Ni v. Mukasey, (2nd Cir. 2008)

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07-4336-ag

Ni v. Mukasey

BIA

A77 340 941

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

"(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE

DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 28 th day of October, two thousand eight.

PRESENT:

HON. ROSEMARY S. POOLER,

HON. REENA RAGGI,

HON. DEBRA ANN LIVINGSTON,

Circuit Judges.

YI MEI NI,

Petitioner,

v. 07-4336-ag

NAC

MICHAEL B. MUKASEY, 1 UNITED STATES

ATTORNEY GENERAL,

Respondent.

Pursuant to Federal Rule of Appellate Procedure 43(c)(2),

Attorney General Michael B. Mukasey is automatically substituted for

former Acting Attorney General Peter D. Keisler as the respondent in

this case.

FOR PETITIONER: Robert J. Adinolfi, New York, New York.

FOR RESPONDENT: Gregory G. Katsas, Acting Assistant Attorney General, Civil Division, Terri J. Scadron, Assitant Director, Surell Brady, Trial Attorney, U.S.

Department of Justice, Office of Immigration Litigation, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.

Petitioner Yi Mei Ni, a native and citizen of China, seeks review of the September 11, 2007 order of the BIA denying her motion to reopen. In re Yi Mei Ni, No. A77 340 941 (B.I.A. Sept. 11, 2007). We assume the parties' familiarity with the underlying facts and procedural history of the case.

The BIA properly noted that Ni's June 2007 motion to reopen was her second such motion before the agency and was not filed within 90 days of the agency's final administrative decision dated June 2003. Accordingly, her motion was both time and number barred. See 8U.S.C. § 1229a(c)(7)(A) & (C)(i);8 C.F.R. § 1003.2(c)(2). Therefore, she was required to demonstrate changed country conditions.

See 8U.S.C. § 1229a(c)(7)(C)(ii). However, the BIA found that Ni failed to establish a change in country conditions in China. Ni fails to challenge that finding.

Where the petitioner has been represented by counsel throughout these proceedings, "it is not our obligation to ferret out [her] arguments. That, after all, is the purpose of briefing." McCarthy v. SEC, 406 F.3d 179, 186 (2d Cir.

2005). Accordingly, because no manifest injustice would result if we decline to review the agency's finding that Ni failed to establish a change in conditions in China, we deem waived any challenge thereto. See Yueqing Zhang v.

Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005); see also McCarthy, 406 F.3d at 186 (noting that a petitioner's attorney must "include his most cogent arguments in his opening brief, upon pain of otherwise finding them waived."). Thus, that finding stands as a valid basis for the agency's denial of Ni's motion to reopen. See 8 C.F.R.

§ 1003.2(c)(1).

To the extent that Ni seeks a remand to the BIA in light of the documents we addressed in Zhi Yun Gao v.

Mukasey, 508 F.3d 86, 88 (2d Cir. 2007), we find that the exercise of any inherent equitable power to remand is not warranted in this case where that evidence was not part of the administrative record. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007); see also 8U.S.C.

§ 1252(b)(4)(A). 2 For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removalis DISMISSED as moot.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:

2 Regarding Ni's request that we "stay the mandate" in her case while she files another motion to reopen with the BIA, we decline to do so.

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