a and alien has the burden of ellis establishing eligibility for asylum and withholding of are moving and alien may sometimes meet that burden there is credible testimony but only when among other things the testimony is persuasive and outweighs other evidence of record accordingly it is now common ground that the absence of an adverse credibility determination does not entitle an alien to a presumption of truth rather a reviewing court should consider whether the agency is non credibility related reasoning is supported by substantial evidence these now i'm disputed principles demonstrate that the th circuit erred in di the agency pointed to ample evidence undermining the persuasiveness of di's testimony regarding his family's persecution including undisputed evidence of his wife's voluntary return to china the th circuit rejected the agency's reasoning because it concluded that the absence of an adverse credibility determination entitle to reviewing court to disregard some record evidence and to treat the aliens allegations of persecution as fact similarly in our as the court of appeals expressly relied on the erroneous principle that the absence of an adverse credibility determination permits a presumption of truth and applying that presumption to justify ignoring the ample evidence underlying the agency's determination that outcries committed a particularly serious crime when he willfully inflicted corporal injury on the seventeen year old mother of his child the night circuit therefore subverted the statutory scheme that congress created rather than placing the burden on the alien the court presumed the truth of the aliens testimony and rather than deferring to explicitly or the board can implicitly address it and then the reviewing court shouldn't address credibility either so it doesn't need to concern itself with the presumption that the board would have had to apply because it should just be evaluating whether the brief and then you had i would say the bulk of the argument on the other side and in both of the briefs or at least a big chunk of it and it wasn't cited all in your reply brief so i'd like to give you a chance to respond to their  argument which is that you rely on saying there can be an implicit finding and yet under china really we'd like to make sure that that's something the agency relied on and i don't think we can clearly discerned that's what generates requires but if the agency's path if the board pass is can be clearly discerned and it's clear that the board was relying on credibility for denying eligibility then the order of the court is entitled to take that into consideration it doesn't have to look for magic words but we think that's largely irrelevant here because we aren't arguing that the board the board or the i relied on credibility we're arguing that the board relied at the board on the idea relied on not on credibility related reasoning that reasoning that the i j a didn't find the other guy's testimony sufficiently persuasive that the i j pointed to a number of pieces of evidence in alvarez's case that demonstrated that he had committed a particularly serious crime even if perhaps his credit is his at his testimony could have been deemed credible  so again we just think this this is this argument about henry we don't disagree with chattering we don't disagree that the court of course has to review the grounds that the agency decided the case on but we think that  that you have to read the board decision to rely on credibility that you have to consider whether it's implicit or explicit we just don't think they were looking at that the of the agency was looking at credibility at all thank you counsel justice thomas thank you mr chief justice  respondents sure and just to be clear it's our position that the the board did not rely on credibility that it would in fact be acceptable to assuming that this for the purposes of analysis that the testimony in both cases was credible there were other non credibility related reasonings reasons that were sufficient to deny eligibility and so in die we think that the agency pointed out that even though di said that his wife had been persecuted along with him in china there was evidence demonstrating that his wife had voluntarily returned to that his wife and child had returned and he admitted before the i j a that he wasn't forthcoming because he was worried about admitting that his wife and child had voluntarily returned demonstrating that he was aware that there was something not quite right saying oh we're fleeing persecution i want to bring my wife and child to safety when his wife and child had voluntarily returned and then started when the asylum officer asked guy for the real story behind  his travel to the united states he said to make a better life for his child and two because he didn't have a job he did not reference the persecution and i think the fact that he said the real story he recounted the real story without referencing persecution at all that to undermine the persuasiveness of his testimony that he wanted to say he needed to stay in the united states because of persecution so i think in die there are three pieces of very strong evidence that of being believed and i think that person that myth is a higher bar to be persuasive you have to have the power to persuade i think we can all imagine scenarios where someone might be credible but not persuasive a lawyer might be credible in his arguments but not persuasive my six year old son might be credible when he tells me he didn't eat the cookies but i may not ultimately find that persuasive if i find problems all over his room so i think there is a distinction between congress acknowledged as much because it bad that the same considerations go into the credibility analysis then and then consistency with outside evidence is something you can consider in the credibility analysis under  r my question here is reflects my concern with the legal mind the legal mind loves to make distinctions but sometimes that should be resisted so we have a simple rule create pretty much all agency cases roughly alike sometimes there are exceptions that one a court of appeals does with a factual matter as some matter like this really is look for substantial evidence and matter so if in fact there is a finding he's credible then you take that finding and you say is there without finding substantial evidence and if it's the opposite you say the officer is there substantial evidence and if the judge doesn't say congress tells us what to do presume that he's telling the truth but the presumption is rebuttable so if nobody says anything you look at it and you simply say assuming it was rebutted we assume that the judge found it was rebutted and is there is substantial evidence period with the assumption that it was your blood and that could include there absolutely but the statute does not say to presume that the allien is telling the truth it doesn't even tell the board to presume that the that it doesn't say