BABA v. SESSIONS III (2018)

SUMMARY ORDER

Petitioner Mohamed Bouh Baba, a native and citizen of Mauritania, seeks review of a BIA decision affirming an Immigration Judge’s (“IJ”) denial of Baba’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mohamed Bouh Baba, No. A200 172 505 (B.I.A. Dec. 29, 2015), aff’g No. A200 172 505 (Immig. Ct. N.Y. City May 7, 2014). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We review the IJ’s decision as supplemented by the BIA, see Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005), deferring the IJ’s adverse credibility determinations unless circumstances make plain that no reasonable fact-finder could have made such a determination, see Xiu Xia Lin, 534 F.3d 162, 167 (2d Cir. 2008). “[I]f the agency’s reasoning or its fact-finding process was sufficiently flawed,” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008), we will remand unless doing so is futile because we can “confidently predict” that the agency would reach the same result absent any errors, Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006). Errors in the BIA’s fact finding and concern regarding the IJ’s vagueness determination warrant remand here.

A. BIA’s Fact-Finding

In affirming the IJ, the BIA mistakenly attributed two “material” omission findings to the IJ. The IJ relied only on the omission of death threats from Baba’s application, whereas the BIA found that Baba also omitted his first escape attempt and injuries sustained after he was captured and returned to his master. Not only was it improper for the BIA to make the latter finding in the first instance, see 8 C.F.R. § 1003.1(d)(3)(iv), but also, the record shows that Baba’s application included this information. Accordingly, remand is warranted. See Padmore v. Holder, 609 F.3d 62, 70 (2d Cir. 2010) (“Because ․ the BIA improperly found facts which it held to be significant and important to its decision ․ remanding to the agency would not be futile.” (internal quotation marks omitted) ).

B. IJ’s Finding of Testimonial Vagueness

The IJ’s conclusion that Baba’s testimony was too vague to meet his burden of proof raises concern.¹ Vague testimony may provide an independent basis for denying asylum regardless of credibility, only where the applicant does not identify facts corresponding to each element on which he has the burden of proof. See Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 114 (2d Cir. 2005); Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003), overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 2007).

That is not this case.

Baba proffered facts that he was a slave whose master brutalized and threatened him for attempting to escape slavery. He also submitted country-conditions evidence indicating that slavery remains a problem in Mauritania and that government efforts to eradicate it have been inadequate. See U.S. Dep’t of State, 2013 Country Reports on Human Rights Practices (2014), available at https://www.state.gov/j/drl/rls/hrrpt/2013/af/220136.htm. Where an applicant thus provides the “essential facts” of his claim, specifically, how he was persecuted and by whom, his otherwise seemingly vague testimony cannot provide an independent basis to deny asylum. See Jin Chen, 426 F.3d at 114; Jin Shui Qiu, 329 F.3d at 151.

Before vague testimony can support an adverse credibility determination, the agency should first “seek[ ] to draw out inconsistencies that would support a finding of lack of credibility.” Jin Shui Qiu, 329 F.3d at 152. Because neither the IJ nor the government’s attorney here sought to elicit such detail, that should also be pursued on remand.

We identify no error in the IJ’s conclusion that Baba omitted death threats from his application and that his letter from the “Association of Widows and Divorcees Aid Slavery and Enslavement Opposition” undermined his credibility. Nevertheless, given the identified errors, we cannot confidently conclude that remand would be futile.

For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and this case is REMANDED to the BIA for further explanation or proceedings consistent with this order.

FOOTNOTES

1.   Contrary to the Government’s position, Baba challenged the vagueness finding in his brief to the BIA.