Ming Dai v. Jefferson Sessions , 884 F.3d 858 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MING DAI, No. 15-70776
Petitioner,
Agency No.
v. A205-555-836
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 13, 2017*
San Francisco, California
Filed March 8, 2018
Before: Sidney R. Thomas, Chief Circuit Judge, and
Stephen Reinhardt and Stephen S. Trott, Circuit Judges.
Opinion by Judge Reinhardt;
Dissent by Judge Trott
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 DAI V. SESSIONS
SUMMARY**
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
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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.
COUNSEL
David Z. Su, Law Offices of David Z. Su, West Covina,
California, for Petitioner.
4 DAI V. SESSIONS
Aimee J. Carmichael, Trial Attorney; Mary Jane Candaux,
Assistant Director; Office of Immigration, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
REINHARDT, Circuit Judge:
Ming Dai is a citizen of China. He testified 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 Board of Immigration
Appeals (BIA) nevertheless found that Dai was not eligible
for asylum or withholding of removal.
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. In any event, under our well-
established rule, Dai is unquestionably entitled to relief.
DAI V. SESSIONS 5
BACKGROUND
I. Dai’s Persecution in China1
Dai has been married for twenty years to Li Ping Qin. Dai
and Qin have a daughter, who was born in 2000. In April
2009, Qin discovered that she was pregnant again. Dai and
Qin were “very happy” about the pregnancy and believed
they would be able to keep the child if they paid a fine,
despite China’s One Child policy.
However, the month after Qin found out she was
pregnant, she was visited at work by a “family planning
officer” who told Qin that she was required to have an
abortion. Qin told the officer that she would need to think
about it. Two months later, five family planning officers
came to Dai and Qin’s house early in the morning from “the
local family planning office and also the police station.” The
officers were there to take Qin to the hospital for a forced
abortion. Qin told the officers that she didn’t want to go and
Dai attempted to stop the officers from taking Qin against her
will. Dai and the officers began arguing, with the officers
telling Dai that Qin had to have the forced abortion as a
matter of “Chinese policy” and Dai saying “you can’t take my
wife away.”
When Dai continued resisting the officers’ efforts to take
Qin for the forced abortion, two of them pushed him to the
ground. Dai got up and tried again to stop the officers, so they
1
This factual summary is drawn primarily from Dai’s testimony
before the IJ. As we discuss in more detail below, we treat Dai’s testimony
as credible because neither the IJ nor the BIA made an adverse credibility
finding.
6 DAI V. SESSIONS
pushed him to the ground again. This time, the officers
handcuffed Dai and repeatedly beat him, causing substantial
injuries. While Dai was handcuffed and being beaten, the
other officers dragged Qin out of the house.
The police took Dai to the Zha Bei detention center.
There, they ordered Dai to confess to resisting arrest. Dai
initially refused to confess and insisted that he had the right
to protect his family. The officers continued to interrogate
him over the next number of days. At times he was deprived
of sleep because he was interrogated in the middle of the
night. During the ten days he spent in detention, Dai was
interrogated approximately seven times. He was fed one meal
a day and often denied water. Dai characterized his treatment
as “mental[] torture.” Dai ultimately confessed to resisting
arrest and fighting with the officers. He was released about
two days after his confession.
Dai’s injuries occurred when the officers beat him at his
home. Despite telling the police about his injuries, he
received no medical attention while in custody. When he was
released he went to the hospital for x-rays, which showed that
his right arm was dislocated and the ribs on his right side
were broken. The doctor put Dai’s arm back in place and
wrapped it to keep it still for six weeks. Dai did not receive
any treatment for his broken ribs.
When Dai returned home he found Qin crying. Qin told
him that she had been taken to the Guang Hua hospital in the
Chang Ning district, where a doctor made her get undressed
and then sedated her. When she woke up, she learned that her
pregnancy had been terminated and that an IUD had been
implanted, all without her consent.
DAI V. SESSIONS 7
In addition to Qin’s forced abortion and Dai’s arrest,
detention, and physical and mental abuse, Qin, Dai, and their
daughter each suffered other repercussions arising out of
Qin’s unauthorized pregnancy and Dai’s resistance to her
forced abortion. Dai was fired from his job, while Qin was
demoted and her salary was reduced by thirty percent. Their
supervisors specifically informed them that they were fired
and demoted because of the above events. Their daughter was
also denied admission to more desirable schools despite good
academic performance. Her teacher told Qin that this was
likewise because of the events resulting from the illegal
pregnancy.
On or about January 27, 2012, Dai, Qin, and their
daughter arrived in the United States on tourist visas, with
authorization to remain until July 26, 2012. Qin and their
daughter returned to China in February while Dai remained
in the United States. In the time since Qin and their daughter
have returned to China, the Chinese police have come looking
for Dai multiple times. Dai is afraid that if he returns to China
he will be forcibly sterilized.
II. Asylum Application
Approximately eight months after arriving in the United
States, Dai filed an affirmative asylum application. The next
month, he was interviewed by an asylum officer. The asylum
officer took notes during the interview, but did not prepare a
verbatim transcript.
During the interview, Dai was not asked whether his wife
and daughter had accompanied him to the United States.
Rather, the asylum officer inquired whether they ever
traveled anywhere outside of China. He told the asylum
8 DAI V. SESSIONS
officer that both his wife and his daughter had been to Taiwan
and Hong Kong and that his wife had been to Australia.
When asked if they had traveled anywhere else, he said they
had not. However, when told that government records showed
that his wife and daughter had traveled to the United States
with him, he agreed that they had done so. When asked why
he did not initially disclose this, Dai said (through an
interpreter and according to the non-verbatim notes of the
interview), “I’m afraid you ask why my wife and daughter go
back.” Dai explained that his wife and daughter went back to
China “[s]o that my daughter can go to school and in the US
you have to pay a lot of money.” Finally, Dai was asked,
“Can you tell me the real story about you and your family’s
travel to the US?” Dai responded, “I wanted a good
environment for my child. My wife had a job and I didn’t and
that is why I stayed here. My wife and child go home first.”
The asylum officer denied Dai’s asylum application.
III. Removal Proceedings
The Department of Homeland Security (DHS) then issued
Dai a Notice to Appear. Dai conceded that he was removable
and sought asylum, withholding of removal, and CAT
protection. At a hearing before the IJ, Dai testified about the
events in China we have described. When asked why he came
to the United States, he said, “[b]ecause I was persecuted in
China and my wife, my wife was forced to have an abortion
and I lost my baby. I was arrested. I was beaten[]. I lost my
job. America [ ] is a free country and it’s [ ] a democratic
country. I want to come here [ ] and have my very basic
human rights. I really, really hate Chinese dictatorship.”
DAI V. SESSIONS 9
During cross-examination, the government asked Dai
about his initial failure to disclose his wife and daughter’s
travel to the United States. Dai testified that “I was very
nervous” and “because I was already in the U.S. and they [ ]
came with me to the U.S. . . . I thought that you were asking
me anywhere other than the U.S.” In response to further
questioning by the government, Dai testified that his wife and
daughter returned to China so that his wife could care for his
father-in-law and his daughter could attend school. When
asked why he didn’t keep them in the US to protect them
from forced IUDs or abortions, Dai reminded the government
that his wife’s IUD was already inserted before she left China
and that his daughter was only 13.
When the government asked Dai if there were any other
reasons he was afraid to return to China, Dai said, “if I return
to China, it’s impossible for me to get another job. . . . Just
the sterilization and that.” Finally, when asked why he
remained in the U.S. when his wife returned to China he
responded, “Because at that time, I was in a bad mood and I
couldn’t get a job, so I want to stay here for a bit longer and
another friend of mine is also here.” At the time in question
(when Qin returned to China in February 2012), Dai did not
know about asylum. He first learned about the existence of
that process in March of that year.
The IJ did not make an adverse credibility finding.
Instead, the IJ found that Dai failed to meet his burden of
proof for asylum, withholding of removal, and CAT
protection.
10 DAI V. SESSIONS
IV. BIA Decision
The BIA affirmed the IJ’s denial of relief. The BIA first
found that Dai “failed to disclose both to the [DHS] asylum
officer and the [IJ] that his wife and daughter had traveled
with him to the United States and voluntarily returned to
China shortly after”2 and that Dai’s reason for concealing this
information was that “he believed that the true reasons for
their return . . . would be perceived as inconsistent with his
claims of past and feared persecution.”3
The BIA acknowledged that the IJ did not make an
adverse credibility finding and also did not make one itself.
Instead, the BIA held that “the [IJ] need not have made an
explicit adverse credibility finding to nevertheless determine
that the respondent did not meet his 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.” The
BIA concluded that Dai failed to establish eligibility for
asylum, withholding of removal, or CAT protection. Dai filed
2
The record clearly demonstrates that Dai did not conceal this
information from the IJ. If he concealed it at all, it was only from the
asylum officer. To the extent the government defends this finding by the
BIA, it simply notes that Dai “did not raise the information during direct
examination before the Immigration Judge.” However, Dai was not asked
about his family’s travel to the United States and return to China during
direct examination, and when he was asked during cross examination he
answered truthfully.
3
The BIA also found that “the respondent’s contention that his wife
and daughter returned to China before he became aware of the possibility
of asylum is not supported by the record.” In fact, Dai’s testimony on this
point was unchallenged and uncontradicted and the government does not
defend this erroneous finding before this court.
DAI V. SESSIONS 11
a timely petition for review challenging the BIA’s denial of
relief.
SCOPE AND STANDARD OF REVIEW
“[W]e cannot deny a petition for review on a ground
[upon which] the BIA itself did not base its decision.”
Hernandez-Cruz v. Holder, 651 F.3d 1094, 1110 (9th Cir.
2011). We review the agency’s factual findings for
substantial evidence. Hamazaspyan v. Holder, 590 F.3d 744,
747 (9th Cir. 2009).
The scope of review in this case is unclear. While the BIA
stated that it “adopt[ed] and affirm[ed] the Immigration
Judge’s decision,” it then went on to discuss and agree with
most of the IJ’s specific reasons while omitting any
discussion of one of them.
On the one hand, we have held that when “the BIA adopts
the decision of the IJ and affirms without opinion, we review
the decision of the IJ as the final agency determination.”
Smolniakova v. Gonzales, 422 F.3d 1037, 1044 (9th Cir.
2005); see also Matter of Burbano, 20 I. & N. Dec. 872, 874
(BIA 1994). In this case, however, the BIA did not affirm
“without opinion.”
On the other hand, we have also held that when “the BIA
relie[s] upon the IJ’s opinion as a statement of reasons” but
“state[s] with sufficient particularity and clarity the reasons
for denial of asylum and d[oes] not merely provide a
boilerplate opinion,” we “look to the IJ’s oral decision [only]
as a guide to what lay behind the BIA’s conclusion.” Tekle v.
Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (quotation
marks and alterations omitted). “In so doing, we review here
12 DAI V. SESSIONS
the reasons explicitly identified by the BIA, and then examine
the reasoning articulated in the IJ’s oral decision in support of
those reasons. . . . Stated differently, we do not review those
parts of the IJ’s . . . finding that the BIA did not identify as
‘most significant’ and did not otherwise mention.” Id.; see
also Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014).
However, in those cases the BIA did not say that it was
adopting the decision of the IJ.
