This week a rather bizarre immigration case came down from the Ninth Circuit. Not that the case itself is bizarre, but rather the posture of the case is bizarre. The issue is, what is the standard for a review for credibility in an asylum proceeding in the Ninth Circuit? It’s a typical immigration issue. What is a little unusual is that the Ninth Circuit cited to the majority opinion which came down in March 2018 and reissued an amended dissent (which is almost identical to the original dissent). The Ninth Circuit noted that the petitions for rehearing and rehearing en banc remain pending and that no further action of the parties is required. I am not sure why they reissued the opinion with the amended dissent but they did. If you want to read the original decision before you read the amended dissent, here is the original opinion. Dai v. Sessions, 884 F.3d 858 (9th Cir. 2018). No cases came down from the BIA or the AG’s office this week.
What is the Standard of Review for a Credibility Determination?
Dai asks the question, what is the proper standard of review for a credibility determination under asylum law and REAL ID? The REAL ID issue here is not about drivers’ licenses; but, rather the standard of proof in asylum cases. Here are the relevant parts of the statute:
“(ii) Sustaining burden
The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
(iii) Credibility determination
Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.”
The Majority Opinion
The majority opinion, written by Judge Reinhardt (may he rest in peace) held,
“There is one clear and simple issue in this case neither the Immigration Judge (IJ) nor the BIA made a finding that Dai’s testimony was not credible. Under our well-established precedent, we are required to treat a petitioner’s testimony as credible in the absence of such a finding. We adopted this rule before the REAL ID Act and reaffirmed it after its passage. The dissent clearly disapproves of our rule. We are, however, bound to follow it. We might add, though it does not affect our holding in this case, that we approve of it. We think it not too much to ask of IJs and the BIA that they make an explicit adverse credibility finding before deporting someone on that basis.”
Dai, 884 F.3d at 863 (emphasis added).
Here is where the majority decision gets really interesting. The majority notes that this case is not on appeal – rather it’s a petition for review. That distinction is important to the holding. The Ninth Circuit noted that prior to REAL ID, absent an explicit adverse credibility finding by the IJ or the BIA, the Ninth Circuit was required to treat the asylum applicant’s testimony as credible. Dai, 884. F.3d at 868. The majority opinion then goes on to quote the statute. “There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.” INA § 208(b)(iii) (emphasis added). I told you this decision gets really interesting. Here is the language. It’s a long section but well-worth the read to understand the majority’s logic.
“Properly understood, the rebuttable presumption provision of the REAL ID Act applies only to appeals to the BIA, not to petitions for review in our court.*.*.*. In immigration cases, we do not exercise appellate jurisdiction. Rather, decisions by the finder of fact, the IJ, may be appealed to the BIA. See 8 C.F.R. § 1003.1(b). We generally cannot review an order of removal unless the non-citizen has exhausted his appeal to the BIA. 8 U.S.C. § 1252(d)(1).*.*.*. The “sole and exclusive means for judicial review of an order of removal” is by petition for review,” not a further appeal. 8 U.S.C. § 1252(a)(5) (emphasis added). Moreover, unlike an appeal, which shifts an existing action to a new court, a petition for review commences a new action against the United States. 28 U.S.C. § 2344; see also 8 U.S.C. § 1252(a)(1). Thus, Dai is the petitioner, not the appellant, and the Attorney General is the respondent, not the appellee. A provision that applies “on appeal” therefore does not apply to our review, but solely to the BIA’s review on appeal from the IJ’s decision.
The inapplicability of the rebuttable presumption provision to review in this court is further confirmed by a fundamental distinction between appellate review and review of administrative decisions that the dissent ignores. When we review a decision of a district court, we may “affirm on any ground supported by the record even if the district court did not consider the issue.” Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 794 (9th Cir. 2007). When we review an administrative decision, however, “we cannot deny a petition for review on a ground [on which] the BIA itself did not base its decision.” Hernandez-Cruz , 651 F.3d at 1110 ; see also Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 688 (9th Cir. 2007).”
Dai, 884 F.3d at 869.
See what the Ninth does here? They are saying that the REAL ID provision providing for a rebuttable presumption of credibility on appeal does not apply to the Ninth Circuit, because it’s not an appeal – it’s a petition for review. As a result, pre-REAL ID case law applies. For the Ninth Circuit on a petition for review to sustain an adverse credibility determination, the IJ or the BIA must make a specific adverse credibility determination. Wow!
The Facts
Time to talk about the facts. Ming Dai is a native and citizen of China. In 2009 his wife became pregnant with the couple’s second child (their daughter was born in 2000). The couple planned to have the second child and pay any fines associated with China’s One Child Policy. However, the “family planning officer” in their town told Mr. Dai’s wife that she had to have an abortion. Two months later, the family planning officers came to the couple’s house, took Mr. Dai’s wife to a hospital, a doctor forcibly aborted the fetus and then implanted an IUD in Mr. Dai’s wife. Mr. Dai resisted the officers’ efforts to take his wife to get an abortion. The police arrested him, beat him, and detained him for ten days. The government only released him after he confessed to resisting arrest and fighting with the officers. He was later fired from his job, his wife was demoted from her job, and their daughter was denied admission to the more desirable school in their community. They were told that these events resulted from the illegal pregnancy.
