Garland v. Ming Dai ( 2021 )

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(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GARLAND, ATTORNEY GENERAL v. MING DAI
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 19–1155. Argued February 23, 2021—Decided June 1, 2021*
In each of these cases, a foreign national appeared before an immigration
judge (IJ) and requested that he not be returned to his country of
origin. For Cesar Alcaraz-Enriquez, the IJ first had to determine
whether Mr. Alcaraz-Enriquez had committed a disqualifying “partic-
ularly serious crime” based on his prior California conviction for “in-
flicting corporal injury on a spouse or cohabitant.” See 8 U. S. C.
§1231(b)(3)(B)(ii). The IJ considered both the probation report issued
at the time of the conviction (which detailed a serious domestic vio-
lence incident) and Mr. Alcaraz-Enriquez’s own testimony at the re-
moval proceeding (which included an admission that he hit his girl-
friend but allegedly did so in defense of his daughter). Relying in part
on the version of events in the probation report, the IJ held Mr. Al-
caraz-Enriquez ineligible for relief. On appeal, the Board of Immi-
gration Appeals (BIA) affirmed. In Ming Dai’s case, he testified that
he and his family had suffered past persecution by Chinese officials
and expected future persecution upon return. But Mr. Dai initially
failed to disclose that his wife and daughter had both returned volun-
tarily to China since accompanying him to the United States. When
confronted, Mr. Dai told the “real story” of why he remained in the
United States. The IJ found that Mr. Dai’s testimony undermined his
claims and denied relief. On appeal, the BIA affirmed. Mr. Alcaraz-
Enriquez and Mr. Dai each sought judicial review, and in each case,
the Ninth Circuit noted that neither the IJ nor the BIA made an ex-
plicit “adverse credibility determination” under the Immigration Na-
tionality Act (INA). §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C).
——————
* Together with No. 19–1156, Garland v. Alcaraz-Enriquez, also on cer-
tiorari to the same court.
2 GARLAND v. MING DAI
Syllabus
Applying its own judge-made rule that a reviewing court must treat
the noncitizen’s testimony as credible and true absent an explicit ad-
verse credibility determination, the Ninth Circuit granted relief.
Held: The Ninth Circuit’s deemed-true-or-credible rule cannot be recon-
ciled with the INA’s terms. Pp. 6–15.
(a) The Ninth Circuit’s rule has no proper place in a reviewing
court’s analysis. The INA provides that a reviewing court must accept
“administrative findings” as “conclusive unless any reasonable adjudi-
cator would be compelled to conclude to the contrary.” §1252(b)(4)(B).
And a reviewing court is “generally not free to impose” additional
judge-made procedural requirements on agencies. Vermont Yankee
Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435
U. S. 519, 524.
Judicial proceedings in cases like these do not constitute “appeals”
in which the “rebuttable presumption of credibility on appeal” applies
absent an explicit credibility determination. §§1158(b)(1)(B)(iii),
1231(b)(3)(C), 1229a(c)(4)(C). Here, there is only one appeal—from the
IJ to the BIA. See §§1158(d)(5)(iii)–(iv). Subsequent judicial review
takes place not by appeal, but by means of a “petition for review,”
which the INA describes as “the sole and exclusive means for judicial
review of an order of removal.” §1252(a)(5). A presumption of credi-
bility may arise in some appeals before the BIA, but no such presump-
tion applies in antecedent proceedings before an IJ or in subsequent
collateral review before a federal court. This makes sense because re-
viewing courts do not make credibility determinations, but instead ask
only whether any reasonable adjudicator could have found as the
agency did. The Ninth Circuit’s rule gets the standard backwards by
giving conclusive weight to any testimony that cuts against the
agency’s finding. Pp. 6–9.
(b) Mr. Alcaraz-Enriquez and Mr. Dai offer an alternative theory for
affirming the Ninth Circuit. Because, they say, they were entitled to
a presumption of credibility in their BIA appeals, they are entitled to
relief in court because no reasonable adjudicator obliged to presume
their credibility could have found against them. Even assuming that
there was no explicit adverse credibility determination here, the Ninth
Circuit’s reasoning is flawed for at least two reasons. Pp. 10–15.
