Ming Dai v. William P. Barr ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MING DAI, No. 15-70776
Petitioner,
Agency No.
v. A205-555-836
WILLIAM P. BARR, Attorney
General, ORDER
Respondent.
Filed October 22, 2019
Before: Sidney R. Thomas, Chief Circuit Judge, and
Stephen S. Trott and Mary H. Murguia, Circuit Judges.
Order;
Statement Respecting Denial by Judge Trott;
Dissent by Judge Callahan;
Statement Respecting Denial by Judges O’Scannlain
and Trott;
Dissent by Judge Collins
2 DAI V. SESSIONS
SUMMARY*
Immigration
The panel denied a petition for rehearing en banc on
behalf of the court.
Dissenting from the denial of rehearing en banc, Judge
Callahan, joined by Judges Bybee, Bea, M. Smith, Ikuta,
Bennett, R. Nelson, Bade, Collins, and Lee, wrote that in
denying en banc review, the court has condoned a decision by
a three-judge panel that takes the extraordinary position of
holding that, absent an explicit adverse credibility ruling, an
immigration judge must take as true an asylum applicant’s
testimony that supports a claim for asylum, even in the face
of other testimony from the applicant that would undermine
an asylum claim, thereby restoring this circuit’s prior errant
“deemed true” rule that Congress abrogated when it enacted
the REAL ID Act. Judge Callahan explained that the panel’s
decision ties the hands of IJs who are presented with
conflicting evidence, effectively forcing them to accept an
applicant’s favorable testimony as the whole truth and to
disregard unfavorable evidence—even when it is the
applicant’s own testimony—unless they affirmatively make
an adverse credibility finding, thus transforming the lack of
an express adverse credibility ruling into an affirmative
conclusion that the applicant’s proffered reason for seeking
asylum is true. Judge Callahan wrote that the panel’s
decision is contrary to the statute, this court’s precedent, and
the rulings of sister circuits, and that in addition to
*
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
overstepping the court’s limited role in reviewing the
agency’s decision, is also bad policy. Judge Callahan also
wrote that by directing the agency to grant withholding relief
and treat petitioner as eligible to asylum, the panel
compounded its error by failing to follow the ordinary
remand rule, and allowing the agency the first shot at
applying the majority’s new rule.
Dissenting from the denial of rehearing en banc, Judge
Collins, joined by Judges Bybee, Bea, Ikuta, Bennett,
R. Nelson, and Bade, agreed with Judge Callahan that the
panel majority’s opinion effectively revives this court’s
discredited prior “deemed-true” rule in contravention of
controlling statutory language, precedent of this court and
other circuits, and common sense. In Judge Collins’s view,
the problems with the panel majority’s opinion run even
deeper by committing a further serious legal error, and
reinforcing a circuit split, in holding that the REAL ID Act
did not abrogate a second “deemed-credible” rule, whereby
this court conclusively presumes an applicant’s testimony to
be credible unless the agency has made an explicit adverse
credibility finding. Judge Collins wrote that the REAL ID
Act expressly abrogated the deemed-credible rule entirely and
replaced it with, at most, a rebuttable presumption of
credibility. Judge Collins reasoned that the Board’s express
statement that petitioner was not “truthful” was a permissible
application of the REAL ID Act’s rebuttable presumption of
credibility, and sufficiently explicit to preclude this court’s
application of the deemed-credible rule in this case.
Respecting the denial of rehearing en banc, Judge Trott,
joined by Judge R. Nelson, wrote that instead of following the
REAL ID Act, this court has perpetuated a contrived rule that
in the absence of an adverse credibility finding, a petitioner
4 DAI V. SESSIONS
must be deemed credible, and then used that conclusion to
override an IJ’s and the Board’s well-supported determination
that the petitioner’s case was not sufficiently “persuasive” to
meet his burden of proof. Judge Trott wrote that, in doing so,
the panel has rewritten the REAL ID Act, ignored Congress,
and created an inter-circuit split.
Respecting the denial of rehearing en banc, Judges
O’Scannlain and Trott agreed with the views expressed by
Judge Callahan in her dissent from the denial of rehearing en
banc.
COUNSEL
David Z. Su, Law Offices of David Z. Su, West Covina,
California; David J. Zimmer, Goodwin Procter LLP, Boston,
Massachusetts; William M. Jay, Goodwin Procter LLP,
Washington, D.C.; for Petitioner.
Aimee J. Carmichael, Senior Litigation Counsel; Mary Jane
Candaux and John W. Blakeley, Assistant Directors; Donald
Keener, Deputy Director; Office of Immigration, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
DAI V. SESSIONS 5
ORDER
The full court has been advised of the petition for
rehearing en banc. A judge requested a vote on whether to
rehear the matter en banc. The matter failed to receive a
majority of the votes of the nonrecused active judges in favor
of en banc consideration. Fed R. App. P. 35. Judge Miller
was recused and did not participate in the vote.
The petition for rehearing en banc is denied. Attached are
dissents from and statements respecting the denial of
rehearing en banc.
TROTT, Circuit Judge,** with whom R. NELSON, Circuit
Judge, joins, respecting the denial of rehearing en banc:
Instead of following the REAL ID Act (“Act”), our court
has perpetuated a contrived rule that in the absence of an
adverse credibility finding, a petitioner must be deemed
credible. We then use that conclusion to override an
Immigration Judge’s (“IJ”) and the Board of Immigration
Appeals’ (“Board”) well-supported determination that this
petitioner’s case was not “persuasive.” In so doing, we have
rewritten the Act. We have a long history of ignoring
Congress and the Supreme Court, and here we have done it
**
As a judge of this court in senior status, I no longer have the power
to vote on calls for rehearing cases en banc or formally to join a dissent
from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. P.
35(a). Following our court’s general orders, however, I may participate in
discussions of en banc proceedings. See Ninth Circuit General Order
5.5(a).
6 DAI V. SESSIONS
again. See Dai v. Sessions, 916 F.3d 731, 875–93 (9th Cir.
2019) (Trott, J., dissenting). Moreover, the panel majority
opinion creates an intercircuit conflict. I will address that
problem later in Part IV.
I
As explained in his thorough and convincing decision,
Immigration Judge Stephen Griswold, determined that Dai
had not met his statutory burden of persuasion on the central
issue of whether he was eligible as a refugee for asylum. The
documented fatal flaws in Dai’s case were (1) his glaring
attempt to deceive the asylum officer by concealing highly
probative damaging facts that go to the very core of his case,
facts that Dai also omitted from his Form I-589 application
for asylum, (2) his admission when pressed that his deceit
was intentional, driven by his understanding that the
concealed evidence would damage his probability of success,
(3) his inadequate explanations for the contradictions in his
presentation, (4) his telling demeanor on cross examination,
and (5) the “real story” behind his departure from China and
his decision not to return with his wife and daughter. The IJ
regarded these flaws as demonstrating a “lack of
forthrightness.” Accordingly, the IJ concluded pursuant to
the language of the Act that Dai’s case was not “persuasive.”
Reviewing de novo whether Dai had adequately met his
burden of persuasion that he was eligible for asylum, the
Board of Immigration Appeals agreed that he had not. To
support its conclusion, the Board referenced the same
material flaws the IJ found as facts. Their reasoned decision
should end this case, but with all respect, the panel majority
and now our court have converted this straightforward matter
into a textbook example of elevating form over substance,
DAI V. SESSIONS 7
taking a blue pencil to the Act’s requirement that an
applicant’s case must be “persuasive” and inappropriately
substituting our judgment for the Board’s.
II
Here is Judge Griswold’s compelling decision. Reading
it illustrates how wrong our court’s analysis is.
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
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
8 DAI V. SESSIONS
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
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
DAI V. SESSIONS 9
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
because school in the United States costs 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
10 DAI V. SESSIONS
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.
Indeed, in this regard, the respondent testified
that this is, at least in part, why he applied for
asylum.
