NOT PRECEDENTIAL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
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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
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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, 396 F.3d 272, 285 (3d Cir.
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).
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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., 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).
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
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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 8 U.S.C. § 1158(b)(1)(B).
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 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, 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
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
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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.”).
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