(1) The presumption of credibility on appeal under the INA is “re-
buttable.” And the INA contains no parallel requirement of explicit-
ness when it comes to rebutting the presumption on appeal. Reviewing
courts, bound by traditional administrative law principles, must “up-
hold” even “a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best
Freight System, Inc., 419 U. S. 281, 286. In neither case did the Ninth
Cite as: 593 U. S. ____ (2021) 3
Syllabus
Circuit consider the possibility that the BIA implicitly found the pre-
sumption of credibility rebutted. The BIA expressly adopted the IJ’s
decision in Mr. Alcaraz-Enriquez’s case, which, in turn, noted that Mr.
Alcaraz-Enriquez’s story changed from the time of the probation report
to the time of the hearing—a factor the statute specifically identifies
as relevant to credibility, see §§1158(b)(1)(B)(iii), 1231(b)(3)(C),
1229a(c)(4)(C). And in Mr. Dai’s case, the BIA also adopted the IJ’s
decision, which discussed specific problems with Mr. Dai’s demeanor,
candor, and internal inconsistency—an analysis that certainly goes to
the presumption of credibility even if the agency didn’t use particular
words. See ibid. In each case, the Ninth Circuit should consider
whether the BIA in fact found the presumption of credibility overcome.
If so, it seems unlikely that the conclusion in either case is one no rea-
sonable adjudicator could have reached. Pp. 10–13.
(2) The presumption of credibility applies with respect to credibil-
ity but the INA expressly requires the noncitizen to satisfy the trier of
fact on credibility, persuasiveness, and the burden of proof.
§§1158(b)(1)(B)(ii), 1231(b)(3)(C), 1229a(a)(4)(B). Even if the BIA
treats a noncitizen’s testimony as credible, the agency need not find
such evidence persuasive or sufficient to meet the burden of proof.
Here, the Ninth Circuit erred by treating credibility as dispositive of
both persuasiveness and legal sufficiency. Pp 13–15.
884 F. 3d 858 and 727 Fed. Appx. 260, vacated and remanded.
GORSUCH, J., delivered the opinion for a unanimous Court.
Cite as: 593 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–1155 and 19–1156
_________________
MERRICK B. GARLAND, ATTORNEY GENERAL,
PETITIONER
19–1155 v.
MING DAI
MERRICK B. GARLAND, ATTORNEY GENERAL,
PETITIONER
19–1156 v.
CESAR ALCARAZ-ENRIQUEZ
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 1, 2021]
JUSTICE GORSUCH delivered the opinion of the Court.
The Ninth Circuit has long applied a special rule in im-
migration disputes. The rule provides that, in the absence
of an explicit adverse credibility determination by an immi-
gration judge or the Board of Immigration Appeals, a re-
viewing court must treat a petitioning alien’s testimony as
credible and true. At least 12 members of the Ninth Circuit
have objected to this judge-made rule, and we granted cer-
tiorari to decide whether it can be squared with the terms
of the Immigration and Nationality Act (INA), 66 Stat. 163,
as amended, 8 U. S. C. §1101 et seq.
2 GARLAND v. MING DAI
Opinion of the Court
I
A
The question comes to us in cases involving Cesar
Alcaraz-Enriquez and Ming Dai. Mr. Alcaraz-Enriquez is a
Mexican national. Authorities detained him when he at-
tempted to enter this country illegally. In proceedings be-
fore an immigration judge (IJ), Mr. Alcaraz-Enriquez
sought to avoid being returned to Mexico on the ground that
his life or freedom would be threatened there. See 8 U. S. C.
§1231(b)(3)(A). But Congress has said this form of relief
from removal is unavailable if, among other things, “the At-
torney General decides that . . . the alien, having been con-
victed by a final judgment of a particularly serious crime[,]
is a danger to the community of the United States.”
§1231(b)(3)(B)(ii). This proviso posed a problem for Mr.
Alcaraz-Enriquez because, during a previous illegal entry,
he pleaded nolo contendere to “inflict[ing] corporal injury
[on a] spouse [or] cohabitant” under California law and re-
ceived a 2-year sentence. Cal. Penal Code Ann. §273.5(A)
(West 2014).
The key question thus became whether Mr. Alcaraz-
Enriquez’s California conviction amounted to “a particu-
larly serious crime.” The parties appear to agree that the
answer to that question turns on which version of events
one accepts: The version found in a probation report issued
at the time of Mr. Alcaraz-Enriquez’s conviction, or the ver-
sion he testified to years later as part of his removal pro-
ceeding. The IJ received and considered both.
