Filed: Jun. 13, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-13-2008 Tan v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-2240 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Tan v. Atty Gen USA" (2008). 2008 Decisions. Paper 1025. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1025 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-13-2008 Tan v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-2240 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Tan v. Atty Gen USA" (2008). 2008 Decisions. Paper 1025. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1025 This decision is brought to you for free and open access by the Opinions of the ..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-13-2008
Tan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2240
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Tan v. Atty Gen USA" (2008). 2008 Decisions. Paper 1025.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1025
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2240
___________
ANDRE TAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A96-204-297 )
Immigration Judge: Honorable Charles M. Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
JUNE 12, 2008
Before: SLOVITER, STAPLETON AND COWEN, Circuit Judges
(Opinion filed June 13, 2008)
___________
OPINION
___________
PER CURIAM
Andre Tan petitions for review of an order of the Board of Immigration Appeals
(BIA) denying his motion to reopen removal proceedings. For the reasons that follow, we
will deny the petition.
I.
Tan is a native and citizen of Indonesia who was placed in removal proceedings in
2003. Tan sought asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”) on the ground that he had suffered persecution in Indonesia on
account of his Chinese ethnicity and Christian religion. Following a hearing on July 18,
2005, Immigration Judge (“IJ”) Charles M. Honeyman found that Tan’s application for
asylum was time-barred. See 8 U.S.C. § 1158(a)(2)(B) and (D). The IJ further found that
Tan failed to meet his burden of proof with respect to his application for withholding of
removal because he did not establish that his life or freedom would be threatened should
he be forced to return to Indonesia. See 8 U.S.C. § 1231(b)(3). The IJ similarly denied
relief under the CAT on the ground that Tan had failed to establish a likelihood of torture
upon return home. See 8 C.F.R. § 208.16(c)(2). On November 29, 2006, the BIA
adopted and affirmed the IJ’s decision.1
On January 26, 2007, Tan filed a motion to reopen his removal proceedings on the
ground that he had new evidence in support of his application for withholding of removal.
By order entered March 23, 2007, the BIA denied the motion. Tan now petitions for
review of the BIA’s order denying his motion to reopen.2
1
The BIA initially dismissed as untimely Tan’s appeal from the IJ’s July 18, 2005
decision, but subsequently reinstated the appeal.
2
To the extent that Tan seeks review of the BIA’s November 29, 2006 order as well,
this Court lacks jurisdiction to review that order because the petition for review was filed
more than 30 days later. See 8 U.S.C. § 1252(b)(1). In addition, insofar as Tan seeks
2
II.
We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252(a)(1). We
review the BIA’s denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft,
386 F.3d 556, 561 (3d Cir. 2004). “Discretionary decisions of the BIA will not be
disturbed unless they are found to be arbitrary, irrational, or contrary to law.” Tipu v.
INS,
20 F.3d 580, 582 (3d Cir. 1994) (quotation omitted). Under the regulations, the BIA
will not grant a motion to reopen proceedings unless the evidence sought to be offered is
material and could not have been discovered or presented at the former hearing. 8 C.F.R.
§ 1003.2(c)(1). “The Board has discretion to deny a motion to reopen even if the party
moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a).
In his motion to reopen, Tan claimed that he had new evidence demonstrating that
it is more likely than not that he would be subject to persecution if he returned to
Indonesia. See 8 U.S.C. § 1231(b)(3)(A). In support of his motion, Tan submitted an
affidavit from Dr. Jeffrey Winters, an associate professor at Northwestern University
specializing in human rights in Indonesia. Dr. Winters stated that conditions in Indonesia
had changed since late 2004 and early 2005 in significantly negative ways for ethnic
Chinese Indonesians. Specifically, Dr. Winters claimed that radical Islamic extremists
review of the BIA’s order denying his motion to reopen his proceedings in order to
reconsider his application for relief under the CAT, we lack jurisdiction to do so because
he did not raise this claim in his motion to reopen. See Abdulrahman v. Ashcroft, 330
F.3d 587, 594-95 (3d Cir. 2003) (explaining that an alien is required to raise and exhaust
his remedies as to each claim in order to preserve his right to judicial review of all
claims).
3
have been gaining momentum, that economic conditions are worsening as the political
system loses support, and that the government continues to discriminate against ethnic
Chinese. According to Dr. Winters, these developments “significantly increase the risks
of threats faced by ethnic Chinese Indonesians.” Tan also submitted five articles that
have been published since the time of his hearing. In sum, these articles recount incidents
of violence against Christians and voice concern over Islamic fundamentalism in
Indonesia.
Based on our review of these documents, we cannot conclude that the BIA’s
decision denying Tan’s motion to reopen was arbitrary, irrational, or contrary to law. See
Tipu, 20 F.3d at 582. Although Dr. Winters’s affidavit and the attached news articles
certainly indicate that there remains religious and ethnic violence against Chinese
Christians in Indonesia, these documents do not suggest that the violence is sufficiently
widespread as to constitute “systemic, pervasive, or organized” persecution. See Lie v.
Ashcroft,
396 F.3d 530, 537 (3d Cir. 2005). Rather, the violence appears to have been
primarily perpetrated by fellow citizens and not the result of governmental action or
acquiescence. See
Abdulrahman, 330 F.3d at 592 (holding that violence wrought by
civilians does not constitute persecution unless such acts are “committed by the
government or forces the government is either unable or unwilling to control”).
In considering the proffered evidence, the BIA also took administrative notice of
the 2005 and 2006 International Religious Freedom Reports issued by the Department of
4
State, which indicate that the Indonesian government officially promotes religious and
ethnic tolerance, and that “[m]ost of the population enjoyed a high degree of religious
freedom” in the covered periods. Given the deferential standard of review that governs,
we cannot say that the BIA abused its discretion in giving greater weight to these
documents than to the evidence offered by Tan.
We have carefully considered the arguments raised by Tan in support of his
petition for review, but find each of them unavailing. Accordingly, we will deny the
petition for review.
5