DAI V. SESSIONS 11
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
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
12 DAI V. SESSIONS
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
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
DAI V. SESSIONS 13
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
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
14 DAI V. SESSIONS
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
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
DAI V. SESSIONS 15
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).
III
Assuming for the sake of argument only that the
Immigration Judge’s findings of Dai’s (1) “lack of
forthrightness,” (2) guilty demeanor, (3) inadequate
explanations for his admittedly contradictory answers, and
(4) willful concealment of relevant information did not
amount to an “explicit” adverse credibility determination,
then Dai is statutorily entitled to a “rebuttable presumption of
credibility on appeal” – to the Board. On appeal to the Board,
however, they dismissed this presumption, as was their
statutory prerogative, concluding in the words of the Act that
Dai’s case was not persuasive:
16 DAI V. SESSIONS
We review for clear error the findings of fact,
including determinations of credibility, made
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
DAI V. SESSIONS 17
and his wife, prevents the respondent from
meeting his burden of proving his asylum
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).
IV
In Kho v. Keisler, 505 F.3d 50 (1st Cir. 2007), the First
Circuit understood the Act’s effect on the issue of an
applicant’s credibility. Not only did our sister circuit
correctly comprehend the Act’s impact, but it considered and
rejected our approach to this important subject.
Kho supplements his ‘disfavored group’
approach with an argument that because the IJ
did not make an explicit finding concerning
Kho’s credibility, his testimony ‘must be
accepted as true’ by this court. Kho bases this
proposed rule as well on a series of Ninth
Circuit cases. . . .
We have already rejected the proposition that
aliens are entitled to a presumption of
credibility on review in this court if there is no
18 DAI V. SESSIONS
express credibility determination made by an
IJ. . . .
The REAL ID Act also provides no support
for Kho's argument. . . .
Kho, 505 F.3d at 56–57.
The court further explained that the Act’s reference to a
“rebuttable presumption” applies only to an applicant’s
appeal to the BIA, not to “reviewing courts of appeal.” Id.
at 56.
Accordingly, not only does our court’s decision violate
the directions of the Act, but it creates an intercircuit conflict
with Kho.
V
Whether or not this petitioner attains asylum in our
country is of minor concern, but the significant damage our
court has done to the Act and to Congress’ attempt to stop us
from substituting our judgment for the Board’s are matters
that must be corrected. Thus, I disagree with our decision not
to rehear en banc this case.
DAI V. SESSIONS 19
CALLAHAN, Circuit Judge, with whom BYBEE, BEA,
M. SMITH, IKUTA, BENNETT, R. NELSON, BADE,
COLLINS, LEE, Circuit Judges, join, dissenting from denial
of rehearing en banc:
Under the REAL ID Act of 2005, an immigration judge
(IJ) has the task of evaluating an asylum application. Here, in
denying en banc review, we have condoned a decision by a
three-judge panel that takes the extraordinary position of
holding that, absent an explicit adverse credibility ruling, an
IJ must take as true an asylum applicant’s testimony that
supports a claim for asylum, even in the face of other
testimony from the applicant that would undermine an asylum
claim. This makes no sense and ignores the realities of
factfinding. Our decision restores our prior errant rule that
Congress abrogated. As we have declined to correct this
erroneous decision ourselves, hopefully the Supreme Court
will do so.
Before Congress enacted the REAL ID Act, our court had
fashioned unique rules devised to restrict the agency’s
discretion in adjudicating asylum claims. The REAL ID Act
broadened the agency’s discretion. In explaining the
amendments, Congress singled out our court for adopting
rules that strayed from all other circuits and the Board of
Immigration Appeals. In this case, the divided panel ignored
this history and revived a rule that we previously said was
“swept away” by the REAL ID Act. Aden v. Holder,
589 F.3d 1040, 1045 (9th Cir. 2009).
The immigration judge here was presented with
conflicting statements from the asylum applicant, Ming Dai,
about why he came to and sought to remain in the United
States. The IJ did not make an express adverse credibility
20 DAI V. SESSIONS
finding but instead found Dai’s testimony was not sufficiently
persuasive to meet his burden of proof. The panel majority
erroneously concluded that, absent an explicit, cogently-
explained adverse credibility finding, an IJ is required to
accept the favorable portions of an asylum applicant’s
testimony as the unassailable truth.
According to the panel, in weighing the persuasiveness of
the asylum applicant’s testimony, an IJ must ignore any
unfavorable testimony because such testimony—which could
impugn the applicant’s credibility—“cannot be smuggled into
the persuasiveness inquiry.” Dai v. Sessions, 884 F.3d 858,
872 (9th Cir. 2018). The panel’s holding allowed it to
“expunge from the record the blatant flaws in Dai’s
performance involving demeanor, candor, and
responsiveness,” Dai v. Barr, 916 F.3d 731, 747 (9th Cir.
2018) (Trott, J., dissenting), thus tying the IJ’s hands in
carrying out the statutory role as trier of fact.
The panel’s holding is contrary to the statute, our own
precedent, and the rulings of our sister circuits. In addition to
overstepping our limited role in reviewing the agency’s
decision, the holding is also bad policy. Just because
testimony is credible (i.e., believable), it doesn’t mean it must
be wholly accepted as the truth. A factfinder may resolve
factual issues against a party without expressly finding that
party not credible. This is a regular, non-controversial
occurrence in everyday litigation.
On close examination, the panel’s artful evasion of the
REAL ID Act is nothing short of an outright arrogation of the
agency’s statutory duty as trier of fact. After adopting its ill-
advised rule, the panel took up the mantle of factfinder and
pronounced that Dai’s testimony is persuasive. In doing so,
DAI V. SESSIONS 21
the panel “intrude[d] upon the [factfinding] domain which
Congress has exclusively entrusted to an administrative
agency.” INS v. Ventura, 537 U.S. 12, 16 (2002) (quoting
SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)). We are
asking yet again to be summarily reversed for violating the
“ordinary remand rule.” See Gonzales v. Thomas, 547 U.S.
183, 187 (2006); Ventura, 537 U.S. at 18.
I.
A.
Petitioner Ming Dai, a citizen of China, challenged the
IJ’s finding—adopted and affirmed by the BIA—that Dai’s
testimony was not persuasive in showing that he is a refugee.
Dai’s claim for asylum is premised on events occurring in
China in July 2009, when family planning officials came to
take his pregnant wife for an abortion. Dai claimed he fought
with officers, after which he was detained for ten days and
eventually fired from his job. While Dai was detained, his
wife was allegedly subjected to a forced abortion.
Dai stated in the affidavit accompanying his application
that he sought asylum because he wished to “bring [his] wife
and daughter to safety.” In fact, Dai’s wife and daughter had
entered the United States with him but had voluntarily
returned to China shortly thereafter. Dai neglected to disclose
this information in his application, affidavit, interview with
the asylum officer, or on direct examination before the IJ.
The IJ found Dai’s claim for asylum unpersuasive. In the
IJ’s view, “[t]he principal area of concern” was Dai’s
testimony during cross-examination. The IJ noted Dai’s
evasive answers to questions about his interview with the
22 DAI V. SESSIONS
asylum officer. During cross-examination, Dai was asked
why he had not revealed that his wife and daughter had come
with him to the United States and why they returned to China
shortly thereafter. “[A]fter a fairly lengthy pause,” and
appearing to the IJ to be “nervous and at a loss for words,”
Dai stated that he was afraid to speak about his wife and
daughter. When asked by the asylum officer what he was
afraid of, Dai said he was afraid the officer would ask why
his wife and daughter willingly went back to China. Dai was
apparently concerned that revealing the facts about his wife
and daughter would undercut his claim that he wished to
bring them to safety. Dai eventually admitted that the “real
story” for why he stayed in the United States when his family
returned to China was because “he was in a bad mood and he
wanted to get a job and a friend of mine is here.” In essence,
the IJ credited Dai’s “real story” that he came to the United
States to seek employment, rather than his story that he came
to flee persecution.
The BIA adopted and affirmed the IJ’s decision,
concluding that the voluntary return of Dai’s family to China
and his failure to be forthcoming with that information was
“detrimental to his claim” and “significant to his burden of
proof.”
