Ming Dai v. Jefferson Sessions

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MING DAI, No. 15-70776

Petitioner,

Agency No.

v. A205-555-836

JEFFERSON B. SESSIONS III, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted October 13, 2017*

San Francisco, California

Filed March 8, 2018

Before: Sidney R. Thomas, Chief Circuit Judge, and

Stephen Reinhardt and Stephen S. Trott, Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Judge Trott

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 DAI V. SESSIONS

SUMMARY**

Immigration

The panel granted a petition for review of the Board of

Immigration Appeals’ denial of asylum and withholding

relief.

The panel held that because neither the immigration

judge nor the Board made an explicit adverse credibility

determination, this court must accept Dai’s testimony as true.

The panel explained that the REAL ID Act added a provision

creating a rebuttable presumption of credibility where the IJ

fails to make an explicit adverse credibility determination, but

that presumption is rebuttable only before the Board, and is

not rebuttable on petition for review before this court.

The panel held that Dai’s evidence was sufficiently

persuasive, and compelled the conclusion that the harm he

suffered from the government due to his resistance to his

wife’s forced abortion rose to the level of past persecution.

The panel held that because Dai and his wife were not

similarly situated, the Board erred in concluding that Dai’s

wife’s voluntary return to China undermined his own fear of

future persecution. The panel further held that in the absence

of an adverse credibility determination, the Board erred in

relying on Dai’s untruthfulness about his wife’s voluntary

return to China in concluding that he failed to meet his

burden of proof. The panel also noted Dai’s valid asylum

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DAI V. SESSIONS 3

claim was not undermined by the fact that he may have had

additional reasons (beyond escaping persecution) for coming

to or remaining in the United States, including seeking

economic opportunity.

The panel held that because Dai established past

persecution, he was entitled to a rebuttable presumption of

future persecution, which the government did not attempt to

rebut with evidence of changed country conditions. The

panel stated that giving the government the opportunity to

present such evidence at this point would be exceptionally

unfair, and thus, Dai established that he was eligible for

asylum. The panel remanded for an exercise of discretion of

whether to grant Dai asylum relief, and to grant Dai

withholding relief.

Dissenting, Judge Trott wrote that the serious legal

consequences of the majority opinion as a circuit precedent

are that it (1) demolishes both the purpose and the substance

of the REAL ID Act (2) disregards the appropriate standard

of review, and (3) perpetuates this court’s idiosyncratic

approach to an IJ’s determination that the testimony of an

asylum seeker lacks sufficient credibility or persuasiveness to

prove his case.

COUNSEL

David Z. Su, Law Offices of David Z. Su, West Covina,

California, for Petitioner.

4 DAI V. SESSIONS

Aimee J. Carmichael, Trial Attorney; Mary Jane Candaux,

Assistant Director; Office of Immigration, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

OPINION

REINHARDT, Circuit Judge:

Ming Dai is a citizen of China. He testified that he was

beaten, arrested, jailed, and denied food, water, sleep, and

medical care because he tried to stop the police from forcing

his wife to have an abortion. The Board of Immigration

Appeals (BIA) nevertheless found that Dai was not eligible

for asylum or withholding of removal.

There is one clear and simple issue in this case: neither

the Immigration Judge (IJ) nor the BIA made a finding that

Dai’s testimony was not credible. Under our well-established

precedent, we are required to treat a petitioner’s testimony as

credible in the absence of such a finding. We adopted this

rule before the REAL ID Act and reaffirmed it after its

passage. The dissent clearly disapproves of our rule. We are,

however, bound to follow it. We might add, though it does

not affect our holding in this case, that we approve of it. We

think it not too much to ask of IJs and the BIA that they make

an explicit adverse credibility finding before deporting

someone on that basis. In any event, under our well-

established rule, Dai is unquestionably entitled to relief.

DAI V. SESSIONS 5

BACKGROUND

I. Dai’s Persecution in China1

Dai has been married for twenty years to Li Ping Qin. Dai

and Qin have a daughter, who was born in 2000. In April

2009, Qin discovered that she was pregnant again. Dai and

Qin were “very happy” about the pregnancy and believed

they would be able to keep the child if they paid a fine,

despite China’s One Child policy.

However, the month after Qin found out she was

pregnant, she was visited at work by a “family planning

officer” who told Qin that she was required to have an

abortion. Qin told the officer that she would need to think

about it. Two months later, five family planning officers

came to Dai and Qin’s house early in the morning from “the

local family planning office and also the police station.” The

officers were there to take Qin to the hospital for a forced

abortion. Qin told the officers that she didn’t want to go and

Dai attempted to stop the officers from taking Qin against her

will. Dai and the officers began arguing, with the officers

telling Dai that Qin had to have the forced abortion as a

matter of “Chinese policy” and Dai saying “you can’t take my

wife away.”

When Dai continued resisting the officers’ efforts to take

Qin for the forced abortion, two of them pushed him to the

ground. Dai got up and tried again to stop the officers, so they

1

This factual summary is drawn primarily from Dai’s testimony

before the IJ. As we discuss in more detail below, we treat Dai’s testimony

as credible because neither the IJ nor the BIA made an adverse credibility

finding.

6 DAI V. SESSIONS

pushed him to the ground again. This time, the officers

handcuffed Dai and repeatedly beat him, causing substantial

injuries. While Dai was handcuffed and being beaten, the

other officers dragged Qin out of the house.

The police took Dai to the Zha Bei detention center.

There, they ordered Dai to confess to resisting arrest. Dai

initially refused to confess and insisted that he had the right

to protect his family. The officers continued to interrogate

him over the next number of days. At times he was deprived

of sleep because he was interrogated in the middle of the

night. During the ten days he spent in detention, Dai was

interrogated approximately seven times. He was fed one meal

a day and often denied water. Dai characterized his treatment

as “mental[] torture.” Dai ultimately confessed to resisting

arrest and fighting with the officers. He was released about

two days after his confession.

Dai’s injuries occurred when the officers beat him at his

home. Despite telling the police about his injuries, he

received no medical attention while in custody. When he was

released he went to the hospital for x-rays, which showed that

his right arm was dislocated and the ribs on his right side

were broken. The doctor put Dai’s arm back in place and

wrapped it to keep it still for six weeks. Dai did not receive

any treatment for his broken ribs.

When Dai returned home he found Qin crying. Qin told

him that she had been taken to the Guang Hua hospital in the

Chang Ning district, where a doctor made her get undressed

and then sedated her. When she woke up, she learned that her

pregnancy had been terminated and that an IUD had been

implanted, all without her consent.

DAI V. SESSIONS 7

In addition to Qin’s forced abortion and Dai’s arrest,

detention, and physical and mental abuse, Qin, Dai, and their

daughter each suffered other repercussions arising out of

Qin’s unauthorized pregnancy and Dai’s resistance to her

forced abortion. Dai was fired from his job, while Qin was

demoted and her salary was reduced by thirty percent. Their

supervisors specifically informed them that they were fired

and demoted because of the above events. Their daughter was

also denied admission to more desirable schools despite good

academic performance. Her teacher told Qin that this was

likewise because of the events resulting from the illegal

pregnancy.

On or about January 27, 2012, Dai, Qin, and their

daughter arrived in the United States on tourist visas, with

authorization to remain until July 26, 2012. Qin and their

daughter returned to China in February while Dai remained

in the United States. In the time since Qin and their daughter

have returned to China, the Chinese police have come looking

for Dai multiple times. Dai is afraid that if he returns to China

he will be forcibly sterilized.

II. Asylum Application

Approximately eight months after arriving in the United

States, Dai filed an affirmative asylum application. The next

month, he was interviewed by an asylum officer. The asylum

officer took notes during the interview, but did not prepare a

verbatim transcript.

During the interview, Dai was not asked whether his wife

and daughter had accompanied him to the United States.

Rather, the asylum officer inquired whether they ever

traveled anywhere outside of China. He told the asylum

8 DAI V. SESSIONS

officer that both his wife and his daughter had been to Taiwan

and Hong Kong and that his wife had been to Australia.

When asked if they had traveled anywhere else, he said they

had not. However, when told that government records showed

that his wife and daughter had traveled to the United States

with him, he agreed that they had done so. When asked why

he did not initially disclose this, Dai said (through an

interpreter and according to the non-verbatim notes of the

interview), “I’m afraid you ask why my wife and daughter go

back.” Dai explained that his wife and daughter went back to

China “[s]o that my daughter can go to school and in the US

you have to pay a lot of money.” Finally, Dai was asked,

“Can you tell me the real story about you and your family’s

travel to the US?” Dai responded, “I wanted a good

environment for my child. My wife had a job and I didn’t and

that is why I stayed here. My wife and child go home first.”

The asylum officer denied Dai’s asylum application.

III. Removal Proceedings

The Department of Homeland Security (DHS) then issued

Dai a Notice to Appear. Dai conceded that he was removable

and sought asylum, withholding of removal, and CAT

protection. At a hearing before the IJ, Dai testified about the

events in China we have described. When asked why he came

to the United States, he said, “[b]ecause I was persecuted in

China and my wife, my wife was forced to have an abortion

and I lost my baby. I was arrested. I was beaten[]. I lost my

job. America [ ] is a free country and it’s [ ] a democratic

country. I want to come here [ ] and have my very basic

human rights. I really, really hate Chinese dictatorship.”

DAI V. SESSIONS 9

During cross-examination, the government asked Dai

about his initial failure to disclose his wife and daughter’s

travel to the United States. Dai testified that “I was very

nervous” and “because I was already in the U.S. and they [ ]

came with me to the U.S. . . . I thought that you were asking

me anywhere other than the U.S.” In response to further

questioning by the government, Dai testified that his wife and

daughter returned to China so that his wife could care for his

father-in-law and his daughter could attend school. When

asked why he didn’t keep them in the US to protect them

from forced IUDs or abortions, Dai reminded the government

that his wife’s IUD was already inserted before she left China

and that his daughter was only 13.

When the government asked Dai if there were any other

reasons he was afraid to return to China, Dai said, “if I return

to China, it’s impossible for me to get another job. . . . Just

the sterilization and that.” Finally, when asked why he

remained in the U.S. when his wife returned to China he

responded, “Because at that time, I was in a bad mood and I

couldn’t get a job, so I want to stay here for a bit longer and

another friend of mine is also here.” At the time in question

(when Qin returned to China in February 2012), Dai did not

know about asylum. He first learned about the existence of

that process in March of that year.

The IJ did not make an adverse credibility finding.

Instead, the IJ found that Dai failed to meet his burden of

proof for asylum, withholding of removal, and CAT

protection.

10 DAI V. SESSIONS

IV. BIA Decision

The BIA affirmed the IJ’s denial of relief. The BIA first

found that Dai “failed to disclose both to the [DHS] asylum

officer and the [IJ] that his wife and daughter had traveled

with him to the United States and voluntarily returned to

China shortly after”2 and that Dai’s reason for concealing this

information was that “he believed that the true reasons for

their return . . . would be perceived as inconsistent with his

claims of past and feared persecution.”3

The BIA acknowledged that the IJ did not make an

adverse credibility finding and also did not make one itself.

Instead, the BIA held that “the [IJ] need not have made an

explicit adverse credibility finding to nevertheless determine

that the respondent did not meet his burden of proving his

asylum claim.” The BIA found that Dai’s family returning to

China and “his not being truthful about it” were “detrimental

to his claim and [ ] significant to his burden of proof.” The

BIA concluded that Dai failed to establish eligibility for

asylum, withholding of removal, or CAT protection. Dai filed

2

The record clearly demonstrates that Dai did not conceal this

information from the IJ. If he concealed it at all, it was only from the

asylum officer. To the extent the government defends this finding by the

BIA, it simply notes that Dai “did not raise the information during direct

examination before the Immigration Judge.” However, Dai was not asked

about his family’s travel to the United States and return to China during

direct examination, and when he was asked during cross examination he

answered truthfully.

