19-4216 Malets v. Garland 1 United States Court of Appeals 2 for the Second Circuit 3 4 5 AUGUST TERM 2022 6 7 ARGUED: FEBRUARY 13, 2023 8 DECIDED: APRIL 14, 2023 9 10 No. 19-4216 11 12 13 YEVHENII IVANOVICH MALETS, 14 Petitioner, 15 16 v. 17 18 MERRICK B. GARLAND, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 22 23 24 Appeal from the Board of Immigration Appeals, 25 In re Y-I-M-, 27 I. & N. Dec. 724 (B.I.A. 2019). 26 27 28 Before: SACK, NATHAN, Circuit Judges, and BROWN, District Judge. * *Judge Gary R. Brown, of the United States District Court for the Eastern District of New York, sitting by designation. 1 Petitioner, a native and citizen of Ukraine, seeks review of a December 12, 2 2019 decision of the Board of Immigration Appeals (“BIA”) affirming the denial of 3 his application for asylum, withholding of removal, and relief under the 4 Convention Against Torture (“CAT”). Based on ostensible inconsistencies in 5 Petitioner’s testimony and a purported failure to submit corroborating evidence, 6 an Immigration Judge (“IJ”) entered an adverse credibility finding. However, we 7 conclude that the adverse credibility finding is not supported by substantial 8 evidence and that the IJ unjustifiably refused to allow Petitioner to present readily 9 available witness testimony, thereby depriving him of a full and fair hearing. As 10 such, we GRANT the petition for review, VACATE the BIA’s decision, and 11 REMAND the case for further proceedings consistent with this opinion. 12 PETITION GRANTED; VACATED AND REMANDED. 13 JOHN GIAMMATTEO, Immigration Legal 14 Program, Lutheran Social Services of New 15 York, New York, NY, for Petitioner. 16 ANDREW N. O'MALLEY, Senior Litigation 17 Counsel (Jeffrey Bossert Clark, Acting 18 Assistant Attorney General; Cindy S. Ferrier, 19 Assistant Director, on the brief), United States 20 Department of Justice, Office of Immigration 21 Litigation, Washington, DC, for Respondent. 2 1 GARY R. BROWN, District Judge: 2 Petitioner Yevhenii Ivanovich Malets, a native and citizen of Ukraine, seeks 3 review of a December 12, 2019 decision of the BIA affirming a February 11, 2019 4 decision of an IJ denying Malets’s application for asylum, withholding of removal, 5 and relief under CAT. In re Y-I-M-, 27 I. & N. Dec. 724 (B.I.A. 2019), aff’g No. A208 6 515 079 (Immig. Ct. N.Y.C. Feb. 11, 2019). Having identified several ostensible 7 inconsistencies in Malets’s testimony and determined that Malets failed to submit 8 corroborating evidence sufficient to rehabilitate his credibility, the IJ entered an 9 adverse credibility finding. The IJ denied Malets’s application and the BIA 10 affirmed. Malets timely sought review before this Court. 11 Following review of the arguments and the record on appeal, we remand 12 the case to the BIA for further proceedings for two reasons. First, the adverse 13 credibility finding relies, in large measure, on legal error by the agency, including 14 misstatement and mischaracterization of the facts in the record and flawed 15 reasoning. We cannot …
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