B.
Dai sought review in our court. In his brief, Dai
presumed the agency made an adverse credibility finding, and
he argued only that the IJ’s determination that he failed to
meet his burden of proof was not supported by substantial
evidence. The government, in response, argued Dai failed to
show that the record compels a conclusion that he met his
burden of proof.
DAI V. SESSIONS 23
A split panel granted Dai’s petition. The majority stated
that, under the REAL ID Act, an applicant’s testimony alone
“is sufficient”1 to establish eligibility for asylum provided the
“testimony is credible, is persuasive, and refers to specific
facts sufficient to demonstrate that the applicant is a refugee.”
Dai, 884 F.3d at 867 (citing 8 U.S.C. § 1158(b)(1)(B)(ii)).
Departing from the issue as framed by the parties,2 the
majority held that, because neither the IJ nor BIA made an
explicit adverse credibility ruling, Dai must be “deemed
credible.” Dai, 884 F.3d at 868. The majority concluded that
nothing in the REAL ID Act abrogated our pre-REAL ID Act
rule that an applicant must be deemed credible in the absence
of an explicit adverse credibility determination. Id.
at 868–69.
The panel majority then expanded the impact of that
holding by adopting a novel rule constraining an IJ’s ability
to weigh the evidence when no express adverse credibility
ruling has been made. The majority held that, in weighing
the persuasiveness of an applicant’s claim, an IJ is precluded
from considering evidence—even the applicant’s own
admissions—that might impugn the applicant’s credibility.
Id. at 872 (“Credibility concerns that do not justify an adverse
credibility finding cannot be smuggled into the
1
The statute actually says “may be sufficient,” not “is sufficient.”
See 8 U.S.C. § 1158(b)(1)(B)(ii).
2
As noted in Judge Trott’s dissent, because the government
“responded only to the claims and arguments Dai included in his brief,”
it did not have “an opportunity to respond to the majority’s inventive
analysis, nor to the theory concocted by the majority on Dai’s behalf.”
Dai, 916 F.3d at 733 (Trott, J., dissenting). Judge Trott predicted that
“[b]oth sides will be surprised by my colleagues’ artful opinion—Dai
pleasantly, the Attorney General not so much.” Id.
24 DAI V. SESSIONS
persuasiveness inquiry . . . .”). That remarkable holding bears
repeating: An applicant’s admissions (or other evidence) that
undermine the persuasiveness of an asylum claim must be
disregarded if that evidence also bears on the applicant’s
credibility.
This invented rule enabled the majority to reject the
agency’s reasons for finding Dai’s claim not persuasive. Id.
at 870–73. Having wiped from the record Dai’s unfavorable
testimony, the majority assumed the role of trier of fact and
pronounced that “nothing [in the (now-cleansed) record]
undermines the persuasiveness of Dai’s credible testimony.”
Id. at 871. The majority thus held that Dai was eligible for
asylum and entitled to withholding of removal. Id. at 874.
The majority remanded with instructions to grant withholding
of removal and to decide whether Dai should also be granted
asylum as a matter of discretion. Id.
In dissent, Judge Trott wrote that “[t]he 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
persuasive to carry his burden of proof.” Dai, 916 F.3d
at 735 (Trott, J., dissenting). Judge Trott argued that “[t]he
IJ’s decision not to make an explicit adverse credibility
finding is a red herring that throws our analysis off the scent
and preordains a result that is incompatible with the
evidentiary record.” Id. at 731. Judge Trott asserted that the
majority ignored “the IJ’s fact-based explanation for his
decision” and several material findings of fact, “each of
which is entitled to substantial deference.” Id.
DAI V. SESSIONS 25
II.
A.
Before the enactment of the REAL ID Act, our court
created what we characterized as a “deemed true” rule.
Ladha v. INS, 215 F.3d 889, 900 (9th Cir. 2000). Under that
rule, when “an alien credibly testifies to certain facts, those
facts are deemed true.” Id. The “deemed true” rule
developed as an extension of two other rules—the rule that an
applicant would be deemed credible in the absence of an
adverse credibility ruling and the rule prohibiting factfinders
from requiring corroborative evidence from credible
applicants.3 Id. at 899–900; see id. at 899 (“‘[T]his court
does not require corroborative evidence,’ Cordon-Garcia v.
INS, 204 F.3d 985, 992 (9th Cir. 2000), from applicants for
asylum and withholding of deportation who have testified
credibly.”).
The “deemed true” rule and the rule against requiring
corroborative evidence did not escape criticism. In prior
opinions, members of our court observed that some of our
rules concerning credibility and standard of proof were out of
3
In some of our cases, we have not been careful in our phrasing,
using the expressions “deemed credible” and “deemed true”
interchangeably. For example, the primary case that the panel majority
cited in support of the proposition that the “deemed credible” rule survives
the REAL ID Act states that the testimony must be treated as though it is
“true.” Hu v. Holder, 652 F.3d 1011, 1013 n.1 (9th Cir. 2011). Before the
REAL ID Act and its introduction of a requirement for corroborative
evidence and the weighing of credible evidence, this imprecision of
language arguably made no practical difference. The new provisions of
8 U.S.C. § 1158(b)(1)(B) now require adjudicators to distinguish between
credibility and truth.
26 DAI V. SESSIONS
line with the approach followed by other circuits and contrary
to the limited standard of review mandated by Congress. See,
e.g., Quan v. Gonzales, 428 F.3d 883, 892 (9th Cir. 2005)
(O’Scannlain, J., dissenting) (“I do not believe that an IJ’s
decision should be overturned merely because the reviewing
panel disagrees with it or can point to a plausibly analogous
case from our abundant and inconsistent precedent.”); Jibril
v. Gonzales, 423 F.3d 1129, 1138 (9th Cir. 2005) (“Time and
again, however, we have promulgated rules that tend to
obscure th[e] clear standard [of review] and to flummox
immigration judges, who must contort what should be a
simple factual finding to satisfy our often irreconcilable
precedents.”); Abovian v. INS, 257 F.3d 971, 980 (9th Cir.
2001) (Kozinski, J., dissenting from denial of rehearing en
banc) (“[T]his case is hardly atypical of our circuit’s
immigration law jurisprudence. Rather, it is one more
example of the nitpicking we engage in as part of a
systematic effort to dismantle the reasons immigration judges
give for their decisions.”).
To correct our misguided rules, Congress passed the
REAL ID Act. Congress made clear its intent to bring
us—the Ninth Circuit—in line with other circuits and the
BIA. See H.R. Rep. No. 109-72, at 167 (2005) (Conf. Rep.),
as reprinted in 2005 U.S.C.C.A.N. 240 (“[T]he creation of a
uniform standard for credibility is needed to address a
conflict on this issue between the Ninth Circuit on the one
hand and other circuits and the BIA.”). The REAL ID Act
states that the applicant “may” sustain his burden through
testimony alone, “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.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). That provision also states that “the trier
DAI V. SESSIONS 27
of fact may weigh the credible testimony along with other
evidence of record.” Id. The REAL ID Act creates a “bias
toward corroboration” that makes asylum litigation more like
other types of litigation in that the trier of fact need not accept
testimony as true even if it’s credible. Aden, 589 F.3d
at 1045. Lest there was any doubt that the REAL ID Act
abrogated our “presumed true” rule, we expressly stated so in
Aden: “Congress has thus swept away our doctrine that ‘when
an alien credibly testifies to certain facts, those facts are
deemed true.’” Id. (quoting Ladha, 215 F.3d at 900).