presumption of credibility absolutely it says credibility but it's now common ground among all of the parties that credible is not the same as true i it may be common ground on all of the parties but it isn't common ground with me because i would be quite worried about introducing into administrative law with thousands of agency decisions the side of distinction between credible and truthful i haven't seen that in administrative law cases but even there i would be afraid of getting everybody mixed up i think that congress introduced a distinction in the text of the real id act because the real i d act says the testimony must be not merely credible but also persuasive the real id act also says that a judge is entitled to weigh credible evidence alongside other evidence and it says that a judge may ask for corroboration otherwise credible evidence that doesn't make sense is credible and means true because if the testimony is testimony if it credible testimony has to be accepted as true it's not clear why you would ever need corroboration if credible evidence has to be accepted as true and then what it is what he says my wife told me that she wanted i see what's worrying me i'm worrying about this court writing some kind of opinion and saying credible is different than true and before you know it who knows what will happen i don't know i think we state a substantial evidence period and we get as close to that as we be a as a matter of law but beyond that i will be truthful i found the way that you have briefs this case to be extraordinarily baffling credible means capable of being believed worthy of belief it doesn't mean that the testimony is accurate a person may turn out that is true but this distinction that you're drawing between i think that the problem here is that we often in common parlance use the term credible to me to being that that we believe it i think it is often just it is common to just say you know yes by found them credible i believe what he said it's just not that the judge actually thinks that it's true not that the judge actually believes that but just that the judge can believe it can and can recognize that someone could but it's capable of being true that's a baseline and in the end if the idea itself makes it these cases ultimately come down to is that you that you have to analyze what there is substantial evidence underlying the reasoning that the board put forward and here we think that it's just setting aside the entire debate about what credibility means and and how whether something should be deemed whether evidence should be deemed responsive to credibility or persuasion as what is very clear here is that the agency pointed to multiple pieces of evidence in both from a guy to the extent that he had not done anything to authenticate the letter of the medical records and that when the government asked how what would prevent someone from just writing in information into the extent evidence can be credible but not adequate to me to burn people can say a certain thing and you can still say yes i believe he encountered the police yes i  believe they did something to him but no i don't think it rises to the level of persecution that's a form of a lack of persuasiveness there are situations in which people can be credible  about one aspect of something but not another this is a perfect case di i may have been credible about the persecution of his wife and the fact that they were forced to abort a child but incredible as to why he left china and whether it was based on the fear of persecution or not that his wife went back all of the things you mention could be viewed that way there are any dozen reasons are we responsible for figuring out what the b i a meant if it doesn't make an atlas credibility finding which wasn't made here and it's not clear what the basis of their decision was it aren't a simple administrative law principles at play and should we just remained to say what is it that you found incredible no guess the other evidence in the record and if other evidence in their record suggested that in fact that i had not been persecuted then it was then i had not met his burden and here in the id pointed to the right pieces of and the issue was whether or not this and that you and the th circuit found that they couldn't rely on the probation report presumably because the b i m have to decide whether or not that witness was board had not relied on credibility reasoning in these cases that's that's your principal submission and you said instead there were these three pieces of evidence and there was the probation report on alcatraz as you listed those pieces of evidence they all seemed to me to go to credibility so let's just take the di case and one of the pieces of evidence that you cited was you know he started stammering when he talked about his wife's return and he was very hesitant to tell the truth and he looked uncomfortable and that is classic demeanor evidence going to somebody is credibility and someone only the other pieces of evidence i mean they all go to whether or not he's telling the truth which you know honestly join me up to justice alito that that if the evidence is related to whether he's being honest in his testimony then it goes to credibility so how are all of those pieces of evidence not essentially related to credibility i think that just to be clear it was also it wasn't just demeanor evidence and in fact  not credible if it isn't even capable of being believed but a it is definite it is within that the idea is power to say well i think there were inconsistency in his testimony but i still think that he is capable of being believed so i'm now going to say you get an adverse credibility in the end did the board believe the mr di was a lie and i don't think the board said that he would lie what if that is there's other evidence that  then he has a well founded fear of persecution under the regulations and are you saying that the board said that he was mistaken as to whether he got beat up i am saying that the board did not think he had submitted  evidence to meet his the burden as i know but how did the board reach that determination unless the board decided that he was lying i looked at other testimony of his and i remember there's no adverse kind of credibility determination so it's looking at all of his testimony and it is said that he had all of the credibility testified that the real story behind his travel to the united states was that he wanted a better life for his daughter well done yes and chest and his other testimony was a lie was false and that is inconsistent with a presumption of credibility there's no extraneous evidence in this case until it all relies on whether di is telling the truth or not and there's a presumption that kicks in when you are saying well we did not grounding your argument on whether the presumption was overturned by the board instead you're saying that the board presumed he was credible and then did something else but there's nothing else