Tan v. Attorney General ( 2006 )

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Precedential or Non-Precedential: Non-Precedential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DLD-62 NOT PRECEDENTIAL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
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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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