Ignoring what we said in Aden, the panel majority crafted
a new rule that, in conjunction with the deemed credible rule,
operates to revive the congressionally disapproved “deemed
true” rule. This revival occurred in two steps. The panel first
held that nothing in the REAL ID Act “explicitly or implicitly
repealed the rule that in the absence of an adverse credibility
finding by the IJ or the BIA, the petitioner is deemed
credible.” Dai, 884 F.3d at 868.4
4
Again, precision of language is important here. Even assuming that
when the agency makes no credibility finding, the petitioner’s testimony
is deemed credible, that is not enough. Credibility alone doesn’t make a
person persuasive or eligible for asylum, nor must credible testimony be
accepted as true. Aden, 589 F.3d at 1044 (“Credible testimony is not by
itself enough.”); see also Sandie v. Att’y Gen. of U.S., 562 F.3d 246, 252
(3d Cir. 2009) (“But the assumption that his testimony is credible does not
imply that that testimony is sufficient to meet his burden of proof. In fact,
credible testimony alone is not always sufficient to meet the burden of
proof.”). An applicant’s testimony may be sufficient to show asylum
eligibility, “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.” 8 U.S.C.
§ 1158(b)(1)(B)(ii) (emphasis added).
28 DAI V. SESSIONS
The panel’s second, decisive step in reviving our old
“deemed true” rule was to limit the evidence an IJ can
consider in weighing the persuasiveness of an applicant’s
testimony. The panel held that if the agency makes no
adverse credibility finding, “[c]redibility concerns . . . cannot
be smuggled into the persuasiveness inquiry.” Id. at 872.
The panel reasoned that if the agency makes no adverse
credibility finding, any evidence that would cast doubt on the
applicant’s credibility must be ignored when considering the
persuasiveness of the applicant’s claim. The panel deployed
its holding to erase from the record Dai’s own admissions that
undermine his claim. For example, the IJ accepted as fact
Dai’s admission that he failed to disclose the truth about his
wife’s and his daughter’s travels because he was nervous
about how this would be perceived by the asylum officer.
The IJ also credited Dai’s admitted “real story” for why he
stayed in the United States when his wife and daughter
returned home: “he was in a bad mood and he wanted to get
a job and a friend of mine is here.” The panel’s decision bars
the IJ from considering this and other testimony that could be
(and was) construed as detrimental to Dai’s case.5
The panel’s decision ties the hands of IJs who are
presented with conflicting evidence, effectively forcing them
to accept an applicant’s favorable testimony as the whole
truth and to disregard unfavorable evidence—even when it is
5
In his dissent, Judge Trott identified other examples of Dai’s
testimony that the IJ relied on in finding his claim unpersuasive. See Dai,
916 F.3d at 732 (Trott, J., dissenting) (listing eight findings rendered by
the IJ); id. at 747–48 (“My colleagues expunge from the record the blatant
flaws in Dai’s performance involving demeanor, candor, and
responsiveness . . . . 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.”).
DAI V. SESSIONS 29
the applicant’s own testimony—unless they affirmatively
make an adverse credibility finding. The panel’s two-fold
holding thus transforms the lack of an express adverse
credibility ruling into an affirmative conclusion that the
applicant’s proffered reason for seeking asylum is true.
The resuscitation of our old “deemed true” rule flouts
Congress’s purpose in enacting the REAL ID Act.6 First, the
panel’s holding violates the statute’s directive that the agency
is to conduct the factfinding and that our court may disturb
the agency’s decision only where “any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). “[T]he law is that ‘[t]o reverse the BIA
finding we must find that the evidence not only supports that
conclusion, but compels it.’” Aden, 589 F.3d at 1046(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1
(1992)). The majority’s holding cannot be squared with the
limited nature of our review of the agency’s decision.
Second, the majority’s revival of the “deemed true” rule
nullifies the statutory provision that, “[i]n determining
6
The majority turns somersaults to dodge Congress’s explicit attempt
to rein us in. The statute provides: “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.” 8 U.S.C. § 1158(b)(1)(B)(iii). The majority,
ignoring the phrase “[t]here is no presumption of credibility,” apparently
presumed it to apply only in immigration court proceedings. The majority
reasoned that the “rebuttable presumption of credibility on appeal” does
not apply in our court because this case is a petition for review not an
appeal. Dai, 884 F.3d at 869 (“A provision that applies ‘on appeal’
therefore does not apply to our review, but solely to the BIA’s review on
appeal from the IJ’s decision.”). According to the majority’s logic, this
gives us carte blanche to adopt whatever rule we want on the evidence an
IJ must (and must not) credit.
30 DAI V. SESSIONS
whether the applicant has met the applicant’s burden, the trier
of fact may weigh the credible testimony along with other
evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). We have
held that this provision means that an “IJ need not accept
[credible] testimony as true.” Aden, 589 F.3d 1044. If
credible testimony must be accepted as true, there would be
nothing for the trier of fact to “weigh.” See Doe v. Holder,
651 F.3d 824, 830 (8th Cir. 2011) (“Congress thus rejected a
rule that ‘credible’ testimony necessarily means that the facts
asserted in that testimony must be accepted as true.” (citing
Aden, 589 F.3d at 1045)).7
B.
In addition to contravening the language and intent of the
REAL ID Act, the panel’s decision squarely conflicts with
our own precedent and every other circuit to address the
issue.
The panel’s decision is contrary to Aden’s clear
acknowledgement that the REAL ID Act abrogated our
“deemed true” rule. The decision is also at odds with Singh
v. Holder, 753 F.3d 826 (9th Cir. 2014). In Singh, we held
that the agency did not err in discounting the petitioner’s
credible evidence that the police were looking for him, when
weighed against country reports that stated that the police no
7
To be clear, the panel majority held that absent an adverse
credibility ruling, the trier of fact must disregard any evidence that would
call into question the applicant’s credibility. See Dai, 884 F.3d at 872
(“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.”). There
is no meaningful difference between this holding and a suggestion that
credible testimony must be accepted as true.
DAI V. SESSIONS 31
longer targeted Sikh activists like the petitioner. Singh,
753 F.3d at 836. We recognized that “there is a difference
between an adverse credibility determination, on the one
hand, and a decision concerning how to weigh conflicting
evidence, on the other hand.” Id. We emphasized that, even
in the absence of a credibility ruling, the immigration judge
was required to weigh the persuasiveness of the testimony
against the record as a whole. Id.
In Doe, the Eighth Circuit held that an applicant’s
inability to provide important details and key
dates—information the immigration judge identified as
“damaging to [Doe’s] credibility,” but without making an
“explicit” adverse credibility finding—was sufficient to
support the BIA’s conclusion that his testimony was
unpersuasive. Doe, 651 F.3d at 829–30 (alteration in
original). The court relied in part on our decision in Aden for
the proposition that testimony may be “credible” without
being persuasive, and thus need not be “accepted as true.” Id.
at 830.
Similarly, the First Circuit has rejected the notion that a
reviewing court is bound “to accept a petitioner’s statements
as fact whenever an IJ simply has not made an express
adverse credibility determination.” Kho v. Keisler, 505 F.3d
50, 56 (1st Cir. 2007). The Tenth Circuit likewise held that
the agency was free to “discount” the applicant’s testimony
based on “gaps” in his story, even though there was no
adverse credibility ruling. Gutierrez-Orozco v. Lynch,
810 F.3d 1243, 1246 (10th Cir. 2016) (citing Aden, 589 F.3d
at 1044–45).
32 DAI V. SESSIONS
The panel’s holding splits with Aden and places us again
at a table of one when it comes to interpreting the standards
applicable to the agency’s determination of asylum eligibility.
C.
The panel majority’s rule also ignores the common sense
reality that triers of fact may—and frequently do—decide
factual issues against a party without affirmatively finding
that party not credible. Opposing parties who present
conflicting factual accounts might both be credible even if
only one party’s version is true.8 And even if a witness’s
testimony is treated as “honest or ‘credible,’” the “inability to
provide important details and key dates” may render “the
testimony unpersuasive in establishing a likelihood of
torture.” Doe, 651 F.3d at 830.
Indeed, we regularly require that juries decide between
competing versions of the “facts” and we do not suggest that
one perspective can be discounted only if the witness is not
believable (i.e., not credible). The REAL ID Act recognizes
this reality when it commands the trier of fact to “weigh the
credible testimony along with other evidence of record.”