to be done in the di case it told a story it's an honest true story or it's not the court thinks that all of the evidence that the agency pointed to is only relevant to credibility then i think it  has to meet would would necessarily dictate that the board didn't and the agency and the i didn't think he was telling the truth then i think the only mistake that was made here with betty they didn't use the word credibility thank you  morning mison nd i'd like to explore a slightly different point and that is where does this presumption apply in the government's opening brief and took the position that it applies only peels to the be and not before the board and not before the court and we explained in our reply brief we don't think that we need to get bogged down in that because here we just don't think that credibility is the issue you know we continue to do believe that the the the clear language of the statu e makes the presumption of principle before the board ok let's suppose you're right about that just for the moment what what difference does that make if a court of you know the court of appeals has to review for substantial and reasonable this doesn't have to also inquire as to whether the board reasonably treated the presumption yes and if credibility became an issue which again we think that the court should have reviewed  the related grounds that the that the board relied on and its credibility became an issue yes it would have to say we think the board implicitly found that the die was not credible and we think there was sufficient evidence that the presumption of credibility was overcome and here i think frankly there is abbe let me just stop you there i'm sorry but you say implicitly and i guess i'm wondering how a court could decide that the board why wouldn't it be unreasonable therefore for the board to let's just assume for the moment a did implicitly reject the credibility of the of the witness i  presumption it applies rebuttable presumption so if the board looked at the idea and said you cited three major pieces of evidence that show that di was not credible you seem to have forgotten to say to make an adverse credibility determination that would of course be acceptable how about i truly understand the reluctance of immigration judges and trial judges everywhere to make adverse credibility determinations expressly it's it's an uncomfortable pas and on appeal in other words i would think the presumption does work when there's no other evidence at all other than the testimony of the op or term and there hasn't been an adverse credibility determination and the re's then you have a presumption of credibility on appeal and personally that will sustain the burn but you can tell me if that's wrong if there's any other evidence however then the presumption just drops o there well i think that and the idea has not made an explicit adverse credibility determination and then the the court needs to sorry then the board needs to determine whether the presumption has been overcome and i think that could occur in cases where there is other evidence and the way i think about it is if for example the i j a said i don't know address credibility i'm going to but i think that you know they the testimony know but we think it probably now particularly credible and i think there is a presumption would kick in and say no you can't make that finding you actually need to either that determine whether the presumption has been overcome or remand to the idea to make and credibility in the lead later history of the real i d act one it there was a concurrent there that was very concerned that adjudicators might just assume aliens are lying because because they're seeking asylum because it's to their benefit and i think  i would think the way you would approach it one with a witness's testimony as you would ask is the witness lying for us about whether the light was red or green for example the witness knows and was read but testifies it was green so the witness is lying that's the st and corey is the witness lying then the nd worry me even if the witness is not lying is the witness mistaken or wrong you know they truly believe the light was red but in fact the light was green the other evidence shows no that's how i usually think about it and i sure as hell you think that's it's into the term credibility in other words is the witness lying even if not is the witness mistaken  that a good way i would just you give you the terms of the statute but i think the st question is is the witness credit credible is he even capable of being believed or is it just obvious that he's lying and the next question is well is the witness  i'm not quite sure if there are wind but i still don't think they're correct there they're mistaken about that the light being red or green i'm not quite sure they're alarm but they are mistaken given absolutely and again you know you just have to think about the scenario so you have two credible witnesses that are testifying to kind of one thing back you can say both of those witnesses are credible but i think the only one really what they're saying only one of the witnesses is that is telling the consistent with the way that i've seen cases come up for review in the court of appeals from i g s who make adverse credibility determinations the ones i've seen you know they've essentially been equivalent to saying that the witness is lying this is fine distinction between suggesting points to other reasons why you might not believe them so i can't you know thinking about your example with the child in the crumbs i was thinking as you talked about an example about my child i come home and find the child hysterically crying and she says someone was  at the door i think somebody was trying to break into her house our house and i can believe her i don't think she's lying but then my neighbor says he you know i saw i was the u p s man so it's i would not find her story persuasive not because of credibility but because there was other evidence that showed she was not in fact in danger it was the u p s delivery man so i don't think the e c m to be leaning heavily on the fact that the statute uses both the words credibility and persuasiveness and i just don't see it so i want to ask you what's wrong with saying it this way that the i j a makes a determination about credibility and that has to be expressed and when it gets up to the board there two ways in which the board might have to confront this presumption either the i j a actually found the alien in credible and the board disagrees in which case it has to confront the presumption and explain why it syncs the evidence ro ots that presumption of credibility or the i j might not have done a good enough job in making an adverse credibility determination explicit as the statute requires and then still the board has to presume credibility and then explain why it thinks the presumption is rebutted if the board offers such an explanation once it gets up to the court of appeals the