Case No. 19-1155 | 9th Cir.
February 23, 2021
Preview by Amy Orlov, Online Editor
This case concerns required findings by an immigration judge in a removal hearing. The facts of this case involve a native and citizen of China, Ming Dai, who sought asylum in the United States rather than return to his home country. An immigration judge denied Dai his application for asylum as well as two other forms of relief: (1) withholding of removal and (2) protection under the Convention Against Torture. However, the immigration judge did not expressly find that Dai’s testimony lacked credibility. Dai appealed to the Board of Immigration Appeals, which affirmed the immigration judge’s decision.
Dai appealed to the U.S. Court of Appeals for the Ninth Circuit. The court took issue with the lower courts’ absence of a finding that Dai was not credible. As such, the Ninth Circuit held that Dai was entitled to a presumption of credibility and, under similar standards, a withholding of removal proceedings. See Ming Dai v. Sessions, 884 F.3d 858, 869, 874 (9th Cir. 2018). The court thus overturned the Board of Immigration Appeals’ and immigration judge’s ruling.
The issue before the Supreme Court is whether an Article III court, such as the Ninth Circuit here, can presume that an immigrant’s testimony is credible absent a specific finding from an immigration judge of an explicit adverse credibility determination. A secondary issue in this case concerns whether the Ninth Circuit should have remanded the case back to the agency upon its credibility holding. However, this is a minor issue deviating from the merits.
The attorneys for Dai argue that the agency’s decision denying Dai his asylum petition was not supported by substantial evidence and that administrative silence as to credibility is equivalent to accepting the noncitizen’s testimony as credible. See Brief for the Respondent at , 27, Rosen v. Dai, No. 19-1155 (U.S. filed Jan. 4, 2021). As such, under administrative law principles, the Ninth Circuit could not make its own adverse credibility determinations as the court of review and must view the immigrant as credible. See id. at 28–29.
The Department of Justice argues that a court of appeals is required to sustain a Board of Immigration Appeals’ denial of relief so long as that determination is supported by substantial evidence, and the Board’s determination here satisfied that substantial evidence standard. See Brief for the Petitioner at 20–22, Barr v. Dai, No. 19-1155 & 19-1156 (U.S. filed Nov. 16, 2020). Furthermore, the Immigration and Nationality Act does not authorize a court of appeals to conclude that an immigrant’s “factual contentions are true” merely because the agency did not make an adverse credibility finding. Id. at 27.
Wilkinson v. Dai is consolidated with Wilkinson v. Alcaraz-Enriquez. These cases present an interesting temporal aspect in that three different attorneys general or acting attorneys general have served the Department of Justice since their filing, hence the changes in named petitioner. It is not clear if the Biden administration supports the same previous stances in these cases as the Trump administration.