The probation report indicated that Mr. Alcaraz-
Enriquez locked his 17-year-old girlfriend in his bedroom
one evening, caught her trying to escape, dragged her back
into the room, threatened to stab her and dump her body in
a dumpster, and forced her to have sex with him. The next
morning, he beat the young woman, leaving bruises on her
back, neck, arms, and legs—stopping only when she begged
for her life. Later that evening, when she asked to leave,
Cite as: 593 U. S. ____ (2021) 3
Opinion of the Court
he dragged her out, threw her against the stairs, and kicked
her as she rolled down. Her ordeal lasted nearly 24 hours.
Police arrested Mr. Alcaraz-Enriquez days later as he tried
to flee his residence. At that time, Mr. Alcaraz-Enriquez
admitted to the officers that he chased, grabbed, and
punched his girlfriend in the face. He also admitted that he
prevented her from leaving the house. But he claimed that
he didn’t hit her “that hard.” App. to Pet. for Cert. in No.
19–1156, p. 14a.
Against this evidence, the IJ considered Mr. Alcaraz-En-
riquez’s testimony during his immigration proceeding.
There, he “admitted hitting his girlfriend, but not in the
manner as described in the report.” Ibid. Mr. Alcaraz-En-
riquez testified that he was upset with his girlfriend be-
cause “he believed that [she] was hitting his daughter.”
Ibid. In Mr. Alcaraz-Enriquez’s view, he was coming to his
daughter’s defense. Mr. Alcaraz-Enriquez denied dragging
or kicking the young woman, or forcing her to have sex with
him. He also submitted a letter from his mother, who
stated that when she saw the girlfriend immediately after
the altercation, “she looked completely fine.” App. 256.
Ultimately, the IJ held Mr. Alcaraz-Enriquez ineligible
for relief, relying in part on the version of events in the pro-
bation report. Among other things, the IJ found it signifi-
cant that there was “no mention” in the contemporaneous
probation report of the girlfriend hitting Mr. Alcaraz-
Enriquez’s daughter. App. to Pet. for Cert. in No. 19–1156,
at 14a. On appeal, the Board of Immigration Appeals
(BIA) “adopt[ed] and affirm[ed]” the IJ’s decision. Id., at 7a.
The BIA held that the IJ had “properly considered all evi-
dence of record,” “weighing and comparing [Mr. Alcaraz-En-
riquez’s] testimony at the hearing and the probation of-
ficer’s report.” Id., at 8a. The BIA also stressed its view
that the IJ was not required to credit Mr. Alcaraz-En-
riquez’s “version of events over other plausible alterna-
tives.” Ibid.
4 GARLAND v. MING DAI
Opinion of the Court
The Ninth Circuit saw the matter differently. Applying
circuit precedent, it held that “ ‘[w]here the BIA does not
make an explicit adverse credibility finding, [the court]
must assume that [the alien’s] factual contentions are
true.’ ” Alcaraz-Enriquez v. Sessions, 727 Fed. Appx. 260,
261 (2018). And because this rule required taking Mr. Al-
caraz-Enriquez’s testimony as true—even in the face of
competing evidence—the Ninth Circuit held that the BIA
erred in denying relief and granted the petition for review.1
B
Ming Dai is a Chinese national who came to the United
States on a tourist visa. Shortly after arriving, he sought
asylum. To win relief, Mr. Dai bore the burden of proving
that he was a “refugee”—someone “unable or unwilling” to
return to China “because of persecution or a well-founded
fear of persecution . . . for failure or refusal to undergo [in-
voluntary sterilization] or for other resistance to a coercive
population control program.” 8 U. S. C. §§1158(b)(1),
1101(a)(42). As in Mr. Alcaraz-Enriquez’s case, the parties
have proceeded on the assumption that everything here
turns on questions of fact—whether Mr. Dai was persecuted
in the past or fears persecution in the future—and we do
the same.2
——————
1 Separately, the Ninth Circuit held that the BIA erred by failing to
give Mr. Alcaraz-Enriquez the opportunity to cross-examine the wit-
nesses whose testimony was embodied in the probation report. In their
briefing before us, the parties largely proceed on the assumption that the
report was properly received, and so do we. Remaining disputes over the
merits and potential forfeiture of this issue can be addressed on remand.