court of appeals isn't applying any kind of presumption the court of appeals is just reviewing it for substantial evidence and seeing if the board's explanation and the board has to show that it understood what presumption should be there whether the board's explanation was rational and substantial evidence supported its determination that the alien was not telling the truth is that an ok way to think about it and how is that different from don't want to resist too much because i think we may just come out the same way the key thing here is that under one thousand two hundred and fifty two the poor are viewing court should not overturn and agencies findings that are supported by  could say that there is evidence in the record that supports the agency's determination it has to be a firm so if you think that what happened here is the agency of the i j and the board should have said the word credible and didn't then i still think that leads to upholding the agency's determination i mean this court has said that judicial review is not a ping pong game we don't just bat back and forth so let me get any trying to sneak in one more question is it your position that i just actually on the ground proceed in the way that you're suggesting drawing a distinction between someone could believe you but i don't and just using credibility in the way the justices alito and kagan i've been using it just says it means truth i think there's a basic problem because the only came into existence in two thousand and five and before that there was a focus on credibility alone and the real i d act introduced the fact that the i have to be satisfied that it's not just credible testimony but also persuasive i'm not sure on the ground that id is has fully accounted for that change in the law but that doesn't mean that it's not the law thank you i'm going to read mr starr sure i mean in th what we're seeing here is there's general agreement that there was at plenty of evidence in both cases indeed one might say substantial evidence in both cases demonstrating that the i that that the alien was not eligible for asylum or withholding removal and the only question here is whether the evidence should have been labeled as to persuade as persuasive or credible or some other way i think the statute makes very clear that it is within the i j a is right to say that testimony is credible but not persuasive the idea after all has to be satisfied that the testimony is persuasive but even if you doubt that under one thousand two hundred and fifty two the agencies determination have to be upheld so long as any presumption of credibility when reviewing board decisions but now as they said to justice course that they accept that this presumption does apply in federal court so all we are left with is a purely fact found issue of whether in this specific case once the presumption is applied the board had substantial evidence that a particular serious crime was committed i'm not sure that this question alone would be served worthy but in any event the answer to that is easy because the board provided no reason the explanation for rejecting all is testimony which the government admits had to be presumed credible the government made a remarkable concession that for the legal standard that encino motorcars requires that quote the pathway must be clearly discerned to use missin stack words here that's impossible to discern as the court of appeals found the board's decision was based on quote a probation report which directly contradicts all charisma's testimony if that court were to ask why did the board believe one account and not the other and have to guess was it based on a reason an odds with a record arbitrary or something else did the immigration judge overlook the only eyewitness account from the mom which is curiously never mentioned by the by the i j a or by the board did he misunderstand alcatraz is no contest plea do you think al caress agreed with the probation office report even though that report was written months after the plea if this court is to endorse the application of the government's role today set a new basement level standard for the quantum of reasoning and agency must offer to support its factual findings one that would radiate far beyond immigration throughout the administrative state this court should declined that invitation and know just to be be clear so in this sort of starting out here the question presented is whether the court of appeals many conclusively presume then in a silent asylum applicants testimony is credible  took point your honour's are brief in opposition said it was to presume the testimony is credible but there is sometimes a distinction with truth and you know i think justice alito and kagan are getting at the fact that there's a massive overlap here and we don't push that point too much but to the there is only some distinction and so those words true or the part in which we would disagree with we leave it we find a problem and i also see understand your position to be that there are no magic words here the b i a does not specifically have to find that we think doesn't have to have an explicit and st credibility determination is that right there are no magic words to create that express adverse credibility determination there is to be one in order to have a rebuttable presumption and one there is that for about a host presumption mr chief justice we do think it makes the persuasiveness inquiry very hard because it teaches cases like granites colliers would say that an agency can't quote stand mute and disbelieve credible evidence right so so and when it comes down to an in your view is simply how much of an explanation would be i is required to provide before thomas we don't think that you can just implicitly rely on a persuasiveness consolation particularly when the evidence is presumed credible i think that's what i'm getting at with greenwich colliers which is cited page thirty nine of our brief and indeed congress has this whole thing in the real id act about credibility about the need to make i express adverse credibility findings it would make hash of the statute a cache of congress's work to accept i think what the government is saying here which is hey as long as you've got something that might implicitly be read one way that's enough i mean that's not what this court ever expects except from the ministry of walk context you want to accept it by the f c c or the p a and i certainly don't think you should accept it here is your argument the argument the night circuit used argument we read the th circuit differently than the government we read it to be sickly as the saying there was a presumption of credibility that came into the board and the board then had to explain why it accepted one contrary m b u as opposed to another they're diametrically opposed and the i js opinion is like a bad law student exam just justice thomas and lays out the facts on both sides but it never applies them to explain how it resolved this