Bobby Siagian v. Eric Holder, Jr. , 398 F. App'x 69 ( 2010 )

Case: 10-60036 Document: 00511264237 Page: 1 Date Filed: 10/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 15, 2010
No. 10-60036
Summary Calendar Lyle W. Cayce
Clerk
BOBBY TYRONE SIAGIAN,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A095-629-774
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Bobby Tyrone Siagian, a native and citizen of Indonesia, petitions this
court for review of an order of the Board of Immigration Appeals (BIA) denying
his motion for reconsideration. We review the denial of a motion to reconsider
under a “highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404
F.3d 295, 303 (5th Cir. 2005).
Siagian argues that as an Indonesian Christian, he is a member of a
“disfavored group” as defined in Sael v. Ashcroft, 386 F.3d 922, 924-25 (9th Cir.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-60036 Document: 00511264237 Page: 2 Date Filed: 10/15/2010
No. 10-60036
2004), and that the Ninth Circuit extended the disfavored group analysis to
withholding of removal cases in Wakkary v. Holder, 558 F.3d 1049, 1052, 1068-
69 (9th Cir. 2009), and more recently in Tampubolon v. Holder, 598 F.3d 521,
524-27 (9th Cir.), amended and superseded on denial of rehearing, 610 F.3d 1056(9th Cir. 2010). Siagian argues that the BIA erred in denying his motion for
reconsideration because the BIA failed to apply the disfavored group analysis.
The Government argues that Siagian failed to exhaust his claim that he is a
member of a disfavored group.
“A court may review a final order of removal only if . . . the alien has
exhausted all administrative remedies available to the alien as of right.”
8 U.S.C. § 1252(d)(1). Failure to exhaust an issue before the BIA creates a
jurisdictional bar. Omari v. Holder, 562 F.3d 314, 317-19 (5th Cir. 2009).
Although Siagian now avers that he is a member of a disfavored group and that
the BIA erred in denying his motion for reconsideration without conducting a
disfavored group analysis, he did not raise these arguments in his motion for
reconsideration. Because Siagian has failed to exhaust administrative remedies,
this court lacks jurisdiction. See Omari, 562 F.3d at 317-19.
Siagian’s petition for review is DISMISSED.
2