Alam v. Garland, No. 19-72744 (9th Cir. 2021)

Court Description: Immigration. The en banc court overruled prior Ninth Circuit precedent establishing and applying the single factor rule, which required the court to sustain an adverse credibility determination from the Board of Immigration Appeals, so long as one of the agency’s identified grounds was supported by substantial evidence. An immigration judge denied Morshed Alam’s asylum and withholding application on adverse credibility grounds, identifying seven reasons to support the credibility determination. The government argued before this court that the credibility determination was supported by just two of the seven grounds. A divided three-judge panel denied the petition for review in a non-precedential memorandum disposition, relying on only one of the seven grounds to conclude that the IJ’s adverse credibility determination was supported by substantial evidence. Judge Collins dissented, disagreeing that substantial evidence supported the IJ’s adverse credibility determination and criticizing this circuit’s single factor rule. In considering the petition for rehearing en banc, the panel requested that the parties provide supplemental briefing as to whether there is a conflict between the single factor rule and the REAL ID Act. Both parties agreed that the single factor rule could not be reconciled with the REAL ID Act. ALAM V. GARLAND 3 The en banc court recounted the origin of the single factor rule, which was rooted in the pre-REAL ID Act requirement that an adverse credibility finding had to rest on at least one ground that went “to the heart of the claim” to be sustained on review. Prior to enactment of the REAL ID Act, this circuit held that minor discrepancies, inconsistencies, or omissions that did not go to the heart of an applicant’s asylum claim could not constitute substantial evidence in support of an adverse credibility finding. This circuit further held that it was required to sustain an adverse credibility finding in an asylum case, so long as one of the agency’s identified grounds was supported by substantial evidence and went to the heart of the claim. Thus, before the REAL ID Act, the outcome of a petitioner’s challenge to the agency’s adverse credibility finding depended entirely on whether the agency had cited at least one valid, individual ground going to the heart of the claim. If such a ground was absent, this court could not sustain the finding; if it was present, it was required to do so. The REAL ID Act eliminated the “heart of the claim” requirement and required IJs to consider all factors under the totality of the circumstances in assessing credibility. The en banc court wrote that although this circuit has recognized that the REAL ID Act eliminated the “heart of the claim” requirement, it has continued to adhere to the formulation that sustaining an adverse credibility finding is required if substantial evidence supports a single factor in the adverse credibility analysis. The en banc court explained that by clinging to one half of an abrogated rule out of context, this circuit has been affirming a conclusion that, in most cases, the IJ would not have made in the first place: that a single factor suffices on its own for an adverse credibility determination. Observing that no sister circuits have applied 4 ALAM V. GARLAND the single factor rule post-REAL ID Act, and given the REAL ID Act’s explicit statutory language requiring consideration of the “totality of the circumstances” and “all relevant factors,” the court concluded that the REAL ID Act effectively abrogated the single factor rule. The en banc court wrote that there is no bright-line rule under which some number of inconsistencies requires sustaining or rejecting an adverse credibility determination. Rather, review will always require assessing the totality of the circumstances. Thus, to the extent that Ninth Circuit precedents employed the single factor rule or are otherwise inconsistent with this standard, the court overruled those cases. The court remanded the case to the three-judge panel to re-examine the petition for review in light of its clarification of the standard for reviewing the Board’s adverse credibility determinations. Concurring, Judge Bennett agreed with the en banc court’s opinion and judgment holding that the single factor rule conflicts with the REAL ID Act. Judge Bennett wrote separately to highlight other judge-made rules that are a part of Ninth Circuit jurisprudence, which, given the decision in this case, and the Supreme Court’s decisions in Garland v. Ming Dai, 141 S. Ct. 1669 (2021), and United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021), may warrant reconsideration en banc, including: (1) United States v. Gonzalez-Villalobos, 724 F.3d 1125 (9th Cir. 2013) (recognizing exceptions to the exhaustion requirements of 8 U.S.C. § 1326(d) where an individual is deprived of his right to appeal to the Board). Judge Bennett wrote that the en banc court should consider whether these exceptions conflict with the Supreme Court’s decision in Palomar-Santiago, which held that each of the requirements of § 1326(d) is mandatory; ALAM V. GARLAND 5 (2) Singh v. Holder, 643 F.3d 1178 (9th Cir. 2011) (a pre- REAL ID Act case setting forth a categorical rule that a petitioner’s lie always counts as substantial evidence for an adverse credibility finding, except in the narrow exception set forth Akinmade v. INS, 196 F.3d 951 (9th Cir. 1999)). In Akinmade, this circuit held that a petitioner’s lie is not necessarily probative of credibility if the petitioner lied to enter the United States and escape persecution. Judge Bennett wrote that the en banc court should consider whether there is a reason to limit consideration of the circumstances surrounding the petitioner’s lie to only cases that fall within the Akinmade exception, or whether the court should decide whether a petitioner’s lie constitutes substantial evidence by looking at the totality of the circumstances in every case, as the INA directs in 8 U.S.C. § 1158(b)(1)(B)(iii); (3) Mamigonian v. Biggs, 710 F.3d 936 (9th Cir. 2013) (interpreting the jurisdiction-stripping provision of § 1252(a)(2)(B)(i), which states that “no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title,” to apply only to agency determinations made on discretionary grounds). Judge Bennett wrote that the en banc court should consider whether limiting the jurisdiction stripping provision to discretionary grounds ignores Congressional intent and is at odds with the plain language of the statute, which states “no court shall have jurisdiction to review . . . any judgment” regarding the grant of relief pursuant to the specified provisions; (4) Singh v. Holder, 656 F.3d 1047 (9th Cir. 2011) (concluding for purposes of the extraordinary 6 ALAM V. GARLAND circumstances exception to the one-year asylum time bar, 8 U.S.C. § 1158(a)(2)(D), and 8 C.F.R. § 1208.4(a)(5), that a filing delay of less than six months after an applicant’s nonimmigrant status has expired is presumptively reasonable). Judge Bennett wrote that the presumption as to the reasonableness of a filing delay of less than six months is based on flawed logic, explaining that the regulation’s statement that a delay of six months or more clearly is not reasonable does not mean that the converse is also true, i.e., that a delay of less than six months presumptively is—especially when the regulation itself states that shorter delays should be “considered on a case-by-case basis, with the decision-maker taking into account the totality of the circumstances.”

This opinion or order relates to an opinion or order originally issued on November 16, 2020.