8 U.S.C. § 1158(b)(1)(B)(ii). A rule that bars an IJ from
questioning the persuasiveness of a witness’s testimony
unless the witness is affirmatively found to be not credible
ignores the realities of factfinding.
8
As we stated in Aden, “[a]pparently honest people may not always
be telling the truth, apparently dishonest people may be telling the
absolute truth, and truthful people may be honestly mistaken or relying on
unreliable evidence or inference themselves.” Aden, 589 F.3d at 1045.
DAI V. SESSIONS 33
The panel’s holding here defies common sense for
another reason. The evidence that the IJ and the BIA found
to weigh against asylum eligibility was Dai’s own testimony.
As Judge Trott pointed out, the agency thus credited Dai’s
admissions that tended to undercut his claim. It makes no
sense to say that the IJ is powerless to credit unfavorable
testimony given by an applicant unless the IJ expressly finds
the applicant not credible.
This case is an instance of our court “promulgat[ing] rules
that tend to obscure [the proper] standard and to flummox
immigration judges.” Jibril, 423 F.3d at 1138. By essentially
forcing IJs to make an express adverse credibility finding
whenever they do not accept an applicant’s proffered reasons
as the whole truth, the panel’s holding calls into question
virtually every IJ decision denying a claim for asylum that
lacks an explicit adverse credibility finding. Cf. Morgan v.
Holder, 634 F.3d 53, 57 (1st Cir. 2011) (declining to require
a “gratuitous credibility determination” when the IJ’s
decision was premised on the petitioner’s “failure to carry his
burden of proof”). With all of the cases we see that are
adjudicated at the asylum eligibility stage, the impact of the
panel’s holding will be far-reaching.
D.
The panel’s revival of the “deemed true” rule effectively
strips the agency of its factfinding role, allowing us to take
that role for ourselves. Indeed, that is exactly what the panel
did here. After “wip[ing] the record clean of everything
identified by the IJ and the BIA as problematic,” see Dai,
916 F.3d at 748 (Trott, J., dissenting), the majority stepped
into the void created by its new rule and weighed for itself the
persuasiveness of Dai’s testimony. “[T]aking into account
34 DAI V. SESSIONS
the record as a whole,” the majority concluded, “nothing
undermines the persuasiveness of Dai’s credible testimony.”
Dai, 884 F.3d at 871.9 That is not our role.
In addition to creating a rule that conflicts with the statute
and precedent, the panel compounded its error by failing to
remand to allow the agency the first shot at applying the
majority’s new rule against “smuggl[ing]” credibility
concerns “into the persuasiveness inquiry,” see Dai, 884 F3d.
at 872. The Supreme Court has summarily reversed us on
multiple occasions for making this very error. See, e.g.,
Thomas, 547 U.S. at 187; Ventura, 537 U.S. at 18.
In Ventura, a panel of our court took it upon itself to
consider (and reject) the government’s factual argument that
had been accepted by the IJ but not ruled on by the BIA.
Ventura, 537 U.S. at 13–14. The Supreme Court concluded
that “well-established principles of administrative law”
required a remand to the agency:
Within broad limits the law entrusts the
agency to make the basic asylum eligibility
decision here in question. In such
circumstances a ‘judicial judgment cannot be
made to do service for an administrative
judgment.’ Nor can an ‘appellate court . . .
intrude upon the domain which Congress has
exclusively entrusted to an administrative
agency.’”
9
When the panel majority quoted the statute’s requirement of
persuasiveness, it left out the part that an asylum applicant must “satisf[y]
the trier of fact that the applicant’s testimony is . . . persuasive,” 8 U.S.C.
§ 1158(b)(1)(B)(ii) (emphasis added). See Dai, 884 F.3d at 867.
DAI V. SESSIONS 35
Id. at 16 (citations omitted) (quoting Chenery Corp., 318 U.S.
at 88). In summarily reversing us, the Court stated that we
“committed clear error,” “seriously disregarded the agency’s
legally mandated role,” and “created potentially far-reaching
legal precedent . . . without giving the BIA the opportunity to
address the matter in the first instance in light of its own
expertise.” Id. at 17.
The clear, unanimous reversal in Ventura should have
been enough, but, as Judge Trott put it, “old ways die hard.”
Dai, 916 F.3d at 737 (Trott, J., dissenting). Just two years
later, we repeated our error in Thomas, only this time we
were sitting en banc when we adopted a new rule and applied
it to the case without allowing the agency to consider the
question. Thomas, 547 U.S. at 184. The Supreme Court
agreed with the Solicitor General that not only was our failure
to remand erroneous, our error was “obvious in light of
Ventura.” Id. at 185.
Setting aside for the moment the problems with the
majority’s new rule, the panel should have remanded to allow
the agency an opportunity to determine Dai’s eligibility for
asylum within the new constraints imposed by the panel’s
decision.
III.
The panel’s insistence that an IJ must accept an
applicant’s favorable testimony as the whole truth, unless the
IJ makes an explicit adverse credibility finding, is contrary to
our limited scope of review under the REAL ID Act, contrary
to precedent (from both our court and other circuits), contrary
to reality, and just plain wrong. And in directing the agency
to grant withholding of removal and treat Dai as eligible for
36 DAI V. SESSIONS
asylum, rather than allowing the agency to apply the panel’s
new rule, the panel disregarded the Supreme Court’s repeated
admonishment against our seizing the role statutorily given to
the agency.
I respectfully dissent from the denial of rehearing en banc.
O’SCANNLAIN and TROTT, Senior Circuit Judges,
respecting the denial of rehearing en banc:
We agree with the views expressed by Judge Callahan in
her dissent from the denial of rehearing en banc.
COLLINS, Circuit Judge, with whom BYBEE, BEA,
IKUTA, BENNETT, R. NELSON, and BADE, Circuit
Judges, join, dissenting from the denial of rehearing en banc:
I agree with Judge Callahan that the panel majority’s
opinion effectively revives, for a potentially wide swath of
cases, this court’s discredited prior rule that when an alien
seeking asylum is either found or deemed to have testified
credibly to certain facts, those facts will be conclusively
deemed to be true. As Judge Callahan persuasively explains,
the panel majority’s effective revival of this previously
disavowed “deemed-true” rule contravenes controlling
statutory language, the precedent of this court, the decisions
of other circuits, and common sense. I therefore join in full
her dissent from the order denying rehearing en banc.
DAI V. SESSIONS 37
In my view, however, the problems with the panel
majority’s opinion run even deeper, thereby greatly
augmenting the potential damage that may flow from its
flawed decision. Specifically, the panel majority commits a
further serious legal error, and reinforces a circuit split, in
holding that the REAL ID Act does not abrogate a second
rule that we have applied in asylum cases—namely, the rule
that unless the agency has made an explicit finding that the
applicant’s testimony is not credible, this court will
conclusively presume that testimony to be credible. As this
case well illustrates, we have inflexibly applied this
conclusive presumption as, in effect, a “Simon says” rule:
even where (as here) the record overwhelmingly confirms
that the agency actually disbelieved critical portions of the
applicant’s testimony, we will nonetheless conclusively treat
that testimony as credible if the agency did not make an
explicit adverse credibility determination. The panel
majority’s reaffirmation of this unwarranted “deemed-
credible” rule thus perpetuates a regime in which—unlike
other circuits—this court misreads the evidentiary record in
asylum cases through the truth-distorting lens of
counterfactual conclusive presumptions. In doing so, the
panel majority defies Congress’s elimination of the deemed-
credible rule in the REAL ID Act, which expressly replaces
that rule’s conclusive presumption of credibility with (at
most) a “rebuttable presumption of credibility.” 8 U.S.C.
§ 1158(b)(1)(B)(iii) (emphasis added). But the panel
majority here slips the Act’s bonds, and we have abetted that
escape by failing to take this case en banc. I respectfully
dissent.
38 DAI V. SESSIONS
I.
