Supreme Court Reverses Ninth Circuit’s Illogical Credibility Rule

IJs and the BIA don’t need to ‘incant magical words’ to reject implausible or contrary evidence

By Andrew R. Arthur on June 3, 2021

The Supreme Court issued an opinion this week in Garland v. Ming Dai, reversing an illogical Ninth Circuit rule that had held that a reviewing court must treat an alien’s testimony in support of an application for asylum and statutory withholding as credible and true unless the immigration judge (IJ) or the Board of Immigration Appeals (BIA) below made an explicit adverse credibility determination. The unanimous decision is a triumph of common sense, which is in low supply in Washington these days.

By way of background, the asylum provision at section 208 of the Immigration and Nationality Act (INA) contains a rather lengthy but non-exhaustive list of factors that adjudicators can consider and apply in determining whether an asylum applicant’s testimony is credible.

IJs are in a unique position to assess credibility, because they are the only ones in the process who actually get to see and hear an alien respondent testify (all other adjudicators simply review a written transcript of that testimony), but until the credibility factors were added to section 208 of the INA by the REAL ID Act of 2005, there was only case law to guide IJs in assessing when an alien was telling the truth.

That may not seem like a big deal, but curiously enough it was. The Ninth Circuit had gone rogue in its reversals of IJ credibility determinations it didn’t like (as the REAL ID conference report explains), substituting its impressions of the evidence for the IJs’ and BIA’s, and Congress stepped in to correct it.

If you want to see how bad it had gotten there before that legislation was passed, take a look at then-Ninth Circuit Judge Alex Kozinski’s 2001 dissent in Abovian v. INS (“The majority overthrows a perfectly reasonable BIA decision by invoking novel rules divorced from administrative law, Supreme Court precedent and common sense.”).

Of course, I may just be blowing my own horn, because as a staffer I drafted that provision and thereafter negotiated the amendments to it. Those amendments are at the heart of the Court’s opinion in Ming Dai.

The provision in question, current section 208(b)(1)(B)(iii) of the INA, states: “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.”

In earlier iterations of that section in the REAL ID Act, it simply read: “There is no presumption of credibility.” The extra clauses were added in conference over the bill because one senator was concerned that aliens would not be considered to be credible where IJs failed to make credibility determinations, and I dutifully made the change.

Although IJs should make a credibility determination one way or another in every case (and as an IJ, I did), often they fail to do so. Why? Sometimes they forget (most decisions are delivered orally), but more often they don’t want to tell an asylum applicant that he or she is lying.

In any event, the Ninth Circuit was not satisfied to leave well enough alone, crafting (out of whole cloth) its rule that where there is no adverse credibility determination by the IJ or BIA, the alien’s factual determinations are assumed to be true.

That took no small amount of credulity in the two cases at issue, which were combined in the Supreme Court’s opinion.

In one, a Mexican national had been convicted on a domestic violence charge for which he had received a two-year sentence. He then left the United States and returned, and when apprehended sought statutory withholding (which is like asylum, only with a higher burden of proof). The statutory withholding provision includes by reference the credibility provision in section 208 of the INA.

The details of that crime (a 24-hour ordeal according to court records) were brutal, at least based on the probation report that was completed at the time of the alien’s conviction, and therefore the question was whether he was barred from receiving statutory withholding as an alien convicted of a “particularly serious crime”.

The alien had a different version of those events when he was applying for withholding. He “admitted hitting his girlfriend, but not in the manner as described in the report”, but denied allegations that he had kicked or dragged her, or forced her to have sex as the probation report alleged. He contended that he was upset with his girlfriend because he believed that she was hitting his daughter.

The alien’s mother also submitted a letter in which she stated that she had seen the girlfriend shortly after the altercation at issue and “she looked completely fine.”

The IJ denied protection based partially on the narrative in the probation report (and the fact that the report did not mention abuse to the daughter), and the BIA affirmed that decision, finding that the IJ wasn’t required to credit the alien’s “version of events over other plausible alternatives.” Neither, however, expressly found that the alien’s story wasn’t credible.

The alien filed a petition seeking circuit-court review, and the Ninth Circuit applied its rule, which required it to accept the alien’s “testimony as true — even in the face of competing evidence”, as the Supreme Court put it.

In the companion case, a Chinese national sought asylum after entering on a tourist visa. He contended that his wife had been forced to have an abortion after she became pregnant with the couple’s second child. He also asserted that when he tried to stop the authorities who came to pick up his wife, they “broke his ribs, dislocated his shoulder, and jailed him for 10 days”.