case and now the doubt in general but particularly when there's a presumption of credibility coming in and greenwich colliers says you can't as an agency just disbelieve that credible evidence that's where the agency fell down thank you just as prior morning i think you and everyone seems to agree with th circuit's wrong when they say that you even though there were there is no finding you assume that the person is credible that is not what the statute says it says where there is no such no no finding you not as soon and so the question is did the did did is that what the agency did they did presume it no well maybe because they might have assumed that the rebutted so we have a question on appeal they didn't write whether it was rebutted or not lot that's true of district court judges when they make a lot of findings that are appealed they don't always have to right it could be the situation could be implicit from the record that they assume that it was robot it the lower courts or the agency code courts cannot exercise or duty of substantial evidence review unless they are advised of the considerations underlying the action under review and the problem is in this case and this is you know representative cases are brief in opposition says you know they haven't actually told you how they resolve the problem they have a bit you think they have to write an opinion or a district judges all the time or making rulings or they don't write opinions and so the an administrative law judge has to write an opinion on this matter should be i haven't i mean why should a why could you not infer from the situation what the i j thinks were as we do infer from the situation what a district judge thang because justice breyer for seven decades the cherry rule has required more and said it's not rational basis that there's a worry about agency decision making and well it's not it's not some extreme permissible to read the opinion as sufficiently stating that they that and that the board found  that that the requirements for asylum was that when they provided a sufficient explanation they don't have to deal with explicitly they have to provide an explanation that's implicitly they don't have to say and come out and say you know exactly all of their handiwork but they have to show enough to explain what they did and as i said in my opening here you just don't know that but for example there's only one eyewitness to this whole account that is the reason to explanation that is required i mean you don't even have that here but i think that isn't that i think just to lay out the facts and then just say we decide on one in congress created a judicial review in one thousand two hundred and fifty two dollars for a reason it's got to be meaningful and it's not meaningful if a litigant like al career as can't even make heads or tails of what the decision actually said and you know we've heard many different versions of what we think the i j a in the board did or the government thinks  believing that this ruling will sign anything other than credibility i either way that the i j a and the b r and the the i i didn't believe your client with respect to the nature of the assault am i correct in that assumption i don't think so st of all just as i just defer to my or we don't think of the th circuit actually held what the government says our point is if you read it that way then yes it's got some strakes rainiest language but remember here but th circuit remanded this case to the agency because of hearsay and if the answer answer please the question i asked most directly which is can the a decision be upheld if it's found this person credible as to his explanation as to us to what happened if if if found out or is this testimony credible and transparent then i don't think it's possible because the story that the operators version of events which is diametrically opposed to the probation officer report if he did it to protect his daughter and there's only one incident of violence one punch to the face finding or a statement that he is if they did not believe or didn't credit his explanation then without that finding you can't uphold their judgment is that your argument her well i think you could either do it on credibility or on persuasiveness again it wouldn't as justice as justice courses that require any sort of magic words or an onerous burden but you have to in substance to either rebut the presumption of trying to protect my daughter and then on the other hand you have a probation report so it comes up to the board and because there was no find an it comes with a presumption of credibility but the board is now looking at the probation report and saying you know generally we believe probation reports rather than convicted criminals with incentives to lie and that's exactly what we're doing here we're going to believe the probation report that this was an extremely serious crime so is and the surrounding circumstances and then you look at this case and basically it just comes back down to do you believe mr alvarez or do you believe the probation report doesn't it isn't just clear that the board believed the probation report rather than mr alcott caress and if that's so isn't it clear that essentially the board decided to rebut the presumption justice the government doesn't even make that argument and i think because your hypothetical demonstrates why because there is no language anywhere in there that we don't believe criminals or anything like that or we tend to believe probation officers or the like indeed ha that language been in there that would enable precisely the kind of meaningful judicial review congress put in one thousand two hundred and fifty two as it stands we have to guess whether those are the rationales something else that the government has offered or the rationales and the like that's the problem and again what are you just asking like i mean it seems as though you're just asking for one more sentence which is or even half of a sentence we believe the nation report rather than mr  stand there was an agitated demeanor there were inconsistency in the testimony they admitted to you know filing false documents those are all the kinds of rationales that are given in case after case the problem here is there's nothing and if you accept identify any other ground on which the could possibly have acted other than it believes the probation report rather than your client and if that's the case and no magic words are required what's what's left of the justice course is just not rational basis review it substantial evidence for abuse or to look to what the agency actually said and let me give you two possibilities that blew off the entire statute requires cross examination it's an express statute by congress so you know if he could ignore that he could ignore you know the fact that that was the mom's testimony and then the other way of thinking about it just a nd example is you know is no contest plea was made three months before the probation office