3

The BIA also found that “the respondent’s contention that his wife

and daughter returned to China before he became aware of the possibility

of asylum is not supported by the record.” In fact, Dai’s testimony on this

point was unchallenged and uncontradicted and the government does not

defend this erroneous finding before this court.

DAI V. SESSIONS 11

a timely petition for review challenging the BIA’s denial of

relief.

SCOPE AND STANDARD OF REVIEW

“[W]e cannot deny a petition for review on a ground

[upon which] the BIA itself did not base its decision.”

Hernandez-Cruz v. Holder, 651 F.3d 1094, 1110 (9th Cir.

2011). We review the agency’s factual findings for

substantial evidence. Hamazaspyan v. Holder, 590 F.3d 744,

747 (9th Cir. 2009).

The scope of review in this case is unclear. While the BIA

stated that it “adopt[ed] and affirm[ed] the Immigration

Judge’s decision,” it then went on to discuss and agree with

most of the IJ’s specific reasons while omitting any

discussion of one of them.

On the one hand, we have held that when “the BIA adopts

the decision of the IJ and affirms without opinion, we review

the decision of the IJ as the final agency determination.”

Smolniakova v. Gonzales, 422 F.3d 1037, 1044 (9th Cir.

2005); see also Matter of Burbano, 20 I. & N. Dec. 872, 874

(BIA 1994). In this case, however, the BIA did not affirm

“without opinion.”

On the other hand, we have also held that when “the BIA

relie[s] upon the IJ’s opinion as a statement of reasons” but

“state[s] with sufficient particularity and clarity the reasons

for denial of asylum and d[oes] not merely provide a

boilerplate opinion,” we “look to the IJ’s oral decision [only]

as a guide to what lay behind the BIA’s conclusion.” Tekle v.

Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (quotation

marks and alterations omitted). “In so doing, we review here

12 DAI V. SESSIONS

the reasons explicitly identified by the BIA, and then examine

the reasoning articulated in the IJ’s oral decision in support of

those reasons. . . . Stated differently, we do not review those

parts of the IJ’s . . . finding that the BIA did not identify as

‘most significant’ and did not otherwise mention.” Id.; see

also Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014).

However, in those cases the BIA did not say that it was

adopting the decision of the IJ.

Finally, this is not a case in which “the BIA adopt[ed] the

immigration judge’s decision and also add[ed] its own

reasons.” Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.

2005). The BIA did not “add[] its own reasons;” rather, it

identified and expressly agreed with some (but not all) of the

IJ’s reasons.

We need not, however, resolve the precise scope of

review in this case because none of the reasons advanced by

the IJ, including the one omitted by the BIA, provides a

sufficient basis for the BIA’s decision.

DISCUSSION

I. Asylum

Asylum is available to refugees—that is, anyone who is

“‘unable or unwilling to avail himself or herself of the

protection of [his or her native] country because of

persecution or a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular

social group, or political opinion.’” Baghdasaryan v. Holder,

DAI V. SESSIONS 13

592 F.3d 1018, 1022–23 (9th Cir. 2010) (quoting 8 U.S.C.

§ 1101(a)(42)(A)).4

If a noncitizen establishes past persecution, “a rebuttable

presumption of a well-founded fear arises, and the burden

shifts to the government to demonstrate that there has been a

fundamental change in circumstances such that the applicant

no longer has a well-founded fear.” Tawadrus v. Ashcroft,

364 F.3d 1099, 1103 (9th Cir. 2004) (quotation marks and

citations omitted). “An applicant alleging past persecution

has the burden of establishing that (1) his treatment rises to

the level of persecution; (2) the persecution was on account

of one or more protected grounds; and (3) the persecution was

committed by the government, or by forces that the

government was unable or unwilling to control.”

Baghdasaryan, 592 F.3d at 1023.

This case is governed by the REAL ID Act of 2005, Pub.

L. No. 109-13, Div. B, 119 Stat. 231, 302–23. Under the

standards established by that Act, an applicant’s testimony

alone is sufficient to establish eligibility for asylum if it

satisfies three requirements: the “testimony is credible, is

persuasive, and refers to specific facts sufficient to

demonstrate that the applicant is a refugee.” 8 U.S.C.

§ 1158(b)(1)(B)(ii). In determining whether the testimony is

persuasive, “the trier of fact may weigh the credible

testimony along with other evidence of record.” Id. If the

applicant’s testimony satisfies all three requirements, then it

“alone meets the applicant’s burden of proof.” Ren v. Holder,

648 F.3d 1079, 1093 (9th Cir. 2011). If, however, the

4

By “native country” we mean a person’s country of nationality “or,

in the case of a person having no nationality, . . . [the] country in which

such person last habitually resided.” 8 U.S.C. § 1101(a)(42)(A).

14 DAI V. SESSIONS

applicant’s credible testimony alone is not sufficiently

persuasive, “the IJ must give the applicant notice of the

corroboration that is required and an opportunity either to

produce the requisite corroborative evidence or to explain

why that evidence is not reasonably available.” Id.5 No

notice regarding corroboration was given to Dai. We will

next examine the three requirements under the Act for

meeting the burden of proof, though not in the order listed in

the statute.

A. Credibility

Dai testified at his removal hearing and the IJ made no

adverse credibility finding. When this was called to the BIA’s

attention, it also made no adverse credibility finding.

Although the BIA identified one time that Dai allegedly

failed to disclose a fact and indicated that it did not believe

Dai’s explanation for not doing so, “this sort of passing

statement does not constitute an adverse credibility finding.”

Kaur v. Holder, 561 F.3d 957, 962–63 (9th Cir. 2009). The

BIA may find that an applicant lied about one particular fact

without making a general adverse credibility finding. Even a

“statement that a petitioner is ‘not entirely credible’ is not

enough” to constitute an adverse credibility finding, Aguilera-

Cota v. I.N.S., 914 F.2d 1375, 1383 (9th Cir. 1990), and the

BIA’s finding that Dai “failed to disclose” a single fact does

not even rise to the level of a finding that a petitioner is “not

entirely credible.” In short, the adverse credibility finding

must be explicit.

5

The IJ must also provide notice and an opportunity to produce

corroboration or explain its absence if an adverse credibility finding will

be based on a lack of corroborating evidence. Lai, 773 F.3d at 975–76.

DAI V. SESSIONS 15

Large portions of the dissent are devoted to elaborating on

the deference that we owe to credibility findings by the IJ and

the BIA. We agree that such findings are entitled to

deference, but we cannot defer to a finding that does not

exist. The bulk of our dissenting colleague’s concerns can

therefore be reduced to his objection to the rule that adverse

credibility findings must be explicit. It is difficult to identify,

however, a more well-established rule in the review of

immigration cases.6 The dissent offers no reason to overturn

our longstanding requirement that adverse credibility findings

be explicit and, in fact, the REAL ID Act codifies the

principle that such findings must be “explicitly made.”

8 U.S.C. § 1158(b)(1)(B)(iii). Therefore, “[t]he IJ’s decision

not to make an explicit adverse credibility finding,” Dissent

at 30, means that there is no finding to which we can defer.7

6

See, e.g., She v. Holder, 629 F.3d 958, 964 (9th Cir. 2010); Tijani

v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010); Edu v. Holder, 624 F.3d

1137, 1143 n.5 (9th Cir. 2010); Karapetyan v. Mukasey, 543 F.3d 1118,

1123 n.4 (9th Cir. 2008); Meihua Huang v. Mukasey, 520 F.3d 1006,

1007–08 (9th Cir. 2008) (per curiam); Singh v. Gonzales, 491 F.3d 1019,

1025 (9th Cir. 2007); McDonald v. Gonzales, 400 F.3d 684, 686 n.2 (9th

Cir. 2005); Mansour v. Ashcroft, 390 F.3d 667, 671–72 (9th Cir. 2004);

Zhang v. Ashcroft, 388 F.3d 713, 718 (9th Cir. 2004) (per curiam); Lopez-

Alvarado v. Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004); Kalubi v.

Ashcroft, 364 F.3d 1134, 1137–38 (9th Cir. 2004); Mendoza Manimbao

v. Ashcroft, 329 F.3d 655, 658–59 (9th Cir. 2003); Shoafera v. I.N.S.,

228 F.3d 1070, 1074 n.3 (9th Cir. 2000); Navas v. I.N.S., 217 F.3d 646,

652 n.3 (9th Cir. 2000); Prasad v. I.N.S., 101 F.3d 614, 616 (9th Cir.

1996); Hartooni v. I.N.S., 21 F.3d 336, 342 (9th Cir. 1994).

7

The dissent places great weight on Ling Huang v. Holder, 744 F.3d

1149 (9th Cir. 2014). The distinction between that case and this could not

be clearer: “[T]he IJ found that Huang’s testimony was not credible.” Id.

at 1151.

16 DAI V. SESSIONS

Given that there is no adverse credibility finding from the

agency, the next question is whether we can nostra sponte

decide that Dai’s testimony is not credible. Prior to the REAL

ID Act, we held that in the absence of an explicit adverse

credibility finding by the IJ or the BIA we are required to

treat the petitioner’s testimony as credible. Kalubi v. Ashcroft,

364 F.3d 1134, 1137 (9th Cir. 2004); Navas v. I.N.S.,

217 F.3d 646, 652 n.3 (9th Cir. 2000). The REAL ID Act

enacted a variety of changes to the standards governing

credibility determinations, including—as noted by the

dissent—a provision that “if no adverse credibility

determination is explicitly made, the applicant or witness

shall have a rebuttable presumption of credibility on appeal.”

8 U.S.C. § 1158(b)(1)(B)(iii).

Neither this provision nor anything else in the REAL ID

Act explicitly or implicitly repeals the rule that in the absence

of an adverse credibility finding by the IJ or the BIA, the

petitioner is deemed credible. To the contrary, in a post-

REAL ID opinion we stated and applied that rule. See

Zhiqiang Hu v. Holder, 652 F.3d 1011, 1013 n.1 (9th Cir.

2011); see also Kazemzadeh v. U.S. Attorney Gen., 577 F.3d

1341, 1354 (11th Cir. 2009) (W. Pryor, J.) (post-REAL ID

application) (“Where an [Immigration Judge] fails to

explicitly find an applicant’s testimony incredible and

cogently explain his or her reasons for doing so, we accept

the applicant’s testimony as credible.”) (quotation marks

omitted). Hu controls here, a fact the dissent entirely fails to

acknowledge. However, in Hu we did not explain why our

rule was unaffected by the new language in the REAL ID

Act. We take this opportunity to do so now.

Properly understood, the rebuttable presumption provision

of the REAL ID Act applies only to appeals to the BIA, not

DAI V. SESSIONS 17

to petitions for review in our court.8 This is demonstrated by

the fact that the statute says there is “a rebuttable presumption

of credibility on appeal.” 8 U.S.C. §§ 1158(b)(1)(B)(iii),

1229a(c)(4)(C) (emphasis added). In immigration cases, we

do not exercise appellate jurisdiction. Rather, decisions by the

finder of fact, the IJ, may be appealed to the BIA. See

8 C.F.R. § 1003.1(b). We generally cannot review an order of

removal unless the non-citizen has exhausted his appeal to the

BIA. 8 U.S.C. § 1252(d)(1); see Ren, 648 F.3d at 1083–84.

The “sole and exclusive means for judicial review of an order

of removal” is by “a petition for review,” not a further appeal.

8 U.S.C. § 1252(a)(5) (emphasis added). Moreover, unlike an

appeal, which shifts an existing action to a new court, a

petition for review commences a new action against the

United States. 28 U.S.C. § 2344; see also 8 U.S.C.

§ 1252(a)(1). Thus, Dai is the petitioner, not the appellant,

and the Attorney General is the respondent, not the appellee.

