                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                 MAR 3, 2009
                              No. 08-10899                     THOMAS K. KAHN
                          Non-Argument Calendar                    CLERK
                        ________________________

                          Agency No. A98-677-333

DIANA CARMEN GRISALES GRANADA,


                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.


                        ________________________

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

                               (March 3, 2009)

Before CARNES, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

     Diana Carmen Grisales Granada petitions for review of the Board of
Immigration Appeals’ decision denying her motion to reopen her removal

proceedings. Grisales contends that the BIA erred in finding that she had not been

prejudiced by her former counsel’s ineffective assistance.

      “We review only the [BIA’s] decision, except to the extent that it expressly

adopts the IJ’s opinion.” Reyes-Sanchez v. United States Att’y Gen., 369 F.3d

1239, 1242 (11th Cir. 2004) (citation and quotation marks omitted). “Insofar as

the BIA adopts the IJ’s reasoning, we review the IJ’s decision as well.” Chen v.

United States Atty. Gen., 463 F.3d 1228, 1230 (11th Cir. 2006). “[W]e review the

BIA’s denial of a motion to reopen removal proceedings for abuse of discretion.

Dakane v. United States Att’y Gen., 399 F.3d 1269, 1272 n.2 (11th Cir. 2004); see

also I.N.S. v. Abudu, 485 U.S. 94, 96, 108 S. Ct. 904, 907 (1988) (stating that the

BIA has “broad discretion in considering motions to reopen”).

      In removal proceedings an alien “shall have the privilege of being

represented (at no expense to the Government) by such counsel, authorized to

practice in such proceedings, as [s]he shall choose.” 8 U.S.C. § 1362. There is no

Sixth Amendment right to counsel in removal proceedings. Dakane, 399 F.3d at

1273. We have held, however, that an alien who has obtained counsel has a right

to effective assistance under the Due Process Clause of the Fifth Amendment. Id.

      The BIA imposes three threshold procedural requirements on a petitioner

who brings a claim for ineffective assistance of counsel. Gbaya v. Untied States
                                          2
Att’y Gen., 342 F.3d 1219, 1221 (11th Cir. 2003) (citing Matter of Lozada, 19 I &

N Dec. 637, 639 (BIA 1988)). The petitioner must support her claim with an

affidavit describing the ways in which counsel’s performance was defective;

counsel must receive notice of the ineffective assistance claim and must have an

opportunity to respond; and the motion must state whether the petitioner has filed a

complaint with the appropriate disciplinary bodies, and if not, why. Gbaya, 342

F.3d at 1221. The BIA found that Grisales substantially complied with Lozada’s

procedural requirements.

      In addition to meeting the Lozada requirements, “a petitioner claiming

ineffective assistance of counsel in a motion for reconsideration must also show

prejudice.” Dakane, 399 F.3d at 1274. “Prejudice exists when the performance of

counsel is so inadequate that there is a reasonable probability that but for the

attorney’s error, the outcome of the proceedings would have been different.” Id.

The alien bears the burden of demonstrating prejudice. Id. (“[A]n 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 was

unable to reasonably present his or her case.”).

      At her removal hearing Grisales testified that an assault that had occurred on

September 18, 2003 led to her decision to flee Colombia. Two men who identified

themselves as members of FARC told her to stop her activities with the Liberal
                                           3
Party, and one of them stabbed her four times on the arm. She stated: “After he

struck me I was already on the ground and he kept saying—and he said because

you did not pay attention to the warnings that we gave you over the phone, this is

only a beginning of what can happen to you.” Grisales was hospitalized for four

days, and she produced corroborating evidence of her medical treatment. In her

asylum application, however, Grisales did not include information about any

assault. At her removal hearing, she testified about the omission of that

information as follows:

      Q.     Ma’am, you testified today that you had a very traumatic
             experience on September 18, 2003. Is that right?

      A.     Yes.

      Q.     However, you forgot to include that information in your asylum
             application. Can you explain why?

      A.     Well it’s not that I forgot, it’s just that the person that translated
             the information did not include it in the application and since I
             don’t speak the language, I was not able to — to verify whether
             that information was included or not and since I did not see this
             individual again, he just came and took my money and I never
             saw him again.


Thus, she attributed that particular error in the asylum application to her translator,

but she also testified that her attorney told her to wait to correct errors in her

application until the hearing. Grisales testified about translator error in relation to



                                             4
some inconsistencies in the dates of her employment, explaining that her attorney

told her to correct mistakes in the application at the hearing:

      Q.     Ma’am, if you knew this was a mistake or a translator problem,
             why haven’t you amended your application before the Court?