2 Mr. Dai also sought withholding of removal, for which he needed to
show that his “life or freedom would be threatened” in China “because of
[his] race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U. S. C. §1231(b)(3)(A). Both the BIA and the
Ninth Circuit treated this standard as a more-demanding version of the
showing needed for asylum. See App. to Pet. for Cert. in No. 19–1155, p.
164a; Ming Dai v. Sessions, 884 F. 3d 858, 874 (2018). None of the par-
ties disputes this framing, so we focus on the asylum claim alone.
Cite as: 593 U. S. ____ (2021) 5
Opinion of the Court
Once more, the evidence before the IJ cut both ways. On
the one hand, Mr. Dai claimed that, after his wife became
pregnant with their second child in 2009, family-planning
officials abducted her and forced her to have an abortion.
Mr. Dai further testified that, when he tried to stop his
wife’s abduction, police broke his ribs, dislocated his shoul-
der, and jailed him for 10 days. According to Mr. Dai, he
lost his job, his wife was demoted, and his daughter was
denied admission to superior schools. In applying for asy-
lum, Mr. Dai stated, “I eventually found a way to reach the
USA,” and asked the government to “[p]lease grant me asy-
lum so that I can bring my wife and daughter to safety in
the USA.” App. 155.
On the other hand, Mr. Dai failed to disclose the fact that
his wife and daughter had already traveled to the United
States—and voluntarily returned to China. The IJ ob-
served that Mr. Dai “hesitated at some length” when con-
fronted with these facts. App. to Pet. for Cert. in No. 19–
1155, p. 170a. After being asked to tell the “real story,” Mr.
Dai proceeded to admit that his daughter returned to China
to go to school; that his wife chose to return to her job and
her elderly father; that Mr. Dai did not have a job in China;
and this was “why he stayed” in the United States. Id., at
171a. Asked directly why he did not return to China with
his family, Mr. Dai responded, “[b]ecause 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.”
App. 103.
The IJ denied relief. In the IJ’s view, the “principal area
of concern” arose when Mr. Dai was confronted with his
wife and daughter’s trip to the United States and their vol-
untary return to China. App. to Pet. for Cert. in No. 19–
1155, at 169a. The record showed that Mr. Dai failed “to
disclose” these facts in his own statements, and that he
“paused at length” when confronted with them. Id., at
163a, 173a. The IJ concluded that “I do not find that [Mr.
6 GARLAND v. MING DAI
Opinion of the Court
Dai’s] explanations for [his wife’s] return to China while he
remained here are adequate.” Id., at 175a. In the IJ’s view,
Mr. Dai’s eventual admissions regarding his wife and
daughter’s return to China to pursue school and economic
opportunities undermined his claims of past and future per-
secution, particularly given that his wife was “the primary
object of the persecution in China.” Ibid. On appeal, the
BIA “adopt[ed] and affirm[ed]” the IJ’s decision. Id., at
163a.
Again, the Ninth Circuit saw things differently. Much as
it had in Alcaraz-Enriquez, a divided panel held that “in the
absence of an explicit adverse credibility finding by the IJ
or the BIA,” Mr. Dai’s testimony had to be “deemed” credi-
ble and true. Ming Dai v. Sessions, 884 F. 3d 858, 868
(2018). On the strength of that testimony, the court then
proceeded to find Mr. Dai eligible for asylum. Later, the
court of appeals denied the government’s petition for re-
hearing en banc over the objections of 12 judges.
II
A
For many years, and over many dissents, the Ninth Cir-
cuit has proceeded on the view that, “[i]n the absence of an
explicit adverse credibility finding [by the agency], we must
assume that [the alien’s] factual contentions are true” or at
least credible. E.g., Kataria v. INS, 232 F. 3d 1107, 1114
(2000); Zhiqiang Hu v. Holder, 652 F. 3d 1011 (2011); 884
F. 3d, at 868; 727 Fed. Appx., at 261. This view appears to
be an outlier. The First Circuit, for example, has held that
a reviewing court is not bound to accept a witness’s state-
ments as fact whenever the agency is less than explicit
about credibility. Wan Chien Kho v. Keisler, 505 F. 3d 50,
56 (2007).
