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Dai v. Barr

United States Court of Appeals, Ninth Circuit

October 22, 2019

Ming Dai, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Agency No. A205-555-836

          David Z. Su, Law Offices of David Z. Su, West Covina, California; David J. Zimmer, Goodwin Procter LLP, Boston, Massachusetts; William M. Jay, Goodwin Procter LLP, Washington, D.C.; for Petitioner.

          Aimee J. Carmichael, Senior Litigation Counsel; Mary Jane Candaux and John W. Blakeley, Assistant Directors; Donald Keener, Deputy Director; Office of Immigration, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Sidney R. Thomas, Chief Circuit Judge, and Stephen S. Trott and Mary H. Murguia, Circuit Judges.

         SUMMARY[*]

         Immigration The panel denied a petition for rehearing en banc on behalf of the court.

         Dissenting from the denial of rehearing en banc, Judge Callahan, joined by Judges Bybee, Bea, M. Smith, Ikuta, Bennett, R. Nelson, Bade, Collins, and Lee, wrote that in denying en banc review, the court has condoned a decision by a three-judge panel that takes the extraordinary position of holding that, absent an explicit adverse credibility ruling, an immigration judge must take as true an asylum applicant's testimony that supports a claim for asylum, even in the face of other testimony from the applicant that would undermine an asylum claim, thereby restoring this circuit's prior errant "deemed true" rule that Congress abrogated when it enacted the REAL ID Act. Judge Callahan explained that the panel's decision ties the hands of IJs who are presented with conflicting evidence, effectively forcing them to accept an applicant's favorable testimony as the whole truth and to disregard unfavorable evidence-even when it is the applicant's own testimony-unless they affirmatively make an adverse credibility finding, thus transforming the lack of an express adverse credibility ruling into an affirmative conclusion that the applicant's proffered reason for seeking asylum is true. Judge Callahan wrote that the panel's decision is contrary to the statute, this court's precedent, and the rulings of sister circuits, and that in addition to overstepping the court's limited role in reviewing the agency's decision, is also bad policy. Judge Callahan also wrote that by directing the agency to grant withholding relief and treat petitioner as eligible to asylum, the panel compounded its error by failing to follow the ordinary remand rule, and allowing the agency the first shot at applying the majority's new rule.

         Dissenting from the denial of rehearing en banc, Judge Collins, joined by Judges Bybee, Bea, Ikuta, Bennett, R. Nelson, and Bade, agreed with Judge Callahan that the panel majority's opinion effectively revives this court's discredited prior "deemed-true" rule in contravention of controlling statutory language, precedent of this court and other circuits, and common sense. In Judge Collins's view, the problems with the panel majority's opinion run even deeper by committing a further serious legal error, and reinforcing a circuit split, in holding that the REAL ID Act did not abrogate a second "deemed-credible" rule, whereby this court conclusively presumes an applicant's testimony to be credible unless the agency has made an explicit adverse credibility finding. Judge Collins wrote that the REAL ID Act expressly abrogated the deemed-credible rule entirely and replaced it with, at most, a rebuttable presumption of credibility. Judge Collins reasoned that the Board's express statement that petitioner was not "truthful" was a permissible application of the REAL ID Act's rebuttable presumption of credibility, and sufficiently explicit to preclude this court's application of the deemed-credible rule in this case.

         Respecting the denial of rehearing en banc, Judge Trott, joined by Judge R. Nelson, wrote that instead of following the REAL ID Act, this court has perpetuated a contrived rule that in the absence of an adverse credibility finding, a petitioner must be deemed credible, and then used that conclusion to override an IJ's and the Board's well-supported determination that the petitioner's case was not sufficiently "persuasive" to meet his burden of proof. Judge Trott wrote that, in doing so, the panel has rewritten the REAL ID Act, ignored Congress, and created an inter-circuit split.

         Respecting the denial of rehearing en banc, Judges O'Scannlain and Trott agreed with the views expressed by Judge Callahan in her dissent from the denial of rehearing en banc.

          ORDER

         The full court has been advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed R. App. P. 35. Judge Miller was recused and did not participate in the vote.

         The petition for rehearing en banc is denied. Attached are dissents from and statements respecting the denial of rehearing en banc.

          TROTT, Circuit Judge, [**] with whom R. NELSON, Circuit Judge, joins, respecting the denial of rehearing en banc:

         Instead of following the REAL ID Act ("Act"), our court has perpetuated a contrived rule that in the absence of an adverse credibility finding, a petitioner must be deemed credible. We then use that conclusion to override an Immigration Judge's ("IJ") and the Board of Immigration Appeals' ("Board") well-supported determination that this petitioner's case was not "persuasive." In so doing, we have rewritten the Act. We have a long history of ignoring Congress and the Supreme Court, and here we have done it again. See Dai v. Sessions, 916 F.3d 731, 875-93 (9th Cir. 2019) (Trott, J., dissenting). Moreover, the panel majority opinion creates an intercircuit conflict. I will address that problem later in Part IV.

         I

         As explained in his thorough and convincing decision, Immigration Judge Stephen Griswold, determined that Dai had not met his statutory burden of persuasion on the central issue of whether he was eligible as a refugee for asylum. The documented fatal flaws in Dai's case were (1) his glaring attempt to deceive the asylum officer by concealing highly probative damaging facts that go to the very core of his case, facts that Dai also omitted from his Form I-589 application for asylum, (2) his admission when pressed that his deceit was intentional, driven by his understanding that the concealed evidence would damage his probability of success, (3) his inadequate explanations for the contradictions in his presentation, (4) his telling demeanor on cross examination, and (5) the "real story" behind his departure from China and his decision not to return with his wife and daughter. The IJ regarded these flaws as demonstrating a "lack of forthrightness." Accordingly, the IJ concluded pursuant to the language of the Act that Dai's case was not "persuasive."

         Reviewing de novo whether Dai had adequately met his burden of persuasion that he was eligible for asylum, the Board of Immigration Appeals agreed that he had not. To support its conclusion, the Board referenced the same material flaws the IJ found as facts. Their reasoned decision should end this case, but with all respect, the panel majority and now our court have converted this straightforward matter into a textbook example of elevating form over substance, taking a blue pencil to the Act's requirement that an applicant's case must be "persuasive" and inappropriately substituting our judgment for the Board's.

         II

         Here is Judge Griswold's compelling decision. Reading it illustrates how wrong our court's analysis is.

I have carefully considered the respondent's testimony and evidence and for the following reasons, I find that the respondent has failed to meet his burden of proving eligibility for asylum.
The principal area of concern with regard to the respondent's testimony arose during the course of his cross-examination. On cross-examination, the respondent was asked about various aspects of his interview with an Asylum Officer. The Department of Homeland Security also submitted the notes of that interview as Exhibit 5. The respondent was asked specific questions regarding several aspects of his testimony before the Asylum Officer. In the course of cross-examination, the respondent was asked regarding his questions and answers as to whether his wife and daughter travelled with him to the United States. The respondent's responses included the question of whether the asylum officer had asked him if his wife and daughter travelled anywhere other than to Taiwan and Hong Kong. The respondent conceded that he was asked this question and that he replied yes, they had travelled to Taiwan and Hong Kong. The respondent was asked whether the Asylum Officer inquired whether his wife and daughter had travelled elsewhere. The respondent then testified before the Court that he was asked this question, "but I was nervous." In this regard, I note that the respondent did not directly answer the question; instead leapt directly to an explanation for what his answer may have been, namely that he was nervous. The respondent was then asked specifically whether the Asylum Officer asked him if his wife had travelled to Australia in 2007. The respondent confirmed that he had been asked this question, and he confirmed that the answer was in the affirmative. The respondent also confirmed that the Asylum Officer had asked him whether she had travelled anywhere else. He confirmed that he had been so asked. The respondent was then asked whether he answered "no," that she had not travelled anywhere else. The respondent answered that he believed so, that he had so answered. The respondent was then asked, during the course of cross-examination, why he had not said to the Asylum Officer that yes, she had travelled to the United States. The respondent replied that he had not thought of it. He stated that they did come with him (meaning his wife and daughter) and that he thought the Asylum Officer was asking him if they had travelled anywhere other than the United States. He explained that he did so because he assumed the U.S. Government had the records of their travel to the United States. On further questioning, the respondent eventually hesitated at some length when asked to further explain why he did not disclose spontaneously to the Asylum Officer that his wife and daughter had come with him. The respondent paused at some length and I observed that the respondent appeared nervous and at a loss for words. However, after a fairly lengthy pause, the respondent testified that he is afraid to say that his wife and daughter came here and why they went back. The respondent was asked whether he told the Asylum Officer that he was afraid to answer directly. The respondent initially testified that he forgot and did not remember whether he said that. He again reiterated that he was very nervous. He was then asked the question again as to whether he told the Asylum Officer that he was afraid to answer why his wife and daughter had gone back. He then conceded that maybe, yes, he had answered in that fashion. The respondent was asked whether the Asylum Officer inquired why his wife and daughter went back, and the respondent conceded that he had been so asked, and he further conceded that he replied because school in the United States costs a lot of money (referring to the schooling for his daughter). The respondent was then asked to confirm that the Asylum Officer eventually asked him to tell him the real story as to why his family travelled to the United States and returned to China. The respondent confirmed that he was asked this question and when asked, whether he replied that it was because he wanted a good environment for his child and because his wife had a job and he did not and that that is why he stayed here. He confirmed that he did, in fact, say that. The respondent was further asked, during the course of testimony in court, why his wife and daughter returned to China. In this regard, the respondent testified that they came with him, but returned to China several weeks after arrival. He testified that they did so because his father-in-law was elderly and needed attention, and because his daughter needed to graduate school in China.
The respondent further claimed that his wife had, in fact, suffered past persecution in the form of a forced abortion and the respondent confirmed that he feared his wife and daughter would suffer future persecution. In this regard, the respondent qualified his answer by saying that his wife was now on an IUD, apparently thereby suggesting that the risk of persecution is reduced. However, the respondent did concede that the risk of future persecution also pertains to his daughter. Indeed, in this regard, the respondent testified that this is, at least in part, why he applied for asylum.
As to the contents of Exhibit 5, I give the notes full weight, insofar as the respondent has confirmed the contents of the questions and answers given during the course of that interview. Furthermore, I note that in the sections in which the respondent equivocated, stating that he was nervous and not sure that he gave those precise answers, I nevertheless give the Asylum Officer's notes some substantial weight, in that they are consistent with the respondent's testimony in court. Specifically, I note that the Asylum Officer's notes state that the respondent ultimately indicated that he was afraid of giving straight answers regarding his daughter and wife's trip to the United States and return to China. And while the respondent did not confirm this in court, he did give a similar answer as to why he was testifying in this regard. In other words, the respondent appears to have stated, both before the Asylum Officer and in court that he did not spontaneously disclose the travel of his wife and daughter with him to the United States and their return because he was nervous about how this would be perceived by the Asylum Officer in connection with his claim. I further note that the Asylum Officer's notes are internally consistent with regard to references to earlier questions, such as whether the respondent had stated that he applied for a visa with anyone else. At page 2 of the notes contained in Exhibit 5, the respondent was asked whether he applied for his visa with anyone else and the notes indicated that he stated that, "no, I applied by myself." Similarly, I note that the testimony before the Asylum Officer and the Court is consistent with the omission in the respondent's Form I-589 application for asylum, of an answer to the question of the date of the previous arrival of his wife, if she had previously been in the United States. See Exhibit 2, page 2, part A.II, question 23. When asked about this omission, the respondent expressed surprise, stating that he told the preparer about their trip and indicated that he thought it had been filled out. Notwithstanding the respondent's statement in this regard, I do observe that the omission is consistent with his lack of forthrightness before the asylum office as to his wife and daughter's travel with him to the United States and their subsequent return to China shortly thereafter.
In sum, the respondent's testimony before the Court and his testimony regarding the Asylum Officer notes, as well as the notes themselves, clearly indicate that the respondent failed to spontaneously disclose that his wife and daughter came with him and then returned to China. His testimony and the notes also consistently demonstrate that the respondent paused at length, both before the Court and before the Asylum Officer, when asked about this topic. His testimony and the Asylum Officer notes are also consistent in indicating that he ultimately testified that he was afraid to say that his wife came here and was afraid of being asked about why she went back. Furthermore, the respondent has conceded that he was asked to "tell the real story" about his family's travel to the United States by the Asylum Officer, and that he replied that he wanted a good environment for his child and his wife had a job, but he did not, and that is why he stayed here.
In Loho v. Mukasey, 531 F.3d 1016, 1018-19 (9th Cir. 2008), the Ninth Circuit addressed the situation in which an asylum applicant has found safety in the United States and then returns to the country claimed of persecution before eventually finding asylum in the United States. The Ninth Circuit held that the applicant's voluntary return to the country of claimed persecution may be considered in assessing both credibility and whether the respondent has a well-founded fear of persecution in that country. Here, while the respondent himself has not returned to China, his wife and daughter did. Indeed they did so shortly after arriving in the United States, and the respondent confirmed that they did so because the schooling is cheaper for his daughter in China, as well as because his father-in-law is elderly and needed to be cared for. The respondent also told the Asylum Officer that the "real story" about whey [sic] his family returned was that his wife had a job and he did not, and that is why he stayed here. This is consistent with respondent's testimony before the Court that he did not have a job at the time he came to the United States. Furthermore, I note that the respondent's claim of persecution is founded on the alleged forced abortion inflicted upon his wife. That is the central element of his claim. The respondent claims that he himself was persecuted through his resistance to that abortion. Nevertheless, the fact remains that the fundamental thrust of the respondent's claim is that his wife was forced to have an abortion. In this regard, the respondent's wife therefore clearly has an equal, or stronger, claim to asylum than the respondent himself, assuming the facts which he claims are true. The respondent was asked why his wife did not stay and apply for asylum and he replied that he did not know they could apply for asylum at the time they departed. The respondent was then asked why he stayed here after they returned; he said because he was in a bad mood and he wanted to get a job and a friend of mine is here.
While Loho v. Mukasey applies to the applicant himself returning to China, I find that the reasoning of the Ninth Circuit in that case is fully applicable to the respondent's situation in that his wife, who is the primary object of the persecution in China, freely chose to return to China. I do not find that the respondent's explanations for her return to China while he remained here are adequate. The respondent has stated that he was in a bad mood and that he had found a job and had a friend here. The respondent has also indicated that his daughter's education would be cheaper in China than here, and he has also indicated that his wife wanted to go to take care of her father. I do not find that these reasons are sufficiently substantial so as to outweigh the concerns raised by his wife and daughter's free choice to return to China after having allegedly fled that country following his wife's and his own persecution.
In view of the for[e]going, I find that the respondent has failed to meet his burden of proving eligibility for asylum under Section 208(a) of the Act.

(Emphasis added).

         III

         Assuming for the sake of argument only that the Immigration Judge's findings of Dai's (1) "lack of forthrightness," (2) guilty demeanor, (3) inadequate explanations for his admittedly contradictory answers, and (4) willful concealment of relevant information did not amount to an "explicit" adverse credibility determination, then Dai is statutorily entitled to a "rebuttable presumption of credibility on appeal" - to the Board. On appeal to the Board, however, they dismissed this presumption, as was their statutory prerogative, concluding in the words of the Act that Dai's case was not persuasive:

We review for clear error the findings of fact, including determinations of credibility, made by the Immigration Judge. We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. The respondent filed his application for asylum after May 11, 2005, and thus review is governed by the REAL ID Act of 2005.
We adopt and affirm the Immigration Judge's decision in this case. The Immigration Judge correctly denied the respondent's applications for failure to meet his burden of proof. The record reflects that the respondent failed to disclose to both the [DHS] asylum officer and the Immigration Judge that his wife and daughter had traveled with him to the United States and voluntarily returned to China shortly after. The respondent further conceded that he was not forthcoming about this information because he believed that the true reasons for their return - that his wife had a job in China and needed to care for her elderly father, and that their daughter could attend school in China for less money than in the United States - would be perceived as inconsistent with his claims of past and feared future persecution.
The Immigration Judge correctly decided that the voluntary return of the respondent's wife and daughter to China, after allegedly fleeing following the persecution of the respondent and his wife, prevents the respondent from meeting his burden of proving his asylum claim. Contrary to the respondent's argument on appeal, the Immigration Judge need not have made an explicit adverse credibility finding to nevertheless determine that the respondent did not meet his burden of proving his asylum claim. The respondent's family voluntarily returning and his not being truthful about it is detrimental to his claim and is significant to his burden of proof.

         (Emphasis added) (footnote and citations omitted).

         IV

         In Kho v. Keisler, 505 F.3d 50 (1st Cir. 2007), the First Circuit understood the Act's effect on the issue of an applicant's credibility. Not only did our sister circuit correctly comprehend the Act's impact, but it considered and rejected our approach to this important subject.

Kho supplements his 'disfavored group' approach with an argument that because the IJ did not make an explicit finding concerning Kho's credibility, his testimony 'must be accepted as true' by this court. Kho bases this proposed rule as well on a series of Ninth Circuit cases. . . .
We have already rejected the proposition that aliens are entitled to a presumption of credibility on review in this court if there is no express credibility determination made by an IJ. . . .
The REAL ID Act also provides no support for Kho's argument. . . .

Kho, 505 F.3d at 56-57.

         The court further explained that the Act's reference to a "rebuttable presumption" applies only to an applicant's appeal to the BIA, not to "reviewing courts of appeal." Id. at 56.

         Accordingly, not only does our court's decision violate the directions of the Act, but it creates ...


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