Tjipto Tan v. Attorney General of the United States

NOT PRECEDENTIAL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

-- 1 of 2 --

2
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)).

-- 2 of 2 --