report was written and there's a lot of reliance on what that report said indeed we just heard justice kagan talking about that but out there as never agreed to any of that because this plea preceded that by three months we have no idea whether the i j a understood that or the board understood that and indeed before the board we actually gave them a chance to correct their mistakes and to say you know provide that specific  if no adverse credibility determination is explicitly made i think the purpose of that was that if the only real testimony in the record is from the applicant that and the focus on by using the phrase rebuttal presumption on the justice kagan was talking about this in justice course which if other evidence comes in it's not just the applicant's testimony you have nothing else other testimony comes in then that  you just do normal substantial evidence for a view as the reviewing cord and f b i as explained we think the other evidence is inconsistent with the applicants testimony and the other evidence is more persuasive  the i case bindings which didn't count that credibility determination and so the board never discussed credibility or gave any reason to find all correct non credible you know nothing like which as kagan was getting out about how we don't believe criminals or we and fifty two dollars review would look for any reasons are one nation so it's got to explain what they're doing and have some reason behind it just isn't any administrative law content that's all it's not unknown or a standard it's just one of the government government's argument that credibility simply means is this person capable of being believed rather than i believe them but i did hear you earlier say something about something can be credible and not persuasive on the grounds that you don't believe the person can so you can you just tell me what is capable of being believed and sometimes inwardly there will be a difference between credibility and persuasiveness you know for example if someone says you know i'm worried if i go to mexico then i'm going to be beaten up in church doesn't think he's lying thinks it's genuine but as a result of country testimony by the state department others just think that in our right you know those are the types of circumstances here as i was saying to the chief justice w s man example on that example it's not that the person was a lying it's just that they're mistaken based on other outside evidence so they're you're right they may be quite credible but not be persuasive but that's consistent with credibility referring to the truth or falsity of the testimony is the person lying or not right is consistent the one point i'd make there's a spirit is when you're answering that nd question about whether other evidence found ways or there's proof that it's got to be reason one nation the agency just has to explain what it's doing clearly and provide some reason for it that's not going to happen with us in written supply than before the board right because in that instance it's not that the board or i guess put it to this now when the board is saying you know that there would be a presumption that the person wasn't lying right just as there is this isn't a presumption in the air it's a presumption about credibility and so when congress uses those words it picks up preexisting colliers which say that you can disbelieve credible evidence and so it without without a reasoned explanation so we don't doubt that there is a john c could provide that reasoned explanation and indeed they know thank you my central point is i was saying to justice prior is that this is a standard agency case the agency had one job and it fell down and that justice brier was worried about this being too burdensome but this isn't hard to meet indeed it's how immigration judges have operated for decades and i was just saying to justice barrett it requires no magic words just a reasoned explanation which this court in judah laying has already unanimously said applies and justice alito you had suggested that the record here was enough and if you were sitting as a rational basis court i think you could find something to justify what the agency did but that's not the test here is the th circuit said there were two contradictory accounts the agency just had to explain why it believed one of them and the agency always has two bites to do so at the i j a and board stages here the i g wrote a detailed opinion except in the one place where it matters it's reasoning it tells us everything else but argument shows as to the legal question on which this court present starts here ari and at least in mr diez case the court of appeals applied the precise legal framework that all parties except the court did not presumed eyes credible testimony to be true but held that the record compelled the conclusion that dies testimony credible was persuasive that case specific conclusion was plainly correct mr di the eligibility for asylum has untitled intimate holding trying to hire only on whether he was in fact persecuted based on his resistance to the chinese government's forced abortion of his child mr di testified in great detail about that persecution and submitted significant evidence corroborating his testimony the government agrees that the agency here may no adverse credibility finding in other words the agency did not conclude that dialogue had and there is simply no evidence in the record that would support a conclusion that i was not lying but was nevertheless somehow mistaken about the severe persecution inflicted on him this court should therefore affirm  seems to me that the bottom line is that in that respect you are insisting on magic words in other words the the court of appeals was all right not sending it back because there was an absence of those words in the the decision is that is that wrong i think it is wrong i guess i'm not sure what magic grow words we would be requiring i think that that ultimately the way that the statutory presumption works to sort of as a gap filler the credibility when the in the face of administrative silence and so whereas here the agencies sort of accept the end of the accept the testimony as credible and move on the persuasiveness that it is under the statute taking the testimony as credible and there's nothing left to do as to credibility i don't do that i think i get the question you are you're asking but i don't think that there's anything specific the agency would have to say it just has to follow what the government agrees is a clearly with the distinction between persuasive and credible it just seems like a false dichotomy to me but the can something be can you have two points of view both of turns out to just be incorrect based on other evidence of record that somebody can be credible and yet mistaken and i think that's sort of where the distinction between credibility and persuasive enough comes up that that ultimately somebody can be testifying honestly and other words not perjuring themselves