      A.     You mean today?

      Q.     Before today. You say you were aware that this was a mistake,
             riddled with problems from the translator you could not find or
             locate. So why hadn’t you amended your application, in writing,
             to correct these mistakes prior to today’s hearing?

      A.     Because I was — because I was under the impression that we
             were to amend those errors today in according to what my
             attorney told me.

Grisales testified that “there were lots of mistakes” in her application.

      The IJ found that Grisales’ testimony was not credible because her testimony

was inconsistent with her asylum application. Specifically, he focused on her

testimony about the September 18, 2003 assault, and her failure to include any

reference to that significant event in her application:

      While the Court, during direct-examination, seemed moved by both of
      [Grisales’] statements of September 18, 2003, where she was allegedly
      attacked by two individuals and claimed that she was confronted solely
      because of her involvement in the Liberal Movement and that she had
      failed to heed previous warnings, apparently referencing the phone
      calls that she had indicated that she had received about the marches
      and demonstrations that she had participated in, seeking the release of
      those persons who had been kidnapped, and then struck four times on
      her body, and had submitted corroborating evidence from the medical
      doctor who had treated her regarding the extent of those wounds, the
      Court would note that the respondent’s detailed addendum, attached to
                                            5
      her affirmative asylum application, omitted any reference to September
      18, 2003 or any reference that she was ever harmed physically or
      otherwise in Colombia. . . . She has not satisfactorily explained why
      her detailed asylum statement omits any reference to an incident of
      September 18, 2003, and any reference as to any physical assault,
      regardless of what the motivation may or may not have been.

The IJ noted that Grisales apparently believed that she would have the opportunity

to correct her application through her testimony, but he concluded that it was “not

clear” why any reference to the assault was omitted from her application. He did

not specifically mention her testimony about the advice she received from her

lawyer, which counsel apparently did not dispute at the hearing.

      The IJ went on to observe that Grisales’ asylum application “clearly . . . does

not reference any physical assault or attack on her, the date to which she has

testified that was the most significant that lead [sic], weeks later, for her to depart

Colombia and come to the United States.” Therefore, the IJ concluded that “the

Court can only find that the respondent has generated this incident, subsequent to

the filing of her asylum application and failing to equate the omission previously

from her testimony today, leaves the Court believing that her testimony has been

inconsistent with her previous application and it is a material omission and conflict

from the application process.” As a result, the IJ denied her petition for asylum

based on “the incredible nature of the previous asylum application and the omission

of the material facts to which she has testified to today” at the hearing.

                                            6
      The BIA denied Grisales’s motion to reopen based on ineffective assistance

of counsel because Grisales did not identify the errors in her application and did not

explain how they affected the outcome of her case. The BIA concluded that

Grisales failed to assert that her former counsel was responsible for the

application’s omission of any reference to the physical assault and failed to show

that her counsel’s ineffective assistance prejudiced her. Also, the BIA observed that

during an earlier hearing the IJ had instructed Grisales that any changes or

corrections to her asylum application had to be made ten days before the removal

hearing, and Grisales agreed that she understood.1

      The government contends that Grisales has failed to specify what the errors

were in her asylum application and how they affected the outcome of her case. The

gist of the government’s argument is that in order to show prejudice Grisales should

have asserted that her attorney was responsible for the original omission of a

reference to the assault in the application.

      Grisales did not assert that her former counsel was responsible for the

original omission from the application because she attributed that to translator error.

Grisales did and does assert that her former counsel was responsible for the

existence of errors in her application at the time of the hearing because counsel told

Grisales to wait until then to correct them.

       1
           Grisales was not represented by counsel at that earlier hearing.
                                                 7
      We need not reach the question of prejudice because we conclude that

Grisales has not proved that the assistance of her former counsel was inadequate.

The IJ disbelieved Grisales’ testimony that her former counsel was responsible for

the omissions from and errors in her application at the time of the hearing, and the

IJ found that Grisales “generated” the story about the assault. The BIA accepted the

IJ’s finding that Grisales had failed to show that her former counsel was responsible

for any omissions in her application or for any delay in amending her application.

      Motions to reopen do not provide a second opportunity for an applicant to

litigate her credibility, and we will not revisit an adverse credibility finding. “Since

the BIA has broad discretion to grant or deny motions to reopen, in reviewing such

a motion, we are precluded from passing on the merits of the underlying exclusion

proceedings, including adverse credibility determinations.” Shou Yung Guo v.

Gonzales, 463 F.3d 109, 113 (2d Cir. 2006) (internal quotation marks omitted).

The BIA did not abuse its discretion when it denied Grisales’ motion to reopen

based on ineffective assistance of counsel.

      PETITION DENIED.




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