                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-2-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2984




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 07-2984
                                       ___________

                                     GUNAWAN TAN,
                                               Petitioner

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                        Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                                 BIA No. A96-204-295
              (U.S. Immigration Judge: Honorable Charles M. Honeyman)
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 23, 2008

     Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges.

                                     Filed: May 2, 2008
                                        ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM.

       Gunawan Tan petitions for review of the Board of Immigration Appeals’ (“BIA”)

denial of his motion for reconsideration of his final order of removal. For the reasons that

follow, we will deny the petition.
       Petitioner, a Christian and native and citizen of Indonesia, entered the United

States on June 11, 2000, as a B-2 non-immigrant visitor and was authorized to remain

temporarily within the United States until December 10, 2000. On June 17, 2003,

Petitioner was issued a Notice to Appear, which alleged that he was in the country

without authorization. In response, he applied for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”).

       In denying his claims on August 11, 2005, the Immigration Judge (“IJ”) concluded

that Petitioner’s asylum application was untimely. The IJ further found that Petitioner

had not satisfied the requirements for withholding of removal pursuant to § 241(b)(3)(A)

or under the CAT. On March 16, 2007, BIA affirmed the IJ’s decision. Thereafter,

Petitioner filed a timely motion for reconsideration of the BIA’s decision. The BIA

denied Petitioner’s motion for reconsideration on May 31, 2007.

       Our review is limited to the BIA’s decision denying Petitioner’s motion for

reconsideration. See Nocon v. I.N.S., 789 F.2d 1028, 1032-33 (3d Cir. 1986) (explaining

that final deportation orders and orders denying motions to reconsider are independently

reviewable and a timely petition for review must be filed with respect to the specific order

sought to be reviewed); see also Stone v. INS, 514 U.S. 386, 405 (1995) (holding that a

motion for reconsideration does not toll the time to file a petition for review of a final

deportation order). We review the denial of a motion for reconsideration for an abuse of

discretion. Nocon, 789 F.2d at 1033. Under the abuse of discretion standard, the BIA’s



                                              2
decision may be reversed only if it is “arbitrary, irrational, or contrary to law.” Sevoian v.

Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).

       A motion for reconsideration is a “request that the Board re-examine its decision in

light of additional legal arguments, a change of law, or perhaps an argument or aspect of

the case which was overlooked.” In re Ramos, 23 I. & N. Dec 336, 338 (BIA 2002).

Petitioner’s motion before the BIA sought reconsideration of the BIA’s March 16, 2007

order, arguing that the BIA improperly relied on Lie v. Ashcroft, 396 F.3d 530 (3d Cir.

2005), failing to distinguish it from In re O-Z- & I-Z-, 22 I. & N. Dec. 23 (BIA 1998).

The BIA concluded that Petitioner failed to present any error in decision or argument that

would support a different outcome. We agree. The March 16, 2007 order stated that the

IJ properly analyzed Petitioner’s application under Lie and sufficiently distinguished it

from In re O-Z- & I-Z-. Petitioner’s motion for reconsideration failed to present any legal

argument, change of law, or aspect of the case which would require reconsideration of the

BIA’s March 16, 2007 order.

        Furthermore, contrary to Petitioner’s assertion, the BIA did not engage in

improper fact finding. The BIA’s May 31, 2007 order clarified its earlier statement

regarding Petitioner’s failure to report certain incidents to the police by explaining that its

March 16, 2007 order referred only to the incidents, which occurred in 1998, that were

the subject of Petitioner’s testimony. Additionally, based upon our review of the record,




                                               3
the BIA’s characterization that Petitioner “did not suffer serious injury” was neither

arbitrary, irrational, nor contrary to law.

       For the foregoing reasons, we will deny Petitioner’s petition for review.1




   1
      We note that, in his brief, Petitioner argues that the BIA failed to adequately
consider certain cases cited in his original appeal before the BIA and that the BIA should
have granted his motion for reconsideration in light of our decision in Sukwanputra v.
Gonzales, 434 F.3d 627 (3d Cir. 2006). Petitioner, however, failed to present either issue
in his motion for reconsideration before the BIA. Accordingly, we will not consider the
merits of either argument. See 8 U.S.C. § 1252(d)(1).

                                              4