A provision that applies “on appeal” therefore does not apply

8

The proper application of the rebuttable presumption provision is

apparent in She v. Holder, 629 F.3d 958 (9th Cir. 2010). In that case, we

quoted a different pre-REAL ID rule: that “[a]bsent an adverse credibility

finding, the BIA is required to ‘presume the petitioner’s testimony to be

credible.’” Id. at 964 (quoting Mendoza Manimbao v. Ashcroft, 329 F.3d

655, 662 (9th Cir. 2003)). In a footnote, we acknowledged that the REAL

ID Act prospectively altered this rule so that the BIA must only afford “a

rebuttable presumption of credibility” when the IJ does not make an

adverse credibility finding. Id. at 964 n.5. Thus, while the dissent is

correct that the REAL ID Act affected our precedent, it did not disturb the

distinct rule upon which we rely in this case: that in the absence of an

adverse credibility finding by either the IJ or the BIA, we are required to

treat the petitioner’s testimony as credible.

18 DAI V. SESSIONS

to our review, but solely to the BIA’s review on appeal from

the IJ’s decision.9

The inapplicability of the rebuttable presumption

provision to review in this court is further confirmed by a

fundamental distinction between appellate review and review

of administrative decisions that the dissent ignores. When we

review a decision of a district court, we may “affirm on any

ground supported by the record even if the district court did

not consider the issue.” Perfect 10, Inc. v. Visa Int’l Serv.

Ass’n, 494 F.3d 788, 794 (9th Cir. 2007). When we review an

administrative decision, however, “we cannot deny a petition

for review on a ground [on which] the BIA itself did not base

its decision.” Hernandez-Cruz, 651 F.3d at 1110; see also

Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d

668, 688 (9th Cir. 2007).

The dissent is therefore incorrect to say that “[w]hen it

comes to our task of reviewing the credibility of witnesses in

a trial court or whether a witness’ testimony suffices to carry

his burden of proof [ ] there is no material difference between

an appeal and a petition for review.” Dissent at 38. In an

appeal we may, in appropriate circumstances and after

affording appropriate deference, reject a district court’s

credibility finding (whether favorable or adverse) in order to

affirm the district court on an alternative ground. However,

when the BIA has on appeal neither affirmed an adverse

credibility finding made by the IJ nor made its own finding

after deeming the presumption of credibility rebutted, we may

9

The fact that appeals and petitions for review are treated the same

for purposes of the Federal Rules of Appellate Procedure, see Fed. R.

App. P. 20; Dissent at 38–39, is irrelevant. The provision in question,

8 U.S.C. § 1158(b)(1)(B)(iii), is not part of the those rules.

DAI V. SESSIONS 19

not deny the petition for review based on lack of credibility,

not only because under our well-established case law we must

deem the petitioner’s testimony credible but also because a

denial on that ground would require us to adopt a justification

not relied on by the BIA.

The plain text and context of the statute dictate the

conclusion that the REAL ID Act’s rebuttable presumption of

credibility applies only on appeal to the BIA. In the absence

of any other provision in the Act affecting the procedures

governing credibility findings,10 our rule that we are required

to treat a petitioner’s testimony as credible when the agency

does not make an adverse credibility finding remains

applicable. Because neither the IJ nor the BIA made an

adverse credibility determination in Dai’s case, we must treat

his testimony as credible.

B. Sufficiency

Because Dai’s testimony must be deemed credible, we

must next consider whether he testified to facts sufficient to

establish eligibility for asylum. By statute, “a person . . . who

has been persecuted for failure or refusal to [abort a

pregnancy or to undergo involuntary sterilization] or for other

resistance to a coercive population control program, shall be

deemed to have been persecuted on account of political

opinion.” 8 U.S.C. § 1101(a)(42). The harm Dai suffered was

10

The only other significant change regarding credibility adopted by

the REAL ID Act is the rule that an adverse credibility finding may now

be based on “an inconsistency, inaccuracy, or falsehood [that does not go]

to the heart of the applicant’s claim.” 8 U.S.C. §§ 1158(b)(1)(B)(iii),

1229a(c)(4)(C). That rule is irrelevant to this case, as the IJ and BIA did

not make an adverse credibility finding.

20 DAI V. SESSIONS

on account of his resistance to China’s coercive population

control program and thus was on the basis of a protected

ground. In addition, “[p]olice officers are the prototypical

state actor for asylum purposes.” Boer-Sedano v. Gonzales,

418 F.3d 1082, 1088 (9th Cir. 2005). Therefore, the only

question as to the sufficiency of Dai’s testimony is whether

the harm rose to the level of persecution.

Dai testified that he was beaten, arrested, detained, and

deprived of food and sleep because of his attempt to oppose

his wife’s involuntary abortion. “It is well established that

physical violence is persecution.” Li v. Holder, 559 F.3d

1096, 1107 (9th Cir. 2009). In Guo v. Ashcroft, 361 F.3d 1194

(9th Cir. 2004), this court held that facts similar to—but less

serious than—the facts in this case compelled a finding of

persecution. The applicant in Guo was arrested, detained for

a day and a half, punched in the face, and kicked in the

stomach. Id. at 1202–03. In contrast, Dai was forcibly pushed

to the ground twice, repeatedly punched in the stomach while

handcuffed, jailed for ten days, fed very little food and water,

deprived of sleep through interrogation, and denied medical

care. An applicant may establish persecution through physical

abuse even if he does not seek medical treatment, see Lopez

v. Ashcroft, 366 F.3d 799, 803 (9th Cir. 2004), but Dai did

seek and receive such treatment for an injured shoulder and

broken ribs.

In addition to the physical harm he suffered, Dai lost his

job as a result of this occurrence. Such economic harm can

contribute to a finding of persecution. See Vitug v. Holder,

723 F.3d 1056, 1065 (9th Cir. 2013).

For these reasons, the harm Dai suffered rose to—and

indeed, well surpassed—the established level of persecution.

DAI V. SESSIONS 21

The record therefore compels the conclusion that Dai’s

testimony sets forth sufficient specific facts to constitute past

persecution.

C. Persuasiveness

The BIA did not make an adverse credibility finding, but

instead found that Dai had failed to “meet[] his burden of

proving his asylum claim.” As we have explained, see pages

13–14, supra, an applicant’s testimony carries the burden of

proof if it is credible, persuasive, and sufficient. Two of those

requirements have been satisfied: we must treat Dai’s

testimony as credible and his testimony clearly set out

sufficient facts to establish past persecution. We therefore

treat the BIA’s general statement about Dai’s burden of proof

as relating to the only remaining requirement for testimony to

carry that burden: persuasiveness. However, taking into

account the record as a whole, nothing undermines the

persuasiveness of Dai’s credible testimony—that is, the

BIA’s determination that Dai’s testimony was unpersuasive

is not supported by substantial evidence.

In evaluating persuasiveness the BIA is required to

“weigh the credible testimony along with other evidence of

record.” 8 U.S.C. § 1158(b)(1)(B)(ii). The BIA found that

Dai’s testimony was not persuasive for two reasons. First, the

record revealed that Dai’s wife Qin and their daughter had

traveled to the United States with Dai, and then voluntarily

returned to China. Second, Dai initially tried to conceal this

fact from the asylum interviewer until he was confronted with

it. According to the BIA, “[t]he respondent’s family

voluntarily returning and his not being truthful about it is

detrimental to his claim and is significant to his burden of

proof.” The IJ identified a third reason for not finding Dai’s

22 DAI V. SESSIONS

testimony persuasive: the fact that when asked for “the real

story about you and your family’s travel to the U.S.,” Dai

responded, “I wanted a good environment for my child. My

wife had a job and I didn’t, and that is why I stayed here. My

wife and child go home first.” However, none of these

reasons supports the BIA’s conclusion that Dai’s testimony

was not persuasive in light of the record as a whole.

We have held that a noncitizen’s “history of willingly

returning to his or her home country militates against a

finding of past persecution or a well-founded fear of future

persecution.” Loho v. Mukasey, 531 F.3d 1016, 1017–18 (9th

Cir. 2008). The BIA relied heavily on Loho to justify its

decision. However, unlike in Loho, Dai never returned to

China—only his wife and daughter did.

We have also recognized that a family member’s

voluntary return—or demonstrated ability to remain in the

country without further injury—can be relevant in certain

narrow circumstances: when the applicant’s “fear of future

persecution rests solely upon threats received by his family,”

Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010)

(emphasis added), or when the family member and the

applicant are “similarly situated,” Sinha v. Holder, 564 F.3d

1015, 1022 (9th Cir. 2009).

The IJ found that “the fundamental thrust of [Dai’s] claim

is that his wife was forced to have an abortion,” and Qin

“therefore clearly has an equal, or stronger, claim to asylum

than [Dai] himself.” The IJ also found that Qin was “the

primary object of the persecution in China.” The BIA adopted

this reasoning. However, the findings are contrary to the

reasoning of our case law.

DAI V. SESSIONS 23

It is true that Dai and Qin’s persecution arose out of the

same general event, but that is not the test that Tamang and

Sinha establish. Dai’s fear of persecution does not “rest

solely” on Qin’s treatment, and Dai and Qin are not

“similarly situated.” As the harms suffered by Dai and Qin in

the past are qualitatively different and give rise to different

fears about future persecution, we need not decide who has

the “stronger” claim. Neither the statutes nor our case law

endorses the IJ and BIA’s approach of ranking distinct harms.

To the contrary, Dai’s claim is independently established by

statute and is not dependent on any comparison with Qin’s.11

Qin’s hypothetical asylum claim arises out of the invasive

medical procedure imposed on her against her will—she was

“forced to abort a pregnancy [and] to undergo involuntary

sterilization.” 8 U.S.C. § 1101(a)(42). We certainly agree

with the BIA and the government that interference with a

person’s reproductive freedom is a severe form of persecution

and in no way do we suggest that Qin would not have a strong

case for asylum had she applied for it.

Dai, however, was “persecuted . . . for [ ] resistance to a

coercive population control program.” Id. He was subjected

to beatings, prolonged detention, and deprivation of food and

sleep—none of which was experienced by Qin. After the

incident, Dai was fired from his job while Qin was only

demoted. In addition, Qin had already been subjected to the

involuntary insertion of an IUD, whereas Dai fears future

involuntary sterilization. Since Qin returned to China she has

11

“For purposes of determinations under this chapter, a person . . .

who has been persecuted for . . . resistance to a coercive population

control program, shall be deemed to have been persecuted on account of

political opinion.” 8 U.S.C. § 1101(a)(42).

24 DAI V. SESSIONS

apparently not faced further persecution, but the police have

come looking for Dai several times. Dai and Qin’s past

experiences, as well as their fears about the future, are

therefore not so similar as to support the BIA’s finding that

Qin’s voluntary return to China undermines Dai’s claim for

asylum.

Moreover, Dai’s and Qin’s respective decisions make

sense in context. Qin still had a job in China, and their

daughter had a place in school—albeit not in as good a school

as she deserved. In this context, it was entirely reasonable to

think that the family would be best off if Qin returned to

China to keep her job while Dai attempted to establish

himself in the United States—hoping that, once he did so, his

family would be able to join him. The BIA improperly

substituted its own view of what the members of the family

should have done for Dai and Qin’s own reasoned judgment

in a manner that is not supported by substantial evidence in

the record.

The BIA’s second reason for finding Dai’s testimony

unpersuasive fares no better. The BIA held that even in the

absence of an adverse credibility finding, Dai “not being

truthful” about his family’s travel to the United States and

voluntary return to China “is detrimental to his claim and is

significant to his burden of proof.”

The BIA’s framing of the issue suggests that it is relevant

because it casts doubt on Dai’s credibility. However, the

exercise in which we engage when evaluating persuasiveness

requires that in this case we treat Dai’s testimony before the

IJ as credible. Other evidence is relevant only to the extent

that it affects the persuasiveness of the applicant’s testimony

for reasons other than challenging his credibility. Otherwise,

DAI V. SESSIONS 25

the statutory command to “weigh the credible testimony

along with other evidence of record,” 8 U.S.C.

§ 1158(b)(1)(B)(ii) (emphasis added), would not make sense.

Once credibility is decided—here, as we have explained, by

the failure of the IJ or the BIA to make an adverse credibility

finding—the issue is settled. Credibility concerns that do not

justify an adverse credibility finding cannot be smuggled into

the persuasiveness inquiry so as to undermine the finding of

credibility we are required to afford Dai’s testimony.12

Indeed, despite pointing out that Dai was “not [ ] truthful”

about a tangential point, the BIA never questioned the facts

regarding Dai’s persecution in China.