In both of the cases before us, the Ninth Circuit rested its
decisions on its deemed-true-or-credible rule. In Alcaraz-
Enriquez, the Ninth Circuit applied the rule to disregard
Cite as: 593 U. S. ____ (2021) 7
Opinion of the Court
entirely the evidence contained in the probation report and
credit only Mr. Alcaraz-Enriquez’s version of events. 727
Fed. Appx., at 261. In Dai, the court deemed Mr. Dai’s fa-
vorable testimony credible and true and prohibited the un-
favorable testimony about his “real” reasons for remaining
in the country from being “smuggled” into the removal anal-
ysis. 884 F. 3d, at 872. As one of the dissents in Dai put it,
the Ninth Circuit’s rule leads to “the extraordinary posi-
tion” that a court “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 under-
mine an asylum claim.” Ming Dai v. Barr, 940 F. 3d 1143,
1149 (2019) (opinion of Callahan, J.).
The Ninth Circuit’s rule has no proper place in a review-
ing court’s analysis. Congress has carefully circumscribed
judicial review of BIA decisions. When it comes to ques-
tions of fact—such as the circumstances surrounding Mr.
Alcaraz-Enriquez’s prior conviction or Mr. Dai’s alleged
persecution—the INA provides that a reviewing court must
accept “administrative findings” as “conclusive unless any
reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U. S. C. § 1252(b)(4)(B). This is a “highly
deferential” standard. Nasrallah v. Barr, 590 U. S. ___, ___
(2020) (slip op., at 9); cf. INS v. Elias-Zacarias, 502 U. S.
478, 483–484 (1992). Nothing in the INA contemplates any-
thing like the embellishment the Ninth Circuit has
adopted. And it is long since settled that a reviewing court
is “generally not free to impose” additional judge-made pro-
cedural requirements on agencies that Congress has not
prescribed and the Constitution does not compel. Vermont
Yankee Nuclear Power Corp. v. Natural Resources Defense
Council, Inc., 435 U. S. 519, 524 (1978).
This does not mean that the BIA may “ ‘arbitrarily’ ” reject
an alien’s evidence. Director, Office of Workers’ Compensa-
tion Programs v. Greenwich Collieries, 512 U. S. 267, 279
(1994). But it does mean that, so long as the record contains
8 GARLAND v. MING DAI
Opinion of the Court
“ ‘contrary evidence’ ” of a “ ‘kind and quality’ ” that a reason-
able factfinder could find sufficient, a reviewing court may
not overturn the agency’s factual determination. Ibid. In
this process, a reviewing court must be mindful too that the
agency, like any reasonable factfinder, is free to “credit part
of [a] witness’ testimony without” necessarily “accepting it
all.” Banks v. Chicago Grain Trimmers Assn., Inc., 390
U. S. 459, 467 (1968). It does not matter whether the
agency accepts all, none, or some of the alien’s testimony;
its reasonable findings may not be disturbed.
Admittedly, there is a wrinkle. Elsewhere, the INA does
discuss a presumption of credibility. The statute provides
that absent an “explici[t]” “adverse credibility determina-
tion,” “the applicant or witness shall have a rebuttable pre-
sumption of credibility on appeal.” §§1158(b)(1)(B)(iii),
1231(b)(3)(C), 1229a(c)(4)(C). At the same time, the statute
cautions that outside the “appeal” there is “no presumption
of credibility.” Ibid. (emphasis added).
It’s easy to see how one might assume judicial proceed-
ings in cases like ours constitute “appeals” subject to this
presumption of credibility. But such an assumption would
be mistaken. As the Ninth Circuit itself has recognized, in
immigration cases like those before us, there is only one
“appeal”—from the IJ to the BIA. 884 F. 3d, at 869; see also
Kho, 505 F. 3d, at 56; §§1158(d)(5)(A)(iii)–(iv); 8 CFR
§1003.38 (2020). Under the INA, subsequent judicial re-
view takes place by means of a “petition for review.” 8
U. S. C. §§1252(a)(5), (b); cf. 5 U. S. C. §§702–703. It is true
that, at one point, the INA refers to dismissing “the appeal”
if an alien fails to file a timely brief in support of his petition
for review, 8 U. S. C. §1252(b)(3)(C), but that stray refer-
ence does not convert the statutorily described petition for
review proceeding into an appeal for purposes of the pre-
sumption of credibility.
Historical understandings confirm the point. Article III
courts do not traditionally hear direct appeals from Article
Cite as: 593 U. S. ____ (2021) 9
Opinion of the Court
II executive agencies. See, e.g., Ex parte Yerger, 8 Wall. 85(1869); FCC v. Pottsville Broadcasting Co., 309 U. S. 134,
144 (1940). Instead, judicial intervention generally comes,
if at all, thanks to some collateral review process Congress
has prescribed, initiating a new action in the federal courts.
