Gunawan v. Atty Gen USA , 305 F. App'x 857 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-5-2009
Gunawan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3117
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3117
___________
DJUANDI GUNAWAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A95-462-337)
Immigration Judge: Honorable Rosalind Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 24, 2008
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: January 5, 2009)
OPINION
___________
PER CURIAM
Petitioner Djuandi Gunawan, an ethnic Chinese Christian who is a native and
citizen of Indonesia, filed a petition for review of the final order of removal of the Board
of Immigration Appeals (BIA) issued on June 13, 2007.
We assume the parties’ familiarity with the underlying facts in this case and, thus,
we summarize only the pertinent procedural history. In 2002, Gunawan filed an asylum
application which was referred to the Immigration Court. The Department of Homeland
Security (“DHS”) issued a Notice to Appear charging Gunawan with being subject to
removal under the Immigration and Nationality Act § 237(a)(1)(B), 8 U.S.C. §
1227(a)(1)(B), for overstaying his travel visa. He conceded removability. In seeking
asylum, withholding of removal, and protection under the United Nations Convention
Against Torture (CAT), Gunawan claimed that he and his family were persecuted in the
past and plausibly feared future persecution in Indonesia on the basis of his Chinese
ethnicity and Christian religion. On August 22, 2005, the Immigration Judge (“IJ”)
denied relief based on a review of the testimonial record and documentary evidence,
including the testimony and submissions of the expert witness, Jeffrey Winter, Ph.D., and
the 2004 Country Report. The IJ concluded that Gunawan failed to demonstrate that he
suffered past persecution or that he had a well-founded fear of future persecution on
account of a pattern or practice of persecution against ethnic Chinese Christians in
Indonesia. On March 12, 2007, the BIA affirmed the IJ’s decision without opinion. On
April 1, 2007, Gunawan filed a motion for reconsideration with the BIA, which the BIA
denied on June 13, 2007. Gunawan then filed a petition for review on July 13, 2007.
II.
As a threshold matter, we address the government’s argument that we lack
jurisdiction to review the BIA’s March 2007 decision because Gunawan failed to file a
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timely petition for review as to that order. Gunawan did not address this jurisdictional
issue in his opening brief, and he has not filed a reply brief.
A petition for review must be filed not later than thirty days after the date of a final
order of removal. See 8 U.S.C. § 1252(b)(1); McAllister v. Attorney General, 444 F.3d
178, 185 (3d Cir. 2006). Gunawan’s petition for review was filed on July 13, 2007, well
beyond the thirty-day deadline for filing a petition for review of the BIA’s March 12,
2007 order.
Gunawan’s petition for review is timely as to the BIA’s June 13, 2007 decision
denying reconsideration. That the petition is timely as to the June 2007 decision,
however, does not cure the jurisdictional defect with respect to Gunawan’s petition for
review of the BIA’s earlier decision. See Stone v. INS, 514 U.S. 386, 394 (1995)
(deportation orders are to be reviewed in a timely manner after issuance, regardless of the
later filing of a motion to reopen or reconsider). Thus, we conclude that Gunawan’s
petition for review is untimely as to the BIA’s March 12, 2007 decision and we lack
jurisdiction to consider it.
III.
Next, the government argues that although the petition for review was timely filed
as to the BIA’s June 2007 order denying reconsideration, Gunawan has waived his appeal
of the June 2007 BIA order because he failed to raise any issue in his brief with respect to
the denial of reconsideration. We agree that we are not in a position to review the order
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of the BIA denying Gunawan’s motion for reconsideration. Under Rule 28, Federal
Rules of Appellate Procedure, “the appellant is required to list the issues raised on appeal
and present an argument in support of them.” Nagle v. Alspach, 8 F.3d 141, 143 (3d. Cir.
1993). Pursuant to Rule 28, “the argument . . . must contain . . . appellant’s contentions
and the reasons for them . . . .” Rule 28(a)(9), Fed. R. App. P. In his brief, Gunawan
failed to identify the BIA’s denial of his motion for reconsideration as an issue in his
statement of issues and provided no written argument regarding the denial. Accordingly,
he has abandoned and waived the issue. Nagle, 8 F.3d at 143. (“When an issue is either
not set forth in the statement of issues presented or not pursued in the argument section of
the brief, the Appellant has abandoned and waived that issue on appeal.”).
Accordingly, the petition for review will be denied.
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