Finally, he alleged, he was fired from his job, his wife was demoted, and his daughter was not permitted to attend what were termed “superior schools”.

As the Court noted, when he applied for asylum, the alien had “asked the government to ‘[p]lease grant me asylum so that I can bring my wife and daughter to safety in the USA.’”

What he failed to mention, however, was that his wife and daughter had already come to the United States and then returned to China voluntarily (a fairly salient fact).

The IJ noted that the alien “hesitated at some length” when he was confronted with these facts, and when the alien was asked to tell the “real story”, he asserted that his daughter went back to go to school and that his wife had to care for her daughter.

As for why he did not return with them, the alien stated: “Because at that time, I was in a bad mood and I couldn’t get a job, so I want to stay here for a bit longer and another friend of mine is also here.”

In denying asylum, the IJ noted that this omission was the “principal area” of the court’s concern, and concluded that the alien’s explanations of his wife’s return to China weren’t “adequate”, but the IJ apparently never held that the alien’s testimony was not credible. The BIA “adopted and affirmed” the IJ’s decision in what was apparently a brief order.

Once again, bad law came to the alien’s rescue. He filed a petition for review, and the Ninth Circuit held that absent “an explicit adverse credibility finding by the IJ or the BIA,” the alien’s “testimony had to be ‘deemed’ credible and true”, and granted him asylum. A government petition for rehearing en banc was dismissed over the objections of 12 judges of the circuit court.

The Supreme Court noted that the Ninth Circuit’s “deemed-true-or-credible rule” was not followed by any other circuit (which should have been a sign of trouble). Applying that rule, the circuit court ignored the findings in the probation report in the one case, and relied only on the alien’s own testimony that was favorable to him while ignoring his unfavorable testimony in the other (another red flag).

In following this rule, the Ninth Circuit ignored the requirement in section 242 of the INA, which states that in considering a petition for review, “the administrative findings of fact are conclusive” in the circuit’s deliberations “unless any reasonable adjudicator would be compelled to conclude to the contrary”.

Needless to say, even an unreasonable adjudicator would have a hard time reversing either of these IJs’ decisions.

The Court’s opinion (written by Justice Gorsuch) was blunt: “The Ninth Circuit’s rule has no proper place in a reviewing court’s analysis. Congress has carefully circumscribed judicial review of BIA decisions” and “[n]othing in the INA contemplates anything like the embellishment the Ninth Circuit has adopted.”

Notably, Justice Gorsuch held, while the BIA cannot “arbitrarily” reject evidence than an alien offers, “so long as the record contains ‘contrary evidence’ of a ‘kind and quality’ that a reasonable factfinder could find sufficient, a reviewing court may not overturn the agency’s factual determination.”

Key to the Court’s analysis was the fact that the rebuttable presumption of credibility absent an adverse credibility determination by the IJ in section 208(b)(1)(B)(iii) of the INA applies only to “appeals” to the BIA, not petitions for review of the BIA’s decisions to the circuit court.

As Justice Gorsuch noted: “Reviewing courts have no need for a presumption of credibility one way or the other because they do not make credibility determinations” (although one glance at the dissent in Abovian reveals that the Ninth Circuit has been making its own credibility determinations for some time).

The Court also explicitly rejected any suggestion that “the BIA must follow a particular formula or incant ‘magic words’ like ‘incredible’ or ‘rebutted’ to overcome the INA’s presumption of credibility on appeal.”

Even if IJs or the BIA are often too tender-hearted to explicitly call an alien respondent a liar, you can usually suss out their thoughts on the evidence they are presented. In fact, there were strong indicia of such determinations in both of these cases.

The IJ in the first concluded that the alien’s “testimony sought to minimize his actions and condone violence against his girlfriend, suggesting the IJ rejected his claim that he intervened only to defend his daughter.”

In the second: “The BIA specifically highlighted” the alien’s “family ‘voluntarily returning and his not being truthful about it’ as ‘detrimental to his claim.”

The IJ’s decision in that case — which the BIA adopted — also “discussed specific problems with” the alien’s “assertions about his past persecution and fear of future persecution”, including his “intentional failure to disclose highly probative and damaging facts, his inadequate explanations for contradictions in his presentation, and his ultimate concessions about the ‘real story.’”

The fact is that IJs and BIA members should make explicit credibility findings as a matter of judicial hygiene — it’s tough, but they are relatively well paid to do so. But when it is clear that they are rejecting evidence, they don’t need to “incant magical words” or face having their factual determinations thrown out in the Ninth Circuit. At least for now.