Finally, this is not a case in which “the BIA adopt[ed] the
immigration judge’s decision and also add[ed] its own
reasons.” Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.
2005). The BIA did not “add[] its own reasons;” rather, it
identified and expressly agreed with some (but not all) of the
IJ’s reasons.
We need not, however, resolve the precise scope of
review in this case because none of the reasons advanced by
the IJ, including the one omitted by the BIA, provides a
sufficient basis for the BIA’s decision.
DISCUSSION
I. Asylum
Asylum is available to refugees—that is, anyone who is
“‘unable or unwilling to avail himself or herself of the
protection of [his or her native] country because of
persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular
social group, or political opinion.’” Baghdasaryan v. Holder,
DAI V. SESSIONS 13
592 F.3d 1018, 1022–23 (9th Cir. 2010) (quoting 8 U.S.C.
§ 1101(a)(42)(A)).4
If a noncitizen establishes past persecution, “a rebuttable
presumption of a well-founded fear arises, and the burden
shifts to the government to demonstrate that there has been a
fundamental change in circumstances such that the applicant
no longer has a well-founded fear.” Tawadrus v. Ashcroft,
364 F.3d 1099, 1103 (9th Cir. 2004) (quotation marks and
citations omitted). “An applicant alleging past persecution
has the burden of establishing that (1) his treatment rises to
the level of persecution; (2) the persecution was on account
of one or more protected grounds; and (3) the persecution was
committed by the government, or by forces that the
government was unable or unwilling to control.”
Baghdasaryan, 592 F.3d at 1023.
This case is governed by the REAL ID Act of 2005, Pub.
L. No. 109-13, Div. B, 119 Stat. 231, 302–23. Under the
standards established by that Act, an applicant’s testimony
alone is sufficient to establish eligibility for asylum if it
satisfies three requirements: the “testimony is credible, is
persuasive, and refers to specific facts sufficient to
demonstrate that the applicant is a refugee.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). In determining whether the testimony is
persuasive, “the trier of fact may weigh the credible
testimony along with other evidence of record.” Id. If the
applicant’s testimony satisfies all three requirements, then it
“alone meets the applicant’s burden of proof.” Ren v. Holder,
648 F.3d 1079, 1093 (9th Cir. 2011). If, however, the
4
By “native country” we mean a person’s country of nationality “or,
in the case of a person having no nationality, . . . [the] country in which
such person last habitually resided.” 8 U.S.C. § 1101(a)(42)(A).
14 DAI V. SESSIONS
applicant’s credible testimony alone is not sufficiently
persuasive, “the IJ must give the applicant notice of the
corroboration that is required and an opportunity either to
produce the requisite corroborative evidence or to explain
why that evidence is not reasonably available.” Id.5 No
notice regarding corroboration was given to Dai. We will
next examine the three requirements under the Act for
meeting the burden of proof, though not in the order listed in
the statute.
A. Credibility
Dai testified at his removal hearing and the IJ made no
adverse credibility finding. When this was called to the BIA’s
attention, it also made no adverse credibility finding.
Although the BIA identified one time that Dai allegedly
failed to disclose a fact and indicated that it did not believe
Dai’s explanation for not doing so, “this sort of passing
statement does not constitute an adverse credibility finding.”
Kaur v. Holder, 561 F.3d 957, 962–63 (9th Cir. 2009). The
BIA may find that an applicant lied about one particular fact
without making a general adverse credibility finding. Even a
“statement that a petitioner is ‘not entirely credible’ is not
enough” to constitute an adverse credibility finding, Aguilera-
Cota v. I.N.S., 914 F.2d 1375, 1383 (9th Cir. 1990), and the
BIA’s finding that Dai “failed to disclose” a single fact does
not even rise to the level of a finding that a petitioner is “not
entirely credible.” In short, the adverse credibility finding
must be explicit.
5
The IJ must also provide notice and an opportunity to produce
corroboration or explain its absence if an adverse credibility finding will
be based on a lack of corroborating evidence. Lai, 773 F.3d at 975–76.
DAI V. SESSIONS 15
Large portions of the dissent are devoted to elaborating on
the deference that we owe to credibility findings by the IJ and
the BIA. We agree that such findings are entitled to
deference, but we cannot defer to a finding that does not
exist. The bulk of our dissenting colleague’s concerns can
therefore be reduced to his objection to the rule that adverse
credibility findings must be explicit. It is difficult to identify,
however, a more well-established rule in the review of
immigration cases.6 The dissent offers no reason to overturn
our longstanding requirement that adverse credibility findings
be explicit and, in fact, the REAL ID Act codifies the
principle that such findings must be “explicitly made.”
8 U.S.C. § 1158(b)(1)(B)(iii). Therefore, “[t]he IJ’s decision
not to make an explicit adverse credibility finding,” Dissent
at 30, means that there is no finding to which we can defer.7
6
See, e.g., She v. Holder, 629 F.3d 958, 964 (9th Cir. 2010); Tijani
v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010); Edu v. Holder, 624 F.3d
1137, 1143 n.5 (9th Cir. 2010); Karapetyan v. Mukasey, 543 F.3d 1118,
1123 n.4 (9th Cir. 2008); Meihua Huang v. Mukasey, 520 F.3d 1006,
1007–08 (9th Cir. 2008) (per curiam); Singh v. Gonzales, 491 F.3d 1019,
1025 (9th Cir. 2007); McDonald v. Gonzales, 400 F.3d 684, 686 n.2 (9th
Cir. 2005); Mansour v. Ashcroft, 390 F.3d 667, 671–72 (9th Cir. 2004);
Zhang v. Ashcroft, 388 F.3d 713, 718 (9th Cir. 2004) (per curiam); Lopez-
Alvarado v. Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004); Kalubi v.
Ashcroft, 364 F.3d 1134, 1137–38 (9th Cir. 2004); Mendoza Manimbao
v. Ashcroft, 329 F.3d 655, 658–59 (9th Cir. 2003); Shoafera v. I.N.S.,
228 F.3d 1070, 1074 n.3 (9th Cir. 2000); Navas v. I.N.S., 217 F.3d 646,
652 n.3 (9th Cir. 2000); Prasad v. I.N.S., 101 F.3d 614, 616 (9th Cir.
1996); Hartooni v. I.N.S., 21 F.3d 336, 342 (9th Cir. 1994).
7
The dissent places great weight on Ling Huang v. Holder, 744 F.3d
1149 (9th Cir. 2014). The distinction between that case and this could not
be clearer: “[T]he IJ found that Huang’s testimony was not credible.” Id.
at 1151.
16 DAI V. SESSIONS
Given that there is no adverse credibility finding from the
agency, the next question is whether we can nostra sponte
decide that Dai’s testimony is not credible. Prior to the REAL
ID Act, we held that in the absence of an explicit adverse
credibility finding by the IJ or the BIA we are required to
treat the petitioner’s testimony as credible. Kalubi v. Ashcroft,
364 F.3d 1134, 1137 (9th Cir. 2004); Navas v. I.N.S.,
217 F.3d 646, 652 n.3 (9th Cir. 2000). The REAL ID Act
enacted a variety of changes to the standards governing
credibility determinations, including—as noted by the
dissent—a provision that “if no adverse credibility
determination is explicitly made, the applicant or witness
shall have a rebuttable presumption of credibility on appeal.”
8 U.S.C. § 1158(b)(1)(B)(iii).
Neither this provision nor anything else in the REAL ID
Act explicitly or implicitly repeals the rule that in the absence
of an adverse credibility finding by the IJ or the BIA, the
petitioner is deemed credible. To the contrary, in a post-
REAL ID opinion we stated and applied that rule. See
Zhiqiang Hu v. Holder, 652 F.3d 1011, 1013 n.1 (9th Cir.
2011); see also Kazemzadeh v. U.S. Attorney Gen., 577 F.3d
1341, 1354 (11th Cir. 2009) (W. Pryor, J.) (post-REAL ID
application) (“Where an [Immigration Judge] fails to
explicitly find an applicant’s testimony incredible and
cogently explain his or her reasons for doing so, we accept
the applicant’s testimony as credible.”) (quotation marks
omitted). Hu controls here, a fact the dissent entirely fails to
acknowledge. However, in Hu we did not explain why our
rule was unaffected by the new language in the REAL ID
Act. We take this opportunity to do so now.
Properly understood, the rebuttable presumption provision
of the REAL ID Act applies only to appeals to the BIA, not
DAI V. SESSIONS 17
to petitions for review in our court.8 This is demonstrated by
the fact that the statute says there is “a rebuttable presumption
of credibility on appeal.” 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1229a(c)(4)(C) (emphasis added). 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); see Ren, 648 F.3d at 1083–84.
The “sole and exclusive means for judicial review of an order
of removal” is by “a 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
8
The proper application of the rebuttable presumption provision is
apparent in She v. Holder, 629 F.3d 958 (9th Cir. 2010). In that case, we
quoted a different pre-REAL ID rule: that “[a]bsent an adverse credibility
finding, the BIA is required to ‘presume the petitioner’s testimony to be
credible.’” Id. at 964 (quoting Mendoza Manimbao v. Ashcroft, 329 F.3d
655, 662 (9th Cir. 2003)). In a footnote, we acknowledged that the REAL
ID Act prospectively altered this rule so that the BIA must only afford “a
rebuttable presumption of credibility” when the IJ does not make an
adverse credibility finding. Id. at 964 n.5. Thus, while the dissent is
correct that the REAL ID Act affected our precedent, it did not disturb the
distinct rule upon which we rely in this case: that in the absence of an
adverse credibility finding by either the IJ or the BIA, we are required to
treat the petitioner’s testimony as credible.
18 DAI V. SESSIONS
to our review, but solely to the BIA’s review on appeal from
the IJ’s decision.9
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).
The dissent is therefore incorrect to say that “[w]hen it
comes to our task of reviewing the credibility of witnesses in
a trial court or whether a witness’ testimony suffices to carry
his burden of proof [ ] there is no material difference between
an appeal and a petition for review.” Dissent at 38. In an
appeal we may, in appropriate circumstances and after
affording appropriate deference, reject a district court’s
credibility finding (whether favorable or adverse) in order to
affirm the district court on an alternative ground. However,
when the BIA has on appeal neither affirmed an adverse
credibility finding made by the IJ nor made its own finding
after deeming the presumption of credibility rebutted, we may
9
The fact that appeals and petitions for review are treated the same
for purposes of the Federal Rules of Appellate Procedure, see Fed. R.
App. P. 20; Dissent at 38–39, is irrelevant. The provision in question,
8 U.S.C. § 1158(b)(1)(B)(iii), is not part of the those rules.
DAI V. SESSIONS 19
not deny the petition for review based on lack of credibility,
not only because under our well-established case law we must
deem the petitioner’s testimony credible but also because a
denial on that ground would require us to adopt a justification
not relied on by the BIA.
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 the absence
of any other provision in the Act affecting the procedures
governing credibility findings,10 our rule that we are required
to treat a petitioner’s testimony as credible when the agency
does not make an adverse credibility finding remains
applicable. Because neither the IJ nor the BIA made an
adverse credibility determination in Dai’s case, we must treat
his testimony as credible.
