Asan Husaini Oh v. Att’y Gen., 400 F.3d 157, 162 3d Cir. 2005 . However, we review the decision of the…

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4537
___________
ASAN HUSAINI OH,
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A079-326-670)
Immigration Judge: Honorable Charles M. Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 16, 2009
Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges
(Opinion filed: December 16, 2009)
___________
OPINION
___________
PER CURIAM.
Petitioner Asan Oh is an ethnic-Chinese Christian and a citizen of
Indonesia. He entered the United States in 2001 with a visitor’s visa, which he
overstayed. Oh received a notice to appear and, before the IJ, conceded removability and

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sought asylum and related relief. Oh alleged that he would be singled out for persecution
as an ethnic-Chinese Christian and that there is a pattern or practice of persecution against
ethnic-Chinese Christians in Indonesia. The IJ denied relief, but granted Oh voluntary
departure. Oh appealed to the BIA, arguing only that the IJ erred in determining that
there is no pattern or practice of persecution against ethnic-Chinese Christians. The
Board dismissed the appeal, and Oh filed a petition for review.
We have jurisdiction over Oh’s petition pursuant to 8 U.S.C. § 1252(a).
Because the BIA issued its own opinion, we review its decision rather than that of the IJ.
See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we review the decision
of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v.
Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review agency factual determinations
for substantial evidence, and will uphold such determinations “unless the evidence not
only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150,
155 (3d Cir. 2005) (internal citations omitted). We review legal questions de novo,
subject to established principles of deference. See Cospito v. Att’y Gen., 539 F.3d 166,
171 (3d Cir. 2008).
In his petition for review, Oh raises only one argument: that the IJ erred by
failing to consider at all whether there is a pattern or practice of persecution against
ethnic-Chinese Christian Indonesians. The Government’s response is two-fold. First, the
Government argues that we lack jurisdiction to entertain Oh’s petition for review because

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he did not exhaust this argument before the BIA. Second, even if we have jurisdiction,
we should deny the petition for review because Oh’s argument lacks merit.
We “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).
A petitioner is deemed to have exhausted all administrative remedies if he raises all issues
before the BIA. See Lin v. Att’y Gen., 543 F.3d 114, 120-21 (3d Cir. 2008). However,
we do not apply this principle in a draconian fashion. See id. at 121. “Indeed, ‘so long as
an immigration petitioner makes some effort, however insufficient, to place the Board on
notice of a straightforward issue being raised on appeal, a petitioner is deemed to have
exhausted her administrative remedies.’” Id. (quoting Joseph v. Att’y Gen., 465 F.3d
123, 126 (3d Cir. 2006) (internal quotation marks omitted)). Here, the Government
distinguishes between Oh’s argument to the BIA that the IJ erred in his determination
regarding a pattern or practice of persecution and Oh’s argument in his petition for
review, which alleges a lack of any such consideration, and argues that the latter claim
was not exhausted. We conclude that the latter argument is sufficiently related to that in
his BIA appeal to satisfy the exhaustion requirement. Moreover, the issue is exhausted
because the BIA implicitly considered the extent of the IJ’s “pattern or practice” analysis
in evaluating Oh’s claim. See Lin, 543 F.3d at 123-24 (holding that an issue is exhausted
if the BIA considers it sua sponte).
Nevertheless, we agree with the Government that Oh’s argument plainly

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lacks merit. Indeed, the IJ devoted a substantial portion of his oral decision to discussing
conditions for ethnic-Chinese Christians within Indonesia, as well as to canvassing BIA
and Circuit law on the existence of a pattern or practice of persecution. See A.R. 116-25.
That even a cursory reading of the IJ’s opinion could give rise to an argument that no
such consideration occurred is perplexing and, more fundamentally, wrong.
Accordingly, we will deny the petition for review.
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