5 07102018-3