Dai v. Garland, No. 15-70776 (9th Cir. 2021)
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The Ninth Circuit previously granted a petition for review of the BIA's denial of asylum and withholding where Dai, 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 court held that neither the IJ nor the BIA made a finding that Dai's testimony was not credible.
The Supreme Court held that the “deemed-true-or-credible rule” was irreconcilable with the Immigration and Nationality Act, which provides that a reviewing court must accept administrative findings as conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. If the BIA’s reasons for rejecting an alien’s credibility are reasonably discernible, it must be understood as having rebutted the presumption of credibility.
On remand, the Ninth Circuit reversed its prior order, finding that the BIA implicitly considered Dai’s statutory rebuttable presumption of credibility on appeal to have been conclusively rebutted. By statute, an alien must satisfy the trier of fact that his factual claim is credible and also persuasive. Even if the BIA treats an individual’s testimony as credible, the agency need not find his evidence persuasive or sufficient to meet the burden of proof. The agency’s findings of fact and conclusions are demonstrably reasonable; no reasonable adjudicator would be compelled to conclude to the contrary
Court Description: Immigration. On remand from the United States Supreme Court, which vacated the divided panel’s prior opinion and remanded with instructions and for further proceedings, the panel denied Ming Dai’s petition for review of a decision by the Board of Immigration Appeals denying his application for asylum and withholding of removal. The Board adopted and affirmed the immigration judge’s determination that Dai failed to meet his burden of proof for asylum and withholding relief, adding that the voluntary return of Dai’s wife and daughter to China, and his not being truthful about it, was detrimental to his claim and was significant to his burden of proof. The IJ and the Board based their determinations on: (1) Dai’s intentional concealment of “highly probative and damaging facts;” (2) his lack of forthrightness; (3) his inadequate explanation for his wife’s voluntary return to China, given that she was the primary object of alleged persecution in China; (4) admitted germane inconsistencies between his testimony and the story he told an asylum officer; and (5) his equivocating answers and unconvincing demeanor while testifying. In the prior opinion, the panel majority granted Dai’s petition, applying what the Supreme Court referred to as the judge-made “deemed-true-or-credible rule,” which required DAI V. GARLAND 3 the court, in the absence of an explicit adverse credibility finding by the agency, to assume the credibility and truth of an alien’s factual contentions. The Supreme Court held that the “deemed-true-or-credible rule” was irreconcilable with the Immigration and Nationality Act (INA), emphasizing that the INA provides that a reviewing court must accept administrative findings as conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary, and explaining that the only question for judges reviewing the Board’s factual determinations is whether any reasonable adjudicator could have found as the agency did. The Supreme Court further held that the INA’s rebuttable presumption of credibility on appeal (where the IJ has not rendered an explicit finding on this issue) is limited to an appeal to the Board. Moreover, so long as the Board’s reasons for rejecting an alien’s credibility are reasonably discernible, the agency must be understood as having rebutted the presumption of credibility, and a reviewing court must uphold that decision unless a reasonable adjudicator would have been compelled to reach a different conclusion. Applying this guidance, the panel concluded that the Board implicitly considered Dai’s statutory rebuttable presumption of credibility on appeal to have been conclusively rebutted by the factual record. The panel concluded that any fair reading of the agency’s decisions in this case indicates that it did not find Dai’s case to be persuasive. The panel explained that the Supreme Court pointed out that simple credibility is not the only component of an applicant’s burden of proof. By statute, an alien must also satisfy the trier of fact that his factual claim is not only credible, but also persuasive. Thus, even if the Board treats an individual’s testimony as credible, the agency need not find his evidence persuasive or sufficient to 4 DAI V. GARLAND meet the burden of proof. The panel wrote that in this respect, the agency’s findings of fact and conclusions drawn therefrom are demonstrably reasonable, and no reasonable adjudicator would be compelled to conclude to the contrary.
This opinion or order relates to an opinion or order originally issued on March 8, 2018.
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