                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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                                                                 NOT PRECEDENTIAL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.




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