Neither the IJ nor the BIA explained how Dai’s

concealment of his family’s travel to the United States and

return to China was relevant in any way other than to

undermine Dai’s credibility. The government likewise offered

no such explanation before this court, and in any event we

independently discern no relevance beyond Dai’s credibility.

Therefore, neither the family’s return nor Dai’s alleged

concealment of that fact can support the BIA’s finding that

Dai’s credible testimony was unpersuasive.

Finally, contrary to the portion of the IJ’s opinion not

mentioned by the BIA, Dai’s statement that “My wife had a

job and I didn’t, and that is why I stayed here,” does not

12

According to the dissent, “there is barely a dime’s worth of

substantive difference between ‘credible’ and ‘persuasive.’” Dissent at 45.

This assertion is flatly contradicted by the text of the REAL ID Act, which

requires that testimony be both “credible” and “persuasive.” 8 U.S.C.

§ 1158(b)(1)(B)(ii). “It is a well-established rule of statutory construction

that courts should not interpret statutes in a way that renders a provision

superfluous.” Chubb Custom Ins. Co. v. Space Systems/Loral, Inc.,

710 F.3d 946, 966 (9th Cir. 2013).

26 DAI V. SESSIONS

render his testimony about his past persecution unpersuasive.

A valid asylum claim is not undermined by the fact that the

applicant had additional reasons (beyond escaping

persecution) for coming to or remaining in the United States,

including seeking economic opportunity. See Li, 559 F.3d at

1105 (reversing an adverse credibility determination that was

based on an applicant’s testimony that economic opportunity

was an additional reason for coming to the United States).

That is especially true when, as in this case, the loss of

economic opportunity in the home country is part of the

overall persecution. Dai testified about his reasons for coming

to the United States: “I was persecuted in China . . . . I was

arrested. I was beaten[]. I lost my job. . . . I want to come here

[ ] and have my very basic human rights.” Although Dai

acknowledged that he had additional reasons for coming to

the United States, he never recanted or contradicted his

assertion that he feared persecution if he returned to China,

which is the only subjective requirement for an asylum claim.

***

The BIA did not enter an adverse credibility finding, so

we are required to treat Dai’s testimony as credible. The

record compels the conclusion that he testified to sufficient

facts to demonstrate his eligibility for asylum: he was

subjected to harm rising to the level of persecution, that

persecution was on account of a protected ground, and the

persecution was committed by the government. Nothing in

the BIA’s burden of proof analysis raises questions about

whether Dai established either of those elements. Treating

that analysis instead as going to the question of

persuasiveness, the BIA’s concerns are either unsupported by

our case law or serve only as attempts to impermissibly

undermine the credibility determination. The record therefore

DAI V. SESSIONS 27

compels the conclusion that Dai’s testimony satisfies his

burden of proof because it meets the three requirements of the

statute: it is credible, persuasive, and sets forth sufficient

facts. 8 U.S.C. § 1158(b)(1)(B)(ii).

Because Dai has established that he suffered past

persecution, he is entitled to a presumption of a well-founded

fear of future persecution. During the administrative

proceedings, DHS

made no arguments concerning changed

country conditions to the IJ or the BIA, and

presented no documentary evidence for that

purpose. “In these circumstances, to provide

[DHS] with another opportunity to present

evidence of changed country conditions, when

it twice had the chance but failed to do so,

would be exceptionally unfair.”

Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir. 2004) (quoting

Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11 (9th Cir.

2004)); see also Quan v. Gonzales, 428 F.3d 883, 889 (9th

Cir. 2005). “In this situation, we are not required to remand

for a determination of whether [Dai] is eligible for asylum.

We hold that he is eligible for asylum. Because the decision

to grant asylum is discretionary, however, we remand for a

determination of whether [Dai] should be granted asylum.”

Ndom, 384 F.3d at 756 (citations omitted).

II. Withholding of Removal

Withholding of removal is governed by the same

standards as asylum for demonstrating credibility,

sufficiency, and persuasiveness. Compare 8 U.S.C.

28 DAI V. SESSIONS

§ 1158(b)(1)(B)(ii), (iii), with § 1229a(c)(4)(B), (C). The

primary difference is that, in order to be eligible for

withholding, Dai must demonstrate that “it is more likely than

not that he would be subjected to persecution” based on a

protected ground if removed to China, a higher standard than

the well-founded fear required for asylum. Zhang v. Ashcroft,

388 F.3d 713, 718 (9th Cir. 2004) (quotation marks omitted).

However, as with asylum, past persecution gives rise to a

presumption of a sufficient likelihood of future persecution.

Mutuku v. Holder, 600 F.3d 1210, 1213 (9th Cir. 2010);

Tamang, 598 F.3d at 1091; Mousa v. Mukasey, 530 F.3d

1025, 1030 (9th Cir. 2008); Hanna v. Keisler, 506 F.3d 933,

940 (9th Cir. 2007); 8 C.F.R. § 1208.16(b)(1)(i).

The record compels the conclusion that Dai has

established past persecution for his withholding claim for the

same reasons as for his asylum claim. The government

presented no evidence of changed country conditions, nor did

it argue that the resulting presumption has been rebutted or

that Dai is barred from withholding of removal for any

reason. We therefore remand with instructions to grant Dai

withholding of removal. See Ndom, 384 F.3d at 756.13

CONCLUSION

The dissent is correct that our “role in an immigration

case is typically one of review, not of first view.” Gonzales

v. Thomas, 547 U.S. 183, 185 (2006) (quotation marks

omitted). It is the dissent, however, that violates this cardinal

rule. We do not doubt that our dissenting colleague could

have written a more persuasive opinion on behalf of the BIA

13

Dai does not challenge the BIA’s denial of CAT relief here, so we

do not consider it.

DAI V. SESSIONS 29

denying relief to Dai, but that is not the role of this court. We

are limited to reviewing the reasoning actually advanced by

the agency and we cannot substitute our own rationales for

those it relied on. Here, neither the IJ nor the BIA made an

adverse credibility finding, no matter how much the dissent

wishes that they had.14

Dai’s petition for review is GRANTED and this case is

REMANDED to the BIA for the exercise of its statutory

discretion and to grant withholding of removal.

14

With all respect, Judge Trott’s lengthy laments regarding the need

for the IJ and the BIA to state explicitly that they find a petitioner’s

testimony not credible are wholly unwarranted. Such has been the law for

at least two decades. It is not difficult for an IJ or the BIA to follow that

rule: the agency need only include a few words in its decision. When it

fails to do so, we can only assume that the failure is deliberate. In any

event, the agency’s failure in a particular case to make a required finding

would hardly warrant Judge Trott’s extraordinary discourse regarding our

circuit’s immigration law in general. In short, the problem which so

greatly disturbs Judge Trott is of little moment. At most, he has shown that

on occasion the agency has failed to do its job properly. If he’s right, then

surely it will do better in the future.

30 DAI V. SESSIONS

TROTT, Circuit Judge, dissenting:

The significance of my colleagues’ opinion is not that it

remands this case to the Bureau of Immigration Appeals

(“BIA”) with orders favorable to Ming Dai. In the abstract,

this result would be unremarkable. However, the serious

legal consequences of their opinion as a circuit precedent are

that it (1) demolishes both the purpose and the substance of

the REAL ID Act of 2005 (“Act”)1 , (2) disregards the

appropriate standard of review, and (3) perpetuates our

idiosyncratic approach to an Immigration Judge’s (“IJ”)

determination that the testimony of an asylum seeker lacks

sufficient credibility or persuasiveness to prove his case. The

majority’s opinion accomplishes these untoward results by

contaminating the issue before us with irrelevancies, the most

pernicious of which is a meritless irrebuttable presumption of

credibility. The sole issue should be whether Dai’s unedited

presentation compels the conclusion that he carried his burden

of proving he is a refugee and thus eligible for a discretionary

grant of asylum. Only if we can conclude that no reasonable

factfinder could fail to find his evidence conclusive can we

grant his petition.

The IJ’s decision not to make an explicit adverse

credibility finding is a classic red herring that throws our

analysis off the scent and preordains a result that is

incompatible with the evidentiary record. By omitting from

their opinion the IJ’s fact-based explanation of his decision,

the majority elides and obscures eight material findings of

fact the IJ did make, each of which is entitled to substantial

deference. The majority’s artificial assertion that “there is no

finding to which we can defer” is false. For this reason, I

1

Pub. L. No. 109-13, 119 Stat. 231.

DAI V. SESSIONS 31

quote in full the IJ’s findings and conclusions about the

persuasiveness of Dai’s presentation in Part IV of my dissent.

The eight findings are as follows.

First, the IJ specifically found that the information

reported by the asylum officer about his conversation with

Dai was accurate. The IJ said,

As to the contents of [the asylum officer’s

notes], I give the notes full weight, insofar as

the respondent has confirmed the contents of

the questions and answers given during the

course of that interview. Furthermore, I note

that in the sections in which the respondent

equivocated, stating that he was nervous and

not sure that he gave those precise answers, I

nevertheless give the Asylum Officer’s notes

some substantial weight, in that they are

consistent with the respondent’s testimony in

court.

Accordingly, the IJ accepted as a fact that Dai admitted

that he did not disclose the consequential truth about his

wife’s and daughter’s travels because he was nervous about

how this would be perceived by the asylum officer in

connection with his claim.

Second, the IJ accepted Dai’s admission as a fact that he

concealed the truth because he was afraid of giving straight

answers regarding his wife’s and daughter’s trip to the United

States.

Third, the IJ determined that Dai had deliberately omitted

highly relevant information from his Form I-589 application

32 DAI V. SESSIONS

for asylum, information that he also tried to conceal from the

asylum officer.

Fourth, the IJ found that Dai’s omission of his

information “is consistent with his lack of forthrightness

before the asylum office[r] as to his wife and daughter’s

travel with him. . . .”

Fifth, the IJ credited Dai’s admission that when asked by

the asylum officer to “tell the real story” about his family’s

travels, Dai said he “wanted a good environment for his child,

and his wife had a job, but he did not, and that is why he

stayed here [after his wife and daughter went back to China].

Sixth, the IJ found that Dai admitted he stayed here after

they returned “because he was in a bad mood and he wanted

to get a job and ‘a friend of mine is here.’”

Seventh, the IJ said “I do not find that [Dai’s]

explanations for [his wife’s] return to China while he

remained here are adequate.” (Emphasis added).

Finally, the IJ also credited Dai’s concessions that his

wife and daughter returned to China because “his daughter’s

education would be cheaper in China,” and that “his wife

wanted to go to take care of her father.”

When Dai’s subterfuge got to the BIA, the BIA said in its

decision that “the record reflects that [Dai] failed to disclose

to both the asylum officer and the IJ” the true facts about his

family’s travels. The BIA noted that Dai had conceded he

was not forthcoming about this material information because

he believed that the truth about their travels “would be

DAI V. SESSIONS 33

perceived as inconsistent with his claims of past and feared

persecution.”

The IJ’s specific factual findings in connection with Dai’s

failure to satisfy his burden of proof were not the product of

inferences drawn from circumstantial evidence. These

findings were directly based upon revealing answers Dai

admitted he gave to the asylum officer during his interview.

These facts are beyond debate, and they undercut Dai’s case.

To quote the BIA, these facts were “detrimental to his claim”

and “significant to his burden of proof.” Nevertheless, the

majority cavalierly brushes them aside, claiming that an

immaterial presumption of credibility overrides all of them.

In this connection, I note a peculiarity in the majority’s

approach to Dai’s case: Nowhere does Dai assert that he is

entitled to a conclusive presumption of credibility. His brief

does not contain any mention of the presumption argument

the majority conjures up on his behalf. The closest Dai

comes to invoking the majority’s inapt postulate is with a

statement that we “should” treat as credible his testimony

regarding persecution in China. He does not take issue with

the IJ’s foundational adverse factual findings, choosing

instead to argue that they were not sufficient in the light of

the record as a whole to support the IJ’s ultimate

determination.

