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 

New York, on the 10th 4 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. 
2

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” 
3

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 
4

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. 
5

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