not lying but ultimately just be wrong and i think that's really the key distinction that the statute is drawing and recognizing that you can have credible testimony but nevertheless sort of just be the wrong in this case in your case there's quite a bit of evidence to seems to undermine both respondents credibility and or at least go to could go to credibility and to persuasiveness with magic what words are missing and this opinion in the i j a opinion to your way of thinking well i guess it's not so much not made any adverse credibility finding and the board adopted and affirmed that decision so i think that to the extent the evidence goes to credibility and we think that it very clearly does only go to credibility well the i g never made neither the i g or the board ever made an adverse credibility finding as to persuade them that i actually strongly disagree that any of the evidence that the that the government relies on of the agency relies on doesn't fact go to persuasiveness you know the government primarily notes the fact that chen dies wife and  daughter went back to china but they were in a completely different situation and i was in a sense that they had faced very low risk of at least any sort of persecution in the short term and had very strong reasons to go back whereas di faced very real risk of  persecution in the short term the police had in fact come looking for him and them few months after chen and his daughter returned to china and had very little reason to return immediately because he'd been fired from his job after resisting the forced abortion of his child and so proud of her daughter where there is no adverse credibility determination in the agent viewing court of appeals must assume that the statement is credible that couldn't be right because after all the agency is told that if there is no adverse credibility requirement there is a presumption and so agency you can say the presumption is rebutted am i right about what the  th circuit is saying or not i think you are right about with an answer that isn't right because you could it would be weird to have an agency which says we can write down the words in this situation sense that's my st problem i think we have to say that but the more serious problem which i really don't understand thoroughly and i'm trying to work out is what happens no adverse credibility determination now do they have to write those words we find it rebutted or are they implicit and a reviewing court ever find an implicit and if so when what words would you write in opinion if you believe the latter you don't want to give them too much power to disregard what an applicant for refugee status says but you do not want them to have to write magic words in every case what would you do what words would you use for to tell the reviewing courts be careful about this where they don't make an dispute about that and so if the reason is that it's finding the presumption of credibility rebutted well then it does have to say that and i don't think it has to be you know i'm not sure it's i think the easiest way to do that is just say it up front but everyone agrees the government agrees that it has to be  do you disagree that that is that the role of the knives circuit applied in this case i do think it's correct but i don't i disagree that it's not i mean i do think that that is what the winds are going to play and again i want to be clear that they did not presume that the testimony was necessarily true in the sense of being accurate but i think that what they were saying was that if if the agency is silent as to credibility then that is effectively a determination that the testimony obligation as the object oh no not no no i mean there is because there is no similar statutory requirement i think they have to say something that makes it clear that's what the basis for their decision for their decision has been we're not you know we're not arguing about same explicitness requirement that a that is explicitly by the statute applied to the i j a applies to the board chair of the decision to be read in this way and i had the burden of showing that he was on willing to return to china because of fear of persecution and we do not believe that he had passed for he did not establish that he actually is willing clear that it was not resting at the session on an adverse credibility finding so i don't think that that's a way that you could read the board's decision justice sotomayor if that's the way we can read the board's decision but it's a permissible conclusion was the why wasn't the th circuit wrong in not remembering this case right so and i think that really comes down to the it that i think that's the end of the matter i think that is treated under the best very framework of accepting the testimony as credible and so then there's no no basis on which the court of appeal needs to be for you remained to give the n c another shot to reeducate credibility inadequate to outweigh that they returned not because of persecution and then he says di failed to prove his burden the b i am firm that  had lied to the asylum officer because the truth would be perceived as inconsistent with his claims of past and fear and fear of future persecution  that's me suggests the conclusion that justice alito suggested so if that is possible given what they did say why isn't an automatic reimagined appropriate accuse them of lying he was very he sort of was reluctant to disclose this information when he was or after point blank whether they had come to the united states he was he was upfront about it as hard as i think you counsel justice kagan system or i want to work off the understanding of law that you started with which is the same as the one just disparate was using which is that this presumption of credibility what it says is that in the absence of a finding we are going to take the the  testimony of the applicant as as honest as truthful applicant and perjure himself but then there are there is extraneous evidence that could come in to show that the applicant was wrong and and  and that distinction actually makes all the sense in a world in a statute like this which is about a well grounded fear of persecution that the applicant can testify as to his fear and all the things underlying it but then there can be other evidence which shows that that fear is not well grounded notwithstanding the truthfulness of what the applicant said so let's take that as sort of a premise of what the statute does  die it seems to me could have lost in two ways in that world one is if we understand the board to have rejected the presumption of credit money in other words to have decided that in fact i was lying when he said that this was the reason that he wanted asylum and the nd is no they accepted that he was telling the truth but there is extraneous evidence indicating that he is wrong as to his fear of going back to china so if you could comment on either of those two way is i'm saying the di was wrong and why you think