                                                              NOT PRECEDENTIAL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
                                           1
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
                                              2
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).

                                             3
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
                                              4
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
                                             5
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.”).
                                              6
