Tota v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: September 20, 2023
• Docket: 20-2023
• Status: Unpublished

Opinion

20-2023 Tota v. Garland

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 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 20th day of September, two thousand twenty-three.

PRESENT: JON O. NEWMAN, JOSÉ A. CABRANES, MARIA ARAÚJO KAHN, Circuit Judges. _______________________________________

ARSIM TOTA, AJRUSH TOTA,

Petitioners,

v. 20-2023-ag

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent. ________________________________________ FOR PETITIONERS: Adrian Spirollari, Brooklyn, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Jessica A. Dawgert, Senior Litigation Counsel; Elizabeth K. Ottman, Trial Attorney, 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, the BIA’s order is VACATED, and

the case is remanded for further proceedings consistent with this decision.

Petitioners Arsim and Ajrush Tota, natives and citizens of Albania, seek review of

a May 28, 2020 decision of the BIA affirming a July 6, 2018 decision of an Immigration

Judge (“IJ”) denying their applications for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). 1 In re Arsim Tota, Ajrush Tota, Nos. A206

427 444, A209 434 029 (B.I.A. May 28, 2020), aff’g Nos. A206 427 444, A209 434 029 (Immigr.

Ct. N.Y. City July 6, 2018). We assume the parties’ familiarity with the underlying facts

and procedural history.

1 The Government incorrectly contends that the petitioners have abandoned withholding of removal and CAT relief. The agency denied those forms of relief because the petitioners were not credible; thus, any challenge to the adverse credibility determination necessarily relates to all forms of relief. The petitioners have abandoned review of their motion to remand by not challenging the denial of it in their brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005). 2 Where, as here, the BIA affirms the IJ’s decision on only some of the grounds

offered by the IJ, we review the IJ’s decision as modified by the BIA. See Xue Hong Yang

v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). We review adverse credibility

determinations for substantial evidence, see Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d

Cir. 2018), and we treat the agency’s findings of fact as “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see

also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

“Considering the totality of the circumstances, and all relevant factors, a trier of

fact may base a credibility determination on the demeanor, candor, or responsiveness of

the applicant or witness, . . . the consistency between the applicant’s or witness’s written

and oral statements (whenever made and whether or not under oath, and considering the

circumstances under which the statements were made), the internal consistency of each

such statement, [and] the consistency of such statements with other evidence of record.”

8 U.S.C. § 1158(b)(1)(B)(iii).

The fact that the agency has relied primarily on credibility grounds in dismissing

an asylum application does not, however, insulate the decision from review. See Xiao Ji

Chen v. U.S. Dep’t of Just., 471 F.3d 315, 335 (2d Cir. 2006); Ramsameachire v. Ashcroft, 357

F.3d 169, 178 (2d Cir. 2004). “[I]n order to merit substantial evidence deference, ‘[t]he [IJ]

must give specific, cogent reasons for rejecting the petitioner’s testimony,’ and an adverse

credibility determination may not be based upon speculation or upon an incorrect

3 analysis of the testimony.” Cao He Lin v. U.S. Dep’t of Just., 428 F.3d 391, 400 (2d Cir. 2005)

(quoting Ramsameachire, 357 F.3d at 178); see also Hong Fei Gao, 891 F.3d at 77 (“[We ask]

whether the agency has provided ‘specific, cogent reasons for the adverse credibility

finding and whether those reasons bear a legitimate nexus to the finding.’” (quoting Xiu

Xia Lin, 534 F.3d at 166)).

The BIA correctly concluded that the IJ’s adverse credibility determination with

respect to Ajrush was supported by substantial evidence. Ajrush’s initial failure to

disclose previous travel to the Netherlands, inconsistencies about the reason for that trip,

and his hesitant demeanor when questioned on the topic, considered together in the

totality of the circumstances surrounding them, provide more than sufficient support in

this regard. See Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single

inconsistency might preclude an alien from showing that an IJ was compelled to find him

credible. Multiple inconsistencies would so preclude even more forcefully.”); see also

Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular deference

is due to assessments of demeanor). Although Ajrush claims these discrepancies resulted

from mere oversights and innocent lapses of memory, the agency was not required to

find those explanations compelling. See Majidi, 430 F.3d at 80 (“A petitioner must do more

than offer a plausible explanation for his inconsistent statements to secure relief; he must

demonstrate that a reasonable fact-finder would be compelled to credit his testimony.”

4 (internal quotation marks omitted)). Thus, we affirm the BIA’s decision as to Ajrush

because the IJ’s credibility determination is supported by substantial evidence.

We turn next to the BIA’s review of the IJ’s credibility findings with respect to

Arsim. Although the IJ concluded the opinion by noting that “[f]or the reasons set forth

previously, the Court also finds Arsim Tota did not testify credibly in this proceeding,”

that finding was conclusory. The BIA determined that this finding was supported on

three specific grounds: (1) inconsistent testimony relating to the size of a political party

in Albania known as the Red and Black Alliance, (2) the absence of certain details relating

to protests that Arsim had allegedly organized for the Red and Black Alliance, and (3) a

lack of evidence showing political violence against members of the Red and Black

Alliance during the years in question. 2 For the reasons that follow, we believe that the

first two grounds relied upon by the BIA are insufficient to support such a finding as to

