Tota v. Garland

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. ________________________________________ 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). 2 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 …

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