For example, Dai acknowledges in his brief that the “IJ’s

or BIA’s factual findings are reviewed for substantial

evidence” and that the “REAL ID Act’s new standards

governing adverse credibility determinations applies to

applications for asylum, withholding of removal, and CAT

relief made on or after May 11, 2005.” Blue Br. 10

(emphasis added) (quotation marks omitted). Next, he notes

34 DAI V. SESSIONS

that “an IJ cannot selectively examine evidence in

determining credibility, but rather must present a reasoned

analysis of the evidence as a whole and cite specific instances

in the record that form the basis of the adverse credibility

finding.” Id. (emphasis added) (quotation marks omitted).

Moreover, Dai notes that “[t]o support an adverse credibility

determination, inconsistencies must be considered in light of

the totality of the circumstances, and all relevant factors”

adding that “trivial inconsistencies . . . should not form the

basis of an adverse credibility determination.” Id. at 10–11

(emphasis added) (quotation marks omitted). He contends

that he “has provided adequate explanation” for his

inconsistencies, i.e., the failure to disclose his family’s

travels. Id. at 14. Finally, after attempting to pick apart the

IJ’s adverse findings, Dai’s bottom line is that “his wife’s

departure from the United States does not adversely affect his

credibility at all,” an assertion that ignores his failed coverup

of it. See id. at 16.

In summary, the majority choose to ignore a material part

of the evidentiary record even though Dai implores us to

“examine it as a whole,” as he did in his brief to the BIA. Dai

accepts that the viability of his entire presentation is on the

line, but the majority ignores his concession. In this

connection, the Attorney General has responded only to the

claims and arguments Dai included in his brief. The Attorney

General has not been given an opportunity to respond to the

majority’s inventive analysis, nor to the theory concocted by

the majority on Dai’s behalf. Both sides will be surprised by

my colleagues’ artful opinion—Dai pleasantly, the Attorney

General not so much.

DAI V. SESSIONS 35

I will have more to say in Part V about our Circuit’s

misinformed treatment of the role, responsibility, and product

of an asylum officer.

For these reasons, I respectfully dissent.

I

Backdrop

Over the years, our Circuit has manufactured a plethora

of misguided rules regarding the credibility of political

asylum seekers. I begin with this issue because the

majority’s mishandling of it infects the remainder of their

opinion with error. These result-oriented ad hoc hurdles for

the government stem from humanitarian intentions, but our

court has pursued these intentions with untenable methods

that violate the institutional differences between a reviewing

appellate court, on one hand, and a trial court on the other,

usurping the role of the Department of Homeland Security

(“DHS”) and the BIA in the process. Referring to our

approach to witness credibility as an “idiosyncratic analytical

framework,” a previous panel of our court described this

inappropriate situation as follows:

The Supreme Court has repeatedly instructed

us on the proper standard to apply when

reviewing an immigration judge’s adverse

credibility determination. Time and again,

however, we have promulgated rules that tend

to obscure that clear standard and to flummox

immigration judges, who must contort what

should be a simple factual finding to satisfy

our often irreconcilable precedents. The

36 DAI V. SESSIONS

result of this sly insubordination is that a

panel that takes Congress at its word and

accepts that findings of fact are “conclusive

unless any reasonable adjudicator would be

compelled to conclude the contrary,” . . . or

follows the Supreme Court’s admonition that

“[t]o reverse the BIA finding we must find

that the evidence not only supports that

conclusion, but compels it,” . . . runs a serious

risk of flouting one of our eclectic, and

sometimes contradictory, opinions.

Jibril v. Gonzales, 423 F.3d 1129, 1138 (9th Cir. 2005)

(alteration in original) (citations omitted).

Many of our Circuit’s contrived rules on this subject and

my colleagues’ decision are irreconcilable with the structural

principle set forth in Federal Rule of Civil Procedure 52(a)(6)

that “[f]indings of fact, whether based on oral or other

evidence, must not be set aside unless clearly erroneous, and

the reviewing court must give due regard to the trial court’s

opportunity to judge the witnesses’ credibility.” Accordingly,

we are expected to apply a highly deferential standard to a

trial court’s determination regarding the credibility of a

witness. Anderson v. City of Bessemer City, 470 U.S. 564,

573–76 (1985). In discussing this rule, the Supreme Court

said that “[w]hen findings are based on determinations

regarding the credibility of witnesses, Rule 52(a) demands

even greater deference to the trial court’s findings; for only

the trial judge can be aware of the variations in demeanor and

tone of voice that bear so heavily on the listener’s

understanding of and belief in what is said.” Id. at 575. The

Court added that the applicable “clearly erroneous” standard

of review “plainly does not entitle a reviewing court to

DAI V. SESSIONS 37

reverse the finding of a trier of fact simply because it is

convinced that it would have decided the case differently.

The reviewing court oversteps the bounds of its duty under

Rule 52(a) if it undertakes to duplicate the role of the lower

court.” Id. at 573 (emphasis added).

The Supreme Court sharpened this point about our limited

role in Gonzales v. Thomas, 547 U.S. 183 (2006) (per

curiam), vacating 409 F.3d 1177 (9th Cir. 2005) (en banc).

In summarily vacating our obdurate en banc opinion, the

Court held that we had exceeded our authority and made a

determination that belonged to the BIA. 547 U.S. at 185–86.

The Court agreed with the Solicitor General that “a court’s

role in an immigration case is typically one of review, not of

first view.” Id. at 185 (emphasis added) (quotation marks

omitted). To support its conclusion, the Court cited INS v.

Orlando Ventura, 537 U.S. 12 (2002): a “‘judicial judgment

cannot be made to do service for an administrative

judgment.’” 547 U.S. at 186 (quoting Ventura, 537 U.S. at

16). More about Ventura later.

The majority’s opinion’s use of an incongruous

irrebuttable presumption of credibility to erase the IJ’s

findings of fact and the BIA’s decision and thus to make us

a court of “first view” is another example of our continuing

intransigence. If, as they say, we are bound by precedent to

do it their way, then its time to change our precedent.

38 DAI V. SESSIONS

II

A False Premise

A.

The majority opinion’s assertion that “we must treat

[Dai’s] testimony as credible” rests on a fallacious premise.

Judge Reinhardt writes, “Properly understood, the rebuttable

presumption provision of the REAL ID Act applies only to

appeals to the BIA, not to petitions for review in our court.”

From this defective premise, he concludes that we must

ignore the IJ’s detailed analysis and findings of fact about

Dai’s presentation. When it comes to our task of reviewing

the credibility of witnesses in a trial court or whether a

witness’ testimony suffices to carry his burden of proof,

however, there is no material difference between an appeal

and a petition for review, none. Federal Rule of Civil

Procedure 52(a) makes no such distinction. As Anderson

said, Rule 52(a) applies to a “reviewing court,” which is what

we are in this capacity. 470 U.S. at 573–74 (emphasis

added); see Thomas, 547 U.S. at 185. Neither the Court nor

Rule 52(a) differentiate between appeals and petitions for

review. Nor would such a distinction make any sense. As

Anderson and Thomas illustrate, the issue is one of function,

not of form or labels. The Act’s use of the word “appeal”

does not dictate how we must go about our process of review.

Using the standards provided by Congress, we are not in a

position to weigh a witness’s credibility or persuasiveness.

Federal Rule of Appellate Procedure 20, “Applicability of

Rules to the Review or Enforcement of an Agency Order,”

illustrates the soundness of treating appeals and petitions for

review with a uniform approach. Rule 20 reads, “All

DAI V. SESSIONS 39

provisions of these rules . . . apply to the review or

enforcement of an agency order. In these rules, ‘appellant’

includes a petitioner or applicant, and ‘appellee’ includes a

respondent.”

Moreover, and directly to the point, the Act itself does not

require an IJ to make a specific credibility finding in those

precise terms. As the BIA correctly said with respect to the

Act, “[c]ontrary to the respondent’s argument on appeal, the

Immigration Judge need not have made an explicit adverse

credibility finding to nevertheless determine that the

respondent did not meet his burden of proving his asylum

claim.” See discussion infra Section VI. If the IJ does not

make such an explicit finding, all the respondent is entitled

to is a “rebuttable presumption of credibility on appeal.”

8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). By

attempting to restrict this language to an appeal to the BIA,

the majority opinion conveniently frees itself to apply derelict

Ninth Circuit precedent to Dai’s testimony and automatically

to deem it credible.2

Over and over the majority incant an inappropriate and

counterintuitive rule that in the absence of a formal adverse

credibility finding, “we are required [blindly] to treat the

petitioner’s testimony as credibility.” The practical effect of

the majority’s rule is breathtaking: The lack of a formal

adverse credibility finding becomes a selective positive

credibility finding and dooms a fact-based determination by

an IJ and the BIA that an applicant’s case is not sufficiently

2

The majority cites She v. Holder, 629 F.3d 958, 964 & n.5 (9th Cir.

2010) in support of this ipse dixit claim. However, She’s footnote 5 says

that because the “rebuttable presumption” provision does not apply

retroactively, it had no applicability in She’s case.

40 DAI V. SESSIONS

persuasive to carry his burden of proof. The majority’s

bizarre cherry-picking approach violates all the rules that

control our review of a witness’s testimony before a

factfinder.

B.

But even if we were to assume for the sake of argument

that the Act’s rebuttable presumption applies only to the BIA,

by what logic, reason, or principle does it follow that we as a

reviewing court are free to clothe an applicant’s testimony

with a protective presumption of credibility? Are we free to

turn a blind eye to conspicuous problems with his testimony

identified by an IJ? By the BIA? Free to brush off Rule

52(a) and the Supreme Court’s explanation of what the Rule

requires?

A conclusive presumption of credibility has no valid place

in our task of reviewing the persuasiveness of a witness’s

testimony. Such an artifice vacuously eliminates relevant

factual evidence from consideration and violates Rule

52(a)(6). The deployment of a conclusive presumption

becomes a misguided way not only of putting a heavy thumb

on one tray of the traditional scales of justice, but also of

removing relevant evidence from the other. This approach

allows us to evade our responsibilities to examine and to

evaluate the entire record before an IJ, permitting us instead

to disregard facts that would otherwise discredit our final

determination.

Judge Reinhardt’s opinion writes the REAL ID Act and

its reference to a rebuttable presumption of credibility out of

existence. However, Congress specifically intended the Act

to govern us, the Ninth Circuit Court of Appeals, as

DAI V. SESSIONS 41

demonstrated in Section III of this dissent. The evidentiary

record in this case devours any such presumption.

Judge Reinhardt’s claim that a petition for review is “a

new action against the United States” is irrelevant. No matter

what he calls it, we are reviewing a decision made by an

administrative agency involving the persuasiveness of his

case.

III

The REAL ID Act

Congress enacted the REAL ID Act of 2005 because of

our Circuit’s outlier precedents on this issue and our

intransigent refusal to follow the rules. The House

Conference Committee Report (“House Report”)3 explained

that “the creation of a uniform standard for credibility is

needed to address a conflict . . . between the Ninth Circuit on

one hand and other circuits and the BIA.” H.R. Rep. No.

109-72 at 167. The House Report also said that the Act

“resolves conflicts between administrative and judicial

tribunals with respect to standards to be followed in assessing

asylum claims.” Id. at 162. Nevertheless, my colleagues

hold that a key part of the Act does not apply to us, only to

the BIA.

As the Act pertains to this case, it established a number of

key principles, all of which the majority fails to follow,

perpetuating the conflicts Congress attempted to resolve.

3

H.R. Rep. No. 109-72 (2005) (Conf. Rep.), reprinted in 2005

U.S.C.C.A.N. 240.

