2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-2-2011

Thapa v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1473

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1

NOT PRECEDENTIAL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 Petition 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: AMBRO, 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 judge’s decision denying his

applications for asylum, withholding of removal, and protection under the Convention 
2

Against Torture (“CAT”). For the reasons that follow, we will deny the petition for 

review.

I.

Thapa, a citizen of Nepal, entered the United States without inspection in April 

2008. The Department of Homeland Security (“DHS”) issued him a Notice 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 under the 

CAT. He claimed that he feared persecution by Maoists in his home 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 lacked 

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. The BIA construed 

Thapa’s motion to reopen to be a motion to remand and denied it due to his failure to 
3

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 determination, 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

factual 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 Thapa 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 credibility 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 raises 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)

(“So long as a[] . . . petitioner makes some effort, however 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.

We 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 beaten him so badly 

, 543 F.3d 

114, 121 (3d Cir. 2008)). In fact, the BIA addressed merits of that claim in its opinion. 

Accordingly, we hold that Thapa has adequately exhausted the claim that the IJ’s 

credibility determination was not based upon substantial evidence. To the extent he 

raises other claims regarding this determination, 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 in 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

 The 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 that he failed to 

demonstrate that he had followed the procedural requirements set forth in 

8 U.S.C. § 1158(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 Thapa 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, 143 F.3d 157, 164 (3d Cir. 1998). There, we held that 

inconsistencies between 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 interview 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 ineffectiveness claim 

must (1) provide an affidavit attesting 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 disciplinary 
6

authority or a reasonable explanation of why that did not happen. Id. at 639. Thapa 

argues that he should have been allowed to proceed with his motion because he asserted 

that he had informed his prior counsel of his ineffectiveness 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 Lozada

requirements suffices to proceed with an ineffective assistance 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 Thapa 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 performance 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) (“We 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.”).