IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60558

Summary Calendar

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 HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Bobby Tyrone Siagian, a native and citizen of Indonesia, petitions this

court for review of the decision of the Board of Immigration Appeals (BIA)

denying his motion for reconsideration of the denial of his second motion to

reopen his removal proceedings. Siagian argues that the BIA should have

granted his motion for reconsideration in light of the Ninth Circuit’s decisions

in Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), Wakkary v. Holder, 558 F.3d

1049 (9th Cir. 2009), and Tampubolon v. Holder, 598 F.3d 521 (9th Cir.),

United States Court of Appeals

Fifth Circuit

F I L E D

June 8, 2012

Lyle W. Cayce

Clerk

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: 11-60558 Document: 00511881146 Page: 1 Date Filed: 06/08/2012
No. 11-60558

amended and superseded on denial of rehearing, 610 F.3d 1056 (9th Cir. 2010),

which applied a “disfavored group” analysis. He contends that his applications

for asylum and withholding of removal should be reconsidered by applying the

disfavored group analysis based on his status as a Christian Indonesian and his

“perceived status as a Chinese Indonesian.”

This court reviews the BIA’s denial of a motion for reconsideration under

a highly deferential abuse-of-discretion standard. See Lara v. Trominski, 216

F.3d 487, 496-97 (5th Cir. 2000); Osuchukwu v. INS, 744 F.2d 1136, 1141 (5th

Cir. 1984). Under this standard, this court must uphold the BIA’s denial of a

motion for reconsideration, even if the court “deem[s it] in error, so long as it is

not capricious, racially invidious, utterly without foundation in the evidence, or

otherwise so aberrational that it is arbitrary rather than the result of any

perceptible rational approach.” Osuchukwu, 744 F.2d at 1142. The motion for

reconsideration must identify a legal or factual error in the BIA’s prior decision

and must be supported by relevant authority. 8 U.S.C. § 1229a(c)(6); 8 C.F.R.

§ 1003.2(b)(1).

Generally, a motion to reopen must be filed in the BIA “no later than 90

days after the date on which the final administrative decision was rendered in

the proceeding sought to be reopened.” § 1003.2(c)(2). No time bar applies,

however, if the motion is based on “changed circumstances arising in the country

of nationality or in the country to which deportation has been ordered, if such

evidence [of change] is material and was not available and could not have been

discovered or presented at the previous hearing.” § 1003.2(c)(3)(ii). Siagian

argued in his motion for reconsideration that the Ninth Circuit’s decisions in

Wakkary and Tampubolon should have been construed as “changed

circumstances” for purposes of exceptions to the time and number limitations on

filing motions to reopen. 

As the BIA observed in denying Siagian’s motion for reconsideration,

neither it nor this court has adopted the disfavored group analysis. Ninth

2

Case: 11-60558 Document: 00511881146 Page: 2 Date Filed: 06/08/2012
No. 11-60558

Circuit decisions are not binding precedent in this court. See Thuri v. Ashcroft,

380 F.3d 788, 792 (5th Cir. 2004). Moreover, the BIA has “historically followed

a court’s precedent in cases arising in that circuit.” Matter of Anselmo, 20

I. & N. Dec. 25, 31 (BIA 1989).

As the BIA determined, Siagian failed to identify in his motion for

reconsideration an error of fact or law in the BIA’s denial of his motion to reopen

on the ground that the Ninth Circuit’s decisions applying the disfavored group

analysis did not demonstrate an exception to the time and number requirements

for reopening removal proceedings. Siagian has not shown that the BIA’s denial

of his motion for reconsideration was arbitrary, capricious, racially invidious, or

utterly without foundation in evidence. See Osuchukwu, 744 F.2d at 1142. 

Thus, “the BIA did not abuse its considerable discretion in refusing to reconsider

its denial of reopening.” Lara, 216 F.3d at 497. 

To the extent that Siagian argues that the BIA should have granted his

motion for reconsideration because there exists a “pattern and practice” of

persecution against Christians in Indonesia and that conditions have worsened

for Christians in Indonesia, warranting a finding of a pattern or practice of

persecution and changed circumstances, Siagian did not raise these arguments

in his motion for reconsideration. Because Siagian has failed to exhaust

administrative remedies as to these arguments, this court lacks jurisdiction to

consider them. See Omari v. Holder, 562 F.3d 314, 317-19 (5th Cir. 2009).

 Siagian’s motion that this court take judicial notice is DENIED.

PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART;

MOTION DENIED.

3

Case: 11-60558 Document: 00511881146 Page: 3 Date Filed: 06/08/2012