Tota v. Garland ( 2023 )

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
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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.”
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(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.”).
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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.
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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
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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
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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
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