                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-1666


HALIT MUDA,

                  Petitioner,

             v.

ERIC H. HOLDER, JR., Attorney General,

                  Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:    November 3, 2009                Decided:   November 18, 2009


Before MOTZ and SHEDD, Circuit Judges, and Jane R. ROTH, Senior
Circuit Judge of the United States Court of Appeals for the
Third Circuit, sitting by designation.


Petition for review granted; vacated and remanded by unpublished
per curiam opinion.


Andrew P. Johnson, LAW OFFICES OF ANDREW P. JOHNSON, New York,
New York, for Petitioner. Gregory G. Katsas, Assistant Attorney
General, Civil Division, William C. Peachey, Assistant Director,
Office of Immigration Litigation, Ada E. Bosque, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Halit     Muda      (“Muda”)           seeks    review     of    orders       of    an

Immigration Judge (“IJ”) and the Board of Immigration Appeals

(“BIA”)     that   he    failed        to    provide    sufficient         corroborating

evidence supporting his claims for asylum and withholding of

removal.     We cannot, on the basis of the IJ and BIA’s incomplete

analysis,     conclude     that        substantial      evidence      supports      their

holdings.      Therefore,         we    grant       Muda’s    petition      for   review,

vacate the order of removal and remand for further proceedings.



                                              I.

     Soon    after      leaving    his       home   country    of    Albania      for   the

United States in May 2005, Muda applied for asylum, withholding

of removal, and protection under the United Nations Convention

Against    Torture      (“CAT”). 1          Muda    maintains       that    he    suffered

persecution in Albania and harbors a well-founded fear of future

persecution should he be sent back.                    This persecution allegedly

arises from (1) his and his father’s membership in Albania’s

Democratic Party (“DP”), and (2) his family’s efforts to regain

property confiscated by Albania’s socialist government.




     1
       Muda did not appeal the IJ’s denial of his CAT claim; this
precludes our review of the claim.    See Massis v. Mukasey, 549
F.3d 631, 638 (4th Cir. 2008).



                                              2
       At his immigration hearing, Muda testified that he joined

the DP in 2000 and participated in many of its protests and

rallies.          Because     of    these        activities,        the    police        beat,

detained, or threatened him on several occasions.                          After a rally

in 2003, in which Muda criticized a leader of the Socialist

Party,    relatives      of    that    leader      beat      Muda    “very      badly”    and

threatened that, if he did not end his criticism, Muda would

“end up dead.”          That same year, the socialist mayor of Muda’s

hometown, against whom Muda’s father had recently campaigned,

told     Muda’s     father      that    he       would    “continue          to     exercise

persecution against him.”              Soon after, police searched Muda’s

home “without giving . . . the reason” and “made [the family]

feel very intimidated.”

       Muda   also      testified      that       he   and     his       family     suffered

persecution as a result of their efforts to regain confiscated

property.     In December 2004, Muda signed a petition in support

of “Property with Justice,” an organization devoted to solving

Albania’s     land      confiscation     problems.             The       signers    of    the

petition received threats, “but nothing was done” by police.

After his father filed a lawsuit to regain the property, a group

tied to the local socialist government kidnapped and beat his

father, threatening that if he continued to demand the land, “he

would    die.”      Similar     groups      targeted      Muda      on    two     occasions,

surrounding       him   in    the   street,       holding     him    at    gunpoint,       and

                                             3
threatening him with death.                   In April 2005, one month before

fleeing to the United States, Muda “received the worst beating

[of his] life” at the hands of such a group, who held a knife to

his throat and beat him for ten minutes, resulting in facial

“cuts    and    lacerations”         and    “marks          and   wounds       all       over   [his]

body.”       After Muda left Albania, members of the group visited

his home, asked his mother and aunt about his whereabouts, and

broke his aunt’s knee when they learned he had left Albania.

The   family      repeatedly,         but    unsuccessfully,              sought         help    from

police, who said more evidence was needed to pursue any action.

       In an oral opinion issued the same day as the hearing, the

IJ denied Muda’s application.                     Although she concluded that Muda

was “credible” and “provided detailed testimony . . . largely

consistent with his prior statements,” she held that Muda failed

to    meet     his    burden    of    proof           for    asylum      under       8    U.S.C.    §

1158(b)(1)(B)(ii) (2006) of the Immigration and Nationality Act

(“INA”)      because     he     failed       to       provide      certain        corroborating

evidence.        Specifically, the IJ observed that Muda offered “no

letter    from       anyone    else    who    signed         the       petition      or    received

threats,”       no    letter    from       his        mother      or    aunt    regarding         the

ongoing threat to Muda in Albania, “very limited corroboration

concerning the efforts made by [Muda] and his family to assert




                                                  4
their      property    rights,”    and   “a     lack     of    corroboration        on   the

failure of the police or government to protect [Muda].” 2

       Due      to   the   missing    evidence,         and     despite      substantial

documentary evidence submitted by Muda, 3 the IJ determined that

she    could     not   assess    “whether       or    not   th[e     April   2005    death

threat] . . . is part of a pattern that supports a well-founded

fear       of    future     persecution,”            whether    the     land    dispute

“represents a protected ground” under the INA, or “whether the

police       response      was    legitimate          under    the     circumstances.”

