                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-10486                 ELEVENTH CIRCUIT
                                                             DECEMBER 18, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                          Agency No. A088-052-009

JIMMY PARRA,


                                                                        Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.


                         ________________________

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

                             (December 18, 2009)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Jimmy Parra, a citizen of Colombia, seeks review of the Board of
Immigration Appeals’s (“BIA”) order affirming the immigration judge’s (“IJ”)

removal order and denial of asylum and withholding of removal under the

Immigration and Nationality Act (“INA”). Although many of the details of the

alleged persecution are unclear, the central event in Parra’s story is that in March

2005, he was ambushed, kidnaped, and beaten by an armed group of FARC

members due to his involvement with the Polo Democratico Independiente Party in

Colombia.1 Parra argues that there is a lack of substantial evidence to support the

IJ’s adverse credibility determination and denial of his claims. Parra also argues

that the adverse credibility determination was a result of his counsel’s ineffective

assistance, both before and on the day of the hearing, when counsel withdrew from

the representation altogether.

I.     Scope and Standard of Review

       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). To the extent that the BIA adopts the IJ’s

reasoning, we review the IJ’s decision as well. Id. Here, the BIA followed the IJ’s

reasoning that Parra’s claim was not supported by credible evidence and that his



       1
          The record reflects that the Revolutionary Armed Forces of Colombia (“FARC”) is a
guerilla organization that has engaged in the unlawful killing of civilians, journalists, religious
leaders, and elected officials, in addition to displacing local populations and recruiting child
soldiers in Colombia.
                                                    2
testimony was inconsistent with his asylum application and the addenda thereto.

Accordingly, we review the decisions of the BIA and the IJ.

      When evaluating a petition to review a decision by the BIA denying an

application for asylum, we review findings of fact under the “substantial evidence

test,” and must affirm the decision “if it is supported by reasonable, substantial,

and probative evidence on the record considered as a whole.” Forgue v. U.S. Att’y

Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quotation omitted). The test is

deferential, and we “consider only whether there is substantial evidence for the

findings made by the BIA, not whether there is substantial evidence for some other

finding that could have been, but was not, made.” Adefemi v. Ashcroft, 386 F.3d

1022, 1029 (11th Cir. 2004) (en banc) (quotation omitted).

II. Discussion

      An alien who arrives in or is present in the United States may apply for

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or the

Secretary of the Department of Homeland Security (“DHS”) has discretion to grant

asylum if the alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8

U.S.C. § 1158(b)(1). A “refugee” is

      any person who is outside any country of such person’s nationality or,
      in the case of a person having no nationality, is outside any country in
      which such person last habitually resided, and who is unable or
      unwilling to return to, and is unable or unwilling to avail himself or
      herself of the protection of, that country because of persecution or a
                                           3
      well-founded fear of persecution on account of race, religion,
      nationality, membership in a particular social group, or political
      opinion.

8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the burden of proving

statutory “refugee” status. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). To establish asylum eligibility, the alien must, with specific and credible

evidence, establish (1) past persecution on account of a statutorily listed factor, or

(2) a “well-founded fear” that the statutorily listed factor will cause such future

persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. Thus, an alien

cannot establish eligibility for asylum if he cannot show that any alleged past or

future persecution was on account of a protected ground. See Al Najjar, 257 F.3d

at 1287. In addition, “[e]stablishing a history of past persecution creates a

presumption that an alien has a well-founded fear of future persecution, although

that presumption can be rebutted by the government.” Forgue, 401 F.3d at 1286.

When a petitioner fails to “establish a claim of asylum on the merits, he necessarily

fails to establish eligibility for withholding of removal.” Id. at 1288 n.4.

      We review credibility determinations under the substantial evidence test and

“this court may not substitute its judgment for that of the BIA with respect to

credibility findings.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th

Cir. 2004).

      [T]he IJ [or BIA] must offer specific, cogent reasons for an adverse
                                           4
      credibility finding. Once an adverse credibility finding is made, the
      burden is on the applicant alien to show that the IJ’s [or BIA’s]
      credibility decision was not supported by specific, cogent reasons or
      was not based on substantial evidence. A credibility determination,
      like any fact finding, may not be overturned unless the record compels
      it.

Forgue, 401 F.3d at 1287 (citations and quotations omitted).

      If credible, an alien’s testimony may be sufficient, without corroboration, to

sustain his burden of proof in establishing his eligibility for relief from removal.

Id. “Conversely, an adverse credibility determination alone may be sufficient to

support the denial of an asylum application.” However, if an applicant produces

evidence other than his testimony, “it is not sufficient for the IJ to rely solely on an

adverse credibility determination in those instances.” Id.

      Pursuant to the REAL ID Act of 2005 (“RIDA”), Congress has directed the

immigration courts to base credibility determinations on the totality of the

circumstances, which may include inaccuracies or falsehoods that do not go to the

“heart of the applicant’s claim.” Pub. L. No. 109-13, 119 Stat. 231, § 101(a)(3). A

trier of fact can support an adverse credibility determination when the petitioner

omits incidents of persecution from an asylum application and then raises those

incidents for the first time at the asylum hearing. Forgue, 401 F.3d at 1287.

“Indications of reliable testimony include consistency on direct examination,

consistency with the written application, and the absence of embellishments.”

                                            5
Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006).

       In Parra’s case, there was substantial evidence to support the IJ’s adverse

credibility determination. The IJ found, and the BIA agreed, that were multiple

inconsistencies between Parra’s written statements and his testimony at the asylum

hearing. Among other things, Parra failed to mention a second attempted

kidnaping by FARC in his initial asylum application and subsequent written

addenda. Thus, there was substantial evidence to support the denial of asylum and

withholding of removal.

       As to Parra’s ineffective assistance of counsel claim, this court lacks

jurisdiction to consider it, because Parra did not raise it before the BIA and

therefore did not exhaust it. See 8 U.S.C. § 1252(d)(1); Sundar v. I.N.S., 328 F.3d

1320, 1323 (11th Cir. 2003); Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir.

2006) (nothing that an alien properly exhausts his claim before the BIA by

mentioning the claim in his brief and discussing its merits). If Parra wishes to

bring an ineffective assistance of counsel claim, he must file a motion to reopen

and comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec.

637, 639 (BIA 1988).2


       2
         Under Lozada, Parra must provide the Board with (1) an affidavit explaining the
agreement with his prior counsel regarding his legal representation; (2) evidence that prior
counsel has been informed of the allegations of ineffective assistance and has been given an
opportunity to respond to those allegations; and (3) either a showing that a complaint has been
filed with the proper disciplinary authorities regarding prior counsel’s representation, or an
                                                  6
       DENIED IN PART, DISMISSED IN PART.




explanation of the reasons why a complaint has not been filed. 19 I. & N. Dec. at 639.
                                               7