In reviewing whether substantial evidence supports the
agency’s factual findings in asylum cases, this court has long
employed a variety of “rules that tend to obscure” what
should be a clear and deferential standard of review. Jibril v.
Gonzales, 423 F.3d 1129, 1138 (9th Cir. 2005). Among those
rules are a pair of presumptions about how to read the record
in asylum cases—namely, our deemed-credible rule and our
deemed-true rule. Under our traditional deemed-credible
rule, both this court and the Board of Immigration Appeals
(“BIA”) were required to apply a conclusive presumption that
an applicant was credible unless the Immigration Judge (“IJ”)
made an explicit adverse credibility finding. See, e.g., Dai v.
Sessions, 884 F.3d 858, 868 (9th Cir. 2018) (“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.”); She
v. Holder, 629 F.3d 958, 964 (9th Cir. 2010) (“Absent an
adverse credibility finding, the BIA is required to ‘presume
the petitioner’s testimony to be credible.’”). Under our
further deemed-true rule, the facts recited in testimony found
to be credible—or presumed to be credible by virtue of our
deemed-credible rule—would then in turn be taken as true.
See, e.g., Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000)
(“In the absence of an explicit adverse credibility finding, we
must assume that Kataria’s factual contentions are true.”);
Yazitchian v. INS, 207 F.3d 1164, 1168 (9th Cir. 2000)
(“Because the immigration judge found the Yazitchians’
testimony credible, and the BIA did not make a contrary
finding, we must accept as undisputed the facts as petitioners
testified to them.”).
DAI V. SESSIONS 39
By requiring the application of potentially counterfactual
conclusive presumptions, these rules create an obvious risk of
seriously distorting appellate review of the factual record.
Thus, under our deemed-credible rule, no matter how clear it
might be from the overall record that the IJ in fact disbelieved
portions of the petitioner’s testimony, that obvious disbelief
must be ignored if the IJ did not explicitly state that the IJ
disbelieved that testimony. In turn, under our deemed-true
rule, the facts recited in that now-deemed-credible testimony
then have to be taken as true.
This case well illustrates the truth-distorting effect of
applying these conclusive presumptions. As both the BIA
and the IJ explained, Dai’s claim that his wife’s forced
abortion in China caused him to have a well-founded fear of
persecution (thereby rendering him eligible for asylum) was
severely undercut by the fact that his wife and daughter had
not stayed with him in the United States but had voluntarily
returned to China—a critical fact that Dai had initially
attempted to conceal. Dai v. Barr, 916 F.3d 731, 738–42,
746–47 (9th Cir. 2018) (Trott, J., dissenting) (reproducing
relevant portions of the IJ’s and BIA’s decisions).1 As Judge
Trott’s panel dissent explains in detail, the IJ made eight
specific findings concerning Dai’s statements about his wife’s
and daughter’s voluntary return from the United States and
about Dai’s motivations for staying in this country, and those
detailed findings are flatly incompatible with the view that
the IJ credited all of Dai’s statements. Id. at 732. Because
the record amply confirms that the IJ obviously (even if not
1
At the time Judge Trott filed his amended panel dissent, the case
caption had changed to reflect the corresponding change in Attorney
General since the earlier filing of the panel opinion. See Fed. R. App. P.
43(c)(2).
40 DAI V. SESSIONS
explicitly) disbelieved certain of Dai’s statements about his
family’s return, the BIA properly construed the IJ’s findings
as establishing that Dai had “‘not be[en] truthful’” about his
“‘family voluntarily returning.’” Id. at 747 (quoting BIA
decision) (emphasis added by Judge Trott). Put another way,
a review of the record confirms that any presumption that the
IJ found Dai’s core statements to be credible has been
overwhelmingly rebutted. Nonetheless, because the IJ did not
explicitly find Dai’s testimony not to be credible, the panel
majority invokes a counterfactual conclusive presumption of
credibility—and in doing so, it “expunge[s] from the record
the blatant flaws in Dai’s performance involving demeanor,
candor, and responsiveness” and “disregard[s] 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.” Id. Moreover, by holding
that “[c]redibility concerns that do not justify an adverse
credibility finding cannot be smuggled into the
persuasiveness inquiry so as to undermine the finding of
credibility” required by the deemed-credible rule, see
884 F.3d at 872, the panel majority effectively requires that
this deemed-credible testimony must also be deemed true.
See Judge Callahan’s Dissent at 30.
The REAL ID Act sought to eliminate our use of such
truth-distorting conclusive presumptions. Indeed, we have
previously recognized that the REAL ID Act indisputably
“swept away” our deemed-true rule, Aden v. Holder, 589 F.3d
1040, 1045 (9th Cir. 2009), and the panel majority’s opinion
does not expressly dispute that point. Instead, as Judge
Callahan explains, the panel majority effectively revives the
deemed-true rule, as a practical matter, by improperly
“limit[ing] the evidence an IJ can consider” in determining
whether an alien’s credible testimony is sufficiently
DAI V. SESSIONS 41
persuasive, in light of the record as a whole, to carry the
alien’s burden of proof. See Judge Callahan’s Dissent at 28;
see also 8 U.S.C. § 1158(b)(1)(B)(ii) (asylum applicant’s
testimony may be sufficient to carry burden of proof if it “is
credible, is persuasive, and refers to specific facts sufficient
to demonstrate that the applicant is a refugee”) (emphasis
added).
As to the deemed-credible rule, the panel majority itself
acknowledges that the REAL ID Act frees the BIA from
having to follow that rule’s conclusive presumption, “so that
the BIA [now] must only afford ‘a rebuttable presumption of
credibility’ when the IJ does not make an adverse credibility
finding.” Dai, 884 F.3d at 868 n.8 (citation omitted); see also
8 U.S.C. § 1158(b)(1)(B)(iii) (“if no adverse credibility
determination is explicitly made, the applicant or witness
shall have a rebuttable presumption of credibility on appeal”).
Nonetheless, the panel majority insists that the REAL ID Act
preserves the deemed-credible rule’s conclusive presumption
in this court. 884 F.3d at 868–69. As a result, the panel
majority reasoned that if the IJ does not make an explicit
adverse credibility determination and the BIA does not
explicitly determine that the resulting presumption of
credibility on appeal has been rebutted, then this court must
conclusively presume the petitioner’s testimony to be
credible. Id. at 869–70. Concluding that “neither the IJ nor
the BIA made an adverse credibility determination in Dai’s
case,” the panel majority held that the deemed-credible rule
applies and that this court therefore “must treat his testimony
as credible.” Id. at 870.
In my view, the panel majority’s invocation of the
deemed-credible rule rests on two critical legal errors, and we
42 DAI V. SESSIONS
should have taken this case en banc to correct and clarify the
governing principles in this vital area of the law.
II.
First, even if the panel majority were correct in
concluding that “neither the IJ nor the BIA made an adverse
credibility determination,” Dai, 884 F.3d at 870; but see infra
at 48–51, the REAL ID Act expressly prohibits this court
from then applying a conclusive presumption of credibility.
Instead, in reviewing the record, we would at most apply a
rebuttable presumption of credibility—and here the facts
found by the IJ overwhelmingly rebut any presumption that
the IJ believed Dai’s statements concerning his family’s
return to China. See Dai, 916 F.3d at 747 (Trott, J.,
dissenting) (“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,” the majority wrongly holds that “we must
selectively embrace [his testimony] as persuasive….”).
A.
Section 208(b)(1)(B) of the Immigration and Nationality
Act (“INA”), as added by section 101(a)(3) of the REAL ID
Act of 2005, Pub. L. 109-13, Div. B, 119 Stat. 302, 303
(2005), directly addresses the questions of whether and when
a presumption of credibility should be applied in reviewing
an application for asylum. Specifically, subsection
208(b)(1)(B)(iii) provides, in relevant part, as follows:
There is no presumption of credibility,
however, if no adverse credibility
DAI V. SESSIONS 43
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). There is an obvious scrivener’s
error in this run-on sentence (the first comma should have
been a semi-colon), but the effect of its “however” clause is
nonetheless clear: it abrogates our deemed-credible rule’s
conclusive presumption of credibility and replaces it with
only a “rebuttable presumption of credibility.” Id. (emphasis
added). As noted earlier, see supra at 38, under our pre-
REAL ID Act case law, “in the absence of an explicit adverse
credibility finding” by the IJ, both the BIA and this court
were “required to treat the petitioner’s testimony as credible.”
