17-2947 Myftari v. Barr BIA Lamb, IJ A205 897 759 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

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,

(2d Cir. 2005).1 The applicable standards

of review are well established. See

(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,

(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,

(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.”

Second, the BIA agreed with the IJ that Myftari failed

to provide sufficient corroborating evidence. “Where the

3 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.”

(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,

(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

(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.”

. 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.”

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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