                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-22-2006

Tan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2857




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"Tan v. Atty Gen USA" (2006). 2006 Decisions. Paper 26.
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DLD-62                                                  NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                 NO. 06-2857
                              ________________

                                 DENNY TAN,
                                     Petitioner


                                       v.

                        ATTORNEY GENERAL USA,
                                   Respondent
                   ____________________________________

                    On a Petition for Review of a Decision of
                       the Board of Immigration Appeals
                                 on May 1, 2006
                           (Agency No. A79 734 400)
                      Immigration Judge: Miriam K. Mills
                 _______________________________________


Submitted on Motion to Dismiss Appeal or Possible Summary Affirmance Under Third
                         Circuit LAR 27.4 and I.O.P. 10.6
                                November 30, 2006

          Before: BARRY, AMBRO AND FISHER, CIRCUIT JUDGES

                           (Filed: December 22, 2006)


                          _______________________

                                  OPINION
                          _______________________
PER CURIAM

       Denny Tan petitions for review of a final order of the Board of Immigration

Appeals (BIA). On the Government’s motion, we will dismiss the petition for review.

       Denny Tan is a native and citizen of Indonesia. An Immigration Judge (IJ) found

him removable on January 12, 2005. Through counsel, Tan filed a notice of appeal with

the BIA, listing two reasons for the appeal: (1) the IJ erred in pretermitting his asylum

application; (2) the IJ erred in denying withholding and his application for protection

under the United Nations Convention Against Torture without giving Tan an adequate

opportunity to testify in his own behalf. The notice requested a remand and assignment to

another IJ, and also reserved the right to raise other claims. However, no brief was filed

on Tan’s behalf.

       In his brief on appeal to this Court, Tan raises one claim: “Whether or not the

Immigration Judge’s (IJ) findings for substantial evidence should be reversed where there

is a showing of compelling evidence of a contrary finding?” As the Government notes, in

his appeal to the BIA, Tan did not raise the issue of whether the IJ’s findings were

supported by substantial evidence.

       A court of appeals may review a final order of removal only if an alien has

exhausted all administrative remedies. 8 U.S.C. § 1252(d)(1). The requirement of

administrative exhaustion is jurisdictional; when a party in removal proceedings fails to

exhaust his administrative remedies, the court lacks power to act. See Bejar v. Ashcroft,

324 F.3d 127, 132 (3d Cir. 2003). As Tan did not raise before the BIA the issue he now

                                             2
seeks to raise, he has failed to exhaust his administrative remedies. This failure bars

judicial review of Tan’s removal claims. Abdulrahman v. Ashcroft, 330 F.3d 587,

594-95 (3d Cir. 2003). We will therefore grant the motion to dismiss the petition.




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