    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
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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
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         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,

426 F.3d 520, 522 (2d Cir. 2005).1 The applicable standards

of review are well established. See 8 U.S.C. § 1252(b)(4)(B).




    1   Unless otherwise indicated, case quotations omit all
internal quotation marks, alterations, footnotes, and citations.


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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, 529 F.3d 141,

147 (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, 420 F.3d 70, 77 (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.” Id.

    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.” 8

U.S.C. § 1158(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, 575 F.3d 193, 198 (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




                                     4
F.3d 391, 404 (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.” Id. at 395. 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.” Id. 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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