B. Sufficiency
Because Dai’s testimony must be deemed credible, we
must next consider whether he testified to facts sufficient to
establish eligibility for asylum. By statute, “a person . . . who
has been persecuted for failure or refusal to [abort a
pregnancy or to undergo involuntary sterilization] or for other
resistance to a coercive population control program, shall be
deemed to have been persecuted on account of political
opinion.” 8 U.S.C. § 1101(a)(42). The harm Dai suffered was
10
The only other significant change regarding credibility adopted by
the REAL ID Act is the rule that an adverse credibility finding may now
be based on “an inconsistency, inaccuracy, or falsehood [that does not go]
to the heart of the applicant’s claim.” 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1229a(c)(4)(C). That rule is irrelevant to this case, as the IJ and BIA did
not make an adverse credibility finding.
20 DAI V. SESSIONS
on account of his resistance to China’s coercive population
control program and thus was on the basis of a protected
ground. In addition, “[p]olice officers are the prototypical
state actor for asylum purposes.” Boer-Sedano v. Gonzales,
418 F.3d 1082, 1088 (9th Cir. 2005). Therefore, the only
question as to the sufficiency of Dai’s testimony is whether
the harm rose to the level of persecution.
Dai testified that he was beaten, arrested, detained, and
deprived of food and sleep because of his attempt to oppose
his wife’s involuntary abortion. “It is well established that
physical violence is persecution.” Li v. Holder, 559 F.3d
1096, 1107 (9th Cir. 2009). In Guo v. Ashcroft, 361 F.3d 1194(9th Cir. 2004), this court held that facts similar to—but less
serious than—the facts in this case compelled a finding of
persecution. The applicant in Guo was arrested, detained for
a day and a half, punched in the face, and kicked in the
stomach. Id. at 1202–03. In contrast, Dai was forcibly pushed
to the ground twice, repeatedly punched in the stomach while
handcuffed, jailed for ten days, fed very little food and water,
deprived of sleep through interrogation, and denied medical
care. An applicant may establish persecution through physical
abuse even if he does not seek medical treatment, see Lopez
v. Ashcroft, 366 F.3d 799, 803 (9th Cir. 2004), but Dai did
seek and receive such treatment for an injured shoulder and
broken ribs.
In addition to the physical harm he suffered, Dai lost his
job as a result of this occurrence. Such economic harm can
contribute to a finding of persecution. See Vitug v. Holder,
723 F.3d 1056, 1065 (9th Cir. 2013).
For these reasons, the harm Dai suffered rose to—and
indeed, well surpassed—the established level of persecution.
DAI V. SESSIONS 21
The record therefore compels the conclusion that Dai’s
testimony sets forth sufficient specific facts to constitute past
persecution.
C. Persuasiveness
The BIA did not make an adverse credibility finding, but
instead found that Dai had failed to “meet[] his burden of
proving his asylum claim.” As we have explained, see pages
13–14, supra, an applicant’s testimony carries the burden of
proof if it is credible, persuasive, and sufficient. Two of those
requirements have been satisfied: we must treat Dai’s
testimony as credible and his testimony clearly set out
sufficient facts to establish past persecution. We therefore
treat the BIA’s general statement about Dai’s burden of proof
as relating to the only remaining requirement for testimony to
carry that burden: persuasiveness. However, taking into
account the record as a whole, nothing undermines the
persuasiveness of Dai’s credible testimony—that is, the
BIA’s determination that Dai’s testimony was unpersuasive
is not supported by substantial evidence.
In evaluating persuasiveness the BIA is required to
“weigh the credible testimony along with other evidence of
record.” 8 U.S.C. § 1158(b)(1)(B)(ii). The BIA found that
Dai’s testimony was not persuasive for two reasons. First, the
record revealed that Dai’s wife Qin and their daughter had
traveled to the United States with Dai, and then voluntarily
returned to China. Second, Dai initially tried to conceal this
fact from the asylum interviewer until he was confronted with
it. According to the BIA, “[t]he respondent’s family
voluntarily returning and his not being truthful about it is
detrimental to his claim and is significant to his burden of
proof.” The IJ identified a third reason for not finding Dai’s
22 DAI V. SESSIONS
testimony persuasive: the fact that when asked for “the real
story about you and your family’s travel to the U.S.,” Dai
responded, “I wanted a good environment for my child. My
wife had a job and I didn’t, and that is why I stayed here. My
wife and child go home first.” However, none of these
reasons supports the BIA’s conclusion that Dai’s testimony
was not persuasive in light of the record as a whole.
We have held that a noncitizen’s “history of willingly
returning to his or her home country militates against a
finding of past persecution or a well-founded fear of future
persecution.” Loho v. Mukasey, 531 F.3d 1016, 1017–18 (9th
Cir. 2008). The BIA relied heavily on Loho to justify its
decision. However, unlike in Loho, Dai never returned to
China—only his wife and daughter did.
We have also recognized that a family member’s
voluntary return—or demonstrated ability to remain in the
country without further injury—can be relevant in certain
narrow circumstances: when the applicant’s “fear of future
persecution rests solely upon threats received by his family,”
Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010)
(emphasis added), or when the family member and the
applicant are “similarly situated,” Sinha v. Holder, 564 F.3d
1015, 1022 (9th Cir. 2009).
The IJ found that “the fundamental thrust of [Dai’s] claim
is that his wife was forced to have an abortion,” and Qin
“therefore clearly has an equal, or stronger, claim to asylum
than [Dai] himself.” The IJ also found that Qin was “the
primary object of the persecution in China.” The BIA adopted
this reasoning. However, the findings are contrary to the
reasoning of our case law.
DAI V. SESSIONS 23
It is true that Dai and Qin’s persecution arose out of the
same general event, but that is not the test that Tamang and
Sinha establish. Dai’s fear of persecution does not “rest
solely” on Qin’s treatment, and Dai and Qin are not
“similarly situated.” As the harms suffered by Dai and Qin in
the past are qualitatively different and give rise to different
fears about future persecution, we need not decide who has
the “stronger” claim. Neither the statutes nor our case law
endorses the IJ and BIA’s approach of ranking distinct harms.
To the contrary, Dai’s claim is independently established by
statute and is not dependent on any comparison with Qin’s.11
Qin’s hypothetical asylum claim arises out of the invasive
medical procedure imposed on her against her will—she was
“forced to abort a pregnancy [and] to undergo involuntary
sterilization.” 8 U.S.C. § 1101(a)(42). We certainly agree
with the BIA and the government that interference with a
person’s reproductive freedom is a severe form of persecution
and in no way do we suggest that Qin would not have a strong
case for asylum had she applied for it.
Dai, however, was “persecuted . . . for [ ] resistance to a
coercive population control program.” Id. He was subjected
to beatings, prolonged detention, and deprivation of food and
sleep—none of which was experienced by Qin. After the
incident, Dai was fired from his job while Qin was only
demoted. In addition, Qin had already been subjected to the
involuntary insertion of an IUD, whereas Dai fears future
involuntary sterilization. Since Qin returned to China she has
11
“For purposes of determinations under this chapter, a person . . .
who has been persecuted for . . . resistance to a coercive population
control program, shall be deemed to have been persecuted on account of
political opinion.” 8 U.S.C. § 1101(a)(42).
24 DAI V. SESSIONS
apparently not faced further persecution, but the police have
come looking for Dai several times. Dai and Qin’s past
experiences, as well as their fears about the future, are
therefore not so similar as to support the BIA’s finding that
Qin’s voluntary return to China undermines Dai’s claim for
asylum.
Moreover, Dai’s and Qin’s respective decisions make
sense in context. Qin still had a job in China, and their
daughter had a place in school—albeit not in as good a school
as she deserved. In this context, it was entirely reasonable to
think that the family would be best off if Qin returned to
China to keep her job while Dai attempted to establish
himself in the United States—hoping that, once he did so, his
family would be able to join him. The BIA improperly
substituted its own view of what the members of the family
should have done for Dai and Qin’s own reasoned judgment
in a manner that is not supported by substantial evidence in
the record.
The BIA’s second reason for finding Dai’s testimony
unpersuasive fares no better. The BIA held that even in the
absence of an adverse credibility finding, Dai “not being
truthful” about his family’s travel to the United States and
voluntary return to China “is detrimental to his claim and is
significant to his burden of proof.”
The BIA’s framing of the issue suggests that it is relevant
because it casts doubt on Dai’s credibility. However, the
exercise in which we engage when evaluating persuasiveness
requires that in this case we treat Dai’s testimony before the
IJ as credible. Other evidence is relevant only to the extent
that it affects the persuasiveness of the applicant’s testimony
for reasons other than challenging his credibility. Otherwise,
DAI V. SESSIONS 25
the statutory command to “weigh the credible testimony
along with other evidence of record,” 8 U.S.C.
§ 1158(b)(1)(B)(ii) (emphasis added), would not make sense.
Once credibility is decided—here, as we have explained, by
the failure of the IJ or the BIA to make an adverse credibility
finding—the issue is settled. Credibility concerns that do not
justify an adverse credibility finding cannot be smuggled into
the persuasiveness inquiry so as to undermine the finding of
credibility we are required to afford Dai’s testimony.12
Indeed, despite pointing out that Dai was “not [ ] truthful”
about a tangential point, the BIA never questioned the facts
regarding Dai’s persecution in China.
Neither the IJ nor the BIA explained how Dai’s
concealment of his family’s travel to the United States and
return to China was relevant in any way other than to
undermine Dai’s credibility. The government likewise offered
no such explanation before this court, and in any event we
independently discern no relevance beyond Dai’s credibility.
Therefore, neither the family’s return nor Dai’s alleged
concealment of that fact can support the BIA’s finding that
Dai’s credible testimony was unpersuasive.
Finally, contrary to the portion of the IJ’s opinion not
mentioned by the BIA, Dai’s statement that “My wife had a
job and I didn’t, and that is why I stayed here,” does not
12
According to the dissent, “there is barely a dime’s worth of
substantive difference between ‘credible’ and ‘persuasive.’” Dissent at 45.
This assertion is flatly contradicted by the text of the REAL ID Act, which
requires that testimony be both “credible” and “persuasive.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). “It is a well-established rule of statutory construction
that courts should not interpret statutes in a way that renders a provision
superfluous.” Chubb Custom Ins. Co. v. Space Systems/Loral, Inc.,
710 F.3d 946, 966 (9th Cir. 2013).
26 DAI V. SESSIONS
render his testimony about his past persecution unpersuasive.
A valid asylum claim is not undermined by the fact that the
applicant had additional reasons (beyond escaping
persecution) for coming to or remaining in the United States,
including seeking economic opportunity. See Li, 559 F.3d at
1105 (reversing an adverse credibility determination that was
based on an applicant’s testimony that economic opportunity
was an additional reason for coming to the United States).
That is especially true when, as in this case, the loss of
economic opportunity in the home country is part of the
overall persecution. Dai testified about his reasons for coming
to the United States: “I was persecuted in China . . . . I was
arrested. I was beaten[]. I lost my job. . . . I want to come here
[ ] and have my very basic human rights.” Although Dai
acknowledged that he had additional reasons for coming to
the United States, he never recanted or contradicted his
assertion that he feared persecution if he returned to China,
which is the only subjective requirement for an asylum claim.
