          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                  FILED
                                                               December 1, 2008
                               No. 08-60225
                             Summary Calendar                Charles R. Fulbruge III
                                                                     Clerk

BENNY SETIANTO

                                          Petitioner

v.

MICHAEL B MUKASEY, U.S. ATTORNEY GENERAL

                                          Respondent


                    Petition for Review of an Order of the
                       Board of Immigration Appeals
                            BIA No. A97 740 739


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Benny Setianto, a native and citizen of Indonesia, petitions for review of
the Board of Immigration Appeals’ (BIA) order (1) affirming the immigration
judge’s (IJ) denial of his application for asylum, withholding of removal, and
protection under the Convention Against Torture, and (2) denying his motion to
remand for consideration of new evidence. Setianto challenges only the BIA’s
denial of his motion to remand.

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 08-60225

      Such a motion is treated as a motion to reopen removal proceedings, and
it is reviewed under the standards applicable to motions to reopen. Wang v.
Ashcroft, 260 F.3d 448, 451-52 (5th Cir. 2001); In re Coelho, 20 I. & N. Dec. 464,
471 (BIA 1992). The BIA’s denial of a motion to reopen is reviewed “under a
highly differential abuse-of-discretion standard”. Zhao v. Gonzales, 404 F.3d
295, 303 (5th Cir. 2005). That discretion will not be disturbed unless it is
arbitrary, capricious, racially invidious, or utterly without evidentiary
foundation. Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006).
      In his motion for remand, Setianto requested that his case be remanded
to the IJ for consideration of new evidence that he was homosexual. The BIA
denied the motion on the ground that the new evidence could have been
presented at the initial hearing before the IJ.
       In support of his contention that the evidence of his homosexuality was
not available at his earlier hearing, Setianto claims: he had a good explanation
for not presenting the evidence at the hearing due to cultural taboos and his lack
of knowledge the information was relevant; and he did not know his sexual
orientation himself until after the hearing before the IJ. Regarding the BIA’s
decision, Setianto contends: the BIA may order remand for consideration of new
evidence even if the evidence was available at the time of the earlier hearing; the
new evidence was material because the potential for future persecution on the
basis of his sexual orientation is significant; and the BIA acted in an arbitrary
and capricious manner because its rejection of his motion to remand was
summary and conclusory.
      Setianto’s allegation regarding cultural taboos and his lack of knowledge
of the relevance of his sexual orientation explains why Setianto did not present
evidence of his homosexuality at the hearing before the IJ, but it does not show
that he could not have presented the evidence at the hearing before the IJ. As
Setianto was required to show that he could not have presented the evidence at



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the hearing, this claim is not sufficient to show the BIA abused its discretion.
See 8 C.F.R. § 1003.2(c)(1).
      Setianto did not contend before the BIA that he did not know he was
homosexual. He raises this claim for the first time in his reply brief. As Setianto
did not raise this claim before the BIA, this court does not have jurisdiction to
consider it, and this portion of the petition for review is dismissed. See Wang,
260 F.3d at 452-53.
      Setianto’s contention that the BIA may remand a case for consideration
of new evidence even if the evidence was previously available is based upon a
case that he does not sufficiently cite and that he admits is non-precedential. As
the assertion is not sufficiently supported and is contrary to the plain language
of the relevant regulation, Setianto has not shown the BIA abused its discretion.
See 8 C.F.R. § 1003.2(c)(1). Setianto’s contention that the new evidence was
material is insufficient, as Setianto was required to show the new evidence was
both material and previously unavailable. See id. Setianto’s challenge to the
sufficiency of the BIA’s analysis also fails as the BIA meaningfully addressed
Setianto’s motion to remand. Osuchukwu v. INS, 744 F.2d 1136, 1142 (5th Cir.
1984) (providing the BIA “has no duty to write an exegesis on every contention”).
Setianto has not shown the BIA abused its discretion by denying his motion to
remand. See Mai, 473 F.3d at 164.
      DENIED in PART, DISMISSED in PART.




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