Amicus Curiae Brief — Merrick B. Garland, Attorney General, Petitioner v. Ming Dai

Nos. 19-1155 and 19-1156

IN THE

Supreme Court of the United States

JEFFREY A. ROSEN, ACTING ATTORNEY GENERAL,

PETITIONER

v.

MING DAI

JEFFREY A. ROSEN, ACTING ATTORNEY GENERAL,

PETITIONER

v.

CESAR ALCARAZ-ENRIQUEZ

On Writs of Certiorari to the United States Court of Appeals for

the Ninth Circuit

BRIEF FOR AMICI CURIAE THE AMERICAN

IMMIGRATION LAWYERS ASSOCIATION AND THE

NATIONAL IMMIGRANT JUSTICE CENTER IN

SUPPORT OF RESPONDENTS

ELEANOR BARRETT

JEAN GALBRAITH

UNIVERSITY OF PENNSYLVANIA

CAREY LAW SCHOOL

APPELLATE ADVOCACY CLINIC

3501 Sansom Street

Philadelphia, PA 19104

(215) 746-7824

ILANA H. EISENSTEIN

Counsel of Record

PAUL D. SCHMITT

JOHN WRAY

DLA PIPER LLP (US)

One Liberty Place

1650 Market Street

Suite 5000

Philadelphia, PA 19103

(215) 656-3351

ilana.eisenstein@us.dlapiper.com

Counsel for Amici Curiae

(Additional Counsel Listed on Inside Cover)

CHARLES ROTH

NATIONAL IMMIGRANT

JUSTICE CENTER

224 S. Michigan Ave.

Suite 600

Chicago, IL 60604

(312) 660-1613

BENJAMIN CASPER SANCHEZ

NADIA ANGUIANO-WEHDE

JAMES H. BINGER CENTER FOR

NEW AMERICANS

UNIVERSITY OF MINNESOTA

LAW SCHOOL

229 19th Avenue South

Minneapolis, MN 55455

(612) 625-5515

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................... iii

INTERESTS OF AMICI .......................................... 1

SUMMARY OF ARGUMENT.................................. 2

ARGUMENT ............................................................ 5

I.

IN THE YEARS PRECEDING THE REAL ID

ACT, THE FEDERAL APPELLATE COURTS

STRUGGLED TO REVIEW ASYLUM

DECISIONS THAT LACKED CREDIBILITY

FINDINGS ........................................................ 5

A.

The Federal Appellate Courts

Reviewed a Flood of Problematic

Asylum

Denials

after

the

“Streamlining” of the BIA Review

Process in 2002 ........................................... 5

B.

Where There Were No Credibility

Findings by the Immigration Judges

or the BIA, the Federal Appellate

Courts Either Presumed Credibility

or

Remanded

for

Credibility

Determinations ......................................... 10

ii

II.

BY ESTABLISHING A PRESUMPTION OF

CREDIBILITY ON APPEAL IN THE

ABSENCE OF ADVERSE CREDIBILITY

DETERMINATIONS, THE REAL ID ACT

RESOLVED THE PROBLEM PREVIOUSLY

FACED BY THE FEDERAL APPELLATE

COURTS ......................................................... 16

III. THE

GOVERNMENT’S

PROPOSED

APPROACH

WOULD

UNRAVEL

CONGRESS’S CAREFULLY CALIBRATED

SCHEME

AND

REINSTATE

THE

DIFFICULTIES FACED BY FEDERAL

APPELLATE COURTS PRIOR TO THE REAL

ID ACT .......................................................... 20

A.

The Approach Urged by the

Government

Disregards

Core

Principles of Statutory Interpretation

................................................................... 21

B.

This Erroneous Approach Would

Deprive the Federal Appellate Courts

of the Useful Bright-Line Rule that

Congress Established ............................... 24

C.

The Pending Cases Illustrate Why

the Government’s Approach is Wrong

................................................................... 26

CONCLUSION ....................................................... 29

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abdulrahman v. Ashcroft,

330 F.3d 587 (3d Cir. 2003) ............................... 7

Aden v. Ashcroft,

396 F.3d 966 (8th Cir. 2005) .............................. 9

Atkinson Trading Co. v. Shirley,

532 U.S. 645 (2001) .......................................... 18

Barnhart v. Peabody Coal Co.,

537 U.S. 149 (2003) .......................................... 26

Benslimane v. Gonzales,

430 F.3d 828 (7th Cir. 2005) .............................. 7

Cao He Lin v. U.S. Dep’t of Just.,

428 F.3d 391 (2d Cir. 2005) ............................. 28

Ci Pan v. Att’y Gen.,

449 F.3d 408 (2d Cir. 2006) ....................... 12, 13

Dep’t of Com. v. New York,

139 S. Ct. 2551 (2019) ................................ 10, 11

Dia v. Ashcroft,

353 F.3d 228 (3d Cir. 2003) ............................... 9

Diallo v. Ashcroft,

381 F.3d 687 (7th Cir. 2004)............................. 12

iv

Dickinson v. Zurko,

527 U.S. 150 (1999) ........................................... 22

El Moraghy v. Ashcroft,

331 F.3d 195 (1st Cir. 2003) ....................... 14, 15

El-Sheikh v. Ashcroft,

388 F.3d 643 (8th Cir. 2004)................... 3, 10, 12

Elzour v. Ashcroft,

378 F.3d 1143 (10th Cir. 2004)....................... 8, 9

Emelkin v. Ashcroft,

97 F. App’x 27 (6th Cir. 2004) .......................... 11

Forgue v. Att’y Gen.,

401 F.3d 1282 (11th Cir. 2005)........................... 9

Gailius v. INS,

147 F.3d 34 (1st Cir. 1998) ................................. 9

Gao v. Ashcroft,

299 F.3d 266 (3d Cir. 2002) .............................. 16

Gui Cun Liu v. Ashcroft,

372 F.3d 529 (3d Cir. 2004) ................................ 9

Iao v. Gonzales,

400 F.3d 530 (7th Cir. 2005)..............5, 10, 19, 27

INS v. Ventura,

537 U.S. 12 (2002) ....................................... 27, 28

In re S-H-, et al.,

23 I&N Dec. 462 (BIA 2002) ............................. 26

v

Kho v. Keisler,

505 F.3d 50 (1st Cir. 2007) ............................... 14

Kllokoqi v. Gonzales,

439 F.3d 336 (7th Cir. 2005)............................... 9

Krastev v. INS,

292 F.3d 1268 (10th Cir. 2002)......................... 13

Li v. Att’y Gen.,

400 F.3d 157 (3d Cir. 2005) ........................ 13, 14

Li v. Att’y Gen.,

194 F. App’x 886 (11th Cir. 2006) .................... 16

Lusingo v. Gonzales,

420 F.3d 193 (3d. Cir. 2005) ............................. 11

Mejia v. Att’y Gen.,

498 F.3d 1253 (11th Cir. 2007)......................... 11

Michigan v. EPA,

576 U.S. 743 (2015) ........................................... 23

Nat’l Ass’n of Home Builders v. Defs. of Wildlife,

551 U.S. 644 (2007) ........................................... 22

Navas v. INS,

217 F.3d 646 (9th Cir. 2000)............................. 12

Niam v. Ashcroft,

354 F.3d 652 (7th Cir. 2004)................... 7, 11, 25

vi

SEC v. Chenery Corp.,

318 U.S. 80 (1943) ...................................... passim

Shire v. Ashcroft,

388 F.3d 1288 (9th Cir. 2004)............................. 9

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ........................................... 21

Yan Dan Li v. Gonzales,

222 F. App’x 318 (4th Cir. 2007) ...................... 11

Yang v. Gonzales,

413 F.3d 757 (8th Cir. 2005)............................. 12

Zhang v. Gonzales,

432 F.3d 339 (5th Cir. 2005)............................... 9

Zhang v. INS,

386 F.3d 66 (2d Cir. 2004) .................................. 9

Statutes

8 U.S.C. § 1158(b)(1)(B)(ii) ......................... 16, 17, 23

8 U.S.C. § 1158(b)(1)(B)(iii)............................. passim

8 U.S.C. § 1229a(c)(4)(C) .......................................... 3

8 U.S.C. § 1231(b)(3)(C) ........................................... 3

8 U.S.C. § 1252(b)(4)(B) .................................. passim

8 U.S.C. § 1252(b)(4)(D) ......................................... 23

vii

REAL ID Act, Pub. L. No. 109-13, § 101, 119

Stat. 231 (2005) ........................................... 17, 18

Regulations

8 CFR § 1003.1(d)(1) (2020) ..................................... 6

8 CFR § 1003.1(d)(3)(i) (2020).................................. 8

Other Authorities

Board of Immigration Appeals: Procedural

Reforms to Improve Case Management,

67 Fed. Reg. 54878 (Aug. 26, 2002) .............. 6, 24

Michael John Garcia, et al., Cong. Research

Serv., Rl32754, Immigration: Analysis of

the Major Provisions of H.R. 418, The

Real ID Act of 2005 (May 9, 2005) ................... 20

H. Rep. No. 109-72 (2005) .......................... 17, 18, 24

H.R. 418, 109th Congress (as introduced to

House, Jan. 26, 2005) ....................................... 17

H.R. 1268, 109th Congress (as engrossed in

House, March 16, 2005) .................................... 17

Immigration Litigation Reduction: Hearing

Before the S. Comm. on the Judiciary,

109th Cong. 5 (2006) ................................... 6, 7, 8

viii

Andrew Tae-Hyun Kim, Rethinking Review

Standards in Asylum, 55 WM. & MARY L.

REV. 581 (2013) ................................................... 8

Webster’s Third New International

Dictionary (1961) .............................................. 19

21B Charles A. Wright & Kenneth W.

Graham, Jr., Federal Practice &

Procedure § 5126 (2d ed. 2020 update) ...... 18, 19

1

INTERESTS OF AMICI1

The American Immigration Lawyers Association

(AILA) is a national organization comprised of more

than 15,000 lawyers and law professors who practice

and teach in the field of immigration and nationality

law. AILA seeks to advance the administration of

justice pertaining to immigration, nationality, and

naturalization; to promote reforms in the laws; to

facilitate the administration of justice; and to elevate

the standard of integrity, honor, and courtesy of those

appearing in representative capacity in nationality

and immigration matters. AILA’s members practice

regularly before the Department of Homeland

Security and before the Executive Office for

Immigration Review, as well as before the United

States District Courts, Courts of Appeals, and

Supreme Court, often on a pro bono basis. In this

capacity, many of AILA’s constituent lawyermembers represent foreign nationals who could be

significantly affected by this case.

The National Immigrant Justice Center (NIJC) is

a program of the Heartland Alliance for Human

Needs and Human Rights, a non-profit corporation

headquartered in Chicago, Illinois. NIJC is dedicated

to ensuring human rights protections and access to

justice for all immigrants, refugees, and asylum

seekers. By partnering with more than 1,500

attorneys from the Nation’s leading law firms, NIJC

provides direct legal services to approximately 12,000

individuals annually. This experience informs NIJC’s

1 No counsel for a party authored this brief in whole or in

part. No person other than amici or their counsel made a

monetary contribution to this brief’s preparation or submission.

The parties have consented to the filing of this brief.

2

advocacy, litigation, and educational initiatives as it

promotes human rights on a local, regional, national,

and international stage. NIJC has a substantial

interest in the issue now before the Court, both as an

advocate for the rights of immigrants generally and

as the leader of a network of pro bono attorneys who

regularly represent immigrants.

SUMMARY OF ARGUMENT

Amici agree with Respondents that the federal

appellate courts have a statutory mandate to treat the

testimony of asylum seekers as credible where neither

an immigration judge nor the Board of Immigration

Appeals (BIA) has made an explicit adverse

credibility determination. This requirement arises

from the text of the REAL ID Act, taken in

conjunction with the pre-existing standard of

review. See 8 U.S.C. § 1158(b)(1)(B)(iii); 8 U.S.C.

§ 1252(b)(4)(B).

Amici write separately to describe the concerns

animating the REAL ID Act’s provision on credibility

and to explain the importance of this provision for the

federal appellate courts. By adding this provision,

Congress filled a gap in the Immigration and

Nationality Act (INA) and addressed an issue that

had repeatedly vexed the circuit courts. The

government’s interpretation would reinstate the

disordered approach to review of asylum petitions

that the REAL ID Act was designed to resolve.

The REAL ID Act sought to address a significant

problem in the administration of immigration cases.

Before the passage of the REAL ID Act in 2005, the

federal appellate courts faced an overwhelming

increase in their immigration dockets due to new

3

regulations streamlining the BIA review process.

During this period, the courts repeatedly encountered

cases where the immigration judges and the BIA had

failed to make clear credibility findings despite

seeming skeptical of the testimony of asylum seekers.

These failures frustrated review by the circuit courts

because, as one court put it, “[l]acking a BIA finding

as to [petitioner’s] credibility . . . we have no way of

reviewing the Board’s actual reasoning.” El-Sheikh v.

Ashcroft, 388 F.3d 643, 648 (8th Cir. 2004) (quotation

marks and citation omitted). Yet, faced with this

problem, the courts of appeals did not adopt the

approach now urged by the government. They did not

scour the record in search of ways to justify shoddy

analysis by the immigration judges or the BIA.

Instead, some circuits simply remanded with

instructions to the BIA to make explicit

determinations on credibility, while even more

circuits — including the Ninth — reviewed petitions

with a presumption of credibility.

The REAL ID Act endorsed rather than abrogated

the practice of presuming credibility. The Act

provides that “[t]here is no presumption of

credibility,” but “if no adverse credibility

determination is explicitly made,” then “the applicant

or witness shall have a rebuttable presumption of

credibility on appeal.”2 This provision established a

8 U.S.C. § 1158(b)(1)(B)(iii) codifies this standard with

respect to asylum seekers. The REAL ID Act also established the

same standard in the context of withholding of removal — a form

of relief related to asylum but with various differences, including

a higher standard of proof. See 8 U.S.C. § 1229a(c)(4)(C),

§ 1231(b)(3)(C). While amici focus in this brief on the more

prevalent context of asylum petitions, the same analysis would

apply to petitions for withholding of removal.

2

4

presumption of credibility before the BIA where the

immigration judge failed to make an explicit finding

otherwise. Although this provision made no mention

of further review, its effect was to establish a

presumption that, unless rebutted, would carry

forward as a finding of fact for purposes of substantial

evidence review by the federal appellate courts. See

8 U.S.C. § 1252(b)(4)(B) (establishing this standard of

review). In other words, and as indicated by

contemporary evidence, the REAL ID Act had the

effect of codifying the (already widespread) practice

whereby appellate courts presumed asylum seekers’

credibility when neither the immigration judges nor

the BIA made express adverse credibility

determinations.

The government’s reading threatens to dismantle

the properly functioning system of administrative

review that the REAL ID Act has helped to establish.

The government offers a contorted reading of the

statute that would treat the phrase “[t]here is no

presumption of credibility” as applicable not only to

the immigration judges but also to the federal

appellate courts. This interpretation wreaks havoc on

ordinary principles of administrative review because

it places federal appellate courts in the same posture

as immigration judges. It ignores the language

preceding this phrase, which makes clear that the

phrase is directed to the “trier of fact.” See 8 U.S.C.

§ 1158(b)(1)(B)(iii). And it would unduly complicate

judicial review of asylum decisions — exactly the

opposite of what Congress intended. This Court

should reject this approach in favor of the

straightforward and sensible interpretation urged by

Respondents.

5

ARGUMENT

I. IN THE YEARS PRECEDING THE REAL ID ACT,

THE FEDERAL APPELLATE COURTS STRUGGLED

TO REVIEW ASYLUM DECISIONS THAT LACKED

CREDIBILITY FINDINGS

In the years immediately prior to the REAL ID

Act, asylum adjudications were plagued by case

backlogs, a glut of petitions before federal appellate

courts, and problematic decisions by immigration

judges that resulted in unprecedented remand rates

following judicial review. Among other challenges, the

federal appellate courts found themselves “left in the

dark” in the absence of “clean determinations of

credibility” by immigration judges or the BIA. Iao v.

Gonzales, 400 F.3d 530, 534 (7th Cir. 2005). In

response to this difficulty, courts uniformly refused to

adopt the approach now urged by the government –

i.e., to scour the record for some basis on which it

would have been “possible” for the BIA to reach the

outcome it did. See Pet. Br. 22. (quotation marks and

citation omitted). Instead, in cases where credibility

was crucial, the courts either presumed credibility or

remanded for the BIA to address the issue.

A. The Federal Appellate Courts Reviewed a

Flood of Problematic Asylum Denials

after the “Streamlining” of the BIA

Review Process in 2002

Beginning around 2002, the federal appellate

courts saw massive increases in their immigration

dockets. Testifying before the Senate Judiciary

Committee several years later, Chief Judge John

6

Walker of the Second Circuit recalled how “[w]hat we

thought was a one-time bubble” as the BIA cleared its

backlog instead “turned into a steady flow of cases” at

“the rate of about 2,500 cases per year” in his circuit.

Immigration Litigation Reduction: Hearing Before the

S. Comm. on the Judiciary, 109th Cong. 5 (2006)

[hereinafter “Senate Hearing”] (testimony of John M.

Walker, Jr., C.J., United States Court of Appeals for

the Second Circuit). “[M]ost of these” cases, he

observed, “raise asylum issues.” Id.

This increase followed regulatory changes to the

BIA’s case management process. In reforms resulting

in a final rule published in 2002, the Department of

Justice “streamlined” BIA review through a series of

structural changes. Board of Immigration Appeals:

Procedural Reforms to Improve Case Management, 67

Fed. Reg. 54878 (Aug. 26, 2002). These reforms

emphasized that the BIA was to act “as an appellate

body” and “not to serve as a second-tier trier of fact.”

Id. at 54880; see also 8 CFR § 1003.1(d)(1) (2020). The

rule authorized BIA decisions by a single Board

member, replacing adjudication by three-member

panels; it approved the use of “affirmance[s] without

opinion,” whereby the BIA could uphold an

immigration judge’s decision with a one-sentence

summary order; and it removed the power of the BIA

to engage in de novo review of an immigration judge’s

findings of fact, including “findings as to the

credibility of testimony,” except to determine whether

such findings were clearly erroneous. Id. at 54879–81,

54902.

In his testimony, Chief Judge Walker attributed

much of his circuit’s rising case load to these

“streamlining decisions,” remarking that “the Court

of Appeals becomes the first effective review of the

7

immigration judge’s decision.” Senate Hearing at 16

(testimony of Walker, C.J.). He noted that his circuit

had a “higher [than] expected number of cases being

remanded” to the BIA. Senate Hearing at 5 (testimony

of Walker, C.J.). Chief Judge Walker’s critical

assessment found common refrain among circuit

court judges who, amidst the explosion in their

immigration dockets, were unsettled at the poor

quality of asylum decisions under their review.

Judges expressed “extreme discomfiture” with the

approach of certain immigration judges to factfinding.

Abdulrahman v. Ashcroft, 330 F.3d 587, 600 (3d Cir.

2003) (Becker, J., in a concurring opinion joined by

Judges Scirica and Shadur). Judge Richard Posner

described “a pattern of serious misapplications by the

board and the immigration judges of elementary

principles of adjudication” in asylum cases. Niam v.

Ashcroft, 354 F.3d 652, 654 (7th Cir. 2004) (internal

citations omitted).3

Few issues loomed larger for the circuit courts

than those related to credibility. Determinations

regarding credibility are “findings of fact” for

purposes of the substantial evidence standard of

review. See 8 U.S.C. § 1252(b)(4)(B) (providing that

Judge Posner later calculated that the Seventh Circuit

reversed the BIA in whole or in part in a “staggering” forty

percent of the 136 petitions for review of BIA decisions on the

merits that it heard between September 2004 and September

2005. Benslimane v. Gonzales, 430 F.3d 828, 829–30 (7th Cir.

2005) (“This tension between judicial and administrative

adjudicators is not due to judicial hostility to the nation’s

immigration policies or to a misconception of the proper

standard of judicial review of administrative decisions. It is due

to the fact that the adjudication of these cases at the

administrative level has fallen below the minimum standards of

legal justice.”).

3

8

“administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to

conclude to the contrary”); see also 8 C.F.R.

§ 1003.1(d)(3)(i) (2020) (providing that “findings as to

the credibility of testimony” constitute “[f]acts

determined by the immigration judge”). Because

credibility determinations are often dispositive in

asylum cases, numerous cases that reached the

federal appellate courts after the BIA streamlining

involved matters of credibility. Senate Hearing at 22

(testimony of Walker, C.J.); see also Andrew TaeHyun Kim, Rethinking Review Standards in Asylum,

55 WM. & MARY L. REV. 581, 585, 608–09 (2013)

(“Credibility determinations, in connection with the

related factual findings, play a decisive role in many

asylum cases.”).

Many of these cases addressed whether explicit

adverse credibility determinations by immigration

judges were supported by substantial evidence.

Contrary to the government’s present suggestion that

substantial evidence review in immigration cases is

equivalent to the reasonable jury standard, see Pet.

Br. 22, the federal appellate courts held the

immigration judges and the BIA to the usual rule that

“the orderly functioning of the process of review

requires that the grounds upon which the

administrative agency acted [be] clearly disclosed and

adequately sustained.” SEC v. Chenery Corp., 318

U.S. 80, 94 (1943). The circuit courts required the

immigration judges or the BIA to put forth “specific,

cogent

reason[s]”

for

adverse

credibility

determinations, see, e.g., Elzour v. Ashcroft, 378 F.3d

1143, 1150 (10th Cir. 2004) (Ebel, J.), although they

were not necessarily uniform as to what kinds of

9

reasons satisfied this standard.4 This practice

promoted deference to the agency’s process of

decision-making; the circuit courts made clear that

“our review is confined to the reasoning given by the

IJ” or the BIA “and we will not independently search

the record for alternative bases to affirm.” Id. (citing

Chenery Corp., 318 U.S. at 95). When the circuit

courts found that the immigration judge or BIA based

an adverse credibility determination on insufficient

grounds, they remanded rather than impermissibly

“undertak[ing the] task” of “reconsider[ing] and

reweigh[ing] the facts” in light of a determination that

upsets “the balancing of facts and evidence.” Gui Cun

Liu v. Ashcroft, 372 F.3d 529, 534 (3d Cir. 2004) (Alito,

J.).

Other cases raised a different issue with respect to

credibility – namely, how were the federal appellate

courts to review agency decisions that failed to make

credibility findings in the first place?

For other cases requiring “specific, cogent reason[s]” for

adverse credibility findings, see, e.g., Gailius v. INS, 147 F.3d 34,

47 (1st Cir. 1998); Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004);

Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003); Zhang v.

Gonzales, 432 F.3d 339, 344 (5th Cir. 2005); Kllokoqi v. Gonzales,

439 F.3d 336, 341 (7th Cir. 2005); Aden v. Ashcroft, 396 F.3d 966,

968 (8th Cir. 2005); Shire v. Ashcroft, 388 F.3d 1288, 1295 (9th

Cir. 2004); Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.

2004); Forgue v. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005).

4

10

B. Where There Were No Credibility

Findings by the Immigration Judges or

the BIA, the Federal Appellate Courts

Either

Presumed

Credibility

or

Remanded for Credibility Determinations

The federal appellate courts found it exceptionally

challenging to review decisions in which the

immigration judges and the BIA had failed to make

credibility findings. As Judge James Loken of the

Eighth Circuit posed the problem: “[l]acking a BIA

finding as to [petitioner’s] credibility . . . we have no

way of reviewing the Board’s actual reasoning.” ElSheikh, 388 F.3d at 648 (internal quotation and

citation omitted). For “[w]hen an immigration judge

says not that he believes the asylum seeker or he

disbelieves her but instead that she hasn’t carried her

burden of proof . . . the reviewing court is left in the

dark as to whether the judge thinks the asylum

seeker failed to carry her burden of proof because her

testimony was not credible, or for some other reason.”

Iao, 400 F.3d at 534.

The government argues that the absence of

credibility determinations by the immigration judges

and the BIA poses no problem for the federal

appellate courts — i.e., that the courts can elide the

issue simply by applying the substantial evidence

standard. See Pet. Br. at 20–25. This assertion

mischaracterizes the substantial evidence standard

and disregards the years of frustration the federal

appellate courts experienced prior to the REAL ID

Act. As to the substantial evidence standard, the

government overlooks the fundamental requirement

that “the grounds upon which the administrative

agency acted be clearly disclosed and adequately

11

sustained.” Dep’t of Com. v. New York, 139 S. Ct.

2551, 2573 (2019) (quoting Chenery Corp., 318 U.S. at

94); see also id. at 2578 (“The grounds upon which an

administrative order must be judged are those upon

which the record discloses that its action was based.”)

(Thomas, J., concurring in part and dissenting in

part) (quoting Chenery Corp., 318 U.S. at 87).

The federal appellate courts understood what the

government apparently does not: there is no good way

to review an agency’s “findings of fact” when the

agency has not actually made findings of fact. In the

absence of findings of fact from the immigration

judges or the BIA as to credibility, the reviewing

courts faced a “yawning void.” Niam, 354 F.3d at 658.

They could not identify the reasoning underlying

asylum denials in cases where the applicant’s

testimony, if believed, would justify a grant of asylum.

Faced with such situations, the circuit courts had

some variation in how they responded, but they were

uniform in declining to affirm the petitions for review

where credibility was a material issue. One approach

widely adopted by the circuit courts was to presume

credibility in the absence of any adverse credibility

finding by the BIA or the immigration judge. The

Ninth Circuit followed this method, and cases from

four other circuits did the same, although sometimes

speaking in terms of truth rather than credibility. 5

5 See, e.g., Lusingo v. Gonzales, 420 F.3d 193, 197 n.5 (3d Cir.

2005) (“There was no finding of adverse credibility by the IJ with

respect to [the asylum seeker’s] testimony at the removal

hearing. Accordingly, we presume its veracity.”); Yan Dan Li v.

Gonzales, 222 F. App’x 318, 322 (4th Cir. 2007) (similar);

Emelkin v. Ashcroft, 97 F. App’x 27, 29 (6th Cir. 2004) (similar);

Mejia v. Att’y Gen., 498 F.3d 1253, 1257 (11th Cir. 2007)

(similar).

12

See Alcaraz-Enriquez Resp. Br. 37–38 (describing

how the circuit courts sometimes used “credibility”

and “truth” interchangeably before the REAL ID Act).

In Navas v. INS, for example, the court assumed that

the asylum-seeker’s testimony was accurate “given

the absence of an adverse credibility finding by the

BIA.” 217 F.3d 646, 657 (9th Cir. 2000). The asylum

seeker had testified that his aunt had been murdered,

his mother beaten, and he himself threatened because

of his connection to a party opposed to the

government, but the BIA had found that these

experiences did not amount to political persecution.

Id. at 652–54. Concluding that the BIA erred in

failing to find persecution due at least in part to

political opinion, the court granted the petition for

review. Id. at 661, 663. Indeed, in this particular case

the court found that the asylum-seeker’s entitlement

to relief was so clear as to establish statutory

entitlement to asylum, and it remanded for the

exercise of the Attorney General’s discretion. Id. at

662–63.

Another approach taken by circuit courts in the

absence of credibility findings below was to remand

with an explicit demand for such findings in cases

where the issue could be determinative. The Tenth

Circuit and several others employed this approach. 6

6 See Diallo v. Ashcroft, 381 F.3d 687, 700–01 (7th Cir. 2004)

(holding that remand was necessary because the immigration

judge made no adverse credibility determination but also

continuously questioned the asylum seeker’s credibility); see also

Ci Pan v. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006) (similar).

The Eighth Circuit sometimes remanded for credibility

determinations and sometimes reviewed with an assumption of

credibility. Compare El-Sheikh, 388 F.3d at 648 (remanding

when the BIA failed to make a credibility finding), with Yang v.

13

As the Tenth Circuit explained, “[w]here doubts have

been raised as to the credibility of the applicant by

either the Immigration Judge or the BIA, but the BIA

makes no finding with regard to credibility, courts

have held that the proper procedure is to remand to

the BIA for a credibility determination.” Krastev v.

INS, 292 F.3d 1268, 1279 (2002). The court observed

that “[i]f immigration judges and the Board evaluate

credibility in each case, remand will not be necessary

and further delays in the processing of asylum claims

can be avoided.” Id. (internal quotation and citation

omitted). These courts refused to “engage in an

independent evaluation of the cold record or ask

[themselves] whether, if [they] were sitting as factfinders in the first instance, [they] would credit or

discredit an applicant's testimony.” Ci Pan v. Att’y

Gen., 449 F.3d 408, 411 (2d Cir. 2006) (quotation and

citation marks omitted).

Some decisions drew from both approaches. In Li

v. Attorney General, for example, the Third Circuit

reviewed the BIA’s denial of asylum to a Chinese

citizen whose claim for persecution rested on two

claims: that he would be beaten if he and his wife had

another child and that he had lost his job because of

the birth of this child. 400 F.3d 157, 160 (2005)

(Becker, J.). The BIA had not addressed credibility,

although it had assumed it for purposes of analyzing

whether the claims rose to the level of persecution.

See id. at 161. In reviewing the case, the Third Circuit

emphasized that “where the BIA makes no findings

on the credibility issue, we must proceed as if

[petitioner’s] testimony were credible” and then

Gonzales, 413 F.3d 757, 759–60 (8th Cir. 2005) (appearing to

assume credibility of testimony when neither the immigration

judge nor the BIA made an adverse credibility finding).

14

“determine whether the BIA’s decision is supported

by substantial evidence.” Id. at 163 (internal

quotation and citation omitted). By assuming

credibility, the court could cleanly determine whether

or not the substantial evidence standard was

satisfied. The court granted the petition for review

and remanded for the BIA to address credibility,

concluding — under

facts

considerably

less

compelling than those presented by Mr. Dai — that

the asylum-seeker had adequately established

persecution if his testimony were credible. Id. at 170.

Only the First Circuit had case law even modestly

at odds with these various approaches. At the

certiorari stage, the government cited Kho v. Keisler

in claiming that the federal appellate courts could

review petitions on the merits without addressing

credibility. Barr v. Dai Pet. for Cert. 24, (citing 505

F.3d 50, 56 (1st Cir. 2007) (applying the law as it

predated the REAL ID Act in upholding a BIA

determination)). But Kho itself recognized that a

reviewing court could remand “[i]f, in the absence of a

credibility finding by the Immigration Judge, a

reviewing court determines that such a finding is

necessary for effective review of the case.” 505 F.3d at

56. Indeed, the First Circuit did exactly this in a preREAL ID Act case in which it concluded that the

petitioner’s claim of asylum as a Coptic Christian

turned on the credibility of his testimony. As Judge

Sandra Lynch explained,

the IJ’s decision cannot be upheld on

credibility grounds because here too the IJ has

not made any finding. It may be that the IJ

believed [the petitioner] not to be credible,

which was the conclusion of the initial

interviewing officer. If so, the IJ neither made

15

such a finding, nor explained the basis in

evidence for such a finding, both of which are

basic errors. [T]he IJ must, if he or she chooses

to reject [petitioner’s] testimony as lacking

credibility, offer a specific, cogent reason for

[the IJ’s] disbelief. While we defer to the IJ on

credibility questions, that deference is

expressly conditioned on support in the record,

as evidenced by specific findings.

El Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st Cir.

2003) (alterations in original) (emphasis added)

(quotations and citations omitted). The First Circuit,

like the rest of the circuits, recognized the difficulty of

reviewing immigration judge and BIA decisions

where they had failed to make credibility

determinations.

In short, leading up to the enactment of the REAL

ID Act, the circuit courts grappled with how to

conduct review in the absence of clear credibility

determinations at the administrative level. Without

such determinations, in cases where credibility was

material, the “grounds upon which the administrative

agency acted” were not “clearly disclosed and

adequately sustained” and thus failed to satisfy

review for substantial evidence. See Chenery Corp.,

318 U.S. at 94. The practice employed by a plurality

of circuits of presuming credibility provided a

workable solution to this dilemma — one which

Congress would cement into a statutory mandate.

16

II. BY

ESTABLISHING

A

PRESUMPTION

OF

CREDIBILITY ON APPEAL IN THE ABSENCE OF

ADVERSE CREDIBILITY DETERMINATIONS, THE

REAL ID ACT RESOLVED THE PROBLEM

PREVIOUSLY FACED BY THE FEDERAL APPELLATE

COURTS

The REAL ID Act clarified the roles of

immigration judges, the BIA, and the federal

appellate courts regarding credibility determinations.

Read in conjunction with the substantial evidence

standard, it addressed the problem created when the

immigration judges fail to make credibility findings.

After the REAL ID Act, circuit courts had a statutory

mandate to presume credibility where neither the

immigration judges nor the BIA made explicit

credibility findings.

As initially drafted, the relevant subsection of the

REAL ID Act sought only to define the scope of

discretion that the immigration judges possess to

make credibility determinations. In particular,

Congress specified that the immigration judges may

take minor inconsistencies in testimony into account

in making adverse credibility findings, thus resolving

a matter of some variation among the circuit courts. 7

7 Compare Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)

(noting inconsistencies must go to the “heart of the asylum

claim” to justify an adverse credibility finding) (citation omitted),

with Li v. Att’y Gen., 194 F. App’x 886, 887 (11th Cir. 2006)

(“While some circuits have required the adverse credibility

finding to go to the heart of the asylum claim, we have never

adopted that test.”) (citations omitted). The REAL ID Act also

provided in an adjacent provision that “[t]he testimony of the

applicant may be sufficient to sustain the applicant’s burden

without corroboration, but only if . . . the applicant’s testimony

17

To this end, the enacted law contained the

following language:

(iii) CREDIBILITY DETERMINATION.—

Considering the totality of the circumstances,

and all relevant factors, a trier of fact may

base a credibility determination on [various

enumerated factors and considerations]

without regard to whether an inconsistency,

inaccuracy, or falsehood goes to the heart of

the applicant’s claim, or any other relevant

factor.

REAL ID Act, Pub. L. No. 109-13 § 101, 119 Stat. 231,

303 (2005), codified at 8 U.S.C. § 1158(b)(1)(B)(iii).

When first introduced, the bill made no mention

of a presumption of credibility. H.R. 418, 109th

Congress (as introduced to House, Jan. 26, 2005).

Later versions of the bill added an additional

sentence to the end: “There is no presumption of

credibility.” H.R. 1268, 109th Congress (as engrossed

in House, March 16, 2005). Then, during

reconciliation shortly before the Act’s passage, the

conference committee added a clause to this sentence

stating that credibility should be presumed on appeal

unless an adverse credibility determination is made.

See H. Rep. No. 109-72, at 73–74 (2005) (Conf. Rep.).

Combined, the crucial language reads:

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.

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) (providing further guidance about the role of

corroborating evidence).

18

REAL ID Act, § 101, 119 Stat. at 303 (2005), codified

at 8 U.S.C. § 1158(b)(1)(B)(iii).

This sentence plainly provides that where an

immigration judge fails to make an “explicit[] . . .

adverse credibility determination,” credibility is

presumed on appeal unless rebutted. 8 U.S.C.

§ 1158(b)(1)(B)(iii); see also H. Rep. No. 109-72, at 168

(reiterating this statutory language without further

explanation). It is common ground among the parties

to this case that “on appeal” means “before the BIA.”

Pet. Br. 10; Dai Resp. Br. 35 n. 5; Alcaraz-Enriquez

Resp. Br. 36 n. 5. But what happens on a petition for

review if the immigration judge has not made an

explicit credibility finding and the BIA has not found

the presumption of credibility rebutted?

Amici agree with Respondents that the simplest,

best, and indeed only plausible conclusion is that the

federal appellate court must also treat the applicant’s

testimony as credible. This follows naturally from the

substantial evidence standard of review. If the BIA

finds the presumption of credibility rebutted on

appeal,

then

its

own

adverse

credibility

determination becomes a finding reviewable under

the substantial evidence standard. See 8 U.S.C.

§ 1252(b)(4)(B) (providing that findings of fact are

“conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary”). If the BIA

does not find the presumption of credibility rebutted

on appeal, then the “presumption ripens into a

holding,” Atkinson Trading Co. v. Shirley, 532 U.S.

645, 659 (2001). This is the nature of presumptions.

See 21B Charles A. Wright & Kenneth W. Graham,

Jr., Federal Practice & Procedure § 5126 (2d ed. 2020

update) (“Congress creates presumptions and

appellate courts use them as a tool to control

19

administrative factfinding” and appellate courts

generally “have assumed that presumptions apply to

proceedings after the verdict.”). Once the

presumption, unrebutted, has ripened into a

determination, it too becomes a finding reviewable

under the substantial evidence standard. See 8 U.S.C.

§ 1252(b)(4)(B).

By including this sentence in the REAL ID Act,

Congress provided an elegant and efficient solution to

the problem that previously had vexed the federal

appellate courts. Now, instead of being “left in the

dark” where the immigration judges and the BIA

declined to make credibility findings, Iao, 400 F.3d at

534, the courts have a mandate to treat credibility as

established. This in turn creates valuable incentives

for the immigration judges, the BIA, and the

government. Immigration judges now know that they

need to be “explicit” about “adverse credibility

determination[s].” 8 U.S.C. § 1158(b)(1)(B)(iii); see

also Webster’s Third New International Dictionary

801 (1961) (defining “explicit” as “being without

vagueness [or] ambiguity: leaving nothing implied”).

The BIA now knows that, even within its streamlined

review, where the immigration judge has failed to

assess credibility, it should itself address credibility

in situations where it views credibility as relevant

and it considers that a finding of credibility would

have been clearly erroneous. And the government —

which, unlike many asylum-seekers, is reliably

represented by counsel in immigration proceedings —

knows that it should ask for explicit adverse

credibility determinations from the immigration

judges and the BIA if it believes such determinations

to be warranted.

20

This Court need look no further to conclude that

the federal appellate courts must presume that

asylum seekers are credible where neither the

immigration judge nor the BIA have found otherwise.

To the extent this Court considers extrinsic evidence

of congressional intent, however, the limited

information

available

further

supports

the

applicability of the presumption at the federal

appellate level. A report written by the Congressional

Research Service at the time of the REAL ID Act’s

passage indicated that the purpose of the new

sentence was “to adopt Ninth Circuit precedent that

presumes credibility on appeal where neither the

immigration judge nor the BIA has made an explicit

adverse credibility finding.” Michael John Garcia, et

al., Cong. Research Serv., RL32754, Immigration:

Analysis of the Major Provisions of H.R. 418, The

REAL ID Act of 2005 at 7–8 (May 25, 2005). This is

yet another indication that, in adding the key

sentence to the REAL ID Act, Congress sought to

resolve an existing problem rather than to enhance it.

III.

THE GOVERNMENT’S PROPOSED APPROACH

WOULD UNRAVEL CONGRESS’S CAREFULLY

CALIBRATED SCHEME AND REINSTATE THE

DIFFICULTIES FACED BY FEDERAL APPELLATE

COURTS PRIOR TO THE REAL ID ACT

The government urges this Court to conclude that

the presumption of credibility applies only before the

BIA and that a “general rule” of no presumption

applies to the circuit courts. Pet. Br. 18. This

approach is grounded in an implausible reading of the

REAL ID Act — one that would treat Congress as

having aggravated rather than addressed the

21

challenges that federal appellate courts face in

reviewing immigration decisions.

A. The Approach Urged by the Government

Disregards Core Principles of Statutory

Interpretation

The government argues that where an

immigration judge fails to make an explicit adverse

credibility finding, only the BIA and not the federal

appellate courts should presume credibility. This

approach conflicts with principles governing review of

agency action. It ignores the “fundamental canon of

statutory construction that the words of a statute

must be read in their context and with a view to their

place in the overall statutory scheme.” Util. Air Regul.

Grp. v. EPA, 573 U.S. 302, 320 (2014) (citation

omitted).

The government treats 8 U.S.C. § 1158(b)(1)(B)(iii)

as a means of abrogating the ordinary standard of

judicial review set forth in the INA. This approach

runs contrary to the review process established in the

INA — and indeed to principles of judicial review of

agency decisions more generally. The federal

appellate courts do not directly review the decisions

of the immigration judges, but rather of the BIA. The

immigration judges’ decisions are before the federal

appellate courts only insofar as these decisions are

taken to be adopted by the BIA on its review. Yet

instead of having the federal appellate courts review

the BIA’s decision under the usual standard of review

set forth in 8 U.S.C. § 1252(b)(4)(B), the government

claims that the federal appellate courts should put

themselves in the same posture as an immigration

judge and find that there is no presumption of

22

credibility. Pet. Br. 18. Absent clear and

unambiguous statutory intention, this interpretation

is unreasonable. Indeed, holding as much would be a

massive sea change, given that this Court has

“[r]ecogniz[ed] the importance of maintaining a

uniform approach to judicial review of administrative

action.” Dickinson v. Zurko, 527 U.S. 150, 154 (1999).

The government rests this extraordinary

proposition on a strained reading of 8 U.S.C.

§ 1158(b)(1)(B)(iii). After a lengthy sentence stating

how a “trier of fact” is to evaluate credibility, the

provision adds that “[t]here is no presumption of

credibility, however, if no adverse credibility

determination is explicitly made, the applicant or

witness shall have a rebuttable presumption of

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

The government claims that the phrase “‘[t]here is no

presumption of credibility” establishes a “general

rule” applicable to the federal appellate courts from

which the BIA is exempted. Pet. Br. 28–29.

This interpretation entirely disregards this

Court’s instruction that a reviewing court “should not

confine itself to examining a particular statutory

provision in isolation. Rather, [t]he meaning — or

ambiguity — of certain words or phrases may only

become evident when placed in context.” Nat’l Ass’n of

Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666

(2007) (alteration in original) (quotation marks and

citations omitted). Here, every piece of context

surrounding this phrase indicates that it applies only

to the immigration judges. The phrase occurs in a

statutory subsection previously devoted to how a

“trier of fact” is to address credibility. 8 U.S.C.

§ 1158(b)(1)(B)(iii). The phrase occurs in a sentence

that assumes there will be further review “on

23

appeal” — but only the immigration judges (and not

the federal appellate courts) are subject to further

“appeal.” And the phrase occurs in a statutory

provision that does not address the standard of review

applied by the federal appellate courts. See 8 U.S.C.

§ 1158.8 Rather than read the phrase out of context

and in a way that disrupts the normal functioning of

administrative review, this Court should read the

statute “naturally in the present context.” Michigan

v. EPA, 576 U.S. 743, 752 (2015).

The

government’s interpretation

is

also

anomalous in light of the regulatory backdrop against

which the REAL ID Act was passed. By affording

substantial deference to the role of immigration

judges as the primary triers of fact, the REAL ID Act

built upon the Justice Department’s efforts to

establish a regulatory structure in which “[t]he Board

shall function as an appellate body.” 8 C.F.R.

§ 1003.1(d)(3)(1). This explicit structural aim to

privilege immigration judges as near-exclusive factfinders required the BIA to limit its review of fact

determinations under the “clearly erroneous”

8 Had Congress wished to carve out this bizarre exception to

the ordinary standard of review, it could have easily done so by

amending the statutory provision 8 U.S.C. § 1252(b)(4), which

addresses the standard of review by the federal appellate courts.

Indeed, the REAL ID Act made exactly such a change with

respect to a different issue — the treatment of corroborating

evidence of an asylum-seeker’s testimony. The REAL ID Act both

amended § 1158 to give guidance to immigration judges as to

when corroborating evidence should be provided and amended

§ 1252 to specify a particular standard of review that federal

appellate courts should use with respect to this issue. See REAL

ID Act § 101, 119 Stat. at 303, 304–05 (adding amendments on

this issue that are codified at 8 U.S.C. § 1158(b)(1)(B)(ii) and

8 U.S.C. § 1252(b)(4)(D)).

24

standard. Board of Immigration Appeals: Procedural

Reforms to Improve Case Management, 67 Fed. Reg.

54878 (Aug. 26, 2002). The Department of Justice

found that clear error review provided for “an

effective, reasonable, and efficient standard for

appellate

administrative

review

of

factual

determinations by immigration judges.” Id. at 54890.

Through the REAL ID Act, Congress similarly

endorsed the primacy of immigration judges as factfinders. See H. Rep. No. 109-72, at 167-68 (noting that

“[c]ourts have recognized the expertise that

[i]mmigration

[j]udges

bring

to”

credibility

determinations and emphasizing the significance of

demeanor with respect to these determinations). It is

all the more implausible, then, that Congress would

draw such an unmistakable structural distinction

between fact-finders and appellate reviewers at the

administrative level, and yet simultaneously seek to

undercut that distinction at the federal appellate

level.

B. This Erroneous Approach Would Deprive

the Federal Appellate Courts of the

Useful Bright-Line Rule that Congress

Established

The approach proposed by the government not

only runs counter to core principles of statutory

interpretation, but also invites more complexity and

uncertainty to federal appellate review of

immigration cases. The REAL ID Act introduced a

much-needed framework for determining and

reviewing credibility determinations — particularly

in the wake of surging federal appellate court dockets.

25

The government’s approach would return federal

appellate courts to the untenable task of reviewing

administrative asylum decisions that lack clear

findings of credibility without a workable structure

for conducting their review. If the courts were now

mandated to stand in the same position as the trier of

fact and review testimony without any presumption

of credibility, then how would they resolve cases in

which credibility could determine the outcome? In

such situations, the decisions of the immigration

judges and the BIA cannot be said to be adequately

reasoned because they do not grapple with issues that

are potentially outcome-determinative. Contrary to

the government’s suggestion, see Pet. Br. 22, the

federal appellate courts cannot be called upon to

invent justifications for affirmance that the agency

did not clearly give. Chenery Corp., 318 U.S. at 94–95.

And if a court were to remand for clarification on

credibility, all agree that the presumption of

credibility would apply to the BIA, potentially

triggering still more back-and-forth between the

agency and the federal appellate courts. In short, the

government’s interpretation of the statute suggests

that Congress has placed the federal appellate courts

back in the “yawning void,” Niam, 354 F.3d at 658,

and blocked all the exits.

The government’s reading also reduces the

incentives for the administrative agency to make

clear credibility determinations. Soon after the

Department of Justice’s BIA procedural reforms in

2002, the Board noted that by restricting its scope of

review, the “regulatory change adds significant force

to the Immigration Judge’s decision and,

concomitantly, makes it increasingly important for

the Immigration Judge to make clear and complete

26

findings of fact that are supported by the record and

in compliance with controlling law.” In re S-H-, et al.,

23 I&N Dec. 462 (BIA 2002) (emphasis added). If

“[t]here is no presumption of credibility” on petitions

for review to the federal appellate courts, then the

immigration judges are left with diminished incentive

to follow Congress’s instruction to be “explicit” when

they find applicants to be non-credible. 8 U.S.C.

§ 1158(b)(1)(B)(iii). The government’s approach would

permit the immigration judges to make vague and

muddled determinations while leaving it to the

federal appellate courts to hunt through the record for

unprovided justifications to affirm. Pet. Br. 28–29.

Similarly, under the government’s approach, the BIA

will know that as long as it is silent on the issue of

credibility, the federal appellate courts will not review

its treatment of credibility at all. This in turn

incentivizes the BIA to give only the most

“streamlined” and cursory review to cases in which

credibility is material — even though these are often

the most difficult cases. Such an approach is “as

unsupportable as it is counterintuitive.” Barnhart v.

Peabody Coal Co., 537 U.S. 149, 158 (2003).

C. The Pending Cases Illustrate Why the

Government’s Approach Is Wrong

The flaws in the government’s position are amply

illustrated by the pending cases. As in many pre-2005

cases, the immigration judges who reviewed

Respondents’ applications implied that they believed

some elements of the applicants’ narratives and

disbelieved others. But they ultimately neglected to

make a final call regarding the “totality of the

circumstances,” as the revised statute advised them

27

to do. See 8 U.S.C. § 1158(b)(1)(B)(iii). Given this

posture, the circuit court correctly presumed

credibility, concluded that the determinations below

were unsustainable, and granted the petitions for

review.

In Ming Dai’s case, neither the immigration judge

nor the BIA grappled with Mr. Dai’s testimony and

related evidence regarding his brutal abuse by

Chinese officials after his wife became pregnant and

the couple sought — unsuccessfully — to preserve the

pregnancy. The immigration judge made no explicit

adverse credibility finding, instead simply expressing

that Mr. Dai’s “explanation for [his wife’s] return to

China while he remained here” was not “adequate.”

Barr v. Dai Pet. for Cert. 175a. On review, the BIA

similarly made a conclusory statement that Dai “did

not meet his burden of proof.” Id. at 164a.

Under the approach proposed by the government,

we return once again to “the reviewing court [being]

left in the dark as to whether the judge thinks the

asylum seeker failed to carry her burden of proof

because her testimony was not credible, or for some

other reason.” Iao, 400 F.3d at 534. In the absence of

a presumption of credibility, substantial evidence

review is impossible because the lack of a credibility

finding renders the “grounds upon which the

administrative agency acted” neither “clearly

disclosed”

nor

“adequately

sustained,”

in

contravention of Chenery Corp., 318 U.S. at 94.9

Although amici do not address the second question

presented in Dai, they note that INS v. Ventura — on which the

government relies as to that question — emphasizes the

applicability of administrative law principles to the review of

BIA decisions, including principles set forth in Chenery. 537 U.S.

9

28

The same problem arises in the case of Cesar

Alcaraz-Enriquez. The immigration judge was

confronted with two factual records of a violent

offense: Mr. Alcaraz-Enriquez’s testimony and a

probation officer’s report. See Barr v. AlcarazEnriquez Pet. for Cert. 8a. And while the BIA was

correct that the immigration judge was not “required

to adopt the respondent’s version of events over other

plausible alternatives,” id., the immigration judge

made no explicit adverse credibility finding with

respect to Mr. Alcaraz-Enriquez and nowhere

explained why he appeared to credit the contents of

the report over Mr. Alcaraz-Enriquez’s testimony

despite finding him credible in other respects.

Compare id. at 12a–15a with id. at 20a (finding

petitioner “credible as far as testifying to the harm he

suffered”). Under the approach proposed by the

government, the Ninth Circuit would be forced to

produce its own reasoning based on the record and

speculate how the immigration judge “would have

viewed evidence she did not analyze.” Cao He Lin v.

U.S. Dep’t of Just., 428 F.3d 391, 400 (2d Cir. 2005).

In seeking reversal in these two cases, the

government asks this Court to prioritize the litigating

convenience of the executive branch over the mandate

that Congress established to aid federal appellate

adjudication. In both cases, the government had full

12, 16 (2002) (per curiam) (quoting Chenery Corp., 318 U.S. at

88). Yet, with respect to the first question presented, the

government in effect asks this Court to diverge from Chenery’s

principles and reinstate the decisions below based on reasoning

that the BIA did not offer. The Court should decline the

invitation, and should reaffirm the basic holding of Chenery that

“a judicial judgment cannot be made to do service for an

administrative judgment.” Chenery Corp., 318 U.S. at 88; see

Ventura, 537 U.S. at 16.

29

opportunity to request explicit adverse credibility

determinations from the immigration judges at the

initial hearings and, in the absence of such findings,

to argue to the BIA that it should overcome the

presumption of credibility. The government does not

appear to have done so. Instead of honoring the REAL

ID Act’s statutory text, which specifies that an

“adverse credibility determination [be] explicitly

made,” 8 U.S.C. § 1158(b)(1)(B)(iii), the government

would deny the law’s purpose and place the federal

appellate courts in an untenable position.

CONCLUSION

For the foregoing reasons, this Court should affirm

the judgments of the court of appeals regarding

credibility determinations.

Respectfully submitted,

ELEANOR BARRETT

JEAN GALBRAITH

UNIVERSITY OF

PENNSYLVANIA

CAREY LAW SCHOOL

APPELLATE ADVOCACY

CLINIC

3501 Sansom Street

Philadelphia, PA 19104

(215) 746-7824

ILANA H. EISENSTEIN

Counsel of Record

PAUL D. SCHMITT

JOHN WRAY

DLA PIPER LLP (US)

One Liberty Place

1650 Market Street

Suite 5000

Philadelphia, PA 19103

(215) 656-3351

ilana.eisenstein@dlapiper.com

30

CHARLES ROTH

NATIONAL IMMIGRANT

JUSTICE CENTER

224 S. Michigan Ave.

Suite 600

Chicago, IL 60604

(312) 660-1613

BENJAMIN CASPER

SANCHEZ

NADIA ANGUIANO-WEHDE

JAMES H. BINGER

CENTER FOR NEW

AMERICANS

UNIVERSITY OF

MINNESOTA LAW

SCHOOL

229 19th Avenue South

Minneapolis, MN 55455

(612) 625-5515

JANUARY 11, 2021

Counsel for Amici Curiae