See, e.g., 5 U. S. C. §§702–703 (authorizing parties to chal-
lenge agency action not by an appeal, but by “[a]n action in
a court of the United States” in which the “United States
may be named as a defendant”). Of course, Congress may
sometimes refer to collateral judicial review of executive ac-
tion as “an appeal,” see, e.g., 35 U. S. C. §141; Fed. Rule
App. Proc. 15, but that does not make it an “appeal” akin to
that taken from the district court to the court of appeals, or
from the IJ to the BIA. In any event, this is an easy case
because the INA provides that “a petition for review . . .
shall be the sole and exclusive means for judicial review of
an order of removal.” 8 U. S. C. §1252(a)(5).
That the presumption of credibility applies only “on ap-
peal” to the BIA makes sense as a matter of basic adminis-
trative law principles too. Reviewing courts have no need
for a presumption of credibility one way or the other be-
cause they do not make credibility determinations. Instead,
courts deferentially review the agency’s fact determina-
tions. See §1252(b)(4)(B); see also 5 U. S. C. §706(2)(E).
The IJ—who actually observes the witness—is best posi-
tioned to assess the applicant’s credibility in the first in-
stance. The credibility presumption encourages the IJ to
make specific findings about credibility. And then the
BIA—which has experience with the sort of facts that recur
in immigration cases and the ability to directly override the
IJ’s factfindings—is well positioned to apply the credibility
presumption if the IJ has not made an explicit finding.
All of which returns us to where we began. A presump-
tion of credibility may arise in some appeals before the BIA.
But no such presumption applies in antecedent proceedings
10 GARLAND v. MING DAI
Opinion of the Court
before an IJ, or in subsequent collateral review before a fed-
eral court. The only question for judges reviewing the BIA’s
factual determinations is whether any reasonable adjudica-
tor could have found as the agency did. The Ninth Circuit’s
rule mistakenly flips this standard on its head. Rather
than ask whether the agency’s finding qualifies as one of
potentially many reasonable possibilities, it gives conclu-
sive weight to any piece of testimony that cuts against the
agency’s finding. That was error.
B
Perhaps recognizing the problems with the Ninth Cir-
cuit’s rule, Mr. Alcaraz-Enriquez and Mr. Dai ask us to af-
firm that court’s judgments primarily by means of a differ-
ent, though closely related, chain of reasoning. The
argument goes like this: Because neither the IJ nor the BIA
made an explicit adverse credibility determination about
their testimony, Mr. Alcaraz-Enriquez and Mr. Dai say they
were statutorily entitled to a presumption of credibility in
their BIA appeals. And given that, they insist they are en-
titled to relief in court because no reasonable adjudicator
obliged to presume their credibility could have found
against them. In this version of the argument, Mr. Alcaraz-
Enriquez and Mr. Dai acknowledge the proper locus of the
presumption of credibility in the agency and the deferential
standard of review in collateral judicial proceedings. But,
they insist, they are entitled to relief all the same. In
places, they also suggest that the Ninth Circuit’s decisions
below can be read as endorsing their alternative theory.
Although we leave the full application of the
§1252(b)(4)(B) standard to the Ninth Circuit in the first in-
stance, we reject this alternative argument for affirmance
too. In explaining why, we leave for another day the ques-
tion what the factfinder must say or do to furnish an “ex-
plici[t] adverse credibility determination.” Even assuming
(without deciding) there was no such determination here,
Cite as: 593 U. S. ____ (2021) 11
Opinion of the Court
the Ninth Circuit’s reasoning was flawed. One can think
about the reason why in either of two ways.
1
Start with the fact that the INA’s “presumption” of cred-
ibility on appeal is “rebuttable.” Necessarily, that means
the presumption is not conclusive. Notably, too, unlike the
requirement that any initial adverse credibility determina-
tion must be “explicitly made,” the INA contains no parallel
requirement of explicitness when it comes to rebutting the
presumption on appeal. 8 U. S. C. §§1158(b)(1)(B)(iii),
1231(b)(3)(C), 1229a(c)(4)(C).