neither of those  their decision on and it was not resting up decision on an adverse credibility finding for the anus he just didn't find that he was lying and so i just i don't think that's a basis on which the court of appeals could have affirm could could have denied a petition for review as to whether or not he was somehow testifying truthfully but by mistake and again i don't think there's anything in the record that would support that in the sense that everything pointed basically the same way that they gave very detailed testimony about the persecution he suffered he submitted corroborating evidence in the form of hospital records that showed his injuries and his wife's abortion and he showed country conditions evidence that was extremely extremely  that is the ground on which it rests why isn't that sufficient i mean given that maybe maybe you'd argue that that's not sufficient evidence or something like that but right for purposes of our discussion here  wouldn't that be enough to overcome credible testimony by mr di about who's out of town it appears here and there is the money credible it's like the light was green versus red mr di thinks it's green but there's other evidence in the form of perhaps and that would go to whether the substantial evidence in the record i suppose right but it wouldn't go to anything having to do with the credibility determination issue before us what it no i did well i mean i think between is the witness lying and then the nd question regardless of whether one despite the lying is a witness nonetheless mistaken and you agree that credibility in the statute only goes to the st of those two questions is that correct that being truthful about it this detrimental to his claim is significant to his burden of proof what you say to that sounds well again i have i mean so st of all i just disagree with that as a fact no matter what sort of i think that if you look  respondent not being truthful about it is to a tremendous claim which sounds like is the witness lying or credibility is to use the stuff short term well truthful but that was truthful not as to the fundamental facts on which she was bathing the asylum claim this or this or that based on we had lack of forthrightness about telling me telling the agency that his wife and daughter and come with him gone back to china but i don't think that that could be read as an adverse credibility finding as t estimony about it as you know being detained and beaten and deprived of food and water and sleep and well supplied us legal question the rebuttable presumption do you think the board can find the presumption roboto did just on the face of the applicant's testimony without any extra no evidence you know sham of what i do i think it would probably be an unusual case but i don't think there's anything that statutorily precludes that thank you m zimmerman so i have a question about justice kagan two ways to understand what the board has done one that mr di was lying on the other that he was telling the truth but external circumstances show that he was mistaken and  my question is about the standard if we view that the board would apply in reviewing the explanation so in the st scenario the lying we all agree that there would be a rebuttable presumption that he was actually telling the truth right it's credibility if there's no ex express adverse credibility determination the board has to apply this presumption right there so is that better or worse in the nd let's assume that what the board wants to conclude is that in here yeah absolutely i think they have great significance i mean these were introduced this was not a huge administrative record there were only a few exhibits this is one of the some of the key exhibits that di introduced and i think there's a very but if you look at page one hundred and one of the joint appendix i mean the government tried to impeach di about the hospital records but all it could get out of him was a testimony that you can only get them if you're admitted to the hospital and that he had never written one of them in his life and the idea that they would somehow be not evidence but that is that is relevant or that could be considered by this court makes little sense and the  i think it actually quite mind boggling given how produce they are dies burden of proof discussed in great detail the ultimate distinction under the statute is that there is a preliminary inquiry into credibility which is really just a question as to whether or not the the agency believes the person was honest whether they were to submitting a fraudulent claim or whether they were testifying honestly the way in which that difference from persuasiveness only comes into play if you can have extra nl evidence that shows that the you can have honest testimony that is somehow mistaken and there's simply none of that here di gave externally detailed testimony about the abuse the chinese reverse the board by parsing its decision and trying to see if it had specifically said that the alien was not credible and even if the alien if not if the board said things like the alien was not entirely credible  wasn't enough the bore of the th circuit would say you didn't make an explicit adverse credibility determination and so we're going to presume that everything in the allianz testimony was fact and so congress passed to the real id act and in the real id act it made clear that what the th circuit had been doing was not appropriate and it did that in part by making clear that even credible testimony is insufficient to establish the facts as fast finders that is not satisfied but testimony is credible person ways that of an contains sufficiently detailed information to satisfy the requirements can reject the testimony so the mere absence of an explicit adverse credibility determination is not enough to dictate that the testimony of the alien has to be accepted as fact and the i think that at this point everyone has acknowledged that the th circuit has continu whether any reasonable fact finder would have been compelled to reject the agency's conclusion and i think a realistic examination of the evidence in both of these cases even in light of the rebuttable presumption of the credibility before the board summarized the aliens account and then i pointed to multiple pieces of evidence demonstrating that the alien had committed a particular particularly serious crime even setting aside the probation report it pointed out that he was coming convicted of a domestic violence offen or pointed to multiple pieces of evidence that demonstrated that what di was saying just wasn't true however you want to categorize that and it wasn't true because his wife had returned to china voluntarily just two weeks later it was true because said the real story was that he had come to the united states for to get a better life for his daughter and to get a job and i think if you just look at that evidence and apply section paul fifty two it's very clear that the agency decisions