     16-278
     Baba v. Sessions
                                                                                  BIA
                                                                             Nelson, IJ
                                                                          A200 172 505
                             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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 10th day of August, two thousand eighteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            DENNY CHIN,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MOHAMED BOUH BABA,
14            Petitioner,
15
16                      v.                                       16-278
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Michael Z. Goldman, New York, NY.
24
25   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
26                                      Attorney General, Civil Division;
27                                      Kohsei Ugumori, Senior Litigation
28                                      Counsel; Brett F. Kinney, Trial
29                                      Attorney, Office of Immigration
30                                      Litigation, United States
31                                      Department of Justice, Washington,
32                                      DC.
1        UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review

4    is GRANTED.

5        Petitioner Mohamed Bouh Baba, a native and citizen of

6    Mauritania, seeks review of a BIA decision affirming an

7    Immigration Judge’s (“IJ”) denial of Baba’s application for

8    asylum,   withholding    of     removal,   and   relief   under   the

9    Convention Against Torture (“CAT”).        In re Mohamed Bouh Baba,

10   No. A200 172 505 (B.I.A. Dec. 29, 2015), aff’g No. A200 172

11   505 (Immig. Ct. N.Y. City May 7, 2014).              We assume the

12   parties’ familiarity with the underlying facts and procedural

13   history in this case.

14       We review the IJ’s decision as supplemented by the BIA,

15   see Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005),

16   deferring the IJ’s adverse credibility determinations unless

17   circumstances make plain that no reasonable fact-finder could

18   have made such a determination, see Xiu Xia Lin, 534 F.3d

19   162, 167 (2d Cir. 2008).      “[I]f the agency’s reasoning or its

20   fact-finding   process    was     sufficiently   flawed,”   Bah    v.

21   Mukasey, 529 F.3d 99, 110 (2d Cir. 2008), we will remand

22   unless doing so is futile because we can “confidently predict”

                                        2
1    that the agency would reach the same result absent any errors,

2    Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d

3    Cir. 2006).      Errors in the BIA’s fact finding and concern

4    regarding the IJ’s vagueness determination warrant remand

5    here.

6      A. BIA’s Fact-Finding

7           In affirming the IJ, the BIA mistakenly attributed two

8    “material” omission findings to the IJ.            The IJ relied only

9    on the omission of death threats from Baba’s application,

10   whereas the BIA found that Baba also omitted his first escape

11   attempt and injuries sustained after he was captured and

12   returned to his master.        Not only was it improper for the BIA

13   to make the latter finding in the first instance, see 8 C.F.R.

14   § 1003.1(d)(3)(iv), but also, the record shows that Baba’s

15   application included this information.             Accordingly, remand

16   is warranted.        See Padmore v. Holder, 609 F.3d 62, 70 (2d

17   Cir. 2010) (“Because . . . the BIA improperly found facts

18   which    it   held   to   be   significant   and    important   to   its

19   decision . . . remanding to the agency would not be futile.”

20   (internal quotation marks omitted)).

21     B.     IJ’s Finding of Testimonial Vagueness

22          The IJ’s conclusion that Baba’s testimony was too vague

                                         3
1    to meet his burden of proof raises concern.1    Vague

2    testimony may provide an independent basis for denying

3    asylum regardless of credibility, only where the applicant

4    does not identify facts corresponding to each element on

5    which he has the burden of proof.   See Jin Chen v. U.S.

6    Dep’t of Justice, 426 F.3d 104, 114 (2d Cir. 2005); Jin

7    Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003),

8    overruled on other grounds by Shi Liang Lin v. U.S. Dep’t

9    of Justice, 494 F.3d 296, 305 (2d Cir. 2007).

10       That is not this case.

11       Baba proffered facts that he was a slave whose master

12   brutalized and threatened him for attempting to escape

13   slavery.   He also submitted country-conditions evidence

14   indicating that slavery remains a problem in Mauritania and

15   that government efforts to eradicate it have been

16   inadequate.   See U.S. Dep’t of State, 2013 Country Reports

17   on Human Rights Practices (2014), available at

18   https://www.state.gov/j/drl/rls/hrrpt/2013/af/220136.htm.

19   Where an applicant thus provides the “essential facts” of

20   his claim, specifically, how he was persecuted and by whom,



     1 Contrary to the Government’s position, Baba challenged the
     vagueness finding in his brief to the BIA.
                                   4
1    his otherwise seemingly vague testimony cannot provide an

2    independent basis to deny asylum.     See Jin Chen, 426 F.3d

3    at 114; Jin Shui Qiu, 329 F.3d at 151.

4        Before vague testimony can support an adverse

5    credibility determination, the agency should first “seek[]

6    to draw out inconsistencies that would support a finding of

7    lack of credibility.” Jin Shui Qiu, 329 F.3d at 152.

8    Because neither the IJ nor the government’s attorney here

9    sought to elicit such detail, that should also be pursued

10   on remand.

11       We identify no error in the IJ’s conclusion that Baba

12   omitted death threats from his application and that his letter

13   from the “Association of Widows and Divorcees Aid Slavery and

14   Enslavement     Opposition”    undermined    his      credibility.

15   Nevertheless,    given   the   identified   errors,    we   cannot

16   confidently conclude that remand would be futile.

17       For the foregoing reasons, the petition for review is

18   GRANTED, the BIA’s decision is VACATED, and this case is

19   REMANDED to the BIA for further explanation or proceedings

20   consistent with this order.

21                                  FOR THE COURT:
22                                  Catherine O’Hagan Wolfe, Clerk


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