* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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 ClerkNo. 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 reCoelho, 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”. Z hao 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 theevidence at the hearing due tocultural taboosand 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, Setiantocontends: the BIA may order remand for consideration of new evidence even iftheevidencewasavailable at thetimeoftheearlier 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 ofthe 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 Setiantowas required to show that he could not have presented the evidence atNo. 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 headmits is non-precedential. As the assertion is not sufficiently supported and is contrary to the plain language ofthe relevant regulation, Setiantohas not shown the BIA abused itsdiscretion. See 8 C.F.R. § 1003.2(c)(1). Setianto’s contention that the new evidence was material is insufficient, as Setiantowas required to show the newevidence 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 noduty towritean exegesison 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.