2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

8-2-2011 

# Th a p a v . Att y Ge n U S A

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-1473

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2011

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2011 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" Th a p a v . Att y Ge n U SA" (2011). 2011 D e cisio n s . P a pe r 719. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2011/7191 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 1473

___________ SHIVA SHARAN THAPA, Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent

____________________________________

On Peti tion for Review of an Order of the Board of Immigration Appeals

(Agency No. A088

- 769

- 810 ) Immigration Judge: Honorable Annie S. Garcy

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) August 1, 2011
Before: AMBR O, GREENAWAY, JR. and GREENBERG , Circuit Judges (Opinion filed : August 2, 2011 )

___________

OPINION

___________ PER CURIAM Shiva Saran Thapa petitions for review of a decision by the Board of Immigration Appeals (“BIA”) to dismiss his appeal of an immigration jud ge ’ s decision denying his applications for asylum, withholding of removal, and protection under t he Convention2 Against Torture (“ CAT ” ) . For the reasons that follow, we will deny the petition for
review.
I. Thapa, a citizen of Nepal, entered the United St ates without inspection in Apri l 2008. The Department of Homeland Security (“ DHS”) issued him a N otice to Appear charging that he was removable under Section 212(a)(7)(A)(i)(1) of the Immigration & Nationality Act (“INA”) , 8 U.S.C. § 1182(a)(7)(A)(i)(1), as an alien who was inadmissible at the time of entry. Thapa conceded that he was inadmissible as charged
and applied for asylum , withholding of removal under the INA, and protection unde r the
CAT. He claim ed that he feared persecution by Maoists in his h ome country on account of his membership in the Nepali Congress Party. In December 2009, an Immigration Judge (“IJ”) determined that Thapa’ s hearing testimony conflicted with statements given at his credible fear interview and in his asylum application, and that he had attempted to enhance his claims of persecution by adding physical abuse to his description of one incident of alleged persecution and describing for the first time another

. Because the IJ therefore found that Thapa lac ked credibility, she held that he had failed to carry his burden of proof for any of the relief he sought. Thapa appealed to the BIA and, while that appeal was pending, filed a motion to reopen the matter on the basis of his counsel’s ineffectiveness. Th e B IA construed Thapa’s motion to reopen to be a motion to remand and denied it due to his failure to3 comply with the BIA’s requirements to bring an ineffectiveness claim

. The BIA also found no clear error in the Immigration Judge’s adverse credibility de termination , and dismissed his appeal. Thapa now petitions this Court for review.
II. We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft , 239 F.3d 542, 548 (3d Cir. 2001). We review
factua l findings, including any credibility determinations, under a substantial evidence
standard. See Cao v. Att’ y Gen. , 407 F.3d 146, 152 (3d Cir. 2005). Under that standard , we must uphold the BIA ’ s decision unless the evidence not only supports a contrary conclusion, but compels it. See Abdille v. Ashcroft , 242 F.3d 477, 483

- 84 (3d Cir. 2001). An applicant bears the burden of proving eligibility for asylum. Shardar v. Att ’ y Gen. , 503 F.3d 308, 312 (3d Cir. 2007). 1 We review the BIA’s decision to deny a motion
to remand for abuse of discretion. Korytnyuk v. Ashcroft

1 Because Th apa filed his asylum application after the enactment of the REAL ID Act, the inconsistencies, inaccuracies, or falsehoods upon which the adverse credibility finding is based need not go to the heart of his claim. See Lin v. Att’ y Gen. , 543 F.3d 114, 119 n. 5 (3d Cir. 2008). Rather, the REAL ID Act permits credibility determinations to be based on observations of Thapa’s demeanor, the plausibility of his story, and the consistency of his statements. See 8 U.S.C. § 1158(b)(1)(B)(iii); Gabuniya v. Att’ y Gen. , 463 F.3d 316, 322 n.7 (3d Cir. 2006). We have not applied the REAL ID Act standard in a precedential opinion. Here, because the inconsistencies identified by the IJ relate to the heart of Thapa’s claims for relief, and would thus support an adverse cred ibility determination even under the pre

- REAL ID Act standard, we need not consider whether 8 U.S.C. § 1158(b)(1)(B)(iii) is consistent with due process. See Wang v. Holder , 569 F.3d 531, 538 (5th Cir. 2009) (canvassing Circuit law on the provision). , 396 F.3d 272, 285 (3d Cir.4 2003).
III. The government argues that Thapa did not adequately raise the issue of the IJ’s credibility determination before the BIA and that any claims he rai ses before us regarding
that issue are therefore unexhausted and beyond our jurisdiction

. See 8 U.S.C. § 1252(d)(1). Thapa’s brief notice of appeal , along with his motion to remand , sufficed to place the BIA on notice that Thapa intended to raise a claim that the IJ’s credibility determination, the sole basis on which the IJ denied all forms of relief, was not based upon substantial evidence

. Dan Hua Wu v. Att’y Gen. , 571 F.3d 314, 317 (3d Cir. 2009) (“S o long as a [] . . . petitioner makes some effort, h owever insignificant, to place the [BIA] on notice of a straightforward issue being raised on appeal, a petitioner is deemed
to have exhausted her administrative remedies. ”) (quoting Lin v. Att ’ y Gen.

