Ming Dai v. Sessions, No. 15-70776 (9th Cir. 2018)
Annotate this CaseThe Ninth Circuit granted a petition for review of the BIA's denial of asylum and withholding where petitioner, a citizen of China, alleged that he was beaten, arrested, jailed, and denied food, water, sleep, and medical care because he tried to stop the police from forcing his wife to have an abortion. The panel held that neither the IJ nor the BIA made a finding that petitioner's testimony was not credible. Under the panel's well-established precedent, the panel was required to treat a petitioner's testimony as credible in the absence of such a finding. The panel adopted this rule before the REAL ID Act and reaffirmed it after its passage. The panel explained that the plain text and context of the statute dictate the conclusion that the REAL ID Act's rebuttable presumption of credibility applies only on appeal to the BIA. In this case, petitioner's evidence was sufficiently persuasive and compelled the conclusion that the harm he suffered from the government due to his resistance to his wife's forced abortion rose to the level of past persecution. Furthermore, petitioner and his wife were not similarly situated, and thus the BIA erred in concluding that the wife's voluntary return to China undermined petitioner's own fear of future persecution. The panel remanded for the district court to exercise its discretion in granting petitioner asylum relief, and to grant him withholding relief.
Court Description: Immigration. The panel granted a petition for review of the Board of Immigration Appeals’ denial of asylum and withholding relief. The panel held that because neither the immigration judge nor the Board made an explicit adverse credibility determination, this court must accept Dai’s testimony as true. The panel explained that the REAL ID Act added a provision creating a rebuttable presumption of credibility where the IJ fails to make an explicit adverse credibility determination, but that presumption is rebuttable only before the Board, and is not rebuttable on petition for review before this court. The panel held that Dai’s evidence was sufficiently persuasive, and compelled the conclusion that the harm he suffered from the government due to his resistance to his wife’s forced abortion rose to the level of past persecution. The panel held that because Dai and his wife were not similarly situated, the Board erred in concluding that Dai’s wife’s voluntary return to China undermined his own fear of future persecution. The panel further held that in the absence of an adverse credibility determination, the Board erred in relying on Dai’s untruthfulness about his wife’s voluntary return to China in concluding that he failed to meet his burden of proof. The panel also noted Dai’s valid asylum DAI V. SESSIONS 3 claim was not undermined by the fact that he may have had additional reasons (beyond escaping persecution) for coming to or remaining in the United States, including seeking economic opportunity. The panel held that because Dai established past persecution, he was entitled to a rebuttable presumption of future persecution, which the government did not attempt to rebut with evidence of changed country conditions. The panel stated that giving the government the opportunity to present such evidence at this point would be exceptionally unfair, and thus, Dai established that he was eligible for asylum. The panel remanded for an exercise of discretion of whether to grant Dai asylum relief, and to grant Dai withholding relief. Dissenting, Judge Trott wrote that the serious legal consequences of the majority opinion as a circuit precedent are that it (1) demolishes both the purpose and the substance of the REAL ID Act (2) disregards the appropriate standard of review, and (3) perpetuates this court’s idiosyncratic approach to an IJ’s determination that the testimony of an asylum seeker lacks sufficient credibility or persuasiveness to prove his case.
The court issued a subsequent related opinion or order on February 22, 2019.
The court issued a subsequent related opinion or order on October 22, 2019.
The court issued a subsequent related opinion or order on August 20, 2021.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.