* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60225

Summary Calendar

BENNY SETIANTO

Petitioner

v.

MICHAEL B MUKASEY, U.S. ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A97 740 739

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Benny Setianto, a native and citizen of Indonesia, petitions for review of

the Board of Immigration Appeals’ (BIA) order (1) affirming the immigration

judge’s (IJ) denial of his application for asylum, withholding of removal, and

protection under the Convention Against Torture, and (2) denying his motion to

remand for consideration of new evidence. Setianto challenges only the BIA’s

denial of his motion to remand.

United States Court of Appeals

Fifth Circuit

F I L E D

December 1, 2008

Charles R. Fulbruge III

Clerk
No. 08-60225

2

Such a motion is treated as a motion to reopen removal proceedings, and

it is reviewed under the standards applicable to motions to reopen. Wang v.

Ashcroft, 260 F.3d 448, 451-52 (5th Cir. 2001); In re Coelho, 20 I. & N. Dec. 464,

471 (BIA 1992). The BIA’s denial of a motion to reopen is reviewed “under a

highly differential abuse-of-discretion standard”. Zhao v. Gonzales, 404 F.3d

295, 303 (5th Cir. 2005). That discretion will not be disturbed unless it is

arbitrary, capricious, racially invidious, or utterly without evidentiary

foundation. Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006).

In his motion for remand, Setianto requested that his case be remanded

to the IJ for consideration of new evidence that he was homosexual. The BIA

denied the motion on the ground that the new evidence could have been

presented at the initial hearing before the IJ.

In support of his contention that the evidence of his homosexuality was

not available at his earlier hearing, Setianto claims: he had a good explanation

for not presenting the evidence atthe hearing due to culturaltaboos and his lack

of knowledge the information was relevant; and he did not know his sexual

orientation himself until after the hearing before the IJ. Regarding the BIA’s

decision, Setianto contends: the BIA may order remand for consideration of new

evidence even ifthe evidence was available atthe time ofthe earlier hearing;the

new evidence was material because the potential for future persecution on the

basis of his sexual orientation is significant; and the BIA acted in an arbitrary

and capricious manner because its rejection of his motion to remand was

summary and conclusory.

Setianto’s allegation regarding cultural taboos and his lack of knowledge

of the relevance of his sexual orientation explains why Setianto did not present

evidence of his homosexuality at the hearing before the IJ, but it does not show

that he could not have presented the evidence at the hearing before the IJ. As

Setianto was required to show that he could not have presented the evidence at
No. 08-60225

3

the hearing, this claim is not sufficient to show the BIA abused its discretion.

See 8 C.F.R. § 1003.2(c)(1).

Setianto did not contend before the BIA that he did not know he was

homosexual. He raises this claim for the first time in his reply brief. As Setianto

did not raise this claim before the BIA, this court does not have jurisdiction to

consider it, and this portion of the petition for review is dismissed. See Wang,

260 F.3d at 452-53.

Setianto’s contention that the BIA may remand a case for consideration

of new evidence even if the evidence was previously available is based upon a

case that he does not sufficiently cite and that he admits is non-precedential. As

the assertion is not sufficiently supported and is contrary to the plain language

ofthe relevant regulation, Setianto has not shown the BIA abused its discretion.

See 8 C.F.R. § 1003.2(c)(1). Setianto’s contention that the new evidence was

material is insufficient, as Setianto was required to show the new evidence was

both material and previously unavailable. See id. Setianto’s challenge to the

sufficiency of the BIA’s analysis also fails as the BIA meaningfully addressed

Setianto’s motion to remand. Osuchukwu v. INS, 744 F.2d 1136, 1142 (5th Cir.

1984) (providing the BIA “has no duty to write an exegesis on every contention”).

Setianto has not shown the BIA abused its discretion by denying his motion to

remand. See Mai, 473 F.3d at 164.

DENIED in PART, DISMISSED in PART.