42 DAI V. SESSIONS

First, “[t]he burden of proof is on the applicant to

establish that the applicant is a refugee . . . .”4

Second, “[t]he testimony of the applicant may be

sufficient to sustain the applicant’s burden without

corroboration, but only if the applicant satisfies the trier of

fact that the applicant’s testimony is credible, is persuasive,

and refers to specific facts sufficient to demonstrate that the

applicant is a refugee.”5

Third,

Considering the totality of the circumstances,

and all relevant factors, a trier of fact may

base a credibility determination on the

demeanor, candor, or responsiveness of the

applicant or witness, the inherent plausibility

of the applicant’s or witness’s account, the

consistency between the applicant’s or

witness’s written and oral statements

(whenever made and whether or not under

oath, and considering the circumstances under

which the statements were made), the internal

consistency of each such statement, the

consistency of such statements with other

evidence of record (including the reports of

the Department of State on country

conditions), and any inaccuracies or

falsehoods in such statements, without regard

to whether an inconsistency, inaccuracy, or

4

8 U.S.C. § 1158(b)(1)(B)(i).

5

8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added).

DAI V. SESSIONS 43

falsehood goes to the heart of the applicant’s

claim, or any other relevant factor. There is

no presumption of credibility, however, if no

adverse credibility determination is explicitly

made, the applicant or witness shall have a

rebuttable presumption of credibility on

appeal.6

We have attempted in a number of panel opinions after

the Act to calibrate our approach to applicant credibility and

persuasiveness issues, but as the majority opinion illustrates,

“old ways die hard.” Huang v. Holder, 744 F.3d 1149 (9th

Cir. 2014) captures where we should be on this issue:

[W]e have concluded that “the REAL ID Act

requires a healthy measure of deference to

agency credibility determinations.” This

deference “makes sense because IJs are in the

best position to assess demeanor and other

credibility cues that we cannot readily access

on review.” “[A]n immigration judge alone is

in a position to observe an alien’s tone and

demeanor, to explore inconsistencies in

testimony, and to apply workable and

consistent standards in the evaluation of

testimonial evidence.” By virtue of their

expertise, IJs are “uniquely qualified to decide

whether an alien’s testimony has about it the

ring of truth.”

The need for deference is particularly strong

in the context of demeanor assessments. Such

6

8 U.S.C. § 1158(b)(1)(B)(iii).

44 DAI V. SESSIONS

determinations will often be based on non-

verbal cues, and “[f]ew, if any, of these

ephemeral indicia of credibility can be

conveyed by a paper record of the

proceedings and it would be extraordinary for

a reviewing court to substitute its second-hand

impression of the petitioner’s demeanor,

candor, or responsiveness for that of the IJ.”

Indeed, even before the enactment of the

REAL ID Act, we recognized the need to give

“special deference to a credibility

determination that is based on demeanor,”

because the important elements of a witness’s

demeanor that “may convince the observing

trial judge that the witness is testifying

truthfully or falsely” are “entirely unavailable

to a reader of the transcript, such as the Board

or the Court of Appeals.” The same

principles underlie the deference we accord to

the credibility determinations of juries and

trial judges.

Id. at 1153–54 (alterations in original) (citations omitted).

This “healthy measure of deference” should also apply to the

agency’s determination with respect to whether an applicant

has satisfied the agency’s “trier of fact”—not us—that his

evidence is persuasive, an issue that is in the wheelhouse of

a jury or a judge or an IJ hearing a case as a factfinder.

DAI V. SESSIONS 45

IV

The IJ’s Decision

The IJ in this case concluded that Ming Dai had not

satisfied his statutory burden of establishing that he is a

refugee pursuant to § 1158(b)(1)(B)(i). The IJ gave as his

“principle area of concern” Dai’s implausible unpersuasive

testimony, another way of saying it wasn’t credible. As Dai’s

brief correctly demonstrates, there is barely a dime’s worth of

substantive difference between “credible” and “persuasive.”

Here is how the IJ explained his decision in terms of

§ 1158(b)(1)(B)(i) and (ii):

I have carefully considered the respondent’s

testimony and evidence and for the following

reasons, I find that the respondent has failed

to meet his burden of proving eligibility for

asylum.

The principal area of concern with regard to

the respondent’s testimony arose during the

course of his cross-examination. On cross-

examination, the respondent was asked about

various aspects of his interview with an

Asylum Officer. The Department of

Homeland Security also submitted the notes

of that interview as Exhibit 5. The respondent

was asked specific questions regarding several

aspects of his testimony before the Asylum

Officer. In the course of cross-examination,

the respondent was asked regarding his

questions and answers as to whether his wife

and daughter travelled with him to the United

46 DAI V. SESSIONS

States. The respondent’s responses included

the question of whether the asylum officer had

asked him if his wife and daughter travelled

anywhere other than to Taiwan and Hong

Kong. The respondent conceded that he was

asked this question and that he replied yes,

they had travelled to Taiwan and Hong Kong.

The respondent was asked whether the

Asylum Officer inquired whether his wife and

daughter had travelled elsewhere. The

respondent then testified before the Court that

he was asked this question, “but I was

nervous.” In this regard, I note that the

respondent did not directly answer the

question; instead leapt directly to an

explanation for what his answer may have

been, namely that he was nervous. The

respondent was then asked specifically

whether the Asylum Officer asked him if his

wife had travelled to Australia in 2007. The

respondent confirmed that he had been asked

this question, and he confirmed that the

answer was in the affirmative. The

respondent also confirmed that the Asylum

Officer had asked him whether she had

travelled anywhere else. He confirmed that he

had been so asked. The respondent was then

asked whether he answered “no,” that she had

not travelled anywhere else. The respondent

answered that he believed so, that he had so

answered. The respondent was then asked,

during the course of cross-examination, why

he had not said to the Asylum Officer that yes,

she had travelled to the United States. The

DAI V. SESSIONS 47

respondent replied that he had not thought of

it. He stated that they did come with him

(meaning his wife and daughter) and that he

thought the Asylum Officer was asking him if

they had travelled anywhere other than the

United States. He explained that he did so

because he assumed the U.S. Government had

the records of their travel to the United States.

On further questioning, the respondent

eventually hesitated at some length when

asked to further explain why he did not

disclose spontaneously to the Asylum Officer

that his wife and daughter had come with him.

The respondent paused at some length and I

observed that the respondent appeared

nervous and at a loss for words. However,

after a fairly lengthy pause, the respondent

testified that he is afraid to say that his wife

and daughter came here and why they went

back. The respondent was asked whether he

told the Asylum Officer that he was afraid to

answer directly. The respondent initially

testified that he forgot and did not remember

whether he said that. He again reiterated that

he was very nervous. He was then asked the

question again as to whether he told the

Asylum Officer that he was afraid to answer

why his wife and daughter had gone back. He

then conceded that maybe, yes, he had

answered in that fashion. The respondent was

asked whether the Asylum Officer inquired

why his wife and daughter went back, and the

respondent conceded that he had been so

asked, and he further conceded that he replied

48 DAI V. SESSIONS

because school in the United States cost a lot

of money (referring to the schooling for his

daughter). The respondent was then asked to

confirm that the Asylum Officer eventually

asked him to tell him the real story as to why

his family travelled to the United States and

returned to China. The respondent confirmed

that he was asked this question and when

asked, whether he replied that it was because

he wanted a good environment for his child

and because his wife had a job and he did not

and that that is why he stayed here. He

confirmed that he did, in fact, say that. The

respondent was further asked, during the

course of testimony in court, why his wife and

daughter returned to China. In this regard, the

respondent testified that they came with him,

but returned to China several weeks after

arrival. He testified that they did so because

his father-in-law was elderly and needed

attention, and because his daughter needed to

graduate school in China.

The respondent further claimed that his wife

had, in fact, suffered past persecution in the

form of a forced abortion and the respondent

confirmed that he feared his wife and

daughter would suffer future persecution. In

this regard, the respondent qualified his

answer by saying that his wife was now on an

IUD, apparently thereby suggesting that the

risk of persecution is reduced. However, the

respondent did concede that the risk of future

persecution also pertains to his daughter.

DAI V. SESSIONS 49

Indeed, in this regard, the respondent testified

that this is, at least in part, why he applied for

asylum.

As to the contents of Exhibit 5, I give the notes

full weight, insofar as the respondent has

confirmed the contents of the questions and

answers given during the course of that

interview. Furthermore, I note that in the

sections in which the respondent equivocated,

stating that he was nervous and not sure that

he gave those precise answers, I nevertheless

give the Asylum Officer’s notes some

substantial weight, in that they are consistent

with the respondent’s testimony in court.

Specifically, I note that the Asylum Officer’s

notes state that the respondent ultimately

indicated that he was afraid of giving straight

answers regarding his daughter and wife’s trip

to the United States and return to China. And

while the respondent did not confirm this in

court, he did give a similar answer as to why

he was testifying in this regard. In other

words, the respondent appears to have stated,

both before the Asylum Officer and in court

that he did not spontaneously disclose the

travel of his wife and daughter with him to the

United States and their return because he was

nervous about how this would be perceived by

the Asylum Officer in connection with his

claim. I further note that the Asylum

Officer’s notes are internally consistent with

regard to references to earlier questions, such

as whether the respondent had stated that he

50 DAI V. SESSIONS

applied for a visa with anyone else. At page 2

of the notes contained in Exhibit 5, the

respondent was asked whether he applied for

his visa with anyone else and the notes

indicated that he stated that, “no, I applied by

myself.” Similarly, I note that the testimony

before the Asylum Officer and the Court is

consistent with the omission in the

respondent’s Form I-589 application for

asylum, of an answer to the question of the

date of the previous arrival of his wife, if she

had previously been in the United States. See

Exhibit 2, page 2, part A.II, question 23.

When asked about this omission, the

respondent expressed surprise, stating that he

told the preparer about their trip and indicated

that he thought it had been filled out.

Notwithstanding the respondent’s statement in

this regard, I do observe that the omission is

consistent with his lack of forthrightness

before the asylum office as to his wife and

daughter’s travel with him to the United

States and their subsequent return to China

shortly thereafter.

In sum, the respondent’s testimony before the

Court and his testimony regarding the Asylum

Officer notes, as well as the notes themselves,

clearly indicate that the respondent failed to

spontaneously disclose that his wife and

daughter came with him and then returned to

China. His testimony and the notes also

consistently demonstrate that the respondent

paused at length, both before the Court and

DAI V. SESSIONS 51

before the Asylum Officer, when asked about

this topic. His testimony and the Asylum

Officer notes are also consistent in indicating

that he ultimately testified that he was afraid

to say that his wife came here and was afraid

of being asked about why she went back.

Furthermore, the respondent has conceded

that he was asked to “tell the real story”

about his family’s travel to the United States

by the Asylum Officer, and that he replied that

he wanted a good environment for his child

and his wife had a job, but he did not, and

that is why he stayed here.

In Loho v. Mukasey, 531 F.3d 1016, 1018–19

(9th Cir. 2008), the Ninth Circuit addressed

the situation in which an asylum applicant has

found safety in the United States and then

returns to the country claimed of persecution

before eventually finding asylum in the

United States. The Ninth Circuit held that the

applicant’s voluntary return to the country of

claimed persecution may be considered in

assessing both credibility and whether the

respondent has a well-founded fear of

persecution in that country. Here, while the

respondent himself has not returned to China,

his wife and daughter did. Indeed they did so

shortly after arriving in the United States, and

the respondent confirmed that they did so

because the schooling is cheaper for his

daughter in China, as well as because his

father-in-law is elderly and needed to be cared

for. The respondent also told the Asylum

52 DAI V. SESSIONS

Officer that the “real story” about whey [sic]

his family returned was that his wife had a job

and he did not, and that is why he stayed here.

This is consistent with respondent’s testimony

before the Court that he did not have a job at

the time he came to the United States.

Furthermore, I note that the respondent’s

claim of persecution is founded on the alleged

forced abortion inflicted upon his wife. That

is the central element of his claim. The

respondent claims that he himself was

persecuted through his resistance to that

abortion. Nevertheless, the fact remains that

the fundamental thrust of the respondent’s

claim is that his wife was forced to have an

abortion. In this regard, the respondent’s wife

therefore clearly has an equal, or stronger,

claim to asylum than the respondent himself,

assuming the facts which he claims are true.

