2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-4-2010

Ingrid Tjan v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4460

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CLD-107 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-4460

___________

INGRID REGINA TJAN, 

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

 

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A94-044-804)

Immigration Judge: Honorable Annie S. Garcy

 

Submitted Pursuant to Third Circuit LAR 27.4 and I. O. P. 10.6

January 28, 2010

Before: BARRY, FISHER AND ROTH, Circuit Judges

(Opinion filed: March 4, 2010 )

___________

OPINION

___________

PER CURIAM

Petitioner, Ingrid Tjan, seeks review of the Board of Immigration Appeals’

(“BIA”) final order of removal. The government has moved for summary action. 

Because the appeal presents no substantial question, see Third Circuit LAR 27.4 and I. O.

P. 10.6, we will grant the motion and deny Tjan’s petition.
2

I.

Tjan is a native and citizen of Indonesia. On June 1, 2006, she applied for asylum,

withholding of removal, and relief under the Convention Against Torture claiming that

she would be persecuted on account of her Chinese ethnicity and Buddhist religion if she

were forced to return to Indonesia. Following a hearing, an Immigration Judge (“IJ”)

denied her applications, but permitted her to voluntarily depart the United States. Tjan

filed an administrative appeal. 

On August 15, 2008, the BIA dismissed the appeal and ordered Tjan to leave the

country within forty-three days of the date of that order. Tjan did not depart as ordered. 

Instead, on October 10, 2008, after the forty-three-day departure period had expired, she

filed a motion to reopen her proceedings with the BIA so that she could pursue an

application for adjustment of status based on her recent marriage to a United States

citizen. 

By order entered March 30, 2009, the BIA denied the motion on the ground that

Tjan was ineligible to adjust her status because she had remained in the country beyond

the voluntary departure period. See 8 U.S.C. § 1229c(d)(1)(B). Tjan then moved for

reconsideration on the ground that her husband’s I-130 petition had just been approved,

but the BIA denied her request, reiterating that she was statutorily ineligible to adjust her

status. See id. Tjan filed a timely petition for review of the BIA’s decision denying her
We review the denial of a motion for reconsideration for an abuse of discretion. 

1

Nocon v. INS, 789 F.2d 1028, 1032–33 (3d Cir. 1986). Under this standard, we may

reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian

v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). 

3

motion for reconsideration. The government now moves for summary action. 1

II.

In its motion for summary action, the government argues that the BIA did not err

in denying Tjan’s motion for reconsideration because Tjan’s failure to depart within the

specified forty-three-day period renders her ineligible to adjust her status. See 8 U.S.C. §

1229c(d)(1)(B). We agree. In her motion for reconsideration, Tjan provided evidence

that her husband’s I-130 petition had been approved on April 6, 2009. As the BIA

explained, however, the fact that the visa petition had been approved did not affect its

previous determination that she is statutorily ineligible to adjust her status under 8 U.S.C.

§ 1229c(d)(1)(B). 

We have considered Tjan’s arguments in opposition to the government’s motion

for summary action and conclude that they are without merit. First, Tjan argues that the

BIA violated her due process rights, and its own decision in Matter of Velarde-Pacheco,

23 I&N Dec. 253 (BIA 2002), by failing to consider the evidence she submitted in

support of her motion for reconsideration—i.e., her husband’s approved I-130 petition. 

Our review of the record, however, reveals that the BIA did indeed consider this

evidence, only to determine that it did not provide a basis for reconsideration. Next, Tjan
Tjan also argues that her due process rights “were violated by the fact that the IJ 2

and the Board, without any explanation, arbitrarily granted the Petitioner a 43 day period

of voluntary departure following the conclusion of her hearing, rather than a 60 day

voluntary departure period, which is the maximum period of time permitted by the

statute.” (Opp. to Motion for Summary Disposition 10.) However, because Tjan did not

petition for review of the BIA’s order permitting her to voluntarily depart, we lack

jurisdiction to review that order. 4

argues that the BIA failed to give proper weight to the “express public policy

preferences” of Congress and the courts to keep families of United States citizens and

immigrants united. While we do not disagree with this general policy statement, we

believe that Congress has made its intent clear in 8 U.S.C. § 1229c(d)(1)(B) that an

applicant like Tjan, who had been permitted to depart voluntarily but failed to do so

within the specified period, is ineligible to adjust her status under 8 U.S.C. § 1229b. 

Finally, we have considered Tjan’s discussion of the Supreme Court’s decision in Dada v.

Mukasey, 128 S.C.t 2307, 2319 (2008), but conclude that her reliance on this case is

misplaced, as Dada concerned a petitioner who—unlike Tjan—moved to reopen

proceedings before the voluntary departure period had expired. See id. 2

For the foregoing reasons, we will grant the government’s motion and summarily

deny the petition for review. See Third Cir. LAR 27.4; I.O.P. 10.6.