20-2023

Tota v. Garland

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 a 

summary order must serve a copy of it on any party not represented by counsel.

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 20th day of September, two thousand twenty-three.

PRESENT:

JON O. NEWMAN,

JOSÉ A. CABRANES,

MARIA ARAÚJO KAHN,

Circuit Judges.

_______________________________________

ARSIM TOTA, AJRUSH TOTA,

Petitioners,

v. 20-2023-ag

MERRICK B. GARLAND, UNITED STATES 

ATTORNEY GENERAL,

Respondent.

________________________________________
2

FOR PETITIONERS: Adrian Spirollari, Brooklyn, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant 

Attorney General; Jessica A. Dawgert, 

Senior Litigation Counsel; Elizabeth K. 

Ottman, Trial Attorney, 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, the BIA’s order is VACATED, and 

the case is remanded for further proceedings consistent with this decision.

Petitioners Arsim and Ajrush Tota, natives and citizens of Albania, seek review of 

a May 28, 2020 decision of the BIA affirming a July 6, 2018 decision of an Immigration 

Judge (“IJ”) denying their applications for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”).1 In re Arsim Tota, Ajrush Tota, Nos. A206 

427 444, A209 434 029 (B.I.A. May 28, 2020), aff’g Nos. A206 427 444, A209 434 029 (Immigr. 

Ct. N.Y. City July 6, 2018). We assume the parties’ familiarity with the underlying facts 

and procedural history.

1 The Government incorrectly contends that the petitioners have abandoned 

withholding of removal and CAT relief. The agency denied those forms of relief because 

the petitioners were not credible; thus, any challenge to the adverse credibility 

determination necessarily relates to all forms of relief. The petitioners have abandoned 

review of their motion to remand by not challenging the denial of it in their brief. See 

Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005).
3

Where, as here, the BIA affirms the IJ’s decision on only some of the grounds 

offered by the IJ, we review the IJ’s decision as modified by the BIA. See Xue Hong Yang 

v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). We review adverse credibility 

determinations for substantial evidence, see Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 

Cir. 2018), and we treat the agency’s findings of fact as “conclusive unless any reasonable 

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see 

also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

“Considering the totality of the circumstances, and all relevant factors, a trier of 

fact may base a credibility determination on the demeanor, candor, or responsiveness of 

the applicant or witness, . . . the consistency between the applicant’s or witness’s written 

and oral statements (whenever made and whether or not under oath, and considering the 

circumstances under which the statements were made), the internal consistency of each 

such statement, [and] the consistency of such statements with other evidence of record.” 

8 U.S.C. § 1158(b)(1)(B)(iii).

The fact that the agency has relied primarily on credibility grounds in dismissing 

an asylum application does not, however, insulate the decision from review. See Xiao Ji 

Chen v. U.S. Dep’t of Just., 471 F.3d 315, 335 (2d Cir. 2006); Ramsameachire v. Ashcroft, 357 

F.3d 169, 178 (2d Cir. 2004). “[I]n order to merit substantial evidence deference, ‘[t]he [IJ] 

must give specific, cogent reasons for rejecting the petitioner’s testimony,’ and an adverse 

credibility determination may not be based upon speculation or upon an incorrect 
4

analysis of the testimony.” Cao He Lin v. U.S. Dep’t of Just., 428 F.3d 391, 400 (2d Cir. 2005) 

(quoting Ramsameachire, 357 F.3d at 178); see also Hong Fei Gao, 891 F.3d at 77 (“[We ask] 

whether the agency has provided ‘specific, cogent reasons for the adverse credibility 

finding and whether those reasons bear a legitimate nexus to the finding.’” (quoting Xiu 

Xia Lin, 534 F.3d at 166)).

The BIA correctly concluded that the IJ’s adverse credibility determination with 

respect to Ajrush was supported by substantial evidence. Ajrush’s initial failure to 

disclose previous travel to the Netherlands, inconsistencies about the reason for that trip, 

and his hesitant demeanor when questioned on the topic, considered together in the 

totality of the circumstances surrounding them, provide more than sufficient support in 

this regard. See Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single 

inconsistency might preclude an alien from showing that an IJ was compelled to find him 

credible. Multiple inconsistencies would so preclude even more forcefully.”); see also

Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular deference 

is due to assessments of demeanor). Although Ajrush claims these discrepancies resulted 

from mere oversights and innocent lapses of memory, the agency was not required to 

find those explanations compelling. See Majidi, 430 F.3d at 80 (“A petitioner must do more 

than offer a plausible explanation for his inconsistent statements to secure relief; he must 

demonstrate that a reasonable fact-finder would be compelled to credit his testimony.”
5

(internal quotation marks omitted)). Thus, we affirm the BIA’s decision as to Ajrush 

because the IJ’s credibility determination is supported by substantial evidence.