Of course, reviewing courts remain bound by traditional
administrative law principles, including the rule that
judges generally must assess the lawfulness of an agency’s
action in light of the explanations the agency offered for it
rather than any ex post rationales a court can devise. See,
e.g., SEC v. Chenery Corp., 318 U. S. 80 (1943). But none
of that means the BIA must follow a particular formula or
incant “magic words” like “incredible” or “rebutted” to over-
come the INA’s presumption of credibility on appeal. Cf.
INS v. Aguirre-Aguirre, 526 U. S. 415, 431–432 (1999). To
the contrary, a reviewing court must “uphold” even “a deci-
sion of less than ideal clarity if the agency’s path may rea-
sonably be discerned.” Bowman Transp., Inc. v. Arkansas-
Best Freight System, Inc., 419 U. S. 281, 286 (1974); see also
5 U. S. C. §701 et seq. So long as the BIA’s reasons for re-
jecting an alien’s credibility are reasonably discernible, the
agency must be understood as having rebutted the pre-
sumption of credibility. It need not use any particular
words to do so. And, once more, a reviewing court must up-
hold that decision unless a reasonable adjudicator would
have been compelled to reach a different conclusion. 8
U. S. C. § 1252(b)(4)(B).
In the cases before us, the Ninth Circuit did not consider
12 GARLAND v. MING DAI
Opinion of the Court
the possibility that the BIA implicitly found the presump-
tion of credibility rebutted. In Mr. Alcaraz-Enriquez’s case,
the court ignored whether the agency’s statements could be
fairly understood as rejecting his credibility. Concluding
that the IJ properly “weigh[ed] and compar[ed]” the proba-
tion report and Mr. Alcaraz-Enriquez’s hearing testimony,
the BIA cited precedent about how an IJ is “not required to
adopt” an applicant’s denial of culpability. See App. to Pet.
for Cert. in No. 19–1156, at 8a; Matter of D–R–, 25 I. & N.
Dec. 445, 455 (BIA 2011) (“The [IJ] was not required to
credit the respondent’s wholesale denial of any knowledge
or culpability”). The BIA also expressly adopted the IJ’s de-
cision. The IJ decision, in turn, noted that Mr. Alcaraz-En-
riquez’s story changed from the time of the probation report
to the time of the hearing, a factor the statute specifically
identifies as relevant to credibility. See §§1158(b)(1)(B)(iii),
1231(b)(3)(C), 1229a(c)(4)(C). The IJ further concluded that
Mr. Alcaraz-Enriquez’s testimony sought to minimize his
actions and condone violence against his girlfriend, sug-
gesting the IJ rejected his claim that he intervened only to
defend his daughter. On remand, the Ninth Circuit should
consider whether the BIA in fact found the presumption of
credibility overcome in this case. If so, it seems unlikely
that conclusion is one no reasonable adjudicator could have
reached.
The same might be said of Mr. Dai’s case. The BIA spe-
cifically highlighted Mr. Dai’s family “voluntarily returning
and his not being truthful about it” as “detrimental to his
claim.” App. to Pet. for Cert. in No. 19–1155, at 164a. And
here again the BIA adopted the IJ’s decision, which dis-
cussed specific problems with Mr. Dai’s assertions about his
past persecution and fear of future persecution—including
Mr. Dai’s intentional failure to disclose highly probative
and damaging facts, his inadequate explanations for con-
tradictions in his presentation, and his ultimate conces-
Cite as: 593 U. S. ____ (2021) 13
Opinion of the Court
sions about the “real story.” Such a detailed analysis cer-
tainly goes to the presumption of credibility, even if the
agency did not utter the words “adverse credibility finding.”
The INA provides instructions about the appropriate con-
siderations for making a credibility determination, includ-
ing the witness’s demeanor, candor, and internal incon-
sistency in his testimony. See §§1158(b)(1)(B)(iii),
1231(b)(3)(C), 1229a(c)(4)(C). It is thus unsurprising—and
in fact quite helpful for later review—that the IJ addressed
many of those questions at length. By adopting that anal-
ysis as its own, the BIA’s decisional path here, too, includes
that analysis. Once more, the Ninth Circuit should con-
sider whether the BIA found that Mr. Dai’s presumption of
credibility had been overcome. And, once more, it is hard
to say that decision is one no reasonable adjudicator could
have reached.
