17-2947
Myftari v. Barr
BIA
Lamb, IJ
A205 897 759
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 16th day of April, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
DENIS MYFTARI,
Petitioner,
v. 17-2947
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Adrian Spirollari, Brooklyn, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General, Civil Division;
John S. Hogan, Assistant Director;
Brianne Whelan Cohen, Senior
Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is GRANTED.
Petitioner Denis Myftari, a native and citizen of
Albania, seeks review of an August 23, 2017 decision of the
BIA affirming a February 8, 2017 decision of an Immigration
Judge (“IJ”) denying asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Denis Myftari, No. A205 897 759 (B.I.A. Aug. 23, 2017), aff’g
No. A205 897 759 (Immig. Ct. N.Y. City Feb. 8, 2017). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
We have reviewed the IJ’s decision as modified by the
BIA’s decision. See Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 522 (2d Cir. 2005).1 The applicable standards
of review are well established. See 8 U.S.C. § 1252(b)(4)(B).
1 Unless otherwise indicated, case quotations omit all
internal quotation marks, alterations, footnotes, and citations.
2
For the following reasons, we vacate and remand for further
consideration consistent with this order.
First, the BIA agreed with the IJ that Myftari’s
testimony was not credible because it was vague. However, “in
a proceeding wherein an alien seeks relief from removal, a
finding of testimonial vagueness cannot, without more,
support an adverse credibility determination unless
government counsel or the IJ first attempts to solicit more
detail from the alien.” Shunfu Li v. Mukasey, 529 F.3d 141,
147 (2d Cir. 2008). Neither the IJ nor the BIA indicated what
testimony was vague, so we cannot assess whether the IJ or
government attorney attempted to elicit further details.
“Despite our generally deferential review of IJ and BIA
opinions, we require a certain minimum level of analysis from
the IJ and BIA opinions denying asylum, and indeed must
require such if judicial review is to be meaningful.”
Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005).
“Inadequate analysis” is “not excused by the fact that a
hypothetical adjudicator, applying the law correctly, might
also have denied the petition for asylum.” Id.
Second, the BIA agreed with the IJ that Myftari failed
to provide sufficient corroborating evidence. “Where the
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trier of fact determines that the applicant should provide
evidence that corroborates otherwise credible testimony, such
evidence must be provided unless the applicant does not have
the evidence and cannot reasonably obtain the evidence.” 8
U.S.C. § 1158(b)(1)(B)(ii). “[W]hen relying upon an alien’s
failure to provide corroborating evidence [,] . . . [a]n IJ
should point to specific pieces of missing, relevant
documentation and show that this documentation was reasonably
available, an alien must have an opportunity to explain the
omission, and the IJ must assess any explanation that is
given.” Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009).
The IJ and BIA relied, in part, on the fact that Myftari
provided no documentation corroborating his testimony that he
lost his job because of his religion. The IJ also noted that
Myftari provided no evidence from family members to
corroborate his claims of past persecution. But the IJ never
solicited an explanation for this failure. And if his employer
fired him and his family disowned him because of his religion,
as Myftari has asserted, then his inability to obtain
corroborating documentation from them is perfectly
understandable. Cf. Cao He Lin v. U.S. Dep’t of Justice, 428
4
F.3d 391, 404 (2d Cir. 2005) (it unreasonable to expect a
document from an alleged persecutor).
When the IJ fails to comply with these rules regarding
vague testimony and corroborating evidence, we nonetheless
“generally do not reject the IJ’s findings outright, because,
despite the errors, it is true in most cases that a reasonable
fact-finder would not be compelled to reach an opposite
conclusion.” Id. at 395. But nor do we “ordinarily deny the
petition for review because we cannot determine whether the
IJ would have reached the same conclusion had she not erred.
In these instances, we vacate and remand for further
proceedings conducted in accord with the opinion.” Id. We
believe such a remand is appropriate here.
For the foregoing reasons, the petition for review is
GRANTED, the BIA’s decision is VACATED, and the case is
REMANDED for further proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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