We turn next to the BIA’s review of the IJ’s credibility findings with respect to 

Arsim. Although the IJ concluded the opinion by noting that “[f]or the reasons set forth 

previously, the Court also finds Arsim Tota did not testify credibly in this proceeding,” 

that finding was conclusory. The BIA determined that this finding was supported on 

three specific grounds: (1) inconsistent testimony relating to the size of a political party 

in Albania known as the Red and Black Alliance, (2) the absence of certain details relating 

to protests that Arsim had allegedly organized for the Red and Black Alliance, and (3) a 

lack of evidence showing political violence against members of the Red and Black 

Alliance during the years in question.2 For the reasons that follow, we believe that the 

first two grounds relied upon by the BIA are insufficient to support such a finding as to 

Arsim. Although we conclude that inconsistencies between Arsim’s testimony about 

political violence in Albania and the remainder of the record evidence presented could, 

perhaps, have caused a reasonable finder of fact to question Arsim’s veracity, we remand 

this case for further proceedings because we are unable to determine with confidence that 

the agency would have reached the same result on that ground alone. See Chen v. Garland, 

2 Although the IJ’s decision supports the adverse credibility determination relating 

to Arsim with additional arguments, the BIA’s decision affirmatively disclaims reliance 

on any of those additional grounds. See Gao v. Bd. of Immigration Appeals, 482 F.3d 122, 

125 (2d Cir. 2007) (“[W]hen the BIA issues an opinion and does not adopt the IJ's decision 

to any extent, we review only the BIA’s decision.”).
6

No. 19-715-AG, 2023 WL 4712460, at *3 (2d Cir. 2023) (“[W]here we cannot confidently 

predict whether the agency would adhere to its credibility determination absent its 

errors, then we remand for the agency to reconsider the question.” (internal quotation 

marks omitted)).

The first basis underlying the IJ’s adverse credibility determination with respect to 

Arsim was the inconsistent testimony from the petitioners and their brother, Refail Tota, 

related to the size of the Red and Black Alliance in Albania. Specifically, Ajrush testified 

that it had 105,000 members, Arsim testified that it had about 3,000, and Refail testified 

that it had between 5,000 to 6,000. Although testimony on this point was facially

inconsistent, the record is devoid of any indication that Arsim himself had ever provided

differing estimates or even that he was, as a factual matter, incorrect about the party’s 

prominence. In the absence of any reason to believe that Arsim had provided a false 

account, these differing estimates alone cannot support an adverse credibility 

determination against him. Moreover, the IJ found that Ajrush “has not testified credibly 

in these proceedings,” and that “[h]is failure to specify the number of protest participants, 

undercuts any argument that the number of Red and Black Alliance members in Tirana 

is greater than the estimates of his two brothers.” These findings render Ajrush’s estimate 

of party membership an unreliable basis for questioning the estimate given by Arsim, 

whose credibility remains to be redetermined on remand.
7

The second rationale underlying the IJ’s adverse credibility determination with 

respect to Arsim was the absence of certain details about the protests that he had 

organized for the Red and Black Alliance. Arsim was not, however, asked to estimate the 

number of people in attendance at the rallies he allegedly organized, how many people 

were arrested during those protests, or whether any other individuals spoke. Because 

Arsim was never questioned on these points, the absence of that level of detail from his 

testimony is likewise insufficient to support a finding that his testimony was, as a whole, 

incredible. See Qiu v. Ashcroft, 329 F.3d 140, 151–52 (2d Cir. 2003) (“[A] legal standard 

that empowers an IJ or the BIA to rule against a petitioner who fails to anticipate the 

particular set of details that the fact-finder desires (but does not request, through 

questions directed to the applicant) is no standard at all. It would enable the 

administrative decisionmaker to reject whichever applicants that fact-finder happens to 

disfavor.”), overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of Just., 494 F.3d 296 (2d 

Cir. 2007); see also Yun Qin Lian v. Mukasey, 265 F. App’x 36, 38 (2d Cir. 2008) (summary 

order) (“[W]hen an IJ has concerns about the credibility of an alien’s vague testimony, 

the appropriate course is to probe for further details.”).

The third rationale underlying the IJ’s adverse credibility determination with 

respect to Arsim was the petitioners’ failure to introduce evidence demonstrating

government persecution of the Red and Black Alliance in Albania. Although Arsim made 

broad claims that the Red and Black Alliance had fielded 140 candidates in the 2013 
8

election and that some of those candidates had been harmed, no independent evidence 

of those facts appears within the record. Indeed, an affidavit from the petitioners’ own 

expert witness on country conditions in Albania contains neither any information with 

respect to the activities of the Red and Black Alliance nor any reference to the persecution 

of its members by the government. Given the lack of evidence on this point, the IJ 

reasonably took administrative notice of the fact that the U.S. Department of State’s 

Country Reports for Albania did not mention the Red and Black Alliance or the existence 

of political disappearances, prisoners, or detainees at the time police purportedly 

detained and harmed Arsim. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 166–68 (2d Cir. 

2008) (finding no error in agency’s decision to take administrative notice of State 

Department reports that “simply corroborated” conclusion based on other record 

evidence). The apparent inconsistency between these sources, considered in the totality 

of the surrounding circumstances, could cause a reasonable finder of fact to question the 

credibility of Arsim’s testimony that the actions allegedly taken against him were the 

result of his membership in the Red and Black Alliance.

Because the first two rationales cited by the BIA in support of the IJ’s adverse 

credibility determination against Arsim—namely, the apparent discrepancy between the 

membership estimates and the absence of additional details about his rallies—played a 

significant role in the agency’s analysis, we cannot confidently predict whether the same 

determination with respect to Arsim’s credibility would be reached on remand. As a 
9

result, we conclude that further proceedings before the agency are appropriate. See Chen, 

2023 WL 4712460 at *3; see also Liv v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008) (“Where the 

adverse credibility determination supporting denial of relief from removal is a product 

of some agency findings infected by legal error and others that are not, our decision to 

uphold the agency decision or to remand for further proceedings depends on how 

confidently we can predict that the agency would reach the same decision absent the 

errors that were made.” (internal quotation marks omitted)).

For the foregoing reasons, the petition for review is GRANTED. We VACATE the 

BIA’s order and REMAND the case to the BIA with instructions to remand to an IJ for 

further proceedings consistent with this opinion.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court