2
There is, however, another problem with the Ninth Cir-
cuit’s reasoning in these cases. Not only is the presumption
of credibility before the BIA rebuttable, it applies only with
respect to credibility. §§1158(b)(1)(B)(iii), 1231(b)(3)(C),
1229a(c)(4)(C). This matters because, when it comes to the
forms of relief Mr. Alcaraz-Enriquez and Mr. Dai sought,
the INA expressly distinguishes between credibility, per-
suasiveness, and the burden of proof. See
§§1158(b)(1)(B)(ii), 1231(b)(3)(C), 1229a(c)(4)(B). In order
for an alien’s testimony to carry the day on its own, the stat-
ute requires the alien to satisfy the trier of fact on all three
counts—showing his “testimony is credible, is persuasive,
and refers to specific facts sufficient to demonstrate that the
applicant is a refugee.” Ibid. When determining whether
an alien has met his burden of proof, the INA further pro-
vides that the agency may weigh “the credible testimony
along with other evidence of record.” Ibid. Accordingly,
even if the BIA treats an alien’s evidence as credible, the
14 GARLAND v. MING DAI
Opinion of the Court
agency need not find his evidence persuasive or sufficient
to meet the burden of proof. See, e.g., Doe v. Holder, 651
F. 3d 824, 830 (CA8 2011); Gutierrez-Orcozo v. Lynch, 810
F. 3d 1243, 1246 (CA10 2016).
Admittedly, credibility and persuasiveness are closely
bound concepts, sometimes treated interchangeably, and
the line between them doesn’t have to be drawn the same
way in every legal context. But the distinctions the INA
draws aren’t entirely unfamiliar either. Take an example.
Suppose a plaintiff is doing her best to recount a car acci-
dent to prove her case for damages. She testifies earnestly
that she thought the traffic light was green when she en-
tered an intersection. The plaintiff says she was then
broadsided by the defendant who was traveling on a cross
street and ran a red light. Later in the proceedings, how-
ever, the defendant presents video footage and the testi-
mony of other witnesses, all of which show that it was really
the plaintiff who drove through a red light and the defend-
ant who had the right of way. It’s easy enough to imagine
that a factfinder might not describe the plaintiff as lacking
credibility—in the sense that she was lying or not “worthy
of belief,” Black’s Law Dictionary 448 (10th ed. 2014) (de-
fining “credibility”)—yet find that her testimony on a key
fact was outweighed by other evidence and thus unpersua-
sive or insufficient to prove the defendant’s liability. It’s
not always the case that credibility equals factual accuracy,
nor does it guarantee a legal victory.
The Ninth Circuit erred by treating credibility as dispos-
itive of both persuasiveness and legal sufficiency in these
cases. Even setting aside the credibility of Mr. Alcaraz-En-
riquez or Mr. Dai, perhaps the BIA did not find their evi-
dence persuasive or sufficient to meet their burden on es-
sential questions. In Mr. Alcaraz-Enriquez’s case, the
probation report may have outweighed his testimony. Sim-
ilarly, in Mr. Dai’s case, his later admissions about his fam-
Cite as: 593 U. S. ____ (2021) 15
Opinion of the Court
ily’s voluntary return and his decision to stay in this coun-
try for economic reasons may have outweighed his initial
testimony about his past and feared future persecution.
Faced with conflicting evidence, it seems likely that a rea-
sonable adjudicator could find the unfavorable account
more persuasive than the favorable version in both cases.
*
The Ninth Circuit’s deemed-true-or-credible rule cannot
be reconciled with the INA’s terms. Instead, immigration
cases like these should proceed as follows. First, the fact-
finder—here the IJ—makes findings of fact, including de-
terminations as to the credibility of particular witness tes-
timony. The BIA then reviews those findings, applying a
presumption of credibility if the IJ did not make an explicit
adverse credibility determination. Finally, the court of ap-
peals must accept the agency’s findings of fact as “conclu-
sive unless any reasonable adjudicator would be compelled
to conclude to the contrary.”
Nor can we affirm the Ninth Circuit’s judgments on al-
ternative grounds. The Ninth Circuit failed to consider that
the BIA may have implicitly rebutted the presumption of
credibility. The Ninth Circuit also erroneously allowed
credibility to operate as a trump card, foreclosing the possi-
bility that even credible testimony may be outweighed by
other more persuasive evidence or be insufficient to satisfy
the burden of proof. Accordingly, the judgments of the
Court of Appeals are vacated, and these cases are remanded
for further proceedings consistent with this opinion.
It is so ordered.