The respondent was asked why his wife did

not stay and apply for asylum and he replied

that he did not know they could apply for

asylum at the time they departed. The

respondent was then asked why he stayed here

after they returned; he said because he was in

a bad mood and he wanted to get a job and a

friend of mine is here.

While Loho v. Mukasey applies to the

applicant himself returning to China, I find

that the reasoning of the Ninth Circuit in that

case is fully applicable to the respondent’s

situation in that his wife, who is the primary

object of the persecution in China, freely

DAI V. SESSIONS 53

chose to return to China. I do not find that the

respondent’s explanations for her return to

China while he remained here are adequate.

The respondent has stated that he was in a bad

mood and that he had found a job and had a

friend here. The respondent has also indicated

that his daughter’s education would be

cheaper in China than here, and he has also

indicated that his wife wanted to go to take

care of her father. I do not find that these

reasons are sufficiently substantial so as to

outweigh the concerns raised by his wife and

daughter’s free choice to return to China after

having allegedly fled that country following

his wife’s and his own persecution.

In view of the for[e]going, I find that the

respondent has failed to meet his burden of

proving eligibility for asylum under Section

208(a) of the Act.

(Emphasis added).

To erase any doubts about Dai’s problematic testimony,

the following is an excerpt from it.

MS. HANNETT TO MR. DAI

Q. And isn’t it also true that the

[asylum] officer asked why did

they go back and you replied, so

that my daughter can go to school

and in the U.S., you have to pay a

lot of money?

54 DAI V. SESSIONS

A. Yes, that’s what I said.

Q. Okay. And isn’t it also true that

the officer asked you, can you tell

me the real story about you and

your family’s travel to the U.S.,

and you replied I wanted a good

environment for my child. My

wife had a job and I didn’t, and

that is why I stayed here. My wife

and child go home first.

A. I believe I said that.

* * *

Q. So, once you got to the United

States, why didn’t your wife apply

for asylum?

A. My wife just returned to China.

Q. Right, and my question is why

didn’t she stay here and apply for

asylum?

A. At that time, we didn’t know the

apply, we didn’t know that we can

apply for asylum.

Q. Well, if you didn’t know that you

could apply for asylum, why did

you stay here after they returned?

DAI V. SESSIONS 55

A. Because at that time, I was in a

bad mood and I couldn’t get a job,

so I want to stay here for a bit

longer and another friend of mine

is also here.

The asylum officer’s interview notes discussed by the IJ

(and found to be consistent with Dai’s testimony before the

IJ) read as follows:

Earlier you said your wife has only traveled to

Australia, Taiwan and HK. You also said that

you traveled to the US alone. Government

records indicate that your wife traveled with

you to the United States. Can you explain?

[long pause] the reason is I’m afraid to

say that my wife came here, then why

did she go back.

Your wife went back? Yes

When did she go back to China? February

Why did she go back? Because my child

go to school

Earlier you said you applied for your visa

alone. Our records indicate that your child

also obtained a visa to the US with you. Can

you explain?

[long pause]

56 DAI V. SESSIONS

Daughter came with wife and you in January?

Yes

Can you explain? I’m afraid

Please tell me what you are afraid of. That is

what your interview today is for. To

understand your fears?

I’m afraid you ask why my wife and

daughter go back

Why did they go back?

So that my daughter can go to school

and in the US you have to pay a lot of

money.

Can you tell me the real story about you and

your family’s travel to the US?

I wanted a good environment for my

child. My wife had a job and I didn’t

and that is why I stayed here. My

wife and child go home first.

(Bracketed notations in original).

V

The Role of an Asylum Officer

The majority’s opinion perpetuates another acute error

our Circuit has made in its effort to control the DHS’s

DAI V. SESSIONS 57

administrative process. In footnote 2, the majority say that if

Dai concealed relevant information “it was only from the

asylum officer.” Only from the asylum officer? So Dai’s

admitted concealment under oath of germane information

during a critical part of the evaluation process is of no

moment?

The majority’s demotion of the role of an asylum officer

represents a sub silentio application of another faulty

proposition on the books in our circuit: Singh v. Gonzales,

403 F.3d 1081 (9th Cir. 2005).

Certain features of an asylum interview make

it a potentially unreliable point of comparison

to a petitioner’s testimony for purposes of a

credibility determination. Barahona-Gomez v.

Reno, 236 F.3d 1115 (9th Cir. 2001),

explained the significant procedural

distinctions between the initial quasi-

prosecutorial “informal conferences

conducted by asylum officers” after the filing

of an asylum application, and the “quasi-

judicial functions” exercised by IJs . . . .

Id. at 1087 (emphasis added).

First of all, we may not have in this case a verbatim

transcript of Dai’s testimony, but we have the asylum

officer’s notes, which the IJ explicitly found to be accurate.

Moreover, when appropriately confronted under oath with the

notes, Dai admitted they correctly captured what he said.

Under these circumstances, any concern that the asylum

interview might be a “potentially unreliable point of

comparison” to Dai’s testimony is irrelevant. The record

58 DAI V. SESSIONS

(thanks to Dai himself) eliminates any potential for

unreliability.

Second, the pronouncement in Singh v. Gonzales that an

asylum officer’s interview in an affirmative asylum case is

“quasi-prosecutorial” in nature is flat wrong and reveals our

fundamental misunderstanding of the process.7 An asylum

officer in an affirmative asylum case does not “prosecute”

anyone during the exercise of his responsibilities, and the

process is not “quasi-prosecutorial” in nature. In fact, unlike

a prosecutor, an asylum officer has the primary authority and

discretion to grant asylum to an applicant should the applicant

present a convincing case. The asylum officer’s role is

essentially judicial, not prosecutorial. We miss the mark here

because we see only those cases where an affirmative asylum

applicant did not present a sufficiently credible persuasive

case to an asylum officer to prevail, and we mistakenly

conclude from that unrepresentative sample that asylum

officers tend to decide against such applicants.

The true facts emerge from DHS’s June 20, 2016 report

to Congress, Affirmative Asylum Application Statistics and

Decisions Annual Report, covering “FY 2015 adjudications

of affirmative asylum applications by USCIS [U.S.

Citizenship & Immigration Services] asylum officers for the

7

An affirmative asylum case differs from a defensive asylum case

involving someone already in removal proceedings. See Obtaining

Asylum in the United States, DEP’T OF HOMELAND SEC.,

https://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining

-asylum-united-states (last updated Oct. 19, 2015).

DAI V. SESSIONS 59

stated period.”8 By way of background, the Report points out

that asylum officers have a central determinative role in the

process. Asylum determinations “are made by an asylum

officer after an applicant files an affirmative asylum

application, is interviewed, and clears required security and

background checks.” Id. at 2.

The Report contains statistics about the activity of asylum

officers. According to the FY2015 statistics, asylum officers

completed 40,062 affirmative asylum cases. They approved

15,999 applications for an approval rate of 47% for

interviewed cases. Id. at 3.

USCIS has a Policy Manual. Chapter 1 of Volume 1

establishes its “Guiding Principles.”9 A “Core Principal”

reads as follows:

The performance of agency duties inevitably

means that some customers will be

disappointed if their cases are denied. Good

customer service means that everyone USCIS

affects will be treated with dignity and

courtesy regardless of the outcome of the

decision.

8

2016 DHS Congressional Appropriations Reports,

DEP’T OF HOMELAND SEC., https://www.dhs.gov/publication/2016-dhs-

congressional-appropriations-reports (last published Feb. 12, 2018)

(follow “United States Citizenship and Immigration Services (USCIS) -

Affirmative Asylum Application Statistics & Decisions FY16 Report”

hyperlink).

9

Policy Manual, U.S. CITIZENSHIP & IMMIGRATION SERVS.,

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume1-

PartA-Chapter1.html (Aug. 23, 2017).

60 DAI V. SESSIONS

* * *

USCIS will approach each case objectively

and adjudicate each case in a thorough and

fair manner. USCIS will carefully administer

every aspect of its immigration mission so

that its customers can hold in high regard the

privileges and advantages of U.S.

immigration.

Id.

Finally, we look at the training given to asylum officers

in connection with their interviews of affirmative asylum

applicants. In USCIS’s Adjudicator’s Field Manual, we find

in Appendix 15-2, “Non-Adversarial Interview Techniques,”

the following guidance.10

I. OVERVIEW

An immigration officer will conduct an

interview for each applicant, petitioner or

beneficiary where required by law or

regulation, or if it is determined that such

interviewed [sic] is appropriate. The interview

will be conducted in a non-adversarial

manner, separate and apart from the general

10

Adjudicator’s Field Manual - Redacted Public Version,

U.S. CITIZENSHIP & IMMIGRATION SERVS.,

https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1.html

(follow “Appendices” hyperlink; then follow “15-2 Non-Adversarial

Interview Techniques” hyperlink) (last visited Feb. 15, 2018) (emphasis

added).

DAI V. SESSIONS 61

public. The officer must always keep in mind

his or her responsibility to uphold the integrity

of the adjudication process. As representatives

of the United States Government, officers

must conduct the interview in a professional

manner.

* * *

Due to the potential consequences of incorrect

determinations, it is incumbent upon officers

to conduct organized, focused, and well-

planned, non-adversarial interviews . . . .

* * *

III. NON-ADVERSARIAL NATURE OF

THE INTERVIEW

A. Concept of the Non-adversarial

Interview

A non-adversarial proceeding is one in which

the parties are not in opposition to each other.

This is in contrast to adversarial proceedings,

such as civil and criminal court proceedings,

where two sides oppose each other by

advocating their mutually exclusive positions

before a neutral arbiter until one side prevails

and the other side loses. A removal

proceeding before an immigration judge is an

example of an adversarial proceeding, where

the Service trial attorney is seeking to remove

62 DAI V. SESSIONS

a person from the United States, while the

alien is seeking to remain.

The interview is part of a non-adversarial

proceeding. The principal intent of the Service

is not to oppose the interviewee’s goal of

obtaining a benefit, but to determine whether

he or she qualifies for such benefit. If the

interviewee qualifies for the benefit, it is in

the Service’s interest to accommodate that

goal.

* * *

B. Points to Keep in Mind When

Conducting a Non-adversarial Interview

The officer’s role in the non-adversarial

interview is to ask questions formulated to

elicit and clarify the information needed to

make a determination on the petitioner or

applicant’s request. This questioning must be

done in a professional manner that is non-

threatening and non-accusatory.

1. The officer must:

a. Treat the interviewee with respect. Even

if someone is not eligible for the benefit

sought based on the facts of the claim, the

officer must treat him or her with respect. The

officer may hear similar claims from many

interviewees, but must not show impatience

towards any individual. Even the most non-

DAI V. SESSIONS 63

confrontational officer may begin to feel

annoyance or frustration if he or she believes

that the interviewee is lying; however, it is

important that the officer keep these emotions

from being expressed during the interview.

b. Be non-judgmental and non-moralistic.

Interviewees may have reacted to situations

differently than the officer might have

reacted. The interviewee may have left family

members behind to fend for themselves, or

may be a member of a group or organization

for which the officer has little respect.

Although officers may feel personally

offended by some interviewee’s actions or

beliefs, officers must set their personal

feelings aside in their work, and avoid passing

moral judgments in order to make neutral

determinations.

c. Create an atmosphere in which the

interviewee can freely express his or her

claim. The officer must make an attempt to

put the interviewee at ease at the beginning of

the interview and continue to do so

throughout the interview. If the interviewee is

a survivor of severe trauma (such as a battered

spouse), he or she may feel especially

threatened during the interview. As it is not

always easy to determine who is a survivor,

officers should be sensitive to the fact that

every interviewee is potentially a survivor of

trauma.

64 DAI V. SESSIONS

Treating the interviewee with respect and

being non-judgmental and non-moralistic can

help put him or her at ease. There are a

number of other ways an officer can help put

an interviewee at ease, such as:

• Greet him or her (and others)

pleasantly;

• Introduce himself or herself by

name and explain the officer’s role;

• Explain the process of the

interview to the interviewee so he or

she will know what to expect during

the interview;

• Avoid speech that appears to be

evaluative or that indicates that the

officer thinks he or she knows the

answer to the question;

• Be patient with the interviewee;

and

• Keep language as simple as

possible.

d. Treat each interviewee as an individual.