Because Muda failed to meet the burden of proof for asylum, he

failed to meet the higher burden for withholding of removal.




       2
       When questioned, Muda testified that he did not submit
letters from the other petition-signers because he feared that
such letters would place them in danger.     As to the lack of
letters from his aunt and mother, Muda testified that he asked
for a letter only from “the head of the household, just my dad.”
The IJ did not address these explanations or make a ruling on
the availability of the evidence.
       3
        Muda submitted a letter from his father stating that
socialists “threatened [Muda’s] life and beat him severely on
several occasions”; notarized certifications from the Albanian
government stating that the socialists confiscated his family’s
land   and  persecuted   his  family;  notarized  certifications
confirming Muda’s membership in “Property with Justice” and the
DP; a notarized certification from the doctor who treated Muda
after his April 2005 beating; a statement from Muda’s friend
stating that “property disputes . . . ma[de] impossible Halit’s
stay in Albania”; and a 2005 U.S. State Department country
report finding no evidence that the Albanian government had
resolved any of the complaints it received that year regarding
compensation for confiscated property.



                                            5
       Through    a     single    member,   the   BIA    denied   Muda’s     appeal,

affirming the IJ’s ruling and concluding that Muda had failed to

show that the missing evidence was “reasonably unavailable” to

him.    Muda timely petitioned this court for review.



                                          II.

       Under the INA, “[a]pplicants bear the burden of proving

eligibility for asylum.”            Naizgi v. Gonzales, 455 F.3d 484, 486

(4th Cir. 2006).          To meet this burden, an applicant must prove

that he is a “refugee,” defined as one “unable or unwilling to

return to . . . [his] country because of [past] persecution or a

well-founded fear of [future] persecution on account of race,

religion, nationality, membership in a particular social group,

or   political        opinion.”      8   U.S.C.   §§    1101(a)(42)(A),      1258(a)

(2006).    If the applicant establishes past persecution, a well-

founded fear of future persecution is presumed.                        8 C.F.R. §

208.13(b)(1) (2009).              “Persecution involves the infliction or

threat of death, torture, or injury to one’s person or freedom,

on   account     of    one   of   the    enumerated     grounds   in   the   refugee

definition.”          Qiao Hua Li v. Gonzales, 405 F.3d 171, 177 (4th

Cir. 2005).

       The REAL ID Act of 2005, which amended the INA, applies to

Muda’s application.           See Pub. L. No. 109-13, § 101(h)(2), 119

Stat. 231, 305 (2005).             Under these amendments, an applicant’s

                                            6
testimony alone may sustain his burden of proof if the IJ finds

such testimony credible, persuasive, and specific.             8 U.S.C. §

1158(b)(1)(B)(ii).     However, even if the IJ finds the testimony

credible, she may require the applicant to provide additional

corroborating evidence “unless the applicant does not have the

evidence and cannot reasonably obtain the evidence.”           Id.

      Because “[t]he substantial evidence test applies[,] . . . a

reviewing court must accept the IJ’s determinations with respect

to the . . . availability of corroborating evidence[] and the

effect of non-production unless the record compels a contrary

conclusion.”     Chhay v. Mukasey, 540 F.3d 1, 6 (1st Cir. 2008).

Thus, a reviewing court must uphold an agency decision “unless

any reasonable adjudicator would be compelled to conclude to the

contrary.”     8 U.S.C. § 1252(b)(4)(B) (2006).

      “Because the BIA affirmed the IJ's order and supplemented

it, . . . both decisions are subject to judicial review.”               Niang

v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007).



                                   III.

      Muda contends that substantial evidence does not support

the   conclusion   that   he   failed   to   meet   his   burden   of   proof

because the IJ and BIA failed to give proper weight to his

significant corroborating evidence.          Unfortunately, because the

IJ and BIA failed to analyze, or even mention, past persecution

                                    7
in   Albania        --     and   thus    failed          to   analyze       how    the    missing

evidence affected Muda’s ability to demonstrate past persecution

-- we cannot determine whether substantial evidence supports the

denial of relief. 4

      In     SEC     v.    Chenery      Corp.,       318      U.S.    80,    95    (1943),       the

Supreme       Court       held   that    “an     administrative             order    cannot      be

upheld       unless       the    grounds      upon       which       the    agency      acted    in

exercising its powers were those upon which its action can be

sustained.”          The Court later elucidated “an important corollary”

to this rule: “If the administrative action is to be tested by

the basis upon which it purports to rest, that basis must be set

forth       with    such    clarity      as    to    be       understandable.”            SEC    v.