W e conclude that substantial evidence supports the decision to reject Thapa’s credibility. He presented materially different accounts of his encounters with Maoists: at
his credible fear interview he stated that they had only verbally threatened him and had not physically harmed him, but testified before the IJ that they had beat en him so badly , 543 F.3d 114, 1 21 (3d Cir. 2008) ). In fact, the BIA a ddressed merits of that claim in its opinion

. Accordingly, we hold that Thapa has adequately exhausted th e claim that the IJ’s credibility determination was not based upon substantial evidence

. To the extent he
raises other claims regarding this determin ation , they are unexhausted and beyond our jurisdiction. 8 U.S.C. § 1252(d)(1).5 that he experienced back pain for four days and was unable to walk properly for a week. He also recharacterized his dealings with his former business partner : at the credible fear
interview he stated that his partner had threatened him over a debt and that he had not reported the threats to the police because it was unimportant , but i n his testimony he claimed that his partner was a Maoist and that he didn’t report the threats to the police because of his partner’s political affiliation. 2 T he record thus supports the IJ’s determination that Thapa had enhanced aspects of his claims of persecution and was not
credible. It likewise supports the determination that Thapa failed to meet his burden to
demonstrate that he was entitled to relief

. See Thapa also argues that the BIA abused its discretion by holding t hat he failed to demonstrate that he had followed the procedural requirements set forth in 8 U.S.C. § 115 8(b)(1)(B)

.

Matter of
Lozada , 19 I.&.N. Dec. 637 (BIA 1988), aff’d , 857 F.2d 10 (1st Cir. 1988), and denying
his motion to remand

. Under Lozada

2 Th apa argues that the IJ improperly relied on his credible fear interview in making an adverse credibility determination . In support of this argument, he cites Balasubramanrim v. INS , 1 43 F.3d 157, 164 (3d Cir. 1998). There, we held that in consistencies bet ween a statement from an airport interview and in

- court testimony before an IJ cannot alone support an adverse credibility finding. Thapa apparently argues that the IJ abused her discretion by failing to sua sponte inquire into whether the credible fear i nterview was akin to an airport interview

. We have never held this to be the case. In any event, because this argument was not raised in his motion to , an alien wishing to raise an in effectiveness claim

must (1) provide an affidavit at testing to the relevant facts, (2) inform former counsel of the allegations and allow him an opportunity to respond , and (3) provide either a statement that a complaint against counsel has been filed with the appropriate disciplinary6 authority or a reasonable explanation of why that did not happen. Id. at 63 9

. Thapa
argues that he should have been allowed to proceed with his motion because he assert ed
that he had informed his prior counsel of his ineffec tiveness claim , and the BIA abused its discretion by requiring evidence of his compliance with Lozada

. We have never held
that a petitioner ’s unsupported assertion that he has complied with the Lozad a requirements suffices to proceed with an ineffective a ssistance claim in this context , and
will not do so now. Cf. Rranci v. Att’y Gen. , 540 F.3d 165, 173 (3d Cir. 2008) (holding
that a signed affidavit indicating that prior counsel had been informed of the ineffectiveness allegations was sufficient evidence of compliance with the requirements)

. The BIA did not abuse its discretion by denying Thapa’s motion to remand

. 3
IV. For the reasons we have given, we will deny Thapa’s petition for review.

remand or notice of appeal , we lack jurisdiction. See 8 U.S.C. § 1252(d)(1). 3 In any event, even if T hapa had demonstrated his compliance with the Lozado requirements, the BIA still would have denied his motion. Thapa’s motion argued only that his attorney was ineffective for failing to provide additional corroborative evidence to the IJ; because the IJ explicitly held that her decision was not based on a lack of corroboration, that evidence would not have affected the outcome of the proceedings. The BIA therefore correctly noted in its opinion that Thapa could not demonstrate that his counsel’s performa nce prejudiced him. Thus, even if the BIA had abused its discretion by requiring evidence of Thapa’s compliance with Lozada , its error would have been harmless. Li Hua Yuan v. Att ’ y Gen. , — F.3d

— , 2011 WL 1519200, at *5 (3d Cir. Apr. 22, 2011) (“W e will view an error as harmless and not necessitating a remand to the BIA when it is highly probable that the error did not affect the outcome of the case .”)

.