Although many claims may be similar, each

claim must be treated on a case-by-case basis

and each interviewee must be treated as an

individual. Officers must be open to each

interviewee as a potential approval.

DAI V. SESSIONS 65

e. Set aside personal biases. Everyone has

individual preferences, biases, and prejudices

formed during life experiences that may cause

them to view others either positively or

negatively. Officers should be aware of their

personal biases and recognize that they can

potentially interfere with the interview

process. Officers must strive to prevent such

biases from interfering with their ability to

conduct interviews in a non-adversarial and

neutral manner.

f. Probe into all material elements of the

interviewee’s claim. The officer must elicit all

relevant and useful information bearing on the

applicant or beneficiary’s eligibility. The

officer must ask questions to expand upon and

clarify the interviewee’s statements and

information contained on the form. The

response to one question may lead to

additional questions about a particular topic or

event that is material to the claim.

g. Provide the interviewee an opportunity to

clarify inconsistencies. The officer must

provide the interviewee with an opportunity

during the interview to explain any

discrepancy or inconsistency that is material

to the determination of eligibility. He or she

may have a legitimate reason for having

related testimony that outwardly appears to

contain an inconsistency, or there may have

been a misunderstanding between the officer

and the interviewee. Similarly, there may be

66 DAI V. SESSIONS

a legitimate explanation for a discrepancy or

inconsistency between information on the

form and the interviewee’s testimony.

On the other hand, the interviewee may be

fabricating a claim. If the officer believes that

an interviewee is fabricating a claim, he or she

must be able to clearly articulate why he or

she believes that the interviewee is not

credible.

h. Maintain a neutral tone throughout the

interview. Interviews can be frustrating at

times for the officer. The interviewee may be

long-winded, may discuss issues that are not

relevant to the claim, may be confused by the

questioning, may appear to be or may be

fabricating a claim, etc. It is important that the

officer maintain a neutral tone even when

frustrated.

2. The officer must not:

• Argue in opposition to the applicant or

petitioner’s claim (if the officer engages in

argument, he or she has lost control of the

interview);

• Question the applicant in a hostile or

abusive manner;

• Take sides in the applicant or petitioner’s

claim;

DAI V. SESSIONS 67

• Attempt to be overly friendly with the

interviewee; or

• Allow personal biases to influence him or

her during the interview, either in favor of or

against the interviewee.

I hope that by exposing the particulars of the affirmative

application process we will cease demeaning unspecified

“certain features” of the applicant’s interview, and that we

will correct our uninformed characterization of it as “quasi-

prosecutorial.”

While under oath, Dai intentionally concealed material

information from the asylum officer during a critical aspect

of the process. To diminish the import of this potential

crime11 because the government official was “only” an

asylum officer is a serious mistake.

VI

The BIA’s Decision

Dai unsuccessfully appealed the IJ’s decision denying his

application for asylum, withholding of removal, and

protection under the Convention Against Torture. The BIA’s

decision follows.

We review for clear error the findings of fact,

including determinations of credibility, made

11

18 U.S.C. § 1001 makes it a crime knowingly and willfully to make

a material false statement in any matter within the jurisdiction of the

executive branch of Government.

68 DAI V. SESSIONS

by the Immigration Judge. We review de

novo all other issues, including whether the

parties have met the relevant burden of proof,

and issues of discretion. The respondent filed

his application for asylum after May 11, 2005,

and thus review is governed by the REAL ID

Act of 2005.

We adopt and affirm the Immigration Judge’s

decision in this case. The Immigration Judge

correctly denied the respondent’s applications

for failure to meet his burden of proof. The

record reflects that the respondent failed to

disclose to both the [DHS] asylum officer and

the Immigration Judge that his wife and

daughter had traveled with him to the United

States and voluntarily returned to China

shortly after. The respondent further

conceded that he was not forthcoming about

this information because he believed that the

true reasons for their return—that his wife

had a job in China and needed to care for her

elderly father, and that their daughter could

attend school in China for less money than in

the United States—would be perceived as

inconsistent with his claims of past and feared

future persecution.

The Immigration Judge correctly decided that

the voluntary return of the respondent’s wife

and daughter to China, after allegedly fleeing

following the persecution of the respondent

and his wife, prevents the respondent from

meeting his burden of proving his asylum

DAI V. SESSIONS 69

claim. Contrary to the respondent’s argument

on appeal, the Immigration Judge need not

have made an explicit adverse credibility

finding to nevertheless determine that the

respondent did not meet his burden of proving

his asylum claim. The respondent’s family

voluntarily returning and his not being

truthful about it is detrimental to his claim

and is significant to his burden of proof.

(Emphasis added) (footnote and citations omitted).

VII

The IJ Becomes a Potted Plant

My colleagues’ opinion boils down to this faulty

proposition: Simply because the IJ did not say “I find Dai not

credible” but opted instead to expose the glaring factual

deficiencies in Dai’s presentation and to explain in specific

detail and at length why Dai had not persuasively carried his

burden of proving his case, my colleagues disregard the IJ’s

decision altogether and claim we must selectively embrace as

persuasive Dai’s problematic presentation regarding the core

of his claim.12 Out of the blue, unpersuasive becomes

persuasive. I invite the reader to review once again the IJ’s

decision and to decide on the merits whether Dai’s case is

persuasive. It is anything but.

My colleagues brush off the conspicuous blatant flaws in

Dai’s performance involving demeanor, candor, and

12

And if an IJ does make an adverse credibility finding, we have

manufactured a multitude of ways to disregard it.

70 DAI V. SESSIONS

responsiveness, claiming that “taking into account the record

as a whole, nothing undermines the persuasiveness of Dai’s

credible testimony. . . .” Nothing? They disregard

inaccuracies, inconsistencies, and implausibilities in his story,

and his barefaced attempt to cover up the truth about his

wife’s and daughter’s travels and situation. They even sweep

aside Dai’s admission to the asylum officer that the “real

story” is that (1) he wanted a good environment for his child,

(2) his wife left him behind because she had a job in China

and he did not, and (3) he was in a “bad mood,” couldn’t get

a job, and wanted to stay here “for a bit longer.” In their

opinion, there is not a single word regarding the factors cited

by the IJ to explain his observations, findings, and decision,

including the fact that Dai’s wife, allegedly the initial subject

of persecution in China, made a free choice to return. The

effect of the presumption is to wipe the record clean of

everything identified by the IJ and the BIA as problematic.

The glaring irony in my colleagues’ analysis is that once

they proclaim that Dai’s testimony is credible, they pick and

choose only those parts of his favorable testimony that

support his case—not the parts that undercut it. If we must

accept Dai’s presentation as credible, then why not also his

“real story” when confronted with the facts that he came to

the United States because he wanted a good environment for

his daughter, and that he did not return to China with his wife

because she had a job and he did not? What becomes of his

attempted cover up of the travels of his wife and daughter?

Furthermore, my colleagues’ backhanded treatment of

the IJ’s opinion is irreconcilable with the BIA’s wholesale

acceptance of it. In words as clear as the English language

can be, the BIA said, “We adopt and affirm the Immigration

Judge’s decision.” To compound their error, the majority

DAI V. SESSIONS 71

then seizes upon and pick apart the BIA’s summary

explanation of why it concluded on de novo review that the

IJ’s decision was correct. What the BIA did say was that

Dai’s failure to be truthful about his family’s voluntary return

to China was “detrimental to his claim” and “significant to

his burden of proof.”

VIII

Analysis

And so we come at last to the statutory requirement of

persuasiveness, an issue uniquely suited to be determined by

the “trier of fact,” as the Act and 8 U.S.C. § 1158(b)(1)(B)(ii)

dictate. The majority opinion rigs this inquiry by freighting

it with an incomplete record. The opinion inappropriately

sweeps demeanor, candor, and plausibility considerations—as

well as the IJ’s extensive findings of fact—off the board as

though this were a parlor game. Once again, the opinion

ignores Huang, a post-Act case.

The need for deference is particularly strong

in the context of demeanor assessments. Such

determinations will often be based on non-

verbal cues, and “[f]ew, if any, of these

ephemeral indicia of credibility can be

conveyed by a paper record of the

proceedings and it would be extraordinary for

a reviewing court to substitute its second-hand

impression of the petitioner’s demeanor,

candor, or responsiveness for that of the IJ.”

744 F.3d at 1153 (alteration in original) (quoting Jibril,

423 F.3d at 1137).

72 DAI V. SESSIONS

Here, the IJ determined that Dai’s testimony was not

persuasive based on demeanor, non-verbal cues, and other

germane material factors that went to the heart of his case.

The IJ explained his decision in exquisite detail, and our

approach and analysis should be simple. In order to reverse

the BIA’s conclusion that Dai did not carry his burden of

proof, “we must determine ‘that the evidence not only

supports [a contrary] conclusion, but compels it—and also

compels the further conclusion’ that the petitioner meets the

requisite standard for obtaining relief.” Garcia-Milian v.

Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (alteration in

original) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481

n.1 (1992)). If anything, this record compels the conclusion

that the IJ and the BIA were correct, not mistaken. Are my

colleagues seriously going to hold that an IJ cannot take

universally accepted demeanor, candor, responsiveness,

plausibility, and forthrightness factors into consideration in

assessing persuasiveness, as the IJ did here? And that this

detailed record, which is full of Dai’s admissions of an

attempted coverup, compels the conclusion that Dai was so

persuasive as to carry his burden? Dai accurately understood

the damaging implications of his wife’s return to China. So

did the IJ and the BIA. So would anybody not willfully

blinded by an inappropriate conclusive presumption. As the

BIA stated, the truth is “inconsistent with his claims of past

and feared future persecution.”

IX

The More Things Change, The More They Stay The

Same

In Elias-Zacarias, 921 F.2d 844 (9th Cir. 1990), rev’d,

502 U.S. 478 (1992), our court substituted the panel’s

DAI V. SESSIONS 73

interpretation of the evidence for the BIA’s. The Supreme

Court reversed our decision, calling the first of the panel’s

two-part reasoning “untrue,” and the second “irrelevant.”

502 U.S. at 481. The Court warned us that we could not

reverse the BIA unless the asylum applicant demonstrates that

“the evidence he presented was so compelling that no

reasonable factfinder could fail to find the requisite fear of

persecution.” Id. at 483–84 (emphasis added). In our case,

we again fail to follow this instruction.

In INS v. Orlando Ventura, 537 U.S. 12, 13 (2002) (per

curiam), the Court noted that both sides, petitioner and

respondent, had asked us to remand the case to the BIA so

that it might determine in the first instance whether changed

conditions in Guatemala eliminated any realistic threat of

persecution of the petitioner. Our panel did not remand the

case, evaluating instead the government’s claim of changed

conditions by itself and deciding the issue in favor of the

petitioner. Id. at 13–14. The Supreme Court summarily

reversed our decision, saying “[T]he Court of Appeals

committed clear error here. It seriously disregarded the

agency’s legally mandated role.” Id. at 17.

Did we learn our lesson? Hardly. A mere two years after

Ventura’s per curiam opinion, we knowingly made the same

mistake in Thomas v. Gonzales, 409 F.3d 1177 (9th Cir.

2005) (en banc), vacated, 547 U.S. 183 (2006). We

disregarded four dissenters to that flawed opinion, who

argued in vain that our court’s decision was irreconcilable

with Ventura. In short order, the Supreme Court vacated our

en banc opinion, saying that our “error is obvious in light of

Ventura, itself a summary reversal” and that the same remedy

was once again appropriate. 547 U.S. at 185.

74 DAI V. SESSIONS

With all respect, the majority opinion follows in our

stubborn tradition of seizing authority that does not belong to

us, disregarding DHS’s statutorily mandated role. Even the

REAL ID Act has failed to correct our errors.

Thus, I dissent.