Chenery Corp., 332 U.S. 194, 196 (1947).

        Under      the    Chenery      rules,       we    cannot      affirm      the    agency’s

finding of no past persecution when it failed to make such a

finding.           See Cao He Lin v. DOJ, 428 F.3d 391, 400 (2d Cir.

2005)       (“To      assume       a    hypothetical             basis       for     the        IJ's

determination, even one based in the record, would usurp her

role.”); cf. Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir.




        4
       Because        the IJ rested her denial of Muda’s withholding of
removal claim         on her unsupported and unexplained denial of his
asylum claim,         we also cannot conclude that substantial evidence
supported such         denial.



                                                8
2006)    (holding     that    IJs   must   provide       “specific,     cogent

reason[s]” for their credibility findings).

     While   there     is    some   indication    that    the   IJ    and   BIA

considered   past     persecution,     their     discussion     of    the   two

asserted key pieces of missing evidence (letters from petition-

signers and Muda’s aunt or mother) focused exclusively on the

well-founded fear of future persecution question.                    We cannot

tell what effect the agency believed this missing evidence had

on Muda’s showing of past persecution.               (Nor can we discern

whether the agency determined that other missing evidence --

regarding property disputes -- in and of itself rendered Muda

unable to demonstrate past persecution.)           In sum, we cannot find

in the agency’s rulings any conclusion -- or any explanation for

a conclusion -- that Muda’s credible testimony and voluminous

documentary evidence failed to sustain his burden of proof as to

past persecution. 5




     5
       Further, “[t]he absence of reasoned discussion of past
persecution undercuts any meaningful review of the IJ's fear of
future persecution finding, because we do not know whether
[Muda] should have had the benefit of the regulatory presumption
of fear of persecution based on prior events.”    El Moraghy v.
Ashcroft, 331 F.3d 195, 204-05 (1st Cir. 2003) (citing 8 C.F.R.
§ 208.13(b)(1)); see also Tan v. U.S. Att’y Gen., 446 F.3d 1369,
1377 (11th Cir. 2006). Therefore, we do not reach Muda’s claim
that the agency erred in finding that he had not shown a well-
founded fear of future persecution.



                                      9
     The agency’s failure to address past persecution precludes

us from upholding its denial of relief because such a result

would require us to substitute our reasoning for the agency’s.

See Chenery, 318 U.S. at 88 (“[A] judicial judgment cannot be

made to do service for an administrative judgment.”).   Instead,

we must remand the case to the agency for its determination in

the first instance.   See Zuh v. Mukasey, 547 F.3d 504, 513 (4th

Cir. 2008). 6



                               IV.

     “We would run the risk of violating fundamental separation-

of-powers principles if we attempted to divine the [agency’s]

thoughts on this matter and tried to build a legal conclusion in


     6
       The IJ and BIA also failed to provide any explanation for
a finding that Muda could “reasonably obtain” the missing
corroborating evidence, 8 U.S.C. § 1158(b)(1)(B)(ii), or that
the facts Muda could not prove without such evidence were
“central to his . . . claim and easily subject to verification.”
Matter of J-Y-C, 24 I&N Dec. 260, 263 (BIA 2007) (internal
quotation marks omitted). Despite testimony from Muda as to the
unavailability of the missing evidence, the IJ made no finding
as to availability, and neither the IJ nor the BIA provided any
explanation supporting such a finding. And despite language in
the BIA’s own interpretation of the 2005 amendments, which
suggests that it will only require further evidence to
corroborate central and easily verifiable facts –- language that
the BIA itself quoted in denying Muda’s claim -- the IJ and BIA
failed to conduct any analysis, or announce any conclusion, as
to centrality or verifiability.        “We are not to invent
explanations that may justify the [agency’s] conclusion.”    Dia
v. Ashcroft, 353 F.3d 228, 260 (3d Cir. 2003).



                               10
a veritable vacuum where [agency] interpretation should always

first exist.”       Li Fang Lin v. Mukasey, 517 F.3d 685, 694 (4th

Cir.    2008).     Accordingly,       we    must   grant    Muda’s   petition    for

review and remand to the BIA for further proceedings consistent

with this opinion.        We dispense with oral argument because the

facts    and   legal    contentions        are   adequately   presented     in   the

materials      before   the   court    and       argument   would    not   aid   the

decisional process.

                                                   PETITION FOR REVIEW GRANTED;
                                                           VACATED AND REMANDED




                                           11