Dai, 884 F.3d at 868. But after the REAL ID Act’s
amendments, the IJ’s failure to make an explicit adverse
credibility determination gives rise only to a rebuttable
presumption that the IJ found the applicant’s testimony to be
credible. Thus, if a review of the record otherwise makes
clear that (despite the lack of an express credibility
determination) the IJ did not believe certain aspects of the
applicant’s statements, the “presumption of credibility on
appeal” is rebutted, and the BIA and this court no longer need
to close their eyes to that fact and no longer need to pretend
that the IJ found the testimony credible.
The panel majority conceded that this statutory language
abrogates our deemed-credible rule and replaces it with a
“‘rebuttable presumption of credibility on appeal,’” Dai,
884 F.3d at 868 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)), but
the majority holds that this provision “applies only to appeals
to the BIA, not to petitions for review in our court,” id.(emphasis added); see also id. at 868 n.8. That is true, the
panel majority concludes, because the rebuttable presumption
44 DAI V. SESSIONS
applies by its terms only “on appeal,” 8 U.S.C.
§ 1158(b)(1)(B)(iii), and (unlike the BIA) we exercise review
in immigration cases by way of a “petition for review” under
section 242(a)(5) of the INA, 8 U.S.C. § 1252(a)(5), and not
by way of an “appeal.” 884 F.3d at 869 (noting the formal
differences between a “petition for review” and an “appeal”).
Because, according to the panel majority, the BIA here failed
to invoke the REAL ID Act’s rebuttable presumption to
determine that any aspect of Dai’s testimony was not
credible, but see infra at 48–51, this court is required to
adhere to our deemed-credible rule and to conclusively
presume that Dai’s testimony is credible.
This argument fails, because the panel majority’s sharp
distinction between a “petition for review” and an “appeal”
is refuted by the very statutory provision on which the
majority relies. Section 242 of the INA does in fact state that
our review of removal orders is by means of a “petition for
review,” 8 U.S.C. § 1252(a)(5), but elsewhere in that very
same section, the resulting proceeding in this court is
expressly referred to as an “appeal.” See 8 U.S.C.
§ 1252(b)(3)(C) (stating that, if the alien fails to file a brief in
support of the “petition for judicial review,” then “the court
shall dismiss the appeal”) (emphasis added). Given that the
judicial-review provision on which the panel majority relies
itself expressly refers to a “petition for review” as giving rise
to an “appeal,” there is no textual basis for the panel
majority’s conclusion that the reference to an “appeal” in
section 208(b)(1)(B)(iii) excludes a “petition for review.”
See Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018)
(reaffirming, and applying to the INA, the “‘normal rule of
statutory construction that identical words used in different
parts of the same act are intended to have the same
meaning’”) (citation omitted). Moreover, applying section
DAI V. SESSIONS 45
208(b)(1)(B)(iii)’s “rebuttable presumption of credibility on
appeal” to both the BIA and the courts of appeals is
consistent with the ordinary meaning of the phrase “on
appeal,” which refers to the process of appellate review,
without regard to whether such review is formally
denominated as an “appeal.” See Dai, 916 F.3d at 735 (Trott,
J., dissenting) (“[T]he issue is one of function, not of form or
labels.”). Congress’s explicit abrogation of the deemed-
credible rule thus extends to this court.
Contrary to the panel majority’s view, the abrogation of
the deemed-credible rule in this court, and its replacement
with a rebuttable presumption of credibility, would not
intrude on the agency’s factfinding role. See Dai, 884 F.3d
at 874 & n.14. As applied on appeal, the REAL ID Act’s
rebuttable presumption provides a rule about how to read the
record of the IJ’s factfinding: if no express adverse credibility
determination was made by the IJ, we should presume that
the IJ found the applicant’s statements credible unless (as
here) the findings as a whole nonetheless confirm that certain
statements were disbelieved by the IJ. The rebuttable
presumption is thus not a license for the BIA or this court to
engage in factfinding. Cf. 8 C.F.R. § 1003.1(d)(3)(iv)
(“Except for taking administrative notice of commonly
known facts such as current events or the contents of official
documents, the Board will not engage in factfinding in the
course of deciding appeals.”). Instead, it is an instruction to
stop reading IJ decisions through the distorted lens of our
deemed-credible rule. In fact, it is the panel majority’s
adherence to the deemed-credible rule’s irrebuttable
presumption of credibility that usurps the agency’s authority.
As this case well illustrates, the effect of that rule is to require
the Court automatically to accept as credible statements that
46 DAI V. SESSIONS
the IJ plainly disbelieved. See 916 F.3d at 747 (Trott, J.,
dissenting).
B.
But even if the panel majority were correct that the REAL
ID Act’s “rebuttable presumption” of credibility does not
apply to petitions for review in this court, that would not have
the consequence of preserving the deemed-credible rule. On
the contrary, it would have the opposite effect: it would mean
that no presumption of credibility applies in this court.
The panel majority overlooks the full language of the last
sentence of section 208(b)(1)(B)(iii), which (1) establishes a
general rule that “[t]here is no presumption of credibility” at
all, and (2) then carves out an exception under which a
rebuttable presumption of credibility will apply “on appeal”
if “no adverse credibility determination is explicitly made.”
8 U.S.C. § 1158(b)(1)(B)(iii). Indeed, this sentence of the
REAL ID Act previously contained only the initial language
eliminating entirely any presumption of credibility, see
151 Cong. Rec. H536–37 (daily ed. Feb. 10, 2005)
(reproducing text of H.R. 418, as considered by the House);
the exception to that general rule was later added by a House-
Senate conference committee before final passage, see H.R.
Conf. Rep. No. 109-72, at 73–74 (2005); see also id. at 168,
reprinted in 2005 U.S.C.C.A.N. 240, 293. Accordingly, if the
panel majority is correct that the “rebuttable presumption”
exception does not apply in this court, then the result would
be that the default general rule applies instead—i.e., that
“[t]here is no presumption of credibility” in this court. That
would abrogate the deemed-credible rule completely, and it
would mean that this court would not use any presumption of
credibility (rebuttable or irrebuttable) in conducting its
DAI V. SESSIONS 47
otherwise deferential review of the agency’s decision. See
Huang v. Holder, 744 F.3d 1149, 1153 (9th Cir. 2014).
Notably, such a reading of section 208(b)(1)(B)(iii) would
bring our approach to review in line with that of the First
Circuit, which has “rejected the proposition that aliens are
entitled to a presumption of credibility on review in this court
if there is no express credibility determination made by an
IJ.” Kho v. Keisler, 505 F.3d 50, 56 (1st Cir. 2007); see also
Zeru v. Gonzales, 503 F.3d 59, 73 (1st Cir. 2007) (“There is
no presumption that an alien seeking refugee status is
credible. Nor is there an assumption that if the IJ has not
made an express finding of non-credibility, the alien’s
testimony must be taken as credible.”). Although Kho agrees
with the panel majority’s conclusion that the REAL ID Act’s
rebuttable presumption of credibility does not apply in the
courts of appeals, see 505 F.3d at 56—a conclusion I think is
wrong for the reasons stated above—the First Circuit reached
that conclusion only in the course of rejecting the petitioner’s
contention that the REAL ID Act required the First Circuit to
replace its rule of no presumption of credibility with a
rebuttable presumption. See id. at 56–57. The resulting First
Circuit position—that no presumption of credibility
applies—conflicts with our continued adherence to the
deemed-credible rule, thereby confirming a circuit split.
