                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                            No. 05-16746                     SEPTEMBER 6, 2006
                        Non-Argument Calendar                 THOMAS K. KAHN
                                                                  CLERK
                      ________________________

                 BIA Nos. A77-253-077 & A77-253-078

DIANA TOSKA,
GEZIM TOSKA,
KLEVIS TOSKA,
ANXHELINA TOSKA,

                                                             Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                             Respondent.


                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                            (September 6, 2006)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:
       Diana Toska (“Toska”), Gezim Toska, and their children, Klevis and

Anxhelina Toska, through counsel, seek review of the Board of Immigration

Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ’s”) order

finding them removable and denying their application for asylum, withholding of

removal, and relief under the Convention Against Torture, 8 U.S.C. §§ 1158, 1231,

8 C.F.R. § 208.16(c), and denying their motion to reopen, 8 C.F.R. § 1003.2(c)(4),

on the basis of ineffective assistance of counsel.1

       The Toskas were found to be removable in large part because the IJ made an

explicit adverse credibility finding with respect to Diana Toska, which the BIA

affirmed. Toska now argues that the BIA’s adverse credibility finding is not

supported by substantial evidence because she provided a logical explanation for

the inconsistencies between her asylum application and her testimony.2

       Although the finding that Toska’s testimony regarding her father’s death

was inconsistent may have been supported by substantial evidence, the IJ and the

BIA failed to consider the other evidence of persecution submitted by Toska.



       1
         When the BIA issues a decision, we review only that decision, except to the extent that
the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001). “Insofar as the [BIA] adopts the IJ's reasoning, we review the IJ's decision as well.”
Id. (internal citations omitted).
       2
        “Credibility determinations . . . are reviewed under the substantial evidence test.”
D-Muhumed v. United States Attorney Gen., 388 F.3d 814, 818 (11th Cir. 2004). “A credibility
determination, like any fact finding, may not be overturned unless the record compels it.”
Forgue, 401 F.3d at 1287 (internal quotations and citations omitted).
                                                   2
“[A]n adverse credibility determination alone may be sufficient to support the

denial of an asylum application” when there is no other evidence of persecution.

Id. However, an adverse credibility determination does not alleviate the BIA’s

duty to consider other evidence produced by the asylum applicant. Id. “[T]he

weaker the applicant’s testimony, . . . the greater the need for corroborative

evidence.” Yang, 418 F.3d at 1201. The denial of asylum and withholding of

removal cannot be based solely on an adverse credibility finding if the applicant

offered "other evidence of persecution,” See Forgue, 401 F.3d at 1287-88 (noting

that, where an applicant produces other evidence of persecution, the IJ must

consider that evidence, and it is not sufficient for the IJ to rely solely on the

adverse credibility determination).

      There is nothing in the record specifically indicating or suggesting that the

BIA considered the other evidence, including an affidavit from the translator of her

declaration, witness testimony, and a letter regarding the circumstances of her

father’s death. Accordingly, we vacate and remand for the BIA to consider

Toska’s corroborating evidence in the first instance because the denial of asylum

and withholding of removal cannot be based solely on an adverse credibility claim

if the applicant offered other evidence of persecution.




                                            3
         Toska’s second argument is that the BIA erred in denying her motion to

remand based on ineffective assistance of counsel because the IJ would not have

found her lacking in credibility if her attorney had familiarized himself with the

facts of her case and properly prepared her for her first asylum hearing. Here,

Toska’s motion is properly treated as a motion to reopen because she presented

new evidence.3 We review the BIA’s denial of a motion to reopen for an abuse of

discretion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). “Judicial

review of denials of discretionary relief incident to deportation proceedings,

including motions to reopen, is limited to determining ‘whether there has been an

exercise of administrative discretion and whether the matter of exercise has been

arbitrary or capricious.’” See Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir.

1985).

         Pursuant to the Fifth Amendment Due Process Clause, “[a]liens enjoy the

right to effective assistance of counsel in deportation proceedings.” Mejia

Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999). “[T]o establish the

ineffective assistance of counsel in the context of a deportation proceeding, an

alien must establish that his or her counsel’s performance was deficient to the point

that it impinged upon the fundamental fairness of the hearing such that the alien

         3
         Although Toska styled her motion as a “motion to remand,” we treat motions to remand
that seek to introduce evidence that has not previously been presented, as motions to reopen.
See Al Najjar v. Ashcroft, 257 F.3d 1262, 1301 (11th Cir. 2001)
                                                 4
was unable to reasonably present his or her case.” Dakane v. U.S. Att’y Gen., 399

F.3d 1269, 1274 (11th Cir. 2005). In addition, a petitioner seeking to reopen his

proceedings due to ineffective assistance of counsel must show that counsel’s

performance was so deficient that it may have affected the outcome of the

proceedings. Id.

       In Matter of Lozada, 19 I. & N. Dec. 637, 638-39, (BIA 1988), aff’d, 857

F.2d 10 (1st Cir.1998), the BIA addressed a claim of ineffective assistance of

counsel raised in a motion to reopen, holding that the motion should be

(1) supported by an affidavit setting forth in detail the agreement that was entered

into with counsel and what representations counsel did or did not make to the

petitioner regarding the alleged claim, (2) the petitioner must inform counsel of the

allegations leveled against him and give counsel an opportunity to respond, (3) the

motion must reflect whether a complaint has been filed with appropriate

disciplinary authorities with respect to any violation of counsel’s ethical or legal

responsibilities, and if not, why not, and (4) the petitioner must show that his

counsel’s deficient performance resulted in prejudice to him. See Dakane, 399

F.3d at 1274. (discussing the Lozada requirements). We have held that substantial,

if not strict, compliance with the four Lozada factors is required. See Dakane, 399

F.3d at 1274 (holding that substantial, if not exact, compliance with the procedural


                                           5
requirements of Lozada, as well as a showing of prejudice is required to make

claim for ineffective assistance of counsel).

      Here, the BIA did not abuse its discretion in finding that Toska failed to

establish a claim for ineffective assistance of counsel. Toska did not establish that

her attorney’s performance resulted in prejudice because she failed to demonstrate

that the IJ would have found her credible but for her attorney’s errors.

Accordingly, we deny her petition for review with respect to her motion to reopen

and grant her petition for review with respect to the BIA’s denial of Toska’s

application for asylum, withholding of removal, and relief under the Convention

Against Torture. We vacate and remand as described in this opinion.

      PETITION GRANTED IN PART, DENIED IN PART.




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