FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MING DAI,

Petitioner,

v.

WILLIAM BARR, Attorney General,

Respondent.

No. 15-70776

Agency No.

A205-555-836

ORDER AND

AMENDED

DISSENT

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted October 13, 2017*

San Francisco, California

Filed March 8, 2018

Amended February 22, 2019

Before: Sidney R. Thomas, Chief Judge, and Stephen S.

Trott and Mary H. Murguia**, Circuit Judges.

*

 The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

** Prior to his death, Judge Reinhardt fully participated in this case

and authored the majority opinion. Following Judge Reinhardt’s death,

Judge Murguia was drawn by lot to replace him. Ninth Circuit General

Order 3.2h. Judge Murguia has reviewed all case materials.
2 DAI V. BARR

Order;

Dissent to Opinion by Judge Trott

SUMMARY***

Immigration

The panel granted a petition for review of the Board of

Immigration Appeals’ denial of asylum and withholding

relief.

The panel held that because neither the immigration

judge nor the Board made an explicit adverse credibility

determination, this court must accept Dai’s testimony as true. 

The panel explained that the REAL ID Act added a provision

creating a rebuttable presumption of credibility where the IJ

fails to make an explicit adverse credibility determination, but

that presumption is rebuttable only before the Board, and is

not rebuttable on petition for review before this court.

The panel held that Dai’s evidence was sufficiently

persuasive, and compelled the conclusion that the harm he

suffered from the government due to his resistance to his

wife’s forced abortion rose to the level of past persecution. 

The panel held that because Dai and his wife were not

similarly situated, the Board erred in concluding that Dai’s

wife’s voluntary return to China undermined his own fear of

future persecution. The panel further held that in the absence

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DAI V. BARR 3

of an adverse credibility determination, the Board erred in

relying on Dai’s untruthfulness about his wife’s voluntary

return to China in concluding that he failed to meet his

burden of proof. The panel also noted Dai’s valid asylum

claim was not undermined by the fact that he may have had

additional reasons (beyond escaping persecution) for coming

to or remaining in the United States, including seeking

economic opportunity.

The panel held that because Dai established past

persecution, he was entitled to a rebuttable presumption of

future persecution, which the government did not attempt to

rebut with evidence of changed country conditions. The

panel stated that giving the government the opportunity to

present such evidence at this point would be exceptionally

unfair, and thus, Dai established that he was eligible for

asylum. The panel remanded for an exercise of discretion of

whether to grant Dai asylum relief, and to grant Dai

withholding relief.

In his amended dissent, Judge Trott wrote that the serious

legal consequences of the majority opinion as a circuit

precedent are that it (1) demolishes both the purpose and the

substance of the REAL ID Act (2) disregards the appropriate

standard of review, and (3) perpetuates this court’s

idiosyncratic approach to an IJ’s determination that the

testimony of an asylum seeker lacks sufficient credibility or

persuasiveness to prove his case.
4 DAI V. BARR

COUNSEL

David Z. Su, Law Offices of David Z. Su, West Covina,

California, for Petitioner.

Aimee J. Carmichael, Senior Litigation Counsel; Mary Jane

Candaux, Assistant Director; Office of Immigration, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

ORDER

The dissent filed March 8, 2018, is amended, with the

following amended dissent to be substituted in lieu of the

original. The petitions for rehearing and rehearing en banc

remain pending, and no further action is required of the

parties until further order of the court.

TROTT, Circuit Judge, dissenting:

The serious legal consequences of mycolleagues’ opinion

are that it (1) disregards both the purpose and the substance

of the REAL ID Act of 2005 (“Act”)1, (2) ignores the

appropriate standard of review, and (3) perpetuates our

idiosyncratic approach to an Immigration Judge’s (“IJ”)

determination that the testimony of an asylum seeker lacks

sufficient credibility or persuasiveness to prove his case. 

The majority’s opinion accomplishes these results by

contaminating the issue before us with irrelevancies, the most

1

 Pub. L. No. 109-13, 119 Stat. 231.
DAI V. BARR 5

troublesome of which is a meritless irrebuttable presumption

of credibility. The sole issue should be whether Dai’s

unedited presentation compels the conclusion that he carried

his burden of proving he is a refugee and thus eligible for a

discretionary grant of asylum. Only if we can conclude that

no reasonable factfinder could fail to find his evidence

conclusive can we grant his petition.

The IJ’s decision not to make an explicit adverse

credibility finding is a red herring that throws our analysis off

the scent and preordains a result that is incompatible with the

evidentiary record. By omitting from their opinion the IJ’s

fact-based explanation of his decision, the majority elides

eight material findings of fact the IJ did make, each of which

is entitled to substantial deference. The majority’s assertion

that “there is no finding to which we can defer” is false. For

this reason, I quote in full the IJ’s findings and conclusions

about the persuasiveness of Dai’s presentation in Part IV of

my dissent. The eight findings are as follows.

First, the IJ specifically found that the information

reported by the asylum officer about his conversation with

Dai was accurate. The IJ said,

As to the contents of [the asylum officer’s

notes], 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
6 DAI V. BARR

consistent with the respondent’s testimony in

court.

Accordingly, the IJ accepted as a fact that Dai admitted

that he did not disclose the consequential truth about his

wife’s and daughter’s travels because he was nervous about

how this would be perceived by the asylum officer in

connection with his claim.

Second, the IJ accepted Dai’s admission as a fact that he

concealed the truth because he was afraid of giving straight

answers regarding his wife’s and daughter’s trