Case preview

Court to assess when to treat asylum seekers’ testimony as credible

In asylum cases before the immigration and federal courts, responsibility for making credibility determinations rests with the immigration judge. Immigration laws recognize that in asylum proceedings — as in other contexts — the trier of fact who directly hears a person’s testimony can best assess their credibility. In some cases, however, IJs decline to make explicit credibility findings when denying asylum. On Tuesday, in Wilkinson v. Dai and Wilkinson v. Alcaraz-Enriquez, the Supreme Court will consider the permissibility of the U.S. Court of Appeals for the 9th Circuit’s approach to these circumstances: When immigration courts fail to make an explicit credibility determination, the 9th Circuit treats the asylum seeker’s testimony as credible in its own review.

The justices will hear argument in two consolidated cases. In the first, Ming Dai sought asylum from governmental persecution due to his and his wife’s failure to abide by China’s one-child policy. Shortly after his wife became pregnant with a second child, officers came to their family home. The authorities took his wife to a hospital, forced her to undergo an abortion, and inserted an IUD against her will. When Dai tried to prevent the officers from taking his wife, they beat him severely, breaking his rib and dislocating his shoulder. They then arrested him and brought him to a detention center, where guards repeatedly interrogated him and largely deprived him of food, water and sleep for 10 days.

Dai made his way to the United States and sought asylum, explaining he feared forced sterilization and other harm if returned to China. U.S. immigration laws provide for asylum for individuals persecuted for resisting a “coercive population control program” or who face involuntary sterilization. However, the IJ denied asylum and related claims, relying largely on Dai’s failure to make early disclosures to an asylum officer in his case. Namely, Dai did not initially reveal to the asylum officer that his wife and daughter had accompanied him to the United States and then returned to China without him. When pressed by the asylum officer, Dai admitted the fact, and explained that he was extremely nervous and thought the information might negatively impact his case. The asylum office denied his claim and referred his case to the immigration court.

At Dai’s immigration court hearing, the attorney for the government spent significant time asking Dai why he did not at first admit that his wife and child accompanied him to the United States and returned without him to China. The IJ stated that a “principal” basis for denying asylum was Dai’s failure to initially disclose this fact to the asylum officer. The IJ did not, however, make an adverse credibility finding. Upon review, the Board of Immigration Appeals upheld the decision, explaining that Dai’s lack of truthfulness on this point was “significant to his burden of proof.” But the board, like the IJ, did not make an express credibility finding.

In an opinion authored by Judge Stephen Reinhardt — his penultimate decision before his death in March 2018 — a divided panel of the 9th Circuit granted Dai’s petition for review. The majority applied a longstanding precedential rule, treating Dai’s testimony as credible due to the absence of an express adverse credibility finding by the agency. It then held that the record compelled the conclusion that Dai’s testimony, thus treated, satisfied his burden of proof. The majority deemed him eligible for asylum and withholding of removal (a related, lesser form of refugee protection), and remanded to the agency to exercise its statutory discretion on asylum and to grant withholding. A panel dissent by Judge Stephen Trott, as well as a dissent from the denial of en banc rehearing by Judge Consuelo Callahan, sharply criticized the 9th Circuit’s approach to testimony in the absence of explicit credibility findings.

In Cesar Alcaraz-Enriquez’s case, the issue of credibility arose in the context of the “particularly serious crime” bar to withholding of removal. The IJ determined that the bar applied due to Alcaraz-Enriquez’s prior domestic-assault conviction. The IJ relied largely on a 1999 probation report, which noted that Alcaraz-Enriquez’s girlfriend had reported severe physical and sexual assault to the police.

In his testimony before the IJ 15 years later, Alcaraz-Enriquez’s description of events contradicted his girlfriend’s statements to the police as contained in the probation report. The IJ did not make an adverse credibility finding against Alcaraz-Enriquez, but nevertheless accepted the version of events in the probation report in deeming his crime “particularly serious.” The Board of Immigration Appeals upheld the IJ’s holding, also without making an express finding on credibility. Upon review, the 9th Circuit determined that the board erred in accepting the probation report’s account over Alcaraz-Enriquez’s testimony without an explicit adverse credibility finding. (The federal court also held that the agency erred in failing to let Alcaraz-Enriquez cross-examine witnesses whose statements appeared in the probation report — an issue not before the Supreme Court.) The 9th Circuit remanded the case to the board for reconsideration.

The permissibility of the 9th Circuit’s approach turns on the statutory framework for credibility assessments in asylum cases, as well as on the proper scope of federal court review. In 2005, Congress passed the REAL ID Act, which placed responsibility for credibility findings squarely with the “trier of fact,” i.e., the IJ. Under 8 U.S.C. § 1158(b)(1)(B)(iii), the trier of fact assesses the “totality of the circumstances, and all relevant factors,” which may include “demeanor, candor, or responsiveness,” consistency, and other considerations. The same provision provides:

There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.

That key sentence contains an apparent scrivener’s error. All parties read the first comma effectively as a semi-colon, so that the sentence contains two ideas: (1) there is no presumption of credibility, but (2) if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.

Both the government and the two asylum seekers agree that “on appeal” means appeals before the agency’s appellate body, the Board of Immigration Appeals — and not the federal courts (contrary to the analysis in Trott’s dissent). The two sides disagree, however, on how federal courts of appeals should treat applicant testimony when an IJ fails to make an explicit adverse credibility finding and the board fails to state whether the resulting presumption of credibility has been rebutted. Under the rule established in decisions issued both before and after the REAL ID Act, the 9th Circuit presumes such testimony to be credible.

The government contends that the 9th Circuit approach violates the “substantial evidence” standard for federal court review of board decisions. Under that standard, and as specified in 8 U.S.C. § 1252(b)(4)(B), federal courts accept the agency’s factual findings unless “any reasonable adjudicator would be compelled” to reach a contrary conclusion. The government argues that by treating applicant testimony as credible and true absent an agency credibility finding, the 9th Circuit misapplies the substantial evidence standard, and sets aside board determinations even when the record does not compel it to do so.

The government also contends that the 9th Circuit’s approach violates the REAL ID framework for credibility assessments. In its view, under 8 U.S.C. § 1158(b)(1)(B)(iii), there can be no presumption of credibility given to an applicant’s testimony save for the limited rebuttable presumption of credibility on appeal to the board. Because the 9th Circuit’s precedential rule functions, according to the government, as a presumption of credibility, it thus violates the statute.

Finally, the government argues that in Dai’s case, the 9th Circuit violated the “ordinary remand rule” by determining eligibility for asylum and withholding of removal on the record before it, rather than remanding to the agency for that determination and for further evaluation of credibility.

In their briefs, Dai and Alcaraz-Enriquez urge the justices to uphold the 9th Circuit rule, arguing that REAL ID and principles of administrative law support that approach. Because the substantial evidence standard requires courts to review the agency’s reasons and findings as given, both asylum seekers argue that the federal courts must treat applicant testimony as credible unless the agency finds otherwise. Invoking the Chenery doctrine — the rule that a court may uphold an agency’s decision only on the grounds that the agency itself relied on — they contend that the government’s approach would wrongly allow federal courts to affirm on the basis of an adverse credibility finding that the agency in fact never made.

Dai and Alcaraz-Enriquez also point to the structure of the REAL ID Act as setting up a “three-tiered scheme” supporting the 9th Circuit rule. At the first tier, the IJ must make credibility assessments with “no presumption of credibility” per Section 1158(b)(1)(B)(iii). At the second tier, the board applies that same Section’s rebuttable presumption of credibility when an IJ fails to make an explicit adverse finding. At the third tier, the courts of appeals review the board’s credibility findings for “substantial evidence.” Dai and Alcaraz-Enriquez argue that in this last tier, federal courts must hold the board to Section 1158(b)(1)(B)(iii)’s requirements, assuming that the board applied the presumption of credibility unless the board expressly deemed it rebutted: that is to say, the 9th Circuit approach. Dai and Alcaraz-Enriquez further contend that the government’s reading of Section 1158(b)(1)(B)(iii) — applying the “no presumption of credibility” language to all levels except the board — incongruously places federal courts of appeals on the same footing as IJs.

The asylum seekers stress that presuming applicant testimony to be credible (able to be believed) does not require federal courts to deem it true (in fact believed). They assert that federal courts’ acceptance of testimony as credible — rather than true — permits appropriate substantial evidence review on the agency record. Dai further highlights that in his case, unlike Alcaraz-Enriquez’s, the 9th Circuit never referred to taking testimony as “true.” Finally, Dai contends that the court of appeals did not violate the ordinary remand rule in granting his petition for review. He argues that the government presented no issues to the 9th Circuit that the agency failed to address. He also says it makes little sense to give the agency a second chance to assess credibility eight years after his testimony.

Three sets of amici weigh in at the merits stage, all in support of Dai and Alcaraz-Enriquez. All agree that federal appellate courts must treat asylum seekers’ testimony as credible when neither the IJ nor the board makes an adverse finding to the contrary. They stress that Congress contemplated clear, explicit IJ credibility findings as the norm: findings not within the scope of the 9th Circuit rule, and in fact encouraged by it. A brief by the American Immigration Lawyers Association and National Immigrant Justice Center recounts the history and context of REAL ID, explaining that its credibility provisions sought to address serious problems faced by the federal courts of appeals in asylum cases. Repeated failures by the agency to make credibility findings “frustrated” federal court review, leading to approaches including the 9th Circuit rule. Parsing legislative history and the statue, the brief contends that the “REAL ID Act endorsed rather than abrogated the practice of presuming credibility” in the federal courts.

Thirty-five former IJs and members of the Board of Immigration Appeals submitted a brief emphasizing the institutional role of IJs. They argue that the 9th Circuit rule follows the REAL ID framework and properly centers the IJ as trier-of-fact. “It is for the IJ to make credibility determinations explicit, not for the applicant or the [board] and Courts of Appeals to guess at what the IJ intended.”

Lastly, a brief filed by 10 refugee advocacy organizations stresses the centrality of credibility findings in asylum proceedings and documents significant impacts of trauma on asylum seeker testimonies. These may include gaps in memory, non-linear narratives and changes in demeanor — all exacerbated by the stress of the asylum process itself. The refugee groups explain that Congress appropriately made IJs, not appellate courts, responsible for assessing credibility in this context.

So, how should federal courts review asylum decisions when the agency apparently disbelieves an asylum seeker on specific points, but fails to make an adverse credibility finding? Both the government on the one hand, and the asylum seekers and their amici on the other, contend that their positions follow the structure of REAL ID and give effect to the federal courts’ limited scope of review. The government emphasizes deference to the agency decisions under a favorable standard of review, whereas the asylum seekers underscore the courts’ limited review of given reasons under Chenery. In his majority opinion in Dai, Reinhardt dissected the differences between federal appellate review of agency decisions compared to review of district court decisions. He cast the former as a modest enterprise in siding with Dai. On Tuesday, the Supreme Court will consider the contours of this review in what is likely to be the last of the late judge’s decisions before it.