Moreover, unlike our deemed-credible rule, the First Circuit’s
no-presumption rule is at least consistent with the default rule
that would apply under the REAL ID Act if the First Circuit
and the panel majority were correct in holding that the
rebuttable-presumption exception does not apply in the courts
of appeals. See 8 U.S.C. § 1158(b)(1)(B)(iii) (“There is no
presumption of credibility….”).
48 DAI V. SESSIONS
III.
Second, the panel majority committed a wholly separate
legal error in declining to give effect to the BIA’s express
conclusion that, given the IJ’s detailed findings, Dai had not
been truthful concerning his family’s return to China.
While agreeing that the IJ had not made an “explicit
adverse credibility finding,” the BIA here went on to note that
the IJ’s detailed findings established that Dai had not been
“truthful” about his “family voluntarily returning” to China.
Dai, 916 F.3d at 747 (Trott, J., dissenting) (reproducing BIA
decision). In thus correctly recognizing that the IJ’s findings
precluded any suggestion that the IJ found these aspects of
Dai’s statements credible, the BIA did not engage in its own
factfinding, but instead properly read the record of the IJ’s
findings in accord with the applicable rebuttable presumption
of credibility. 8 U.S.C. § 1158(b)(1)(B)(iii); cf. 8 C.F.R.
§ 1003.1(d)(3)(iv) (BIA does not engage in independent
factfinding).2 Although the BIA did not expressly invoke that
2
Throughout its opinion, the panel majority uses imprecise language
that could be misread to suggest that, under the REAL ID Act, the BIA
has independent authority to make an adverse “finding” of credibility that
the IJ did not make. See, e.g., Dai, 884 F.3d at 863 (“We think it not too
much to ask of IJs and the BIA that they make an explicit adverse
credibility finding”) (emphasis added); id. at 865 (“The BIA
acknowledged that the IJ did not make an adverse credibility finding and
also did not make one itself.”) (emphasis added); id. at 867 (noting that the
BIA “also made no adverse credibility finding”) (emphasis added); id.
at 869 (deemed-credible rule applies “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”) (emphasis
added). Given that only the IJ engages in factual finding, and not the BIA,
see 8 C.F.R. § 1003.1(d)(3)(iv), I construe these comments by the panel
majority to instead be referring only to the BIA’s explicit authority under
DAI V. SESSIONS 49
rebuttable presumption, its analysis in construing the IJ’s
findings reflects precisely what the REAL ID Act authorizes
the BIA to do. In turn, the resulting express adverse
credibility determination that is properly recited in the BIA’s
decision should have precluded the panel majority from
invoking the deemed-credible rule even on that rule’s own
terms. Cf. Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.
2010) (so long as the finding is “explicit,” an “adverse
credibility finding does not require the recitation of a
particular formula”).
The panel majority nonetheless refused to give effect to
the BIA’s explicit determination that the record established
that Dai had not been truthful, and it therefore proceeded to
apply the deemed-credible rule. The panel majority gave
several reasons for doing so, but all of them are flawed.
First, the panel majority wrongly dismissed the BIA’s
determination as the “‘sort of passing statement [that] does
not constitute an adverse credibility finding.’” Dai, 884 F.3d
at 867 (quoting Kaur v. Holder, 561 F.3d 957, 962–63 (9th
Cir. 2009)) (emphasis added). As Judge Trott’s dissent
makes clear, the BIA’s express adverse credibility
determination on this point was not a “passing” one—it
related directly to the central issue of why Dai sought to
remain in the United States, and it refuted his claim that he
had a well-founded fear of persecution if he returned to
China. See Dai, 916 F.3d at 747–48 (Trott, J., dissenting).
the REAL ID Act to determine that the record rebuts the presumption that
the IJ found the applicant credible. To avoid any suggestion that the BIA
is itself engaging in independent factfinding, I will refer in this dissent to
the BIA’s “determination” concerning what the IJ’s findings show about
the applicant’s credibility.
50 DAI V. SESSIONS
For the same reasons, the panel majority is equally wrong in
its assertion that Dai’s untruthfulness related only to a
“tangential point.” Dai, 884 F.3d at 873.
The panel majority’s citation of Kaur only highlights its
error on this score. In Kaur, we held that the BIA erred when
it invoked the IJ’s vague and passing comment that “there are
certain instances where this court does not find the
Applicants’ testimony to be credible” in order to overturn the
IJ’s explicit “affirmative credibility finding” as to one of the
two Applicants—i.e., Kaur. 561 F.3d at 962–63; see also id.
at 962 (noting that the IJ had found that Kaur was “a
convincing witness” with a “credible demeanor” and whose
“testimony was detailed, consistent and plausible”). As we
explained, the IJ’s “passing” and “selected reference” was
“not even specific to Kaur” and could not properly be read to
“undermine or detract” from the specific and detailed
“positive credibility finding” as to Kaur. Id. at 963; see also
id. (“From this truncated reference, one would be hard
pressed to identify any basis for finding a lack of credibility
as the IJ identified none.”). Here, in sharp contrast to Kaur,
(1) the BIA did not overturn an express finding of credibility
by the IJ; and (2) the BIA made a specific determination that
the IJ’s findings established that Dai was not credible as to a
particular point.
Second, the panel majority alternatively stated that the
BIA’s determination that Dai had “lied about one particular
fact” could be disregarded because it did not amount to a
“general adverse credibility finding.” Dai, 884 F.3d at 867
(emphasis added). That is plainly incorrect, and the
implications of such a rule would be quite troubling. The
normal rule in any adjudication is that a trier of fact may
believe or disbelieve a witness’s testimony in whole or in
DAI V. SESSIONS 51
part, see, e.g., Li v. Holder, 738 F.3d 1160, 1163 (9th Cir.
2013), and there is no basis for adopting, in the immigration
context, the distinctive (and illogical) rule that credibility
must be determined on a “general” basis. Cf. Toufighi v.
Mukasey, 538 F.3d 988, 994–95 (9th Cir. 2008) (although, as
the applicant noted, “the IJ found him generally credible,”
this court concluded “that the IJ did make an express adverse
credibility determination” as to the specific issue of his
“claim that he converted to Christianity”). In support of its
position, the panel majority pointed to authority holding that
a vague and tentative statement “‘that a petitioner is “not
entirely credible” is not enough’ to constitute an adverse
credibility finding,” Dai, 884 F.3d at 867 (quoting Aguilera-
Cota v. INS, 914 F.2d 1375, 1383 (9th Cir. 1990)) (emphasis
added), but here the BIA’s adverse credibility determination
was explicit, direct, and specific. Accordingly, nothing in
Aguilera-Cota supports the panel majority’s novel suggestion
that a partial finding of untruthfulness is inadequate, and that
only a “general adverse credibility finding” will do. (And if
Aguilera-Cota had adopted that view, then we should
overrule that case en banc as well.)
Moreover, by failing to give effect to the BIA’s explicit
determination that the record revealed Dai’s partial lack of
truthfulness, the panel majority effectively created yet
another flawed “Simon says” rule, in addition to our deemed-
credible rule. Under the panel majority’s decision, the BIA’s
failure to expressly state that it was invoking the REAL ID
Act’s rebuttable presumption in this case means that this
court should act as if the BIA had not done so. The panel
majority erred by yet again devising counterfactual
presumptions that distort our reading of the administrative
record on appeal.
52 DAI V. SESSIONS
* * *
Given that we have eschewed a magic-words approach to
explicit credibility determinations, the BIA’s express
statement that Dai was not “truthful” was a permissible
application of the REAL ID Act’s rebuttable presumption of
credibility, and that statement is sufficiently explicit to
preclude application of the deemed-credible rule on its own
terms. But more importantly, the REAL ID Act expressly
abrogates the deemed-credible rule entirely and replaces it
with, at most, a rebuttable presumption of credibility. And
here, any presumption that the IJ actually believed Dai’s
statements about his family’s voluntary return has been
amply rebutted. Our persistence in applying an irrebuttable
presumption that is at odds with the statute and at odds with
a common-sense reading of this record is deeply troubling
and warrants en banc review.
I respectfully dissent from the denial of rehearing en banc.