                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-13-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1535




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"Tan v. Atty Gen USA" (2005). 2005 Decisions. Paper 1368.
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                                               NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                   No. 04-1535


                  TJIPTO TAN,

                             Petitioner

                        v.

            *ATTORNEY GENERAL
            OF THE UNITED STATES

                             Respondent

                      * Substituted pursuant to Rule 43c, F.R.A.P.




      On Appeal from an Order entered before
        The Board of Immigration Appeals
              (No. A 79-326-586)


     Submitted Under Third Circuit LAR 34.1(a)
                  April 4, 2005


Before: BARRY, AMBRO and COWEN, Circuit Judges

              (Filed: April 13, 2005)




                    OPINION
AMBRO, Circuit Judge

       Tjipto Tan, a native and citizen of Indonesia, seeks review of a final order of

removal issued by the Board of Immigration Appeals (“BIA”). The BIA affirmed without

opinion an immigration judge’s (“IJ”) denial of Tan’s application for asylum, withholding

of removal, and relief under the Convention Against Torture. This petition for review

followed.

       Tan raises two issues for review: the IJ’s failure to address whether Tan had a

well-founded fear of future persecution on account of his religion and whether he had

established a pattern and practice of persecution against non-Muslims in Indonesia.

However, we may not review these issues because Tan failed to raise them before the

BIA. In his brief to the BIA, he made no argument that the IJ erred in failing to address

his religious persecution claim. Administrative Record (“A.R.”) at 10-18. In fact, Tan

did not base his appeal to the BIA on religious persecution at all. A.R. at 13-18 (arguing

persecution based on Chinese ethnicity). It is too late to change horses midstream and

thus we deny the petition for review. See Miah v. Ashcroft, 346 F.3d 434, 439 n.2 (3d

Cir. 2003) (“This Court may not consider particular questions not raised in an appeal to

the Board.”) (citing Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989)).




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