Arsim. Although we conclude that inconsistencies between Arsim’s testimony about

political violence in Albania and the remainder of the record evidence presented could,

perhaps, have caused a reasonable finder of fact to question Arsim’s veracity, we remand

this case for further proceedings because we are unable to determine with confidence that

the agency would have reached the same result on that ground alone. See Chen v. Garland,

2Although the IJ’s decision supports the adverse credibility determination relating to Arsim with additional arguments, the BIA’s decision affirmatively disclaims reliance on any of those additional grounds. See Gao v. Bd. of Immigration Appeals, 482 F.3d 122, 125 (2d Cir. 2007) (“[W]hen the BIA issues an opinion and does not adopt the IJ's decision to any extent, we review only the BIA’s decision.”). 5 No. 19-715-AG, 2023 WL 4712460, at *3 (2d Cir. 2023) (“[W]here we cannot confidently

predict whether the agency would adhere to its credibility determination absent its

errors, then we remand for the agency to reconsider the question.” (internal quotation

marks omitted)).

The first basis underlying the IJ’s adverse credibility determination with respect to

Arsim was the inconsistent testimony from the petitioners and their brother, Refail Tota,

related to the size of the Red and Black Alliance in Albania. Specifically, Ajrush testified

that it had 105,000 members, Arsim testified that it had about 3,000, and Refail testified

that it had between 5,000 to 6,000. Although testimony on this point was facially

inconsistent, the record is devoid of any indication that Arsim himself had ever provided

differing estimates or even that he was, as a factual matter, incorrect about the party’s

prominence. In the absence of any reason to believe that Arsim had provided a false

account, these differing estimates alone cannot support an adverse credibility

determination against him. Moreover, the IJ found that Ajrush “has not testified credibly

in these proceedings,” and that “[h]is failure to specify the number of protest participants,

undercuts any argument that the number of Red and Black Alliance members in Tirana

is greater than the estimates of his two brothers.” These findings render Ajrush’s estimate

of party membership an unreliable basis for questioning the estimate given by Arsim,

whose credibility remains to be redetermined on remand.

6 The second rationale underlying the IJ’s adverse credibility determination with

respect to Arsim was the absence of certain details about the protests that he had

organized for the Red and Black Alliance. Arsim was not, however, asked to estimate the

number of people in attendance at the rallies he allegedly organized, how many people

were arrested during those protests, or whether any other individuals spoke. Because

Arsim was never questioned on these points, the absence of that level of detail from his

testimony is likewise insufficient to support a finding that his testimony was, as a whole,

incredible. See Qiu v. Ashcroft, 329 F.3d 140, 151–52 (2d Cir. 2003) (“[A] legal standard

that empowers an IJ or the BIA to rule against a petitioner who fails to anticipate the

particular set of details that the fact-finder desires (but does not request, through

questions directed to the applicant) is no standard at all. It would enable the

administrative decisionmaker to reject whichever applicants that fact-finder happens to

disfavor.”), overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of Just., 494 F.3d 296 (2d

Cir. 2007); see also Yun Qin Lian v. Mukasey, 265 F. App’x 36, 38 (2d Cir. 2008) (summary

order) (“[W]hen an IJ has concerns about the credibility of an alien’s vague testimony,

the appropriate course is to probe for further details.”).

The third rationale underlying the IJ’s adverse credibility determination with

respect to Arsim was the petitioners’ failure to introduce evidence demonstrating

government persecution of the Red and Black Alliance in Albania. Although Arsim made

broad claims that the Red and Black Alliance had fielded 140 candidates in the 2013

7 election and that some of those candidates had been harmed, no independent evidence

of those facts appears within the record. Indeed, an affidavit from the petitioners’ own

expert witness on country conditions in Albania contains neither any information with

respect to the activities of the Red and Black Alliance nor any reference to the persecution

of its members by the government. Given the lack of evidence on this point, the IJ

reasonably took administrative notice of the fact that the U.S. Department of State’s

Country Reports for Albania did not mention the Red and Black Alliance or the existence

of political disappearances, prisoners, or detainees at the time police purportedly

detained and harmed Arsim. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 166–68 (2d Cir.

2008) (finding no error in agency’s decision to take administrative notice of State

Department reports that “simply corroborated” conclusion based on other record

evidence). The apparent inconsistency between these sources, considered in the totality

of the surrounding circumstances, could cause a reasonable finder of fact to question the

credibility of Arsim’s testimony that the actions allegedly taken against him were the

result of his membership in the Red and Black Alliance.

Because the first two rationales cited by the BIA in support of the IJ’s adverse

credibility determination against Arsim—namely, the apparent discrepancy between the

membership estimates and the absence of additional details about his rallies—played a

significant role in the agency’s analysis, we cannot confidently predict whether the same

determination with respect to Arsim’s credibility would be reached on remand. As a

8 result, we conclude that further proceedings before the agency are appropriate. See Chen,

2023 WL 4712460 at *3; see also Liv v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008) (“Where the

adverse credibility determination supporting denial of relief from removal is a product

of some agency findings infected by legal error and others that are not, our decision to

uphold the agency decision or to remand for further proceedings depends on how

confidently we can predict that the agency would reach the same decision absent the

errors that were made.” (internal quotation marks omitted)).

For the foregoing reasons, the petition for review is GRANTED. We VACATE the

BIA’s order and REMAND the case to the BIA with instructions to remand to an IJ for

further proceedings consistent with this opinion.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court