As an aside, Mr. Dai independently qualifies for asylum. The spouse of a woman who has been forced to undergo a forcible abortion or sterilization can establish past persecution for purposes of asylum. Matter of C-Y-Z-, 21 I.&N. Dec. 915, 918 (BIA 1997). The definition of a refugee includes a person who has been subject to coercive population control and they are deemed to have a well-founded fear of persecution on account of political opinion. INA § 101(a)(42). Mr. Dai’s applications for asylum and withholding are not dependent on his wife. Back to the case.
In January 2012, Mr. Dai and his wife and daughter came to the United States on a tourist visa. In February 2012, Mr. Dai’s wife and his daughter returned to China. Mr. Dai remained in the United States and about eight months after coming to the United States he applied for asylum. He claimed that since he left China, the police have come to his home in China looking for him and that he fears that the government will forcibly sterilize him when he returns.
At the interview at the asylum office, Mr. Dai was not forthcoming about the fact that his wife and daughter came with him to the United States and had returned to China. From the facts, it looks like the asylum officer found that he was downright squirrely. The asylum officer asked him where his wife and child had travelled outside of China. He said that his wife and child had been to Taiwan and Hong Kong and that his wife had travelled to Australia. He did not tell the officer that they had come with him to the United States. However, once the asylum officer told him that the government records showed that his wife and child had travelled to the United States with him he admitted it. (I wonder how much of this issue was a problem of poor translation). The asylum office referred the case to the Immigration Court.
The IJ did not make an adverse credibility finding, but instead, found that Mr. Dai failed to meet the burden of proof for asylum, withholding of removal and protection under the Convention Against Torture. The BIA affirmed the IJ’s decision. The BIA held “that “the [IJ] need not have made an explicit adverse credibility finding to nevertheless determine that the respondent did not meet the burden of proving his asylum claim.” The BIA found that Dai’s family returning to China and “his not being truthful about it” were “detrimental to his claim and [] significant to his burden of proof.” Dai, 884 F.3d at 865-866.
The Ninth Circuit found that because the IJ and the BIA did not make an adverse credibility finding, the Ninth Circuit accepted his testimony as credible and found that he met his burden of proof. The Ninth Circuit found that Mr. Dai was eligible for asylum and remanded the case to the BIA to determine whether he should be granted asylum in an exercise of discretion. They also found that Mr. Dai met the standard for withholding of removal (a nondiscretionary form of relief) and ordered the BIA to grant Mr. Dai withholding.
Dissent
Judge Stephen Trotter, in a blistering 49 page dissent disagreed. As I mentioned, the petitions for rehearing and rehearing en banc are still pending. Judge Trotter argues that the majority used the wrong analysis. “The sole issue should be whether Dai’s unedited presentation compels the conclusion that he carried his burden of proving he is a refugee and thus eligible for a discretionary grant of asylum. Only if we can conclude that no reasonable factfinder could fail to find his evidence conclusive can we grant his petition.” Dai v. Barr, No. 15-7-776 slip op. at *5 (9th Cir. Feb. 22, 2019) (Trotter, J., dissenting) (emphasis in the original). Judge Trotter argues that the IJ’s decision not to make an explicit adverse credibility finding was a red herring. Judge Trotter then refers to the Federal Rules of Civil Procedure, (FRCP) namely that findings of fact, must not be set aside unless clearly erroneous. FRCP Rule 52(a)(6).
At first, I was confused as to why Judge Trotter cites to the FRCP. The INA – specifically INA § 242(a)(4) states the scope and standard of review for immigration cases. Section 242(a)(4) states “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” It’s a similar standard, but I don’t think the FRCP applies in immigration proceedings. As always there is a reason for weird things. Later in the dissent it becomes clear – FRCP Rule 52(a) does not differentiate between appeals and petitions for review. “The Act’s use of the word “appeal” does not dictate how we must go about our process of review. Using the standards provided by Congress we are not in a position to weigh a witness’s credibility or persuasiveness.” Dai, slip op. at *12 (Trotter, J., dissenting). That’s how Judge Trotter counters part of the majority’s opinion.
Judge Trotter then delineates the responsibilities of the asylum office, the Immigration Judge, and the BIA. (This dissent might be very useful in explaining how the asylum office is supposed to act in a case.) Judge Trotter’s argument is that under REAL ID, the Ninth Circuit must defer to the BIA’s and IJ’s credibility findings under REAL ID unless, any reasonable adjudicator would be compelled to conclude to the contrary. It’s a high bar. For Judge Trotter the issue is not so much about the IJ and the BIA making a credibility finding; rather, the issue is the standard of review in adjudicating this case: namely, did Mr. Dai’s testimony compel the conclusion that he carried his burden to prove that he’s a refugee and is eligible for relief? If not….