***
The BIA did not enter an adverse credibility finding, so
we are required to treat Dai’s testimony as credible. The
record compels the conclusion that he testified to sufficient
facts to demonstrate his eligibility for asylum: he was
subjected to harm rising to the level of persecution, that
persecution was on account of a protected ground, and the
persecution was committed by the government. Nothing in
the BIA’s burden of proof analysis raises questions about
whether Dai established either of those elements. Treating
that analysis instead as going to the question of
persuasiveness, the BIA’s concerns are either unsupported by
our case law or serve only as attempts to impermissibly
undermine the credibility determination. The record therefore
DAI V. SESSIONS 27
compels the conclusion that Dai’s testimony satisfies his
burden of proof because it meets the three requirements of the
statute: it is credible, persuasive, and sets forth sufficient
facts. 8 U.S.C. § 1158(b)(1)(B)(ii).
Because Dai has established that he suffered past
persecution, he is entitled to a presumption of a well-founded
fear of future persecution. During the administrative
proceedings, DHS
made no arguments concerning changed
country conditions to the IJ or the BIA, and
presented no documentary evidence for that
purpose. “In these circumstances, to provide
[DHS] with another opportunity to present
evidence of changed country conditions, when
it twice had the chance but failed to do so,
would be exceptionally unfair.”
Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir. 2004) (quoting
Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11 (9th Cir.
2004)); see also Quan v. Gonzales, 428 F.3d 883, 889 (9th
Cir. 2005). “In this situation, we are not required to remand
for a determination of whether [Dai] is eligible for asylum.
We hold that he is eligible for asylum. Because the decision
to grant asylum is discretionary, however, we remand for a
determination of whether [Dai] should be granted asylum.”
Ndom, 384 F.3d at 756 (citations omitted).
II. Withholding of Removal
Withholding of removal is governed by the same
standards as asylum for demonstrating credibility,
sufficiency, and persuasiveness. Compare 8 U.S.C.
28 DAI V. SESSIONS
§ 1158(b)(1)(B)(ii), (iii), with § 1229a(c)(4)(B), (C). The
primary difference is that, in order to be eligible for
withholding, Dai must demonstrate that “it is more likely than
not that he would be subjected to persecution” based on a
protected ground if removed to China, a higher standard than
the well-founded fear required for asylum. Zhang v. Ashcroft,
388 F.3d 713, 718 (9th Cir. 2004) (quotation marks omitted).
However, as with asylum, past persecution gives rise to a
presumption of a sufficient likelihood of future persecution.
Mutuku v. Holder, 600 F.3d 1210, 1213 (9th Cir. 2010);
Tamang, 598 F.3d at 1091; Mousa v. Mukasey, 530 F.3d
1025, 1030 (9th Cir. 2008); Hanna v. Keisler, 506 F.3d 933,
940 (9th Cir. 2007); 8 C.F.R. § 1208.16(b)(1)(i).
The record compels the conclusion that Dai has
established past persecution for his withholding claim for the
same reasons as for his asylum claim. The government
presented no evidence of changed country conditions, nor did
it argue that the resulting presumption has been rebutted or
that Dai is barred from withholding of removal for any
reason. We therefore remand with instructions to grant Dai
withholding of removal. See Ndom, 384 F.3d at 756.13
CONCLUSION
The dissent is correct that our “role in an immigration
case is typically one of review, not of first view.” Gonzales
v. Thomas, 547 U.S. 183, 185 (2006) (quotation marks
omitted). It is the dissent, however, that violates this cardinal
rule. We do not doubt that our dissenting colleague could
have written a more persuasive opinion on behalf of the BIA
13
Dai does not challenge the BIA’s denial of CAT relief here, so we
do not consider it.
DAI V. SESSIONS 29
denying relief to Dai, but that is not the role of this court. We
are limited to reviewing the reasoning actually advanced by
the agency and we cannot substitute our own rationales for
those it relied on. Here, neither the IJ nor the BIA made an
adverse credibility finding, no matter how much the dissent
wishes that they had.14
Dai’s petition for review is GRANTED and this case is
REMANDED to the BIA for the exercise of its statutory
discretion and to grant withholding of removal.
14
With all respect, Judge Trott’s lengthy laments regarding the need
for the IJ and the BIA to state explicitly that they find a petitioner’s
testimony not credible are wholly unwarranted. Such has been the law for
at least two decades. It is not difficult for an IJ or the BIA to follow that
rule: the agency need only include a few words in its decision. When it
fails to do so, we can only assume that the failure is deliberate. In any
event, the agency’s failure in a particular case to make a required finding
would hardly warrant Judge Trott’s extraordinary discourse regarding our
circuit’s immigration law in general. In short, the problem which so
greatly disturbs Judge Trott is of little moment. At most, he has shown that
on occasion the agency has failed to do its job properly. If he’s right, then
surely it will do better in the future.
30 DAI V. SESSIONS
TROTT, Circuit Judge, dissenting:
The significance of my colleagues’ opinion is not that it
remands this case to the Bureau of Immigration Appeals
(“BIA”) with orders favorable to Ming Dai. In the abstract,
this result would be unremarkable. However, the serious
legal consequences of their opinion as a circuit precedent are
that it (1) demolishes both the purpose and the substance of
the REAL ID Act of 2005 (“Act”)1 , (2) disregards the
appropriate standard of review, and (3) perpetuates our
idiosyncratic approach to an Immigration Judge’s (“IJ”)
determination that the testimony of an asylum seeker lacks
sufficient credibility or persuasiveness to prove his case. The
majority’s opinion accomplishes these untoward results by
contaminating the issue before us with irrelevancies, the most
pernicious of which is a meritless irrebuttable presumption of
credibility. 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.
The IJ’s decision not to make an explicit adverse
credibility finding is a classic red herring that throws our
analysis off the scent and preordains a result that is
incompatible with the evidentiary record. By omitting from
their opinion the IJ’s fact-based explanation of his decision,
the majority elides and obscures eight material findings of
fact the IJ did make, each of which is entitled to substantial
deference. The majority’s artificial assertion that “there is no
finding to which we can defer” is false. For this reason, I
1
Pub. L. No. 109-13, 119 Stat. 231.
DAI V. SESSIONS 31
quote in full the IJ’s findings and conclusions about the
persuasiveness of Dai’s presentation in Part IV of my dissent.
The eight findings are as follows.
First, the IJ specifically found that the information
reported by the asylum officer about his conversation with
Dai was accurate. The IJ said,
As to the contents of [the asylum officer’s
notes], I give the notes full weight, insofar as
the respondent has confirmed the contents of
the questions and answers given during the
course of that interview. Furthermore, I note
that in the sections in which the respondent
equivocated, stating that he was nervous and
not sure that he gave those precise answers, I
nevertheless give the Asylum Officer’s notes
some substantial weight, in that they are
consistent with the respondent’s testimony in
court.
Accordingly, the IJ accepted as a fact that Dai admitted
that he did not disclose the consequential truth about his
wife’s and daughter’s travels because he was nervous about
how this would be perceived by the asylum officer in
connection with his claim.
Second, the IJ accepted Dai’s admission as a fact that he
concealed the truth because he was afraid of giving straight
answers regarding his wife’s and daughter’s trip to the United
States.
Third, the IJ determined that Dai had deliberately omitted
highly relevant information from his Form I-589 application
32 DAI V. SESSIONS
for asylum, information that he also tried to conceal from the
asylum officer.
Fourth, the IJ found that Dai’s omission of his
information “is consistent with his lack of forthrightness
before the asylum office[r] as to his wife and daughter’s
travel with him. . . .”
Fifth, the IJ credited Dai’s admission that when asked by
the asylum officer to “tell the real story” about his family’s
travels, Dai said he “wanted a good environment for his child,
and his wife had a job, but he did not, and that is why he
stayed here [after his wife and daughter went back to China].
Sixth, the IJ found that Dai admitted he stayed here after
they returned “because he was in a bad mood and he wanted
to get a job and ‘a friend of mine is here.’”
Seventh, the IJ said “I do not find that [Dai’s]
explanations for [his wife’s] return to China while he
remained here are adequate.” (Emphasis added).
Finally, the IJ also credited Dai’s concessions that his
wife and daughter returned to China because “his daughter’s
education would be cheaper in China,” and that “his wife
wanted to go to take care of her father.”
When Dai’s subterfuge got to the BIA, the BIA said in its
decision that “the record reflects that [Dai] failed to disclose
to both the asylum officer and the IJ” the true facts about his
family’s travels. The BIA noted that Dai had conceded he
was not forthcoming about this material information because
he believed that the truth about their travels “would be
DAI V. SESSIONS 33
perceived as inconsistent with his claims of past and feared
persecution.”
The IJ’s specific factual findings in connection with Dai’s
failure to satisfy his burden of proof were not the product of
inferences drawn from circumstantial evidence. These
findings were directly based upon revealing answers Dai
admitted he gave to the asylum officer during his interview.
These facts are beyond debate, and they undercut Dai’s case.
To quote the BIA, these facts were “detrimental to his claim”
and “significant to his burden of proof.” Nevertheless, the
majority cavalierly brushes them aside, claiming that an
immaterial presumption of credibility overrides all of them.
In this connection, I note a peculiarity in the majority’s
approach to Dai’s case: Nowhere does Dai assert that he is
entitled to a conclusive presumption of credibility. His brief
does not contain any mention of the presumption argument
the majority conjures up on his behalf. The closest Dai
comes to invoking the majority’s inapt postulate is with a
statement that we “should” treat as credible his testimony
regarding persecution in China. He does not take issue with
the IJ’s foundational adverse factual findings, choosing
instead to argue that they were not sufficient in the light of
the record as a whole to support the IJ’s ultimate
determination.
For example, Dai acknowledges in his brief that the “IJ’s
or BIA’s factual findings are reviewed for substantial
evidence” and that the “REAL ID Act’s new standards
governing adverse credibility determinations applies to
applications for asylum, withholding of removal, and CAT
relief made on or after May 11, 2005.” Blue Br. 10
(emphasis added) (quotation marks omitted). Next, he notes
34 DAI V. SESSIONS
that “an IJ cannot selectively examine evidence in
determining credibility, but rather must present a reasoned
analysis of the evidence as a whole and cite specific instances
in the record that form the basis of the adverse credibility
finding.” Id. (emphasis added) (quotation marks omitted).
Moreover, Dai notes that “[t]o support an adverse credibility
determination, inconsistencies must be considered in light of
the totality of the circumstances, and all relevant factors”
adding that “trivial inconsistencies . . . should not form the
basis of an adverse credibility determination.” Id. at 10–11
(emphasis added) (quotation marks omitted). He contends
that he “has provided adequate explanation” for his
inconsistencies, i.e., the failure to disclose his family’s
travels. Id. at 14. Finally, after attempting to pick apart the
IJ’s adverse findings, Dai’s bottom line is that “his wife’s
departure from the United States does not adversely affect his
credibility at all,” an assertion that ignores his failed coverup
of it. See id. at 16.
In summary, the majority choose to ignore a material part
of the evidentiary record even though Dai implores us to
“examine it as a whole,” as he did in his brief to the BIA. Dai
accepts that the viability of his entire presentation is on the
line, but the majority ignores his concession. In this
connection, the Attorney General has responded only to the
claims and arguments Dai included in his brief. The Attorney
General has not been given an opportunity to respond to the
majority’s inventive analysis, nor to the theory concocted by
the majority on Dai’s behalf. Both sides will be surprised by
my colleagues’ artful opinion—Dai pleasantly, the Attorney
General not so much.
DAI V. SESSIONS 35
I will have more to say in Part V about our Circuit’s
misinformed treatment of the role, responsibility, and product
of an asylum officer.
For these reasons, I respectfully dissent.
I
Backdrop
Over the years, our Circuit has manufactured a plethora
of misguided rules regarding the credibility of political
asylum seekers. I begin with this issue because the
majority’s mishandling of it infects the remainder of their
opinion with error. These result-oriented ad hoc hurdles for
the government stem from humanitarian intentions, but our
court has pursued these intentions with untenable methods
that violate the institutional differences between a reviewing
appellate court, on one hand, and a trial court on the other,
usurping the role of the Department of Homeland Security
(“DHS”) and the BIA in the process. Referring to our
approach to witness credibility as an “idiosyncratic analytical
framework,” a previous panel of our court described this
inappropriate situation as follows:
The Supreme Court has repeatedly instructed
us on the proper standard to apply when
reviewing an immigration judge’s adverse
credibility determination. Time and again,
however, we have promulgated rules that tend
to obscure that clear standard and to flummox
immigration judges, who must contort what
should be a simple factual finding to satisfy
our often irreconcilable precedents. The
36 DAI V. SESSIONS
result of this sly insubordination is that a
panel that takes Congress at its word and
accepts that findings of fact are “conclusive
unless any reasonable adjudicator would be
compelled to conclude the contrary,” . . . or
follows the Supreme Court’s admonition that
“[t]o reverse the BIA finding we must find
that the evidence not only supports that
conclusion, but compels it,” . . . runs a serious
risk of flouting one of our eclectic, and
sometimes contradictory, opinions.
Jibril v. Gonzales, 423 F.3d 1129, 1138 (9th Cir. 2005)
(alteration in original) (citations omitted).
Many of our Circuit’s contrived rules on this subject and
my colleagues’ decision are irreconcilable with the structural
principle set forth in Federal Rule of Civil Procedure 52(a)(6)
that “[f]indings of fact, whether based on oral or other
evidence, must not be set aside unless clearly erroneous, and
the reviewing court must give due regard to the trial court’s
opportunity to judge the witnesses’ credibility.” Accordingly,
we are expected to apply a highly deferential standard to a
trial court’s determination regarding the credibility of a
witness. Anderson v. City of Bessemer City, 470 U.S. 564,
573–76 (1985). In discussing this rule, the Supreme Court
said that “[w]hen findings are based on determinations
regarding the credibility of witnesses, Rule 52(a) demands
even greater deference to the trial court’s findings; for only
the trial judge can be aware of the variations in demeanor and
tone of voice that bear so heavily on the listener’s
understanding of and belief in what is said.” Id. at 575. The
Court added that the applicable “clearly erroneous” standard
of review “plainly does not entitle a reviewing court to
DAI V. SESSIONS 37
reverse the finding of a trier of fact simply because it is
convinced that it would have decided the case differently.
The reviewing court oversteps the bounds of its duty under
Rule 52(a) if it undertakes to duplicate the role of the lower
court.” Id. at 573 (emphasis added).
The Supreme Court sharpened this point about our limited
role in Gonzales v. Thomas, 547 U.S. 183 (2006) (per
curiam), vacating 409 F.3d 1177 (9th Cir. 2005) (en banc).
In summarily vacating our obdurate en banc opinion, the
Court held that we had exceeded our authority and made a
determination that belonged to the BIA. 547 U.S. at 185–86.
The Court agreed with the Solicitor General that “a court’s
role in an immigration case is typically one of review, not of
first view.” Id. at 185 (emphasis added) (quotation marks
omitted). To support its conclusion, the Court cited INS v.
Orlando Ventura, 537 U.S. 12 (2002): a “‘judicial judgment
cannot be made to do service for an administrative
judgment.’” 547 U.S. at 186 (quoting Ventura, 537 U.S. at
16). More about Ventura later.
The majority’s opinion’s use of an incongruous
irrebuttable presumption of credibility to erase the IJ’s
findings of fact and the BIA’s decision and thus to make us
a court of “first view” is another example of our continuing
intransigence. If, as they say, we are bound by precedent to
do it their way, then its time to change our precedent.
38 DAI V. SESSIONS
II
A False Premise
A.
The majority opinion’s assertion that “we must treat
[Dai’s] testimony as credible” rests on a fallacious premise.
Judge Reinhardt writes, “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.”
From this defective premise, he concludes that we must
ignore the IJ’s detailed analysis and findings of fact about
Dai’s presentation. When it comes to our task of reviewing
the credibility of witnesses in a trial court or whether a
witness’ testimony suffices to carry his burden of proof,
however, there is no material difference between an appeal
and a petition for review, none. Federal Rule of Civil
Procedure 52(a) makes no such distinction. As Anderson
said, Rule 52(a) applies to a “reviewing court,” which is what
we are in this capacity. 470 U.S. at 573–74 (emphasis
added); see Thomas, 547 U.S. at 185. Neither the Court nor
Rule 52(a) differentiate between appeals and petitions for
review. Nor would such a distinction make any sense. As
Anderson and Thomas illustrate, the issue is one of function,
not of form or labels. 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.
Federal Rule of Appellate Procedure 20, “Applicability of
Rules to the Review or Enforcement of an Agency Order,”
illustrates the soundness of treating appeals and petitions for
review with a uniform approach. Rule 20 reads, “All
DAI V. SESSIONS 39
provisions of these rules . . . apply to the review or
enforcement of an agency order. In these rules, ‘appellant’
includes a petitioner or applicant, and ‘appellee’ includes a
respondent.”
Moreover, and directly to the point, the Act itself does not
require an IJ to make a specific credibility finding in those
precise terms. As the BIA correctly said with respect to the
Act, “[c]ontrary to the respondent’s argument on appeal, the
Immigration Judge need not have made an explicit adverse
credibility finding to nevertheless determine that the
respondent did not meet his burden of proving his asylum
claim.” See discussion infra Section VI. If the IJ does not
make such an explicit finding, all the respondent is entitled
to is a “rebuttable presumption of credibility on appeal.”
8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). By
attempting to restrict this language to an appeal to the BIA,
the majority opinion conveniently frees itself to apply derelict
Ninth Circuit precedent to Dai’s testimony and automatically
to deem it credible.2
Over and over the majority incant an inappropriate and
counterintuitive rule that in the absence of a formal adverse
credibility finding, “we are required [blindly] to treat the
petitioner’s testimony as credibility.” The practical effect of
the majority’s rule is breathtaking: The lack of a formal
adverse credibility finding becomes a selective positive
credibility finding and dooms a fact-based determination by
an IJ and the BIA that an applicant’s case is not sufficiently
2
The majority cites She v. Holder, 629 F.3d 958, 964 & n.5 (9th Cir.
2010) in support of this ipse dixit claim. However, She’s footnote 5 says
that because the “rebuttable presumption” provision does not apply
retroactively, it had no applicability in She’s case.
40 DAI V. SESSIONS
persuasive to carry his burden of proof. The majority’s
bizarre cherry-picking approach violates all the rules that
control our review of a witness’s testimony before a
factfinder.
B.
But even if we were to assume for the sake of argument
that the Act’s rebuttable presumption applies only to the BIA,
by what logic, reason, or principle does it follow that we as a
reviewing court are free to clothe an applicant’s testimony
with a protective presumption of credibility? Are we free to
turn a blind eye to conspicuous problems with his testimony
identified by an IJ? By the BIA? Free to brush off Rule
52(a) and the Supreme Court’s explanation of what the Rule
requires?
A conclusive presumption of credibility has no valid place
in our task of reviewing the persuasiveness of a witness’s
testimony. Such an artifice vacuously eliminates relevant
factual evidence from consideration and violates Rule
52(a)(6). The deployment of a conclusive presumption
becomes a misguided way not only of putting a heavy thumb
on one tray of the traditional scales of justice, but also of
removing relevant evidence from the other. This approach
allows us to evade our responsibilities to examine and to
evaluate the entire record before an IJ, permitting us instead
to disregard facts that would otherwise discredit our final
determination.
Judge Reinhardt’s opinion writes the REAL ID Act and
its reference to a rebuttable presumption of credibility out of
existence. However, Congress specifically intended the Act
to govern us, the Ninth Circuit Court of Appeals, as
DAI V. SESSIONS 41
demonstrated in Section III of this dissent. The evidentiary
record in this case devours any such presumption.
Judge Reinhardt’s claim that a petition for review is “a
new action against the United States” is irrelevant. No matter
what he calls it, we are reviewing a decision made by an
administrative agency involving the persuasiveness of his
case.
III
The REAL ID Act
Congress enacted the REAL ID Act of 2005 because of
our Circuit’s outlier precedents on this issue and our
intransigent refusal to follow the rules. The House
Conference Committee Report (“House Report”)3 explained
that “the creation of a uniform standard for credibility is
needed to address a conflict . . . between the Ninth Circuit on
one hand and other circuits and the BIA.” H.R. Rep. No.
109-72 at 167. The House Report also said that the Act
“resolves conflicts between administrative and judicial
tribunals with respect to standards to be followed in assessing
asylum claims.” Id. at 162. Nevertheless, my colleagues
hold that a key part of the Act does not apply to us, only to
the BIA.
As the Act pertains to this case, it established a number of
key principles, all of which the majority fails to follow,
perpetuating the conflicts Congress attempted to resolve.
3
H.R. Rep. No. 109-72 (2005) (Conf. Rep.), reprinted in 2005
U.S.C.C.A.N. 240.
42 DAI V. SESSIONS
First, “[t]he burden of proof is on the applicant to
establish that the applicant is a refugee . . . .”4
Second, “[t]he 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.”5
Third,
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
4
8 U.S.C. § 1158(b)(1)(B)(i).
5
8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added).
DAI V. SESSIONS 43
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.6
We have attempted in a number of panel opinions after
the Act to calibrate our approach to applicant credibility and
persuasiveness issues, but as the majority opinion illustrates,
“old ways die hard.” Huang v. Holder, 744 F.3d 1149 (9th
Cir. 2014) captures where we should be on this issue:
[W]e have concluded that “the REAL ID Act
requires a healthy measure of deference to
agency credibility determinations.” This
deference “makes sense because IJs are in the
best position to assess demeanor and other
credibility cues that we cannot readily access
on review.” “[A]n immigration judge alone is
in a position to observe an alien’s tone and
demeanor, to explore inconsistencies in
testimony, and to apply workable and
consistent standards in the evaluation of
testimonial evidence.” By virtue of their
expertise, IJs are “uniquely qualified to decide
whether an alien’s testimony has about it the
ring of truth.”
The need for deference is particularly strong
in the context of demeanor assessments. Such
6
8 U.S.C. § 1158(b)(1)(B)(iii).
44 DAI V. SESSIONS
determinations will often be based on non-
verbal cues, and “[f]ew, if any, of these
ephemeral indicia of credibility can be
conveyed by a paper record of the
proceedings and it would be extraordinary for
a reviewing court to substitute its second-hand
impression of the petitioner’s demeanor,
candor, or responsiveness for that of the IJ.”
