Opposition Brief — Merrick B. Garland, Attorney General, Petitioner v. Cesar Alcaraz-Enriquez
Supreme Court briefJun 19, 2020
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No. 19-1156
IN THE
Supreme Court of the United States
_________
WILLIAM P. BARR, ATTORNEY GENERAL,
Petitioner,
v.
CESAR ALCARAZ-ENRIQUEZ,
Respondent.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
_________
BRIEF IN OPPOSITION
_________
ROBERT JOBE
THE LAW OFFICES OF
ROBERT JOBE
100 Bush Street
Suite 1250
San Francisco, CA 94104
NEAL KUMAR KATYAL
Counsel of Record
MITCHELL P. REICH
HOGAN LOVELLS US LLP
555 Thirteenth St., N.W.
Washington, DC 20004
(202) 637-5600
neal.katyal@hoganlovells.com
KRISTINA ALEKSEYEVA
HOGAN LOVELLS US LLP
390 Madison Avenue
New York, NY 10017
Counsel for Respondent
QUESTION PRESENTED
The Immigration and Nationality Act requires the
Board of Immigration Appeals (“BIA”) to apply a
“rebuttable presumption of credibility” if an immigration judge fails to “explicitly ma[k]e” an “adverse
credibility determination.” 8 U.S.C. § 1229a(c)(4)(C).
A court of appeals in turn must grant “conclusive”
deference to the findings of the BIA, “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” Id. § 1252(b)(4)(B).
The question presented is:
Whether the Ninth Circuit correctly held—in
agreement with every other circuit to consider the
question—that it must conclusively deem an alien
credible where (1) the immigration judge failed to
“explicitly ma[k]e” an “adverse credibility determination” and (2) the BIA failed to find the “presumption
of credibility” “rebutt[ed].”
(i)
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED........................................... i
TABLE OF AUTHORITIES....................................... iv
INTRODUCTION ........................................................ 1
STATEMENT .............................................................. 4
A.
Factual Background ................................. 4
B.
Procedural History ................................... 6
REASONS FOR DENYING THE PETITION .......... 10
I.
II.
THE PRESUMPTION OF
CREDIBILITY EMPLOYED BY THE
NINTH CIRCUIT IS CORRECT.................... 11
A.
The INA Compels A Presumption
Of Credibility .......................................... 12
B.
The Ninth Circuit Does Not Presume That An Applicant’s Testimony Is “True.” ....................................... 18
THERE IS NO MEANINGFUL
DIVISION AMONG THE CIRCUITS ............ 21
III. THE QUESTION PRESENTED IS
NOT SUFFICIENTLY IMPORTANT
TO MERIT REVIEW ...................................... 26
IV. IF THE COURT DEEMS
CERTIORARI APPROPRIATE, IT
SHOULD GRANT THIS PETITION
AND HOLD MING DAI ................................. 30
A.
Ming Dai Is An Unsuitable Vehicle ............................................................ 30
B.
This Case Does Not Suffer From
Comparable Vehicle Defects .................. 34
iii
TABLE OF CONTENTS—Continued
Page
CONCLUSION .......................................................... 35
iv
TABLE OF AUTHORITIES
Page(s)
CASES:
Aden v. Holder,
589 F.3d 1040 (9th Cir. 2009) .................... 2, 19, 23
Alonzo-Rivera v. U.S. Attorney Gen.,
649 F. App’x 983 (11th Cir. 2016).................. 22, 24
Anaya-Ortiz v. Holder,
594 F.3d 673 (9th Cir. 2010) ............................ 9, 21
Antropova v. Holder,
553 F. App’x 49 (2d Cir. 2014) ............................. 23
Carreto-Escobar v. Barr,
--- F. App’x ---, 2020 WL 1934884 (9th
Cir. 2020) .............................................................. 27
Doe v. Holder,
651 F.3d 824 (8th Cir. 2011) ................................ 23
Ernesto Navas v. INS,
217 F.3d 646 (9th Cir. 2000) .......................... 20, 21
Guo v. Sessions,
897 F.3d 1208 (9th Cir. 2018) .............................. 29
Guta-Tolossa v. Holder,
674 F.3d 57 (1st Cir. 2012) ........................ 3, 25, 26
Gutierrez-Orozco v. Lynch,
810 F.3d 1243 (10th Cir. 2016) ............................ 23
Haider v. Holder,
595 F.3d 276 (6th Cir. 2010) .............. 12, 22, 24, 26
HongBin Sun v. Barr,
794 F. App’x 650 (9th Cir. 2020).......................... 28
Hong Fei Gao v. Sessions,
891 F.3d 67 (2d Cir. 2018) ................................... 15
v
TABLE OF AUTHORITIES—Continued
Page(s)
In re Beckles,
2010 WL 1251022 (BIA Feb. 23, 2010)................ 29
In re Duran-Zavala,
2015 WL 3896308 (BIA May 22, 2015) ............... 29
In re Frentescu,
18 I. & N. Dec. 244 (BIA 1982) .............................. 7
In re Jones,
2015 WL 3896297 (BIA May 5, 2015) ................. 29
In re Munguia de Morales,
2015 WL 3932344 (BIA May 6, 2015) ................. 29
In re Ortega,
2010 WL 2224575 (BIA May 12, 2010) ......... 13, 29
In re Ramirez,
2012 WL 3911867 (BIA Aug. 27, 2012) ............... 29
In re S-A-,
22 I. & N. Dec. 1328 (BIA 2000) .......................... 14
Jibril v. Gonzales,
423 F.3d 1129 (9th Cir. 2005) .............................. 17
Kazemzadeh v. U.S. Attorney Gen.,
577 F.3d 1341 (11th Cir. 2009) ............................ 22
Kho v. Keisler,
505 F.3d 50 (1st Cir. 2007) ...................... 16, 21, 25
Kumar v. Barr,
770 F. App’x 381 (9th Cir. 2019).................... 21, 27
Kwong v. Holder,
671 F.3d 872 (9th Cir. 2011) .................................. 9
Lin-Jian v. Gonzales,
489 F.3d 182 (4th Cir. 2007) ................................ 22
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Lin Yan v. Holder,
559 F. App’x 658 (10th Cir. 2014)........................ 15
Luziga v. Attorney Gen.,
937 F.3d 244 (3d Cir. 2019) ..................... 22, 24, 26
Marynenka v. Holder,
592 F.3d 594 (4th Cir. 2010) .......................... 22, 24
Mejia v. U.S. Attorney Gen.,
498 F.3d 1253 (11th Cir. 2007) ............................ 22
Mendoza Manimbao v. Ashcroft,
329 F.3d 655 (9th Cir. 2003) ................................ 28
Ming Dai v. Sessions,
884 F.3d 858 (9th Cir. 2018) ........................ passim
Mubarack v. Holder,
595 F. App’x 54 (2d Cir. 2014) ............................. 24
Ndou v. Attorney Gen.,
758 F. App’x 288 (3d Cir. 2018) ........................... 22
Patel v. Sessions,
868 F.3d 719 (8th Cir. 2017) .......................... 22, 24
SEC v. Chenery Corp.,
332 U.S. 194 (1947) .............................................. 14
Shrestha v. Holder,
590 F.3d 1034 (9th Cir. 2010) .............................. 15
Singh v. Barr,
804 F. App’x 644 (9th Cir. 2020).......................... 29
Singh v. Gonzales,
491 F.3d 1019 (9th Cir. 2007) .............................. 27
Singh v. Holder,
753 F.3d 826 (9th Cir. 2014) ................................ 19
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Tijani v. Holder,
628 F.3d 1071 (9th Cir. 2010) .............................. 32
Toure v. Attorney Gen.,
443 F.3d 310 (3d Cir. 2006) ................................. 24
Wen Shu Chen v. Holder,
337 F. App’x 36 (2d Cir. 2009) ....................... 22, 24
Xiao Yun Yan v. Lynch,
646 F. App’x 542 (9th Cir. 2016).......................... 32
Yan Dan Li v. Gonzales,
222 F. App’x 318 (4th Cir. 2007).......................... 22
Zeru v. Gonzales,
503 F.3d 59 (1st Cir. 2007) .................................. 25
STATUTES:
8 U.S.C. § 1158(b)(1)(B)(iii) .................................... 17
8 U.S.C. § 1158(b)(2)(B)(i)......................................... 6
8 U.S.C. § 1229a ...................................................... 16
8 U.S.C. § 1229a(b)(4)(B) .......................................... 9
8 U.S.C. § 1229a(c)(4)(B) ........................................ 12
8 U.S.C. § 1229a(c)(4)(C) ................................ passim
8 U.S.C. § 1231(b)(3)(B)(ii) ....................................... 6
8 U.S.C. § 1252 ........................................................ 16
8 U.S.C. § 1252(b)(4)(B) .................................. passim
LEGISLATIVE MATERIAL:
H.R. Rep. No. 109-72 (2005) (Conf. Rep.) ........ 17, 18
viii
TABLE OF AUTHORITIES—Continued
Page(s)
OTHER AUTHORITIES:
Black’s Law Dictionary (11th ed. 2019) ................. 13
U.S. Courts of Appeals – Judicial Business
2018, U.S. Courts, available at
https://www.uscourts.gov/statisticsreports/us-courts-appeals-judicialbusiness-2018 (last visited June 18, 2020) ... 29, 30
U.S. Dep’t of Justice, Exec. Office for Immigration Review, Statistics Yearbook: Fiscal
Year 2018.............................................................. 29
IN THE
Supreme Court of the United States
_________
No. 19-1156
_________
WILLIAM P. BARR, ATTORNEY GENERAL,
Petitioner,
v.
CESAR ALCARAZ-ENRIQUEZ,
Respondent.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
_________
BRIEF IN OPPOSITION
_________
INTRODUCTION
When a foreign national seeks asylum or withholding of removal in the United States, the Immigration
and Nationality Act (“INA”) prescribes a three-tiered
scheme of review. First, an immigration judge is
responsible for assessing whether the applicant’s
claim is credible, without affording him any “presumption of credibility.” 8 U.S.C. § 1229a(c)(4)(C).
Then, if the immigration judge fails to “explicitly
ma[k]e” an “adverse credibility determination,” the
applicant is entitled to “a rebuttable presumption of
credibility on appeal” to the Board of Immigration
Appeals (“BIA”). Id. And, finally, if the applicant
petitions for review of the BIA’s decision, the court of
appeals must afford “conclusive” deference to the
(1)
2
“administrative findings of fact * * * unless any
reasonable adjudicator would be compelled to conclude to the contrary.” Id. § 1252(b)(4)(B).
Every court of appeals to consider the question has
held that this scheme requires a court of appeals to
deem an applicant credible if neither the immigration judge nor the BIA made an explicit adverse
finding of credibility. The logic of this position is
straightforward: If (1) the immigration judge failed
to “explicitly ma[k]e” an adverse credibility finding,
and (2) the BIA did not find the “presumption of
credibility” “rebutt[ed],” then (3) the “administrative
finding[ ]” is that the applicant is credible—and that
finding is entitled to “conclusive” deference by the
court of appeals. The Government’s contrary position—that an appellate court may reexamine the
record to decide for itself whether the alien is credible—would contradict the plain text of the statute
and flout basic principles of administrative law. It
would also be a first: No court of appeals, not a
single judge writing in Ming Dai v. Sessions, and not
even the Government’s briefs in prior cases have
taken such a position.
The Government’s efforts to convert this straightforward, splitless issue into a viable candidate for
certiorari are a sight to behold. The Government
contends that, where the presumption of credibility
applies, the Ninth Circuit presumes not merely that
an applicant’s testimony is “credible” but also that it
is “true.” Pet. I; see Ming Dai Pet. 13, 14, 20-22, 25,
26-27, 28 (No. 19-1155). Actually, the Ninth Circuit
has said just the opposite: It has held that where
testimony is found “credible,” an immigration judge
“need not accept such testimony as true,” Aden v.
Holder, 589 F.3d 1040, 1044 (9th Cir. 2009) (empha-
3
sis added), and that after applying the presumption
of credibility, a court must separately assess whether
an applicant’s testimony is “persuasive,” Ming Dai
Pet. App. 19a.
The Government also claims that the First Circuit
has split from the Ninth Circuit (along with every
other circuit to address the question). Ming Dai Pet.
24. Wrong again. Although the First Circuit did not
accept the presumption of credibility in cases predating enactment of the relevant statutory text, since
then it has enforced the statute’s “rebuttable presumption of credibility” in a manner indistinguishable from other circuits. See Guta-Tolossa v. Holder,
674 F.3d 57, 61-62 (1st Cir. 2012). The Government
simply fails to cite the operative precedent.
Finally, the Government claims that the validity of
the presumption of credibility is an issue of significant practical import. Ming Dai Pet. 26-27. But the
Ninth Circuit has found the presumption of credibility outcome-determinative in only a miniscule fraction of asylum cases; in over 99% of cases in which
an applicant’s credibility was in issue, the court
accepted the agency’s credibility finding as sufficiently explicit or denied the petition regardless.
For these reasons, and others besides, the question
presented does not merit certiorari. But if the Court
wishes to review the issue, it should grant the petition in Alcaraz and hold Ming Dai. Alcaraz cleanly
presents the validity of the presumption of credibility
and accurately illustrates its limited practical significance. Ming Dai, in contrast, is rife with threshold
disagreements and alleged procedural errors that
would frustrate, distort, and potentially preclude
review of the question presented.
4
STATEMENT
A.
Factual Background
Cesar Alcaraz-Enriquez (“Alcaraz”) was born in
Mexico and brought to the United States when he
was eight years old. Pet. App. 16a. Since then, he
has lived most of his life in the United States. Id. at
16a-17a. Both of his parents and all three of his
siblings lawfully reside in this country. Id. at 16a.
Alcaraz has repeatedly been diagnosed with schizophrenia, and has endured profound challenges
related to that condition. Id. at 18a-19a. In 1998,
when he was 19 years old, Alcaraz had a daughter
with his girlfriend, Esmeralda. Id. at 17a. The
following year, he pleaded no contest to charges of
domestic violence against Esmeralda, as well as to
possession of a controlled substance, and was sentenced to two years in prison. Id. at 11a-14a. While
imprisoned, Alcaraz suffered severe depression, and
attempted suicide by slicing his wrist with a razor
blade. Id. at 17a. Alcaraz was confined to a bed and
medicated for three months. Id.
Upon his release from prison, Alcaraz was deported
to Mexico because of his controlled-substance conviction. Id. For much of his time in Mexico, Alcaraz
stayed at a “rehabilitation program.” Id. After two
and a half years, Alcaraz returned to the United
States to live with his family. Id. at 17a-18a. He
was observed “speak[ing] and laugh[ing] to himself,”
“star[ing] off,” and “hear[ing] voices.” Id. at 18a. His
family took him to a mental health clinic in California, where he was diagnosed with schizophrenia. Id.
Alcaraz began to receive monthly counseling and
medication, and his condition improved. Id. But in
2005, he was again deported to Mexico because of his
5
1999 controlled-substance conviction. Id. at 17a.
Two years later, Alcaraz returned to the United
States. Id. In 2007, he was deported again. Id. at
18a.
Unable to live with Alcaraz in the United States,
but fearing that he could not support himself in
Mexico, Alcaraz’s family rented him an apartment in
Tijuana and subsidized his living. Id. That assistance proved insufficient. In 2013, Alcaraz and his
neighbor had an altercation, and police were called.
Id. The officers arrested Alcaraz and placed him in
jail for two days. Id. After he was released, Alcaraz
found that his apartment was locked and was unable
to gain access. Id. The police were called again; this
time, they accused Alcaraz of being a drug addict,
beat him with batons, and placed him in a patrol car.
Id. They then took him to an unknown location,
where five officers beat him, pepper sprayed him,
and Tasered him. Id. He was placed in jail for three
to four months, and was released only after he
pleaded guilty to assault. Id. at 18a-19a.
Upon his release, Alcaraz was again placed in a
rehabilitation facility in Mexico. Id. at 19a. His
father traveled to Mexico to rent Alcaraz an apartment and live with him for a month. Id. He also
took Alcaraz to a psychologist, who again diagnosed
Alcaraz with a paranoid disorder related to schizophrenia. Id. Yet Alcaraz’s challenges continued. In
December 2013, he left his apartment, became
disoriented, and could not find his way home. Id.
His family posted fliers and reported his disappearance; they also searched for him in hospitals,
morgues, and other locations. Id. Unable to find
Alcaraz, his family believed he was dead. Id.
6
In February 2014, Alcaraz called his family from
San Diego. Id. He reported that, after several
months, he had wandered to the San Ysidro port of
entry and walked through the border in the vehicleonly lane. Id. Immigration officers spotted him
there, and he was apprehended and taken into
custody. Id.
B.
Procedural History
1. The Government once again sought Alcaraz’s
removal to Mexico. Id. at 11a. In removal proceedings, Alcaraz acknowledged that he was removable
on the basis of his controlled-substance conviction
from 15 years earlier. Id. But with the aid of a
lawyer, he sought humanitarian relief: If returned to
Mexico, he pleaded, he would face a severe threat to
his life and freedom because of his psychological
condition. He requested withholding of removal or
protection under the Convention Against Torture.
Id.
An immigration judge denied relief and ordered
Alcaraz removed. Id. at 21a-22a. The judge first
found that Alcaraz was ineligible for asylum. Id.
The asylum statute bars a person from obtaining
asylum if he was previously convicted of an “aggravated felony.” 8 U.S.C. § 1158(b)(2)(B)(i). The judge
concluded that Alcaraz’s 1999 domestic violence
offense was categorically an aggravated felony within the meaning of this provision, and so permanently
barred him from seeking asylum. Pet. App. 11a-12a.
The judge also found Alcaraz ineligible for withholding of removal. A person is ineligible for withholding of removal if he has committed a “particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B)(ii). This
standard—unlike the standard for an aggravated
7
felony—is assessed on a “case-by-case basis,” and
turns on case-specific factors such as “the circumstances and underlying facts of the conviction” and
whether “the type and circumstances of the crime
indicate that the alien will be a danger to the community.” In re Frentescu, 18 I. & N. Dec. 244, 247
(BIA 1982); see Pet. App. 12a.
The Government and Alcaraz, however, presented
“directly contradict[ory]” accounts of Alcaraz’s offense. Pet. App. 2a. The Government introduced a
probation officer’s report written in 1999, which
stated that Alcaraz had repeatedly hit, dragged, and
kicked his girlfriend and then forced her to have sex
with him. Id. at 12a-13a. The report acknowledged
that Alcaraz denied many of these acts at the time,
and stated instead that he grabbed his girlfriend by
the arm and punched her when she “was about to hit
him.” Id. at 14a. At the immigration hearing, Alcaraz again testified that the report misstated his
conduct. He explained that the altercation began
because he saw his girlfriend hitting his infant
daughter excessively. Alcaraz Decl. ¶ 6, In re Alcaraz-Enriquez, No. A075-191-250 (EOIR July 21,
2014). When he asked her to stop, she refused, and
he struck his girlfriend to protect his daughter. Id.;
see Hr’g Tr. 21-22, Alcaraz, No. A075-191-250 (EOIR
July 31, 2014). Alcaraz categorically denied dragging his girlfriend, kicking her, forcing her to have
sex with him, or engaging in any other violent acts.
Hr’g Tr. 63-65, Alcaraz, No. A075-191-250 (EOIR
Aug. 28, 2014).
The immigration judge did not determine whether
Alcaraz’s testimony was credible. Instead, it accepted the probation officer’s account without further
explanation, stating that “the probation officer’s
8
evaluation,” taken together with the “elements of the
crime” and Alcaraz’s two-year sentence, indicated
that Alcaraz would be a “danger to the community.”
Pet. App. 14a-15a. The judge accordingly found
Alcaraz’s crime “particularly serious” and deemed
him ineligible for withholding of removal. Id. at 15a.
Finally, the immigration judge held that Alcaraz
was ineligible for relief under the Convention
Against Torture. He found that Alcaraz “was credible as far as testifying to the harm he suffered while
in the custody of the police.” Id. at 20a. He also
found that Alcaraz’s “mental condition is relevant to
the Court’s consideration of whether or not [he]
would be tortured if returned to his home country.”
Id. As he explained, the State Department has found
that “mental institutions and care facilities across”
Mexico are rife with “human rights abuse[s]”; that
individuals with disabilities are subjected to “lack of
access to justice, the use of physical and chemical
restraints, physical and sexual abuse, disappearance,
and illegal adoptions”; and that “[m]any of Mexico’s
institutions are filthy, leaving people to walk around
in ragged clothing on barren floors covered with
urine and feces.” Id. at 20a-21a. Nonetheless, the
judge found that Alcaraz’s mistreatment was not
“tantamount to torture.” Id. at 21a.
2. The BIA summarily “adopt[ed] and affirm[ed]
the decision of the Immigration Judge.” Id. at 7a. It
stated that the immigration judge “properly considered all evidence of record in assessing the seriousness of the respondent’s conviction,” and “was not
required to adopt the respondent’s version of events
over other plausible alternatives.” Id. at 8a. It also
found that the judge “properly denied the respond-
9
ent’s [Convention Against Torture] claim.”
therefore dismissed the appeal. Id. at 9a.
Id.
It
3. Alcaraz filed a petition for review in the Ninth
Circuit. Id. at 1a. In a memorandum opinion, a
panel comprised of Circuit Judges Bea and N.R.
Smith and District Judge Nye explained that where,
as here, “the BIA adopts and affirms an IJ’s decision
with further reasoning, th[e] court reviews both the
decision of the IJ and the BIA.” Id. at 3a n.2 (citing
Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011)).
Conducting that review, the panel unanimously held
that “[t]he BIA erred” when it denied Alcaraz’s
application for withholding of removal on the basis of
“a probation report, which directly contradicts Alcaraz’s testimony.” Id. at 2a.
“[W]e have repeatedly held,” the panel wrote, “that
‘where the BIA does not make an explicit adverse
credibility finding, the court must assume that the
petitioner’s factual contentions are true.’ ”
Id.
(brackets omitted) (quoting Anaya-Ortiz v. Holder,
594 F.3d 673, 679 (9th Cir. 2010)). In this case,
however, the BIA “credited the probation report over
Alcaraz’s testimony without making an explicit
adverse credibility finding as to Alcaraz.” Id. at 3a.
Furthermore, the BIA did not give Alcaraz “any sort
of opportunity to cross-examine the witnesses whose
testimony was embodied in the probation report,” in
violation of his statutory right to “cross-examine
witnesses presented by the Government.” Id. (quoting 8 U.S.C. § 1229a(b)(4)(B)). The Ninth Circuit
thus “remand[ed] to the BIA for reconsideration of
th[e] claim” for withholding of removal. Id. at 2a.
The court found no error, however, in the BIA’s
resolution of Alcaraz’s claim for protection under the
10
Convention Against Torture. Id. at 3a-4a. It therefore denied his petition as to that separate claim. Id.
at 4a.
4. The Government petitioned for rehearing. Id. at
5a. While that petition was pending, the Ninth
Circuit issued its decision in Ming Dai v. Sessions,
884 F.3d 858 (9th Cir. 2018). There, the court reiterated that, “in the absence of an adverse credibility
finding by the IJ or the BIA, the petitioner is deemed
credible.” Ming Dai Pet. App. 14a. It further explained that “credibility” is distinct from “persuasiveness,” and that a petitioner whose testimony is
deemed credible must nonetheless demonstrate that
his testimony is persuasive in order to be entitled to
relief from removal. Id. at 19a; see id. at 23a n.12.
Applying those rules, a divided panel held that Dai’s
testimony conclusively established that he was both
eligible for asylum and entitled to withholding of
removal. Id. at 24a-26a.
The Ninth Circuit denied the Government’s petition for rehearing en banc in Ming Dai over the
dissent of several judges, including Judge Bea. Id. at
110a; see id. at 123a. Following that decision, the
panel in this case denied rehearing as well. Pet.
App. 5a. No judge dissented. Id.
REASONS FOR DENYING THE PETITION
The Government claims that this case presents
“the same question” as Ming Dai, and should be
reviewed for the same reasons. Pet. 7-8. The Government is correct that the principal question in both
cases is the same: whether the Ninth Circuit’s presumption of credibility is valid. But as the Ninth
Circuit’s unanimous resolution of this case both
before and after Ming Dai reflects, that question is
11
neither difficult nor worthy of this Court’s review.
The plain text of the INA dictates the presumption of
credibility employed by the panel below. Contrary to
the Government’s portrayal, every court of appeals to
consider the question has adopted a functionally
identical presumption. Further, the question presented is of extremely limited practical importance:
In the rare case in which the presumption of credibility is outcome-determinative, it often results in a
remand to the agency so that it can reconsider, and
potentially correct, its failure to make a credibility
finding. The Court should not review this splitless
question, but if it deems the question worthy of
certiorari, it should grant the petition in this case
and hold Ming Dai.
I. THE PRESUMPTION OF CREDIBILITY
EMPLOYED BY THE NINTH CIRCUIT IS
CORRECT.
The Government rests its case for certiorari principally on the contention that the Ninth Circuit’s
presumption of credibility is “[w]rong.” Ming Dai
Pet. 15. It elaborates at length on the purported
defects of that rule, see id. at 15-23, and confidently
asserts that its position is compelled by “[t]he plain
text” of the REAL ID Act of 2005, id. at 17-18.
At the outset, there is more than a little reason to
be skeptical of the Government’s claim. Despite the
Government’s assertion that its position is obviously
correct, every member of the Ninth Circuit to express
a view in Ming Dai disagreed with it; both the panel
majority and the en banc dissenters determined that
the INA imposes some presumption of credibility.
Compare Ming Dai Pet. App. 13a-14a (panel majority) (holding that the INA imposes a conclusive pre-
12
sumption of credibility), with id. at 147a-148a (Collins, J., joined by six other judges, dissenting from
denial of rehearing en banc) (arguing that the INA
imposes a “rebuttable presumption of credibility”
(citation omitted)). Every court of appeals to express
a view on the question, including the First Circuit,
has also disagreed with the Government. See infra
Part II.
And although the Government—
remarkably—does not acknowledge it, it too accepted
a presumption of credibility until very recently:
Prior to its en banc petition in Ming Dai, it “urge[d]”
appellate courts to adopt the presumption of credibility employed by the Ninth Circuit. See, e.g., Haider
v. Holder, 595 F.3d 276, 282 & n.4 (6th Cir. 2010)
(noting that “[t]he government urges us” to apply a
presumption of credibility).
If the plain text of the REAL ID Act “forecloses” a
presumption of credibility, then, Ming Dai Pet. 17,
that fact has managed to elude every judge and
nearly every government lawyer to examine the
issue for over a decade. Sometimes, perhaps, the
correct interpretation of statutory text is hiding in
plain sight. But this is not one of those cases.
A.
The INA Compels A Presumption Of
Credibility.
1. The INA establishes a three-tier scheme for review of asylum and withholding-of-removal claims.
A straightforward reading of that scheme compels
the Ninth Circuit’s presumption of credibility.
Start at the bottom. Review of an applicant’s claim
begins with the immigration judge, whose role is to
make credibility determinations. The Act provides
that “the immigration judge will determine whether
or not the [applicant’s] testimony is credible.” 8
13
U.S.C. § 1229a(c)(4)(B). It further provides that the
immigration judge should make those determinations based on “all relevant factors,” including the
applicant’s “demeanor, candor, or responsiveness.”
Id. § 1229a(c)(4)(C). The immigration judge may not
apply a “presumption of credibility.” Id.
After that, an applicant appeals to the BIA, which
is required to apply “a rebuttable presumption of
credibility.” Id. (emphasis added). The INA states
that, “if no adverse credibility determination is
explicitly made, the applicant or witness shall have a
rebuttable presumption of credibility on appeal.” Id.
As the Government agrees, an “appeal” from an
immigration court is to the BIA. Ming Dai Pet. 18.
And a “rebuttable presumption” means that the
decisionmaker must find the fact presumed unless it
finds evidence to the contrary. See Black’s Law
Dictionary (11th ed. 2019). Thus, if the immigration
judge fails to “explicitly ma[k]e” an “adverse credibility determination,” and the BIA does not find that
the “presumption of credibility” has been “rebutt[ed],” the BIA must find that the applicant is
credible. That is precisely how the BIA itself reads
the statute.
See, e.g., In re Ortega, 2010 WL
2224575, at *1 n.1 (BIA May 12, 2010).
Last, when an applicant files a petition for review,
the court of appeals must defer to the BIA’s credibility findings. The INA states that “administrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). Hence, if the
BIA finds an applicant non-credible, the court of
appeals must defer to that finding. But if the “rebuttable presumption of credibility” holds—that is, if the
immigration judge does not make an explicit adverse
14
credibility finding and the BIA does not find the
presumption rebutted—the court of appeals must
find the applicant credible. Id. § 1229a(c)(4)(C).
After all, in that circumstance, the BIA necessarily
found the applicant credible: that is what the statutory presumption of credibility dictates. And the
court is required to deem that finding “conclusive.”
Id. § 1252(b)(4)(B).
In short, putting the scheme together: if (1) the
immigration judge does not “explicitly ma[k]e” an
“adverse credibility determination,” and (2) the BIA
does not find the “presumption of credibility” “rebut[ed],” then (3) the court of appeals must “conclusive[ly]” deem the applicant credible. Or, as the
Ninth Circuit summarized: “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.” Ming Dai Pet. App. 13a.
This conclusion is reinforced by basic principles of
administrative law. “[A] reviewing court * * * must
judge the propriety of [an agency’s] action solely by
the grounds invoked by the agency,” and the agency’s
rationale must be set forth with sufficient “clarity”
and “precis[ion]” that a court can determine “whether it is right or wrong.” SEC v. Chenery Corp., 332
U.S. 194, 196-197 (1947) (citation omitted). Unless
an agency finds that an applicant is non-credible, a
reviewing court cannot uphold its decision on that
ground. And unless that finding is explicit, a court
cannot determine whether it is reasonable. As the
BIA and numerous courts of appeals have explained
(and as the Government does not contest), an immigration judge must offer “specific, cogent reasons” for
finding that an applicant did not testify credibly. In
re S-A-, 22 I. & N. Dec. 1328, 1331 (BIA 2000); see,
15
e.g., Hong Fei Gao v. Sessions, 891 F.3d 67, 77 (2d
Cir. 2018); Lin Yan v. Holder, 559 F. App’x 658, 659
(10th Cir. 2014) (Gorsuch, J.); Shrestha v. Holder,
590 F.3d 1034, 1042-43 (9th Cir. 2010). If the agency
does not even make its adverse credibility finding
explicit, then its reasons for that finding will necessarily be a matter of guesswork for the reviewing
court, stymying review and depriving the applicant
of a fair chance to demonstrate that the agency erred
by disbelieving him.
2. The Government disagrees. It contends that,
even if the immigration judge and the BIA fail to
make an adverse credibility finding, a reviewing
court is free to conduct an independent review of the
record and find the applicant non-credible on its own.
Ming Dai Pet. 13-14. The Government offers several
rationales for that position, and none has merit.
a. The Government first argues that because the
“rebuttable presumption of credibility” applies only
“on appeal” to the BIA, reviewing courts cannot also
be subject to such a presumption. Id. at 18-19. This
argument, however, overlooks the requirement that
circuit courts must accord deference to the findings
of the BIA. See 8 U.S.C. § 1252(b)(4)(B). When the
presumption applies, it requires the BIA to find that
the applicant is credible. A court, in turn, must
deem that finding “conclusive” on review. Id. The
fact that the presumption is binding on the BIA is
precisely what compels a reviewing court to defer to
the outputs of that presumption.
b. The Government also suggests that reviewing
courts may not presume an applicant credible because the statute elsewhere states that “[t]here is no
presumption of credibility.” Ming Dai Pet. 16-17
16
(citation omitted). That language, however, is most
naturally read as applying only to immigration
judges, not courts. It appears immediately after
language specifying how immigration judges should
make credibility determinations, see 8 U.S.C.
§ 1229a(c)(4)(C), in a provision that sets forth the
procedures for “[r]emoval proceedings,” id. § 1229a.
The standards for judicial review are contained in 8
U.S.C. § 1252. And far from allowing courts to make
de novo credibility determinations based on an
independent examination of the record, it states that
judges must deem administrative findings of fact
“conclusive.”
Id. § 1252(b)(4)(B); accord Kho v.
Keisler, 505 F.3d 50, 56-57 (1st Cir. 2007) (interpreting statute similarly).
Indeed, reading the provision as the Government
proposes would turn the statutory scheme on its
head. It would make the statutory “rebuttable
presumption of credibility” all but meaningless,
because any finding of credibility made by the BIA
pursuant to that presumption would cease to have
effect as soon as the applicant filed a petition for
review. It would also mean that a court of appeals
would have more discretion than the BIA to make
credibility determinations, since the BIA would be
subject to a presumption of credibility but the court
would not. It is deeply implausible that Congress
intended that inversion of the normal roles of court
and agency.
c. Lacking any footing in the statutory text, the
Government turns to legislative history. It asserts
that Congress “amended the INA to reject the Ninth
Circuit’s pre-REAL ID Act approach adopting * * * a
presumption [of credibility].” Ming Dai Pet. 13. As
support for that claim, it cites a single sentence from
17
the Conference Report for the REAL ID Act in which
the drafters stated that “the creation of a uniform
standard for credibility is needed to address a conflict on this issue between the Ninth Circuit on one
hand and other circuits and the BIA.” Id. at 18
(quoting H.R. Rep. No. 109-72, at 167 (2005) (Conf.
Rep.)); see id. at 25 (same).
Members of this Court have lamented that legislative history is too often prone to misuse, and the
Government’s citation is, regrettably, a case in point.
As even a brief examination discloses, the quoted
passage was referring to a distinct issue: It was
discussing a statutory amendment that clarified the
standards “on which an adjudicator may make a
credibility determination,” H.R. Rep. No. 109-72, at
166-167, including by clarifying that immigration
judges may take into account “inaccuracies or falsehoods * * * without regard to whether [they] go[ ] to
the heart of the applicant’s claim.”
8 U.S.C.
§ 1158(b)(1)(B)(iii); see H.R. Rep. No. 109-72, at 74.
As Judge O’Scannlain has explained, this amendment thus abrogated a line of Ninth Circuit precedent restricting when immigration judges may
consider such evidence in making credibility determinations. Jibril v. Gonzales, 423 F.3d 1129, 1138
n.1 (9th Cir. 2005). The passage the Government
quotes was not addressing the presumption of credibility at all; the Conference Report addressed that
issue on the next page, where it simply quoted the
relevant statutory language nearly verbatim without
18
suggesting it was intended to overturn Ninth Circuit
precedent. See H.R. Rep. No. 109-72, at 168.1
B. The Ninth Circuit Does Not Presume That
An Applicant’s Testimony Is “True.”
Perhaps because its principal merits argument is
so infirm, the Government tries another gambit. It
claims that, in the absence of an explicit adverse
credibility finding, the Ninth Circuit does not presume merely that an applicant’s testimony is credible, but that it is “truthful in its entirety.” Ming Dai
Pet. 20. According to the Government, this approach
impermissibly conflates the questions of credibility
and persuasiveness, and renders superfluous the
statutory requirement that an applicant demonstrate
that his testimony is “persuasive.” Id. at 20-22.
The premise of this argument is demonstrably
false. The Ming Dai panel expressly rejected the
contention—offered by Judge Trott in dissent—that
“there is bar[el]y a dime’s worth of substantive
difference between ‘credible’ and ‘persuasive,’ ”
explaining that “[t]his assertion is flatly contradicted
1
The quoted language also could not have been referring to the
presumption of credibility because there was no “conflict” on
that issue “between the Ninth Circuit on one hand and other
circuits and the BIA.” H.R. Rep. No. 109-72, at 167. Even by
the Government’s reckoning, the only circuit-court decision to
cast doubt on the Ninth Circuit’s presumption was issued more
than two years after the REAL ID Act was enacted. See Ming
Dai Pet. 24; but see infra pp. 25-26 (explaining that even that
conflict is illusory). And there is no contention that the BIA has
ever issued a decision questioning the validity of that presumption.
19
by the text of the REAL ID Act, which requires that
testimony be both ‘credible’ and ‘persuasive.’ ” Ming
Dai Pet. App. 23a n.12 (citations omitted). The panel
thus stated that it presumed only that Dai’s testimony was “credible.” Id. at 17a. It explained that Dai
needed to separately satisfy the “requirement” of
“persuasiveness.” Id. at 19a. And in determining
whether Dai met that distinct requirement, the court
did not apply any presumption, but considered in
painstaking detail whether “substantial evidence”
supported “the BIA’s determination that Dai’s testimony was unpersuasive,” when that testimony was
considered in light of “the record as a whole.” Id. at
19a-24a.
Other precedents confirm that the Ninth Circuit
fully recognizes the distinction between credibility,
on one hand, and persuasiveness or truthfulness, on
the other. In Aden v. Holder, the court held that the
REAL ID Act “restricts the effect of apparently
credible testimony by specifying that the IJ need not
accept such testimony as true.” 589 F.3d at 1044
(emphasis added). Other cases have described the
distinction similarly, and rejected the truthfulness of
testimony even after presuming it to be credible.
See, e.g., Singh v. Holder, 753 F.3d 826, 836-837 (9th
Cir. 2014) (giving examples).
The Government suggests that the Ming Dai panel
confused credibility and persuasiveness when it held
that the BIA could not deny Dai’s petition simply
because it found he was “not being truthful” about
certain ancillary facts. Ming Dai Pet. 9 (citing Ming
Dai Pet. App. 24a, 164a). That passage, however, did
exactly the opposite:
It distinguished between
credibility and persuasiveness. It explained that,
once the BIA determined that the facts did not rebut
20
the presumption of credibility, that “issue [wa]s
settled.” Ming Dai Pet. App. 22a. The BIA, therefore, could not “smuggle[ ]” credibility issues “into
the persuasiveness inquiry.” Id. at 22a-23a. But it
did not dispute that the BIA could “question[ ] the
facts regarding Dai’s persecution in China.” Id. at
23a (emphasis added). It simply found that neither
the BIA nor the Government could explain how Dai’s
alleged lack of truthfulness “was relevant in any way
other than to undermine Dai’s credibility.” Id.2
The Government also observes that Ming Dai quoted a decision in which the Ninth Circuit stated that a
reviewing court “must assume that the applicant’s
factual contentions are true” absent an explicit
adverse credibility determination. Ming Dai Pet. 20
(quoting Ernesto Navas v. INS, 217 F.3d 646, 652 n.3
(9th Cir. 2000)). That case, however, was issued five
years before the REAL ID Act, when there was “no
practical difference * * * between credibility and
truth,” and the court had no reason to be “careful in
[its] phrasing.” Ming Dai Pet. App. 129a n.3 (Callahan, J., dissenting from denial of rehearing en banc).
Since Ming Dai squarely addressed this issue, the
court has been more precise: It has stated that it
presumes an applicant is “credible,” and that she
2
Contrary to Judge Callahan’s suggestion, then, the Ninth
Circuit emphatically did not hold that courts must “disregard
any evidence that would call into question the applicant’s
credibility.” Ming Dai Pet. App. 134a n.7 (Callahan, J., dissenting from denial of rehearing en banc). It held that courts may
consider such evidence only to determine the truth of the
applicant’s assertions, not to determine the applicant’s credibility. See id. at 22a-23a (panel opinion).
21
must separately satisfy the requirement of persuasiveness. See, e.g., Kumar v. Barr, 770 F. App’x 381,
382-383 (9th Cir. 2019).3
II.
THERE IS NO MEANINGFUL DIVISION
AMONG THE CIRCUITS.
Not only is the decision below correct, it is also
consistent with the rule applied by every other court
of appeals to consider the question. Six circuits have
adopted a presumption of credibility indistinguishable from the rule employed by the Ninth Circuit. The
First Circuit has adopted a functionally similar rule:
Although it rejected a presumption of credibility for
pre-REAL ID Act cases in Kho, it has since interpreted the REAL ID Act in a manner that is in
practice identical to the approach taken by other
courts.4
1. Six circuits have unequivocally held that, where
an immigration judge fails to make an explicit adverse credibility finding, the reviewing court presumes that the alien is credible.
3
In the decision below (which was issued before Ming Dai), the
Ninth Circuit quoted a case using the same “assume * * * true”
phrasing. Pet. App. 2a (quoting Anaya-Ortiz, 594 F.3d at 679,
in turn quoting Navas, 217 F.3d at 652 n.3). But the court
made clear that the BIA’s error was in “credit[ing]” the probation report over the applicant without making an explicit
adverse credibility finding. Id. at 3a. And because the court
remanded without resolving the merits of Alcaraz’s claim, there
was no practical difference between “credibility” and “truth” in
resolving the petition for review.
4
Three regional circuits—the Fifth, Seventh, and Tenth—have
not expressed a view on this issue.
22
The Eleventh Circuit has held that “[i]n the absence of an explicit adverse credibility finding, we
accept an asylum applicant’s testimony as credible
on review.” Alonzo-Rivera v. U.S. Attorney Gen., 649
F. App’x 983, 992 (11th Cir. 2016) (per curiam); see
Kazemzadeh v. U.S. Attorney Gen., 577 F.3d 1341,
1354 (11th Cir. 2009) (same); Mejia v. U.S. Attorney
Gen., 498 F.3d 1253, 1257 (11th Cir. 2007) (same).
The Fourth Circuit likewise holds that where “neither the IJ nor the BIA made an express adverse
credibility determination,” “we ‘presume that [the
applicant] testified credibly.’ ” Marynenka v. Holder,
592 F.3d 594, 600 (4th Cir. 2010) (quoting Lin-Jian
v. Gonzales, 489 F.3d 182, 191 (4th Cir. 2007)); see
Yan Dan Li v. Gonzales, 222 F. App’x 318, 323 (4th
Cir. 2007) (per curiam) (indicating that this rule is
consistent with the Ninth Circuit’s rule).
The Second, Third, Sixth, and Eighth Circuits have
all issued similar holdings. See Wen Shu Chen v.
Holder, 337 F. App’x 36, 37 (2d Cir. 2009) (because
“the IJ did not make an explicit adverse credibility
determination * * * we assume [the applicant’s]
credibility”); Luziga v. Attorney Gen., 937 F.3d 244,
249 (3d Cir. 2019) (“[i]n the absence of an explicit
adverse credibility determination, we assume that
the noncitizen testified credibly”); Ndou v. Attorney
Gen., 758 F. App’x 288, 293 & n.1 (3d Cir. 2018)
(repeating this rule and favorably invoking Ming
Dai); Haider, 595 F.3d at 282 (6th Cir.) (“when an IJ
or the BIA * * * fails to make an explicit adverse
determination * * * we will assume that the applicant
was credible”); Patel v. Sessions, 868 F.3d 719, 724
(8th Cir. 2017) (if the immigration judge “made no
express credibility finding with regard to [the appli-
23
cant’s] testimony, we presume her testimony was
credible”).
The Government proposes two distinctions between
these courts and the Ninth Circuit. Ming Dai Pet.
20-23. Neither has merit.
First, the Government claims that whereas other
courts apply a presumption of credibility, the Ninth
Circuit applies a presumption of truth. Id. at 20-22,
25. As already noted, that is just wrong. Like every
other court of appeals, the Ninth Circuit presumes
only that an applicant’s testimony is “credible,” and
has expressly distinguished between credibility and
truth. See supra pp. 18-21. Indeed, both of the cases
the Government cites as evidence of a split on this
point expressly relied on and agreed with the Ninth
Circuit in describing the distinction between credibility and persuasiveness. See Doe v. Holder, 651 F.3d
824, 830 (8th Cir. 2011) (“The statute thus contemplates that an alien’s testimony may be ‘credible’ yet
not ‘persuasive,’ for otherwise the second determination would be superfluous.” (citing Aden, 589 F.3d at
1044-45)); Gutierrez-Orozco v. Lynch, 810 F.3d 1243,
1246 (10th Cir. 2016) (explaining that “even credible
testimony may not be ‘persuasive or sufficient in
light of the record as a whole’ ” (citation omitted),
and noting that the Ninth Circuit “appl[ies] a similar
interpretation” (citing Aden, 589 F.3d at 1044-45));
see also Antropova v. Holder, 553 F. App’x 49, 50 (2d
Cir. 2014) (similar).
Second, the Government claims that other circuits
apply a rebuttable presumption of credibility, whereas the Ninth Circuit applies a conclusive presumption. Ming Dai Pet. 22-23. That too is incorrect.
Other circuits frame the presumption of credibility in
24
the same categorical terms as the Ninth Circuit:
They state that “[i]n the absence of an explicit adverse credibility finding,” courts must “accept an * * *
applicant’s testimony as credible,” Alonzo-Rivera,
649 F. App’x at 992 (emphasis added); “presume that
[the applicant] testified credibly,” Marynenka, 592
F.3d at 600 (emphasis added and citation omitted);
see Patel, 868 F.3d at 724; or “assume [the applicant’s] credibility,” Wen Shu Chen, 337 F. App’x at 37
(emphasis added); see Luziga, 937 F.3d at 249;
Haider, 595 F.3d at 282. Not one of these circuits
has described its presumption as rebuttable. Further, we are unaware of a single case—and the
Government has identified none—in which any one
of these circuits found the presumption rebutted or
even suggested that such rebuttal was possible.
The Government bases its contrary reading entirely on the fact that, in explaining the basis for the
presumption of credibility, some circuits have cited
the INA’s rebuttable presumption of credibility. See
Ming Dai Pet. 19-20. But those courts did not assert
that the rebuttable presumption applied directly to
reviewing courts; indeed, all of the decisions the
Government cites (along with other cases in those
circuits) omitted the word “rebuttable” when describing the presumption of credibility applicable in the
courts of appeals. See, e.g., Mubarack v. Holder, 595
F. App’x 54, 56 (2d Cir. 2014); Toure v. Attorney Gen.,
443 F.3d 310, 326 (3d Cir. 2006); Marynenka, 592
F.3d at 600. Rather, each of those circuits appears to
have grasped the critical textual point: whereas the
REAL ID Act makes the presumption of credibility
rebuttable on appeal to the BIA, once the BIA fails to
find the presumption rebutted, the applicant’s credi-
25
bility is conclusively established for purposes of
review.
2. The First Circuit has not meaningfully departed
from the rule employed by other circuits. It is true
that, in cases pre-dating the application of the REAL
ID Act, the First Circuit rejected the proposition that
“[an] alien’s testimony must be taken as credible” if
the immigration judge “has not made an express
finding of non-credibility.” Zeru v. Gonzales, 503
F.3d 59, 73 (1st Cir. 2007). In Kho, the First Circuit
faithfully applied that holding to another pre-REAL
ID Act case. 505 F.3d at 56 & n.5. But it did not
decide what standard of review it would apply in
cases under the REAL ID Act: It simply noted that
the REAL ID Act establishes a “rebuttable presumption of credibility” for the BIA, but not the courts,
without resolving how that presumption affects the
scope of judicial review. Id. at 56-57.
Since then, however, the court has given effect to
the REAL ID Act’s presumption of credibility in
essentially the same manner as other circuits. In
Guta-Tolossa—a case the Government neglects to
cite—the First Circuit found that because the immigration judge did not “ma[k]e an explicit adverse
credibility finding,” the BIA was required to “grant
[the applicant] a presumption of credibility in analyzing his appeal.” 674 F.3d at 61. “Nevertheless,”
the court continued, “in analyzing whether the IJ
properly determined that Guta-Tolossa had not met
his burden of proof, the BIA does not seem to have
granted him a presumption of credibility.” Id. at 62.
Accordingly, the First Circuit remanded the case to
the BIA with instructions to “review[ ] Guta-Tolossa’s
appeal in light of that presumption, or explain[ ] why
the presumption did not apply.” Id. at 62, 65. It
26
then analyzed whether Guta-Tolossa could “meet his
burden of proof” if the BIA were to find “the presumption of credibility” unrebutted. Id. at 62.
This decision thus reaches a result functionally
identical to the rule in other circuits. The First
Circuit held that the rebuttable presumption of
credibility applies to the BIA. Id. at 61-62. It also
held that, where the BIA has not found the presumption rebutted, the court must accept the alien’s
testimony as credible and review his remaining
claims on that basis. Id. at 62-65. The fact that the
First Circuit remanded the case to permit the BIA to
clearly address whether it found the alien credible
does not distinguish it from other circuits: The
Ninth Circuit issued a similar remand in this very
case, see Pet. App. 2a (remanding to the BIA “for
reconsideration of [Alcaraz’s] claim”), and other
circuits that employ a presumption of credibility
frequently do the same, see, e.g., Haider, 595 F.3d at
282; Luziga, 937 F.3d at 257.
III. THE QUESTION PRESENTED IS NOT
SUFFICIENTLY IMPORTANT TO MERIT
REVIEW.
In addition to being correct and consistent with the
position of every other circuit to address the issue,
the decision below is also of limited importance. The
presumption of credibility is outcome-determinative
in only a miniscule number of cases, and has no
plausible effect on the incentives or workloads of
immigration judges.
1. The presumption of credibility affects outcomes
in an exceedingly small share of immigration cases.
In the last five years, the Ninth Circuit has considered more than 1,650 petitions for review of asylum
27
or withholding-of-removal decisions.5 Of those cases,
more than 450 discussed whether the applicant
testified credibly.6 And it appears that in only four
of them—specifically, Ming Dai, this case, and two
unpublished opinions7—the Ninth Circuit found that
the immigration judge or the BIA failed to make an
explicit adverse credibility finding and relied on the
presumption of credibility. Put differently, in more
than 99% of cases in which credibility was at issue,
the court accepted the immigration judge’s or the
BIA’s credibility finding as sufficiently explicit or
denied relief regardless.
And even that lopsided count overstates matters.
In a substantial share of cases in which the Ninth
Circuit applied the presumption of credibility, it did
not reverse the agency outright. Rather, it remanded to the agency to give it an opportunity to fix its
errors and make a clear credibility determination.
This is one such case. See Pet. App. 2a. There are
several others. See, e.g., Singh v. Gonzales, 491 F.3d
5
Counsel conducted a Westlaw search for <(“asylum” OR
“withholding of removal”) AND “petition for review”>. That
search yielded 1,682 Ninth Circuit cases. A selective review of
the results did not reveal the need to discount that number.
6
Counsel conducted the following Westlaw search: <(“credib!” /5
(“ruling” or “holding” or “finding” or “determination”)) /50
(“true” or “credible”) AND (“asylum” OR “withholding #of
removal”)>. That search yielded 482 Ninth Circuit cases, and
we examined each result individually and yielded the numbers
stated in text.
7
See Carreto-Escobar v. Barr, --- F. App’x ---, 2020 WL 1934884
(9th Cir. 2020); Kumar, 770 F. App’x 381.
28
1019, 1026-27 (9th Cir. 2007); Mendoza Manimbao v.
Ashcroft, 329 F.3d 655, 662-663 (9th Cir. 2003).8
Thus, there is no merit to the Government’s assertion that the presumption “tie[s] the hands of [immigration judges]” and threatens a spate of “improper
reversals.” Ming Dai Pet. 26-27 (citation omitted).
The overwhelming majority of immigration judges
have no difficulty rendering explicit credibility
findings, to which the Ninth Circuit regularly defers.
See, e.g., HongBin Sun v. Barr, 794 F. App’x 650, 651
(9th Cir. 2020) (“only the most extraordinary circumstances will justify overturning” an “IJ’s credibility
finding”). And the presumption leads to reversals in
a tiny fraction of the Ninth Circuit’s immigration
caseload.
2. The importance of the issue is still further diminished by the fact that the presumption of credibility
has no appreciable impact on the incentives for
immigration judges to issue clear credibility findings.
As all agree, immigration decisions are subject to a
presumption of credibility when reviewed “on appeal”
to the BIA. 8 U.S.C. § 1229a(c)(4)(C). The BIA,
moreover, has enforced that presumption rigorously:
It has repeatedly invoked the presumption upon
finding that an immigration judge failed to “make an
8
The Government claims that, on remand from a decision
applying the presumption of credibility, an immigration judge
would be “forc[ed] to accept an applicant’s favorable testimony
as the whole truth and to disregard unfavorable evidence.”
Ming Dai Pet. 26-27 (citation omitted). Again, that is a misreading of the Ninth Circuit’s precedents, which say the
opposite. See supra pp. 18-21.
29
explicit adverse credibility finding.” In re DuranZavala, 2015 WL 3896308, at *1 n.1 (BIA May 22,
2015); see In re Munguia de Morales, 2015 WL
3932344, at *1 (BIA May 6, 2015); In re Jones, 2015
WL 3896297, at *1 (BIA May 5, 2015); In re Ramirez,
2012 WL 3911867, at *2 n.2 (BIA Aug. 27, 2012); In
re Ortega, 2010 WL 2224575, at *1 n.1; In re Beckles,
2010 WL 1251022, at *2 n.3 (BIA Feb. 23, 2010); see
also Guo v. Sessions, 897 F.3d 1208, 1212 n.2 (9th
Cir. 2018); Singh v. Barr, 804 F. App’x 644, 644 n.4
(9th Cir. 2020). Yet we have found no publicly
available
decision—either
published
or
unpublished—in which the BIA found the presumption
rebutted.
Accordingly, regardless of whether circuit courts
apply a presumption of credibility, immigration
judges face the same incentive: either make an
explicit adverse credibility finding, or the applicant
will be deemed credible on review. The statistics
reinforce the point. Each year, the BIA completes
approximately 20,000 appeals from the immigration
courts, 9 of which one-quarter are reviewed by the
courts of appeals;10 one-eighth are reviewed by the
9
U.S. Dep’t of Justice, Exec. Office for Immigration Review,
Statistics Yearbook: Fiscal Year 2018, at 36 (“Table 20: BIA
Receipts and Completions by Type”).
10
U.S. Courts of Appeals – Judicial Business 2018, U.S.
Courts,
available
at
https://www.uscourts.gov/statisticsreports/us-courts-appeals-judicial-business-2018 (last visited
June 18, 2020) (reporting that 85% of the 6,089 administrative
agency appeals filed in 2018 were appeals of BIA decisions).
30
Ninth Circuit;11 and approximately one is reversed or
remanded each year by the Ninth Circuit on the
basis of the presumption of credibility, see supra pp.
26-27. The prospect that this beyond-remote chance
of reversal will alter immigration judges’ incentives
or workloads—particularly when their decisions are
already reviewed pursuant to a near-conclusive
presumption of credibility in the BIA—is nothing
short of fanciful.
IV. IF THE COURT DEEMS CERTIORARI
APPROPRIATE, IT SHOULD GRANT THIS
PETITION AND HOLD MING DAI.
For the foregoing reasons, this Court should deny
review. But if the Court wishes to consider the
question, it should grant the petition in this case and
hold Ming Dai. Ming Dai suffers from several significant vehicle flaws that would potentially prevent the
Court from resolving the question presented, and
would at minimum distort and impair its analysis.
This case does not suffer from comparable vehicle
problems, and accurately illustrates the limited
stakes of the question presented.
A. Ming Dai Is An Unsuitable Vehicle.
Ming Dai presents at least three serious vehicle
problems that counsel against review.
1. The parties in Ming Dai disagree as to a potentially case-dispositive threshold question: whether
the immigration judge actually made an adverse
11
Id. (reporting that 56% of BIA cases filed in the courts of
appeals were filed in the Ninth Circuit).
31
credibility finding. The panel concluded that the
judge did not make such a finding. Ming Dai Pet.
12a. But several Ninth Circuit judges contended
that he did. Judge Trott filed three lengthy opinions
arguing that the immigration judge found the applicant non-credible. Id. at 42a (Trott, J., dissenting)
(arguing the immigration judge’s findings were
“another way of saying [the testimony] wasn’t credible”); id. at 84a (Trott, J., dissenting) (same); id. at
111a-112a (statement of Trott, J., respecting denial
of rehearing en banc) (quoting the immigration
judge’s finding concerning the applicant’s “lack of
forthrightness,” and criticizing the panel for “elevating form over substance”). Judge Collins, joined by
six other judges, likewise wrote that “the record
amply confirms that the IJ obviously (even if not
explicitly) disbelieved certain of Dai’s statements.”
Id. at 144a (Collins, J., dissenting from denial of
rehearing en banc) (emphasis added). The Government repeats those arguments here, contending that
“[t]he IJ devoted extensive attention to his ‘concern
with regard to the respondent’s testimony,’ ” and that
the panel imposed a “magic-words requirement.”
Ming Dai Pet. 23, 27 (citation omitted).
This threshold dispute would impede and potentially prevent the Court from resolving the question
presented. If the immigration judge in Ming Dai in
fact made an adverse credibility finding, the presumption of credibility by its own terms would not
apply. Ming Dai Pet. App. 12a-13a, 27a n.14. Before
reaching the first question presented in Ming Dai,
this Court would thus need to resolve a factbound
threshold dispute about what the immigration judge
found and whether it was sufficiently explicit. And if
the Court agreed with the Government and the
32
dissenters that the immigration judge made the
requisite finding, it would be unable to reach the
question presented at all.
That threshold impediment, moreover, is highly
unusual. In most cases in which the Ninth Circuit
has applied the presumption of credibility—including
the decision below—the immigration judge was
entirely silent on the question of the applicant’s
credibility, leaving no doubt that he or she failed to
make an adverse credibility determination. See, e.g.,
Pet. App. 14a-15a. Furthermore, the Ninth Circuit
has elsewhere made clear that “an adverse credibility finding does not require the recitation of a particular formula.” Tijani v. Holder, 628 F.3d 1071, 1080
(9th Cir. 2010); see, e.g., Xiao Yun Yan v. Lynch, 646
F. App’x 542, 544 (9th Cir. 2016). The Court should
not resolve the validity of the presumption of credibility on these atypical facts and in the face of a
vigorous argument that the presumption by its terms
does not apply.
2. Ming Dai is also an unsuitable vehicle because
the parties disagree as to whether the BIA found the
presumption of credibility rebutted. In her dissent,
Judge Collins contended that by describing the
applicant as “not * * * truthful,” the BIA made an
“express adverse credibility determination” that
“should have precluded the panel majority from
invoking the deemed-credible rule even on that rule’s
own terms.” Ming Dai Pet. App. 152a-154a. Judge
Trott agreed. Id. at 119a-120a (statement of Trott,
J., respecting denial of rehearing en banc). The
Government likewise contends the BIA’s statements
should have been “more than sufficient to overcome a
‘rebuttable presumption of credibility.’ ” Ming Dai
Pet. 23 (citation omitted).
33
Once again, the Court could not reach the question
presented if it agreed with these contentions. See
Ming Dai Pet. App. 16a (acknowledging that the
presumption does not apply if the BIA finds it rebutted). And this complication is also highly unusual,
as we are aware of no prior case in which the question of whether the BIA found the presumption
rebutted was open to dispute.
3. Finally, Ming Dai presents a second question
that would reduce and potentially obviate the relevance of the presumption of credibility to the outcome in that case. In addition to challenging the
presumption of credibility in Ming Dai, the Government contends that the panel erred by failing to
remand the case to the BIA. See Ming Dai Pet. I, 2831. This question is highly sui generis: As this case
illustrates, the Ninth Circuit often remands cases to
the BIA after applying the presumption of credibility. Pet. App. 2a; see supra pp. 27-28. Moreover,
were the Court to conclude that a remand was required, there would be little remaining reason for it
to consider whether the Ming Dai panel properly
invoked the presumption of credibility in the first
place.
That is because, if the Government is correct that
the Ninth Circuit erred by failing to remand in Ming
Dai, reversal would be warranted regardless of how
the first question presented is resolved: In either
case, the panel should not have entered judgment for
the petitioner or granted his petition for withholding
of removal. This Court typically prefers to resolve
cases on the narrowest possible grounds. Following
that principle would be particularly sound in Ming
Dai, given that a remand might well dispose of the
case entirely. If the BIA or the immigration judge
34
were to clarify on remand that they found Dai’s
testimony non-credible, his case would presumably
be over.
Furthermore, because a remand would entail vacatur of much of the Ming Dai opinion—including
everything that followed the Court’s invocation of the
presumption of credibility—the Court would likely
need to address the need for a remand before analyzing the merits of that opinion. The second question
presented would thus pose yet another threshold
barrier to review, further complicating the Court’s
resolution of the only recurring legal issue in the
case.
B. This Case Does Not Suffer From Comparable Vehicle Defects.
This case does not suffer from any comparable
threshold barrier. Unlike Ming Dai, this case presents no factual dispute about whether the immigration judge or the BIA made an adverse credibility
finding; it is indisputable that they did not. See Pet.
App. 7a-8a, 14a-15a. In addition, the panel remanded the case after applying the presumption of credibility, eliminating any possibility that the failure to
remand will thwart the Court’s review. Id. at 2a.
Moreover, this case illustrates the comparative
insignificance of the presumption of credibility. The
presumption of credibility played a modest role in
the panel’s decision: The panel found that the immigration judge erred not only by disregarding Alcaraz’s testimony in the absence of an adverse credibility determination, but also by failing to give
Alcaraz an opportunity to cross-examine the Government’s witnesses. Id. at 2a-3a. Furthermore, the
court remanded the case, affording the BIA and the
35
immigration judge another opportunity to render an
explicit finding on Alcaraz’s credibility. Id. at 2a. No
judge dissented from the panel’s ruling—not even
Judge Bea, who joined the dissents from denial of
rehearing en banc in Ming Dai.
This case is accordingly representative of the cases
in which the presumption of credibility is employed.
There is no cause for the Court to review this amply
justified, widely accepted, and comparatively unimportant rule. But if it does, it should do so on the
straightforward record in this case.
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted,
ROBERT JOBE
THE LAW OFFICES OF
ROBERT JOBE
100 Bush Street
Suite 1250
San Francisco, CA 94104
NEAL KUMAR KATYAL
Counsel of Record
MITCHELL P. REICH
HOGAN LOVELLS US LLP
555 Thirteenth St., N.W.
Washington, DC 20004
(202) 637-5600
neal.katyal@hoganlovells.com
KRISTINA ALEKSEYEVA
HOGAN LOVELLS US LLP
390 Madison Avenue
New York, NY 10017
Counsel for Respondent
JUNE 2020
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