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


6-30-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3206




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                                                              NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No: 04-3206

                                 SONNY CAHYADI,
                                            Petitioner

                                            v.

                           * ATTORNEY GENERAL
                     OF THE UNITED STATES OF AMERICA,
                                          Respondent

                          *(Pursuant to Fed. R. App. P. 43(c))




                         On Appeal from a Final Order of the
                           Board of Immigration Appeals
                                 No. A79-327-698


                   Submitted Pursuant to Third Circuit LAR 32.1(a)
                                   June 28, 2005

              Before: NYGAARD, SMITH, and FISHER, Circuit Judges

                                 (Filed: June 30, 2005 )


                              OPINION OF THE COURT


SMITH, Circuit Judge.

      Sonny Cayhadi, a native and citizen of Indonesia, filed a claim for asylum,

withholding of removal, and relief under the Convention Against Torture. The
Immigration Judge (“IJ”) denied Cayhadi’s claims, and the Board of Immigration Appeals

(“BIA”) affirmed without an opinion on April 21, 2004. Instead of filing a petition for

review of the BIA’s decision, Cahyadi filed a motion to reopen on June 7, 2004. The BIA

denied Cahyadi’s motion to reopen on July 6, 2004. Twenty eight days later, on August

3, 2004, Cahyadi filed a timely petition for review of the denial of his motion to reopen.

       Cahyadi’s brief, however, does not address the merits of the denial of his motion to

reopen. Rather, he contends that the IJ erred in denying his asylum application. To

obtain judicial review of the BIA’s affirmance of the denial of his asylum application,

Cahyadi had to file a petition for review within thirty days. 8 U.S.C. § 1252(b)(1).

Cahyadi failed to satisfy this requirement.

       We recognize that Cahyadi filed a timely motion to reopen and a petition for

review of the denial of that motion. Cayhadi’s motion to reopen, however, did not toll the

limitations period for filing a petition for review of the BIA’s order denying his claim for

asylum. Stone v. Immigration and Naturalization Service, 514 U.S. 386 (1995). In Stone,

the Supreme Court explained that former § 106(a)(6)1 of the Immigration and Nationality

Act “by its terms . . . contemplates two petitions for review and directs the courts to




  1
    Former § 106(a)(6) provides: “Whenever a petitioner seeks review of an order under
this section, any review sought with respect to a motion to reopen and reconsider such an
order shall be consolidated with the review of the order.” This section was repealed by
the Illegal Immigration Reform and Immigrant Responsibility Act enacted on September
30, 1996. Publ.L. 104-208, 110 Stat. 3009-546 (effective April 1, 1997), and replaced by
§ 242 which is nearly identical. See 8 U.S.C. §1252(b)(6).

                                              2
consolidate the matters.” 514 U.S. at 394. Thus, the Court rejected Stone’s assertion that

his motion to reopen rendered the underlying order non-final. Accordingly, in the

absence of a timely petition for review of the BIA’s April 21, 2004 order, we lack

jurisdiction to consider the merits of Cahyadi’s asylum claims.

       We do, however, have appellate jurisdiction over the BIA’s denial of Cahyadi’s

motion to reopen. The brief Cahyadi filed with this Court does not address the merits of

his motion to reopen. Instead, it addressed the IJ’s adverse credibility finding. Nowhere

in the fourteen pages of Cahyadi’s brief does he explain how the BIA abused its

discretion by denying his motion to reopen. In Laborers’ Int’l Union v. Foster Wheeler

Corp., 26 F.3d 375, 398 (3d Cir. 1994), we declared that “[a]n issue is waived unless a

party raises it in its opening brief, and for those purposes a passing reference to an issue .

. . will not suffice to bring that issue before this court.” Similarly, in Kost v. Kozakiewicz,

1 F.3d 176, 182 (3d Cir. 1993), we observed that the federal appellate rules and our local

rules require appellants to set forth the issues raised on appeal and to present arguments in

support thereof in their brief. We instructed that “[i]t is well settled that if an appellant

fails to comply with those requirements on a particular issue, the appellant normally has

abandoned and waived that issue on appeal and it need not be addressed by the court of

appeals.” Id. Here, Cahyadi has not complied with these requirements. For that reason,

we will deny the petition for review.