Indeed, even before the enactment of the
REAL ID Act, we recognized the need to give
“special deference to a credibility
determination that is based on demeanor,”
because the important elements of a witness’s
demeanor that “may convince the observing
trial judge that the witness is testifying
truthfully or falsely” are “entirely unavailable
to a reader of the transcript, such as the Board
or the Court of Appeals.” The same
principles underlie the deference we accord to
the credibility determinations of juries and
trial judges.
Id. at 1153–54 (alterations in original) (citations omitted).
This “healthy measure of deference” should also apply to the
agency’s determination with respect to whether an applicant
has satisfied the agency’s “trier of fact”—not us—that his
evidence is persuasive, an issue that is in the wheelhouse of
a jury or a judge or an IJ hearing a case as a factfinder.
DAI V. SESSIONS 45
IV
The IJ’s Decision
The IJ in this case concluded that Ming Dai had not
satisfied his statutory burden of establishing that he is a
refugee pursuant to § 1158(b)(1)(B)(i). The IJ gave as his
“principle area of concern” Dai’s implausible unpersuasive
testimony, another way of saying it wasn’t credible. As Dai’s
brief correctly demonstrates, there is barely a dime’s worth of
substantive difference between “credible” and “persuasive.”
Here is how the IJ explained his decision in terms of
§ 1158(b)(1)(B)(i) and (ii):
I have carefully considered the respondent’s
testimony and evidence and for the following
reasons, I find that the respondent has failed
to meet his burden of proving eligibility for
asylum.
The principal area of concern with regard to
the respondent’s testimony arose during the
course of his cross-examination. On cross-
examination, the respondent was asked about
various aspects of his interview with an
Asylum Officer. The Department of
Homeland Security also submitted the notes
of that interview as Exhibit 5. The respondent
was asked specific questions regarding several
aspects of his testimony before the Asylum
Officer. In the course of cross-examination,
the respondent was asked regarding his
questions and answers as to whether his wife
and daughter travelled with him to the United
46 DAI V. SESSIONS
States. The respondent’s responses included
the question of whether the asylum officer had
asked him if his wife and daughter travelled
anywhere other than to Taiwan and Hong
Kong. The respondent conceded that he was
asked this question and that he replied yes,
they had travelled to Taiwan and Hong Kong.
The respondent was asked whether the
Asylum Officer inquired whether his wife and
daughter had travelled elsewhere. The
respondent then testified before the Court that
he was asked this question, “but I was
nervous.” In this regard, I note that the
respondent did not directly answer the
question; instead leapt directly to an
explanation for what his answer may have
been, namely that he was nervous. The
respondent was then asked specifically
whether the Asylum Officer asked him if his
wife had travelled to Australia in 2007. The
respondent confirmed that he had been asked
this question, and he confirmed that the
answer was in the affirmative. The
respondent also confirmed that the Asylum
Officer had asked him whether she had
travelled anywhere else. He confirmed that he
had been so asked. The respondent was then
asked whether he answered “no,” that she had
not travelled anywhere else. The respondent
answered that he believed so, that he had so
answered. The respondent was then asked,
during the course of cross-examination, why
he had not said to the Asylum Officer that yes,
she had travelled to the United States. The
DAI V. SESSIONS 47
respondent replied that he had not thought of
it. He stated that they did come with him
(meaning his wife and daughter) and that he
thought the Asylum Officer was asking him if
they had travelled anywhere other than the
United States. He explained that he did so
because he assumed the U.S. Government had
the records of their travel to the United States.
On further questioning, the respondent
eventually hesitated at some length when
asked to further explain why he did not
disclose spontaneously to the Asylum Officer
that his wife and daughter had come with him.
The respondent paused at some length and I
observed that the respondent appeared
nervous and at a loss for words. However,
after a fairly lengthy pause, the respondent
testified that he is afraid to say that his wife
and daughter came here and why they went
back. The respondent was asked whether he
told the Asylum Officer that he was afraid to
answer directly. The respondent initially
testified that he forgot and did not remember
whether he said that. He again reiterated that
he was very nervous. He was then asked the
question again as to whether he told the
Asylum Officer that he was afraid to answer
why his wife and daughter had gone back. He
then conceded that maybe, yes, he had
answered in that fashion. The respondent was
asked whether the Asylum Officer inquired
why his wife and daughter went back, and the
respondent conceded that he had been so
asked, and he further conceded that he replied
48 DAI V. SESSIONS
because school in the United States cost a lot
of money (referring to the schooling for his
daughter). The respondent was then asked to
confirm that the Asylum Officer eventually
asked him to tell him the real story as to why
his family travelled to the United States and
returned to China. The respondent confirmed
that he was asked this question and when
asked, whether he replied that it was because
he wanted a good environment for his child
and because his wife had a job and he did not
and that that is why he stayed here. He
confirmed that he did, in fact, say that. The
respondent was further asked, during the
course of testimony in court, why his wife and
daughter returned to China. In this regard, the
respondent testified that they came with him,
but returned to China several weeks after
arrival. He testified that they did so because
his father-in-law was elderly and needed
attention, and because his daughter needed to
graduate school in China.
The respondent further claimed that his wife
had, in fact, suffered past persecution in the
form of a forced abortion and the respondent
confirmed that he feared his wife and
daughter would suffer future persecution. In
this regard, the respondent qualified his
answer by saying that his wife was now on an
IUD, apparently thereby suggesting that the
risk of persecution is reduced. However, the
respondent did concede that the risk of future
persecution also pertains to his daughter.
DAI V. SESSIONS 49
Indeed, in this regard, the respondent testified
that this is, at least in part, why he applied for
asylum.
As to the contents of Exhibit 5, I give the notes
full weight, insofar as the respondent has
confirmed the contents of the questions and
answers given during the course of that
interview. Furthermore, I note that in the
sections in which the respondent equivocated,
stating that he was nervous and not sure that
he gave those precise answers, I nevertheless
give the Asylum Officer’s notes some
substantial weight, in that they are consistent
with the respondent’s testimony in court.
Specifically, I note that the Asylum Officer’s
notes state that the respondent ultimately
indicated that he was afraid of giving straight
answers regarding his daughter and wife’s trip
to the United States and return to China. And
while the respondent did not confirm this in
court, he did give a similar answer as to why
he was testifying in this regard. In other
words, the respondent appears to have stated,
both before the Asylum Officer and in court
that he did not spontaneously disclose the
travel of his wife and daughter with him to the
United States and their return because he was
nervous about how this would be perceived by
the Asylum Officer in connection with his
claim. I further note that the Asylum
Officer’s notes are internally consistent with
regard to references to earlier questions, such
as whether the respondent had stated that he
50 DAI V. SESSIONS
applied for a visa with anyone else. At page 2
of the notes contained in Exhibit 5, the
respondent was asked whether he applied for
his visa with anyone else and the notes
indicated that he stated that, “no, I applied by
myself.” Similarly, I note that the testimony
before the Asylum Officer and the Court is
consistent with the omission in the
respondent’s Form I-589 application for
asylum, of an answer to the question of the
date of the previous arrival of his wife, if she
had previously been in the United States. See
Exhibit 2, page 2, part A.II, question 23.
When asked about this omission, the
respondent expressed surprise, stating that he
told the preparer about their trip and indicated
that he thought it had been filled out.
Notwithstanding the respondent’s statement in
this regard, I do observe that the omission is
consistent with his lack of forthrightness
before the asylum office as to his wife and
daughter’s travel with him to the United
States and their subsequent return to China
shortly thereafter.
In sum, the respondent’s testimony before the
Court and his testimony regarding the Asylum
Officer notes, as well as the notes themselves,
clearly indicate that the respondent failed to
spontaneously disclose that his wife and
daughter came with him and then returned to
China. His testimony and the notes also
consistently demonstrate that the respondent
paused at length, both before the Court and
DAI V. SESSIONS 51
before the Asylum Officer, when asked about
this topic. His testimony and the Asylum
Officer notes are also consistent in indicating
that he ultimately testified that he was afraid
to say that his wife came here and was afraid
of being asked about why she went back.
Furthermore, the respondent has conceded
that he was asked to “tell the real story”
about his family’s travel to the United States
by the Asylum Officer, and that he replied that
he wanted a good environment for his child
and his wife had a job, but he did not, and
that is why he stayed here.
In Loho v. Mukasey, 531 F.3d 1016, 1018–19
(9th Cir. 2008), the Ninth Circuit addressed
the situation in which an asylum applicant has
found safety in the United States and then
returns to the country claimed of persecution
before eventually finding asylum in the
United States. The Ninth Circuit held that the
applicant’s voluntary return to the country of
claimed persecution may be considered in
assessing both credibility and whether the
respondent has a well-founded fear of
persecution in that country. Here, while the
respondent himself has not returned to China,
his wife and daughter did. Indeed they did so
shortly after arriving in the United States, and
the respondent confirmed that they did so
because the schooling is cheaper for his
daughter in China, as well as because his
father-in-law is elderly and needed to be cared
for. The respondent also told the Asylum
52 DAI V. SESSIONS
Officer that the “real story” about whey [sic]
his family returned was that his wife had a job
and he did not, and that is why he stayed here.
This is consistent with respondent’s testimony
before the Court that he did not have a job at
the time he came to the United States.
Furthermore, I note that the respondent’s
claim of persecution is founded on the alleged
forced abortion inflicted upon his wife. That
is the central element of his claim. The
respondent claims that he himself was
persecuted through his resistance to that
abortion. Nevertheless, the fact remains that
the fundamental thrust of the respondent’s
claim is that his wife was forced to have an
abortion. In this regard, the respondent’s wife
therefore clearly has an equal, or stronger,
claim to asylum than the respondent himself,
assuming the facts which he claims are true.
The respondent was asked why his wife did
not stay and apply for asylum and he replied
that he did not know they could apply for
asylum at the time they departed. The
respondent was then asked why he stayed here
after they returned; he said because he was in
a bad mood and he wanted to get a job and a
friend of mine is here.
While Loho v. Mukasey applies to the
applicant himself returning to China, I find
that the reasoning of the Ninth Circuit in that
case is fully applicable to the respondent’s
situation in that his wife, who is the primary
object of the persecution in China, freely
DAI V. SESSIONS 53
chose to return to China. I do not find that the
respondent’s explanations for her return to
China while he remained here are adequate.
The respondent has stated that he was in a bad
mood and that he had found a job and had a
friend here. The respondent has also indicated
that his daughter’s education would be
cheaper in China than here, and he has also
indicated that his wife wanted to go to take
care of her father. I do not find that these
reasons are sufficiently substantial so as to
outweigh the concerns raised by his wife and
daughter’s free choice to return to China after
having allegedly fled that country following
his wife’s and his own persecution.
In view of the for[e]going, I find that the
respondent has failed to meet his burden of
proving eligibility for asylum under Section
208(a) of the Act.
(Emphasis added).
To erase any doubts about Dai’s problematic testimony,
the following is an excerpt from it.
MS. HANNETT TO MR. DAI
Q. And isn’t it also true that the
[asylum] officer asked why did
they go back and you replied, so
that my daughter can go to school
and in the U.S., you have to pay a
lot of money?
54 DAI V. SESSIONS
A. Yes, that’s what I said.
Q. Okay. And isn’t it also true that
the officer asked you, can you tell
me the real story about you and
your family’s travel to the U.S.,
and you replied I wanted a good
environment for my child. My
wife had a job and I didn’t, and
that is why I stayed here. My wife
and child go home first.
A. I believe I said that.
* * *
Q. So, once you got to the United
States, why didn’t your wife apply
for asylum?
A. My wife just returned to China.
Q. Right, and my question is why
didn’t she stay here and apply for
asylum?
A. At that time, we didn’t know the
apply, we didn’t know that we can
apply for asylum.
Q. Well, if you didn’t know that you
could apply for asylum, why did
you stay here after they returned?
DAI V. SESSIONS 55
A. Because at that time, I was in a
bad mood and I couldn’t get a job,
so I want to stay here for a bit
longer and another friend of mine
is also here.
The asylum officer’s interview notes discussed by the IJ
(and found to be consistent with Dai’s testimony before the
IJ) read as follows:
Earlier you said your wife has only traveled to
Australia, Taiwan and HK. You also said that
you traveled to the US alone. Government
records indicate that your wife traveled with
you to the United States. Can you explain?
[long pause] the reason is I’m afraid to
say that my wife came here, then why
did she go back.
Your wife went back? Yes
When did she go back to China? February
Why did she go back? Because my child
go to school
Earlier you said you applied for your visa
alone. Our records indicate that your child
also obtained a visa to the US with you. Can
you explain?
[long pause]
56 DAI V. SESSIONS
Daughter came with wife and you in January?
Yes
Can you explain? I’m afraid
Please tell me what you are afraid of. That is
what your interview today is for. To
understand your fears?
I’m afraid you ask why my wife and
daughter go back
Why did they go back?
So that my daughter can go to school
and in the US you have to pay a lot of
money.
Can you tell me the real story about you and
your family’s travel to the US?
I wanted a good environment for my
child. My wife had a job and I didn’t
and that is why I stayed here. My
wife and child go home first.
(Bracketed notations in original).
V
The Role of an Asylum Officer
The majority’s opinion perpetuates another acute error
our Circuit has made in its effort to control the DHS’s
DAI V. SESSIONS 57
administrative process. In footnote 2, the majority say that if
Dai concealed relevant information “it was only from the
asylum officer.” Only from the asylum officer? So Dai’s
admitted concealment under oath of germane information
during a critical part of the evaluation process is of no
moment?
The majority’s demotion of the role of an asylum officer
represents a sub silentio application of another faulty
proposition on the books in our circuit: Singh v. Gonzales,
403 F.3d 1081 (9th Cir. 2005).
Certain features of an asylum interview make
it a potentially unreliable point of comparison
to a petitioner’s testimony for purposes of a
credibility determination. Barahona-Gomez v.
Reno, 236 F.3d 1115 (9th Cir. 2001),
explained the significant procedural
distinctions between the initial quasi-
prosecutorial “informal conferences
conducted by asylum officers” after the filing
of an asylum application, and the “quasi-
judicial functions” exercised by IJs . . . .
Id. at 1087 (emphasis added).
First of all, we may not have in this case a verbatim
transcript of Dai’s testimony, but we have the asylum
officer’s notes, which the IJ explicitly found to be accurate.
Moreover, when appropriately confronted under oath with the
notes, Dai admitted they correctly captured what he said.
Under these circumstances, any concern that the asylum
interview might be a “potentially unreliable point of
comparison” to Dai’s testimony is irrelevant. The record
58 DAI V. SESSIONS
(thanks to Dai himself) eliminates any potential for
unreliability.
Second, the pronouncement in Singh v. Gonzales that an
asylum officer’s interview in an affirmative asylum case is
“quasi-prosecutorial” in nature is flat wrong and reveals our
fundamental misunderstanding of the process.7 An asylum
officer in an affirmative asylum case does not “prosecute”
anyone during the exercise of his responsibilities, and the
process is not “quasi-prosecutorial” in nature. In fact, unlike
a prosecutor, an asylum officer has the primary authority and
discretion to grant asylum to an applicant should the applicant
present a convincing case. The asylum officer’s role is
essentially judicial, not prosecutorial. We miss the mark here
because we see only those cases where an affirmative asylum
applicant did not present a sufficiently credible persuasive
case to an asylum officer to prevail, and we mistakenly
conclude from that unrepresentative sample that asylum
officers tend to decide against such applicants.
The true facts emerge from DHS’s June 20, 2016 report
to Congress, Affirmative Asylum Application Statistics and
Decisions Annual Report, covering “FY 2015 adjudications
of affirmative asylum applications by USCIS [U.S.
Citizenship & Immigration Services] asylum officers for the
7
An affirmative asylum case differs from a defensive asylum case
involving someone already in removal proceedings. See Obtaining
Asylum in the United States, DEP’T OF HOMELAND SEC.,
https://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining
-asylum-united-states (last updated Oct. 19, 2015).
DAI V. SESSIONS 59
stated period.”8 By way of background, the Report points out
that asylum officers have a central determinative role in the
process. Asylum determinations “are made by an asylum
officer after an applicant files an affirmative asylum
application, is interviewed, and clears required security and
background checks.” Id. at 2.
The Report contains statistics about the activity of asylum
officers. According to the FY2015 statistics, asylum officers
completed 40,062 affirmative asylum cases. They approved
15,999 applications for an approval rate of 47% for
interviewed cases. Id. at 3.
USCIS has a Policy Manual. Chapter 1 of Volume 1
establishes its “Guiding Principles.”9 A “Core Principal”
reads as follows:
The performance of agency duties inevitably
means that some customers will be
disappointed if their cases are denied. Good
customer service means that everyone USCIS
affects will be treated with dignity and
courtesy regardless of the outcome of the
decision.
8
2016 DHS Congressional Appropriations Reports,
DEP’T OF HOMELAND SEC., https://www.dhs.gov/publication/2016-dhs-
congressional-appropriations-reports (last published Feb. 12, 2018)
(follow “United States Citizenship and Immigration Services (USCIS) -
Affirmative Asylum Application Statistics & Decisions FY16 Report”
hyperlink).
9
Policy Manual, U.S. CITIZENSHIP & IMMIGRATION SERVS.,
https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume1-
PartA-Chapter1.html (Aug. 23, 2017).
60 DAI V. SESSIONS
* * *
USCIS will approach each case objectively
and adjudicate each case in a thorough and
fair manner. USCIS will carefully administer
every aspect of its immigration mission so
that its customers can hold in high regard the
privileges and advantages of U.S.
immigration.
Id.
Finally, we look at the training given to asylum officers
in connection with their interviews of affirmative asylum
applicants. In USCIS’s Adjudicator’s Field Manual, we find
in Appendix 15-2, “Non-Adversarial Interview Techniques,”
the following guidance.10
I. OVERVIEW
An immigration officer will conduct an
interview for each applicant, petitioner or
beneficiary where required by law or
regulation, or if it is determined that such
interviewed [sic] is appropriate. The interview
will be conducted in a non-adversarial
manner, separate and apart from the general
10
Adjudicator’s Field Manual - Redacted Public Version,
U.S. CITIZENSHIP & IMMIGRATION SERVS.,
https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1.html
(follow “Appendices” hyperlink; then follow “15-2 Non-Adversarial
Interview Techniques” hyperlink) (last visited Feb. 15, 2018) (emphasis
added).
DAI V. SESSIONS 61
public. The officer must always keep in mind
his or her responsibility to uphold the integrity
of the adjudication process. As representatives
of the United States Government, officers
must conduct the interview in a professional
manner.
* * *
Due to the potential consequences of incorrect
determinations, it is incumbent upon officers
to conduct organized, focused, and well-
planned, non-adversarial interviews . . . .
* * *
III. NON-ADVERSARIAL NATURE OF
THE INTERVIEW
A. Concept of the Non-adversarial
Interview
A non-adversarial proceeding is one in which
the parties are not in opposition to each other.
This is in contrast to adversarial proceedings,
such as civil and criminal court proceedings,
where two sides oppose each other by
advocating their mutually exclusive positions
before a neutral arbiter until one side prevails
and the other side loses. A removal
proceeding before an immigration judge is an
example of an adversarial proceeding, where
the Service trial attorney is seeking to remove
62 DAI V. SESSIONS
a person from the United States, while the
alien is seeking to remain.
The interview is part of a non-adversarial
proceeding. The principal intent of the Service
is not to oppose the interviewee’s goal of
obtaining a benefit, but to determine whether
he or she qualifies for such benefit. If the
interviewee qualifies for the benefit, it is in
the Service’s interest to accommodate that
goal.
* * *
B. Points to Keep in Mind When
Conducting a Non-adversarial Interview
The officer’s role in the non-adversarial
interview is to ask questions formulated to
elicit and clarify the information needed to
make a determination on the petitioner or
applicant’s request. This questioning must be
done in a professional manner that is non-
threatening and non-accusatory.
1. The officer must:
a. Treat the interviewee with respect. Even
if someone is not eligible for the benefit
sought based on the facts of the claim, the
officer must treat him or her with respect. The
officer may hear similar claims from many
interviewees, but must not show impatience
towards any individual. Even the most non-
DAI V. SESSIONS 63
confrontational officer may begin to feel
annoyance or frustration if he or she believes
that the interviewee is lying; however, it is
important that the officer keep these emotions
from being expressed during the interview.
b. Be non-judgmental and non-moralistic.
Interviewees may have reacted to situations
differently than the officer might have
reacted. The interviewee may have left family
members behind to fend for themselves, or
may be a member of a group or organization
for which the officer has little respect.
Although officers may feel personally
offended by some interviewee’s actions or
beliefs, officers must set their personal
feelings aside in their work, and avoid passing
moral judgments in order to make neutral
determinations.
c. Create an atmosphere in which the
interviewee can freely express his or her
claim. The officer must make an attempt to
put the interviewee at ease at the beginning of
the interview and continue to do so
throughout the interview. If the interviewee is
a survivor of severe trauma (such as a battered
spouse), he or she may feel especially
threatened during the interview. As it is not
always easy to determine who is a survivor,
officers should be sensitive to the fact that
every interviewee is potentially a survivor of
trauma.
64 DAI V. SESSIONS
Treating the interviewee with respect and
being non-judgmental and non-moralistic can
help put him or her at ease. There are a
number of other ways an officer can help put
an interviewee at ease, such as:
• Greet him or her (and others)
pleasantly;
• Introduce himself or herself by
name and explain the officer’s role;
• Explain the process of the
interview to the interviewee so he or
she will know what to expect during
the interview;
• Avoid speech that appears to be
evaluative or that indicates that the
officer thinks he or she knows the
answer to the question;
• Be patient with the interviewee;
and
• Keep language as simple as
possible.
d. Treat each interviewee as an individual.
Although many claims may be similar, each
claim must be treated on a case-by-case basis
and each interviewee must be treated as an
individual. Officers must be open to each
interviewee as a potential approval.
DAI V. SESSIONS 65
e. Set aside personal biases. Everyone has
individual preferences, biases, and prejudices
formed during life experiences that may cause
them to view others either positively or
negatively. Officers should be aware of their
personal biases and recognize that they can
potentially interfere with the interview
process. Officers must strive to prevent such
biases from interfering with their ability to
conduct interviews in a non-adversarial and
neutral manner.
f. Probe into all material elements of the
interviewee’s claim. The officer must elicit all
relevant and useful information bearing on the
applicant or beneficiary’s eligibility. The
officer must ask questions to expand upon and
clarify the interviewee’s statements and
information contained on the form. The
response to one question may lead to
additional questions about a particular topic or
event that is material to the claim.
g. Provide the interviewee an opportunity to
clarify inconsistencies. The officer must
provide the interviewee with an opportunity
during the interview to explain any
discrepancy or inconsistency that is material
to the determination of eligibility. He or she
may have a legitimate reason for having
related testimony that outwardly appears to
contain an inconsistency, or there may have
been a misunderstanding between the officer
and the interviewee. Similarly, there may be
66 DAI V. SESSIONS
a legitimate explanation for a discrepancy or
inconsistency between information on the
form and the interviewee’s testimony.
On the other hand, the interviewee may be
fabricating a claim. If the officer believes that
an interviewee is fabricating a claim, he or she
must be able to clearly articulate why he or
she believes that the interviewee is not
credible.
h. Maintain a neutral tone throughout the
interview. Interviews can be frustrating at
times for the officer. The interviewee may be
long-winded, may discuss issues that are not
relevant to the claim, may be confused by the
questioning, may appear to be or may be
fabricating a claim, etc. It is important that the
officer maintain a neutral tone even when
frustrated.
2. The officer must not:
• Argue in opposition to the applicant or
petitioner’s claim (if the officer engages in
argument, he or she has lost control of the
interview);
• Question the applicant in a hostile or
abusive manner;
• Take sides in the applicant or petitioner’s
claim;
DAI V. SESSIONS 67
• Attempt to be overly friendly with the
interviewee; or
• Allow personal biases to influence him or
her during the interview, either in favor of or
against the interviewee.
I hope that by exposing the particulars of the affirmative
application process we will cease demeaning unspecified
“certain features” of the applicant’s interview, and that we
will correct our uninformed characterization of it as “quasi-
prosecutorial.”
While under oath, Dai intentionally concealed material
information from the asylum officer during a critical aspect
of the process. To diminish the import of this potential
crime11 because the government official was “only” an
asylum officer is a serious mistake.
VI
The BIA’s Decision
Dai unsuccessfully appealed the IJ’s decision denying his
application for asylum, withholding of removal, and
protection under the Convention Against Torture. The BIA’s
decision follows.
We review for clear error the findings of fact,
including determinations of credibility, made
11
18 U.S.C. § 1001 makes it a crime knowingly and willfully to make
a material false statement in any matter within the jurisdiction of the
executive branch of Government.
68 DAI V. SESSIONS
by the Immigration Judge. We review de
novo all other issues, including whether the
parties have met the relevant burden of proof,
and issues of discretion. The respondent filed
his application for asylum after May 11, 2005,
and thus review is governed by the REAL ID
Act of 2005.
We adopt and affirm the Immigration Judge’s
decision in this case. The Immigration Judge
correctly denied the respondent’s applications
for failure to meet his burden of proof. The
record reflects that the respondent failed to
disclose to both the [DHS] asylum officer and
the Immigration Judge that his wife and
daughter had traveled with him to the United
States and voluntarily returned to China
shortly after. The respondent further
conceded that he was not forthcoming about
this information because he believed that the
true reasons for their return—that his wife
had a job in China and needed to care for her
elderly father, and that their daughter could
attend school in China for less money than in
the United States—would be perceived as
inconsistent with his claims of past and feared
future persecution.
The Immigration Judge correctly decided that
the voluntary return of the respondent’s wife
and daughter to China, after allegedly fleeing
following the persecution of the respondent
and his wife, prevents the respondent from
meeting his burden of proving his asylum
DAI V. SESSIONS 69
claim. Contrary to the respondent’s argument
on appeal, the Immigration Judge need not
have made an explicit adverse credibility
finding to nevertheless determine that the
respondent did not meet his burden of proving
his asylum claim. The respondent’s family
voluntarily returning and his not being
truthful about it is detrimental to his claim
and is significant to his burden of proof.
(Emphasis added) (footnote and citations omitted).
VII
The IJ Becomes a Potted Plant
My colleagues’ opinion boils down to this faulty
proposition: Simply because the IJ did not say “I find Dai not
credible” but opted instead to expose the glaring factual
deficiencies in Dai’s presentation and to explain in specific
detail and at length why Dai had not persuasively carried his
burden of proving his case, my colleagues disregard the IJ’s
decision altogether and claim we must selectively embrace as
persuasive Dai’s problematic presentation regarding the core
of his claim.12 Out of the blue, unpersuasive becomes
persuasive. I invite the reader to review once again the IJ’s
decision and to decide on the merits whether Dai’s case is
persuasive. It is anything but.
My colleagues brush off the conspicuous blatant flaws in
Dai’s performance involving demeanor, candor, and
12
And if an IJ does make an adverse credibility finding, we have
manufactured a multitude of ways to disregard it.
70 DAI V. SESSIONS
responsiveness, claiming that “taking into account the record
as a whole, nothing undermines the persuasiveness of Dai’s
credible testimony. . . .” Nothing? They disregard
inaccuracies, inconsistencies, and implausibilities in his story,
and his barefaced attempt to cover up the truth about his
wife’s and daughter’s travels and situation. They even sweep
aside Dai’s admission to the asylum officer that the “real
story” is that (1) he wanted a good environment for his child,
(2) his wife left him behind because she had a job in China
and he did not, and (3) he was in a “bad mood,” couldn’t get
a job, and wanted to stay here “for a bit longer.” In their
opinion, there is not a single word regarding the factors cited
by the IJ to explain his observations, findings, and decision,
including the fact that Dai’s wife, allegedly the initial subject
of persecution in China, made a free choice to return. The
effect of the presumption is to wipe the record clean of
everything identified by the IJ and the BIA as problematic.
The glaring irony in my colleagues’ analysis is that once
they proclaim that Dai’s testimony is credible, they pick and
choose only those parts of his favorable testimony that
support his case—not the parts that undercut it. If we must
accept Dai’s presentation as credible, then why not also his
“real story” when confronted with the facts that he came to
the United States because he wanted a good environment for
his daughter, and that he did not return to China with his wife
because she had a job and he did not? What becomes of his
attempted cover up of the travels of his wife and daughter?
Furthermore, my colleagues’ backhanded treatment of
the IJ’s opinion is irreconcilable with the BIA’s wholesale
acceptance of it. In words as clear as the English language
can be, the BIA said, “We adopt and affirm the Immigration
Judge’s decision.” To compound their error, the majority
DAI V. SESSIONS 71
then seizes upon and pick apart the BIA’s summary
explanation of why it concluded on de novo review that the
IJ’s decision was correct. What the BIA did say was that
Dai’s failure to be truthful about his family’s voluntary return
to China was “detrimental to his claim” and “significant to
his burden of proof.”
VIII
Analysis
And so we come at last to the statutory requirement of
persuasiveness, an issue uniquely suited to be determined by
the “trier of fact,” as the Act and 8 U.S.C. § 1158(b)(1)(B)(ii)
dictate. The majority opinion rigs this inquiry by freighting
it with an incomplete record. The opinion inappropriately
sweeps demeanor, candor, and plausibility considerations—as
well as the IJ’s extensive findings of fact—off the board as
though this were a parlor game. Once again, the opinion
ignores Huang, a post-Act case.
The need for deference is particularly strong
in the context of demeanor assessments. Such
determinations will often be based on non-
verbal cues, and “[f]ew, if any, of these
ephemeral indicia of credibility can be
conveyed by a paper record of the
proceedings and it would be extraordinary for
a reviewing court to substitute its second-hand
impression of the petitioner’s demeanor,
candor, or responsiveness for that of the IJ.”
744 F.3d at 1153 (alteration in original) (quoting Jibril,
423 F.3d at 1137).
72 DAI V. SESSIONS
Here, the IJ determined that Dai’s testimony was not
persuasive based on demeanor, non-verbal cues, and other
germane material factors that went to the heart of his case.
The IJ explained his decision in exquisite detail, and our
approach and analysis should be simple. In order to reverse
the BIA’s conclusion that Dai did not carry his burden of
proof, “we must determine ‘that the evidence not only
supports [a contrary] conclusion, but compels it—and also
compels the further conclusion’ that the petitioner meets the
requisite standard for obtaining relief.” Garcia-Milian v.
Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (alteration in
original) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
n.1 (1992)). If anything, this record compels the conclusion
that the IJ and the BIA were correct, not mistaken. Are my
colleagues seriously going to hold that an IJ cannot take
universally accepted demeanor, candor, responsiveness,
plausibility, and forthrightness factors into consideration in
assessing persuasiveness, as the IJ did here? And that this
detailed record, which is full of Dai’s admissions of an
attempted coverup, compels the conclusion that Dai was so
persuasive as to carry his burden? Dai accurately understood
the damaging implications of his wife’s return to China. So
did the IJ and the BIA. So would anybody not willfully
blinded by an inappropriate conclusive presumption. As the
BIA stated, the truth is “inconsistent with his claims of past
and feared future persecution.”
IX
The More Things Change, The More They Stay The
Same
In Elias-Zacarias, 921 F.2d 844 (9th Cir. 1990), rev’d,
502 U.S. 478 (1992), our court substituted the panel’s
DAI V. SESSIONS 73
interpretation of the evidence for the BIA’s. The Supreme
Court reversed our decision, calling the first of the panel’s
two-part reasoning “untrue,” and the second “irrelevant.”
502 U.S. at 481. The Court warned us that we could not
reverse the BIA unless the asylum applicant demonstrates that
“the evidence he presented was so compelling that no
reasonable factfinder could fail to find the requisite fear of
persecution.” Id. at 483–84 (emphasis added). In our case,
we again fail to follow this instruction.
In INS v. Orlando Ventura, 537 U.S. 12, 13 (2002) (per
curiam), the Court noted that both sides, petitioner and
respondent, had asked us to remand the case to the BIA so
that it might determine in the first instance whether changed
conditions in Guatemala eliminated any realistic threat of
persecution of the petitioner. Our panel did not remand the
case, evaluating instead the government’s claim of changed
conditions by itself and deciding the issue in favor of the
petitioner. Id. at 13–14. The Supreme Court summarily
reversed our decision, saying “[T]he Court of Appeals
committed clear error here. It seriously disregarded the
agency’s legally mandated role.” Id. at 17.
Did we learn our lesson? Hardly. A mere two years after
Ventura’s per curiam opinion, we knowingly made the same
mistake in Thomas v. Gonzales, 409 F.3d 1177 (9th Cir.
2005) (en banc), vacated, 547 U.S. 183 (2006). We
disregarded four dissenters to that flawed opinion, who
argued in vain that our court’s decision was irreconcilable
with Ventura. In short order, the Supreme Court vacated our
en banc opinion, saying that our “error is obvious in light of
Ventura, itself a summary reversal” and that the same remedy
was once again appropriate. 547 U.S. at 185.
74 DAI V. SESSIONS
With all respect, the majority opinion follows in our
stubborn tradition of seizing authority that does not belong to
us, disregarding DHS’s statutorily mandated role. Even the
REAL ID Act has failed to correct our errors.
Thus, I dissent.