Malets v. Garland, No. 19-4216 (2d Cir. 2023)
"Following review of the arguments and the record on appeal, we remand the case to the BIA for further proceedings for two reasons. First, the adverse credibility finding relies, in large measure, on legal error by the agency, including misstatement and mischaracterization of the facts in the record and flawed reasoning. We cannot confidently predict that in the absence of such error, the agency would have reached the same conclusion. Second, given that the IJ based his adverse credibility finding in part upon a failure of Malets to provide corroborating evidence, the IJ’s unjustified refusal to allow Malets to present readily available witness testimony deprived him of a full and fair hearing."
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2nd Circuit Overturns an Adverse Credibility Determination on a Ukrainian Asylum Denial
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2nd Circuit Overturns an Adverse Credibility Determination on a Ukrainian Asylum Denial
Petitioner, a native and citizen of Ukraine, sought review of a December 12, 2019 decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Based on ostensible inconsistencies in Petitioner’s testimony and a purported failure to submit corroborating evidence, an Immigration Judge (“IJ”) entered an adverse credibility finding. The Second Circuit granted the petition for review, vacated the BIA’s decision, and remanded the case. The court explained that based on ostensible inconsistencies in Petitioner’s testimony and a purported failure to submit corroborating evidence, the IJ entered an adverse credibility finding. However, the court d that the adverse credibility finding is not supported by substantial evidence and that the IJ unjustifiably refused to allow Petitioner to present readily available witness testimony, thereby depriving him of a full and fair hearing. The court reasoned that the IJ identified discrepancies between Petitioner’s testimony as to whether his prior employment included driving responsibilities and whether his most recent period of employment began in October 2013 or March 2014. These findings were not adopted by the BIA. Though labeled a “material inconsistency” by the IJ, nowhere in his decision did he explain how these issues relate to Petitioner’s asylum claim, nor is the connection self-evident. The court explained that it has doubts whether, absent the errors identified above, the IJ would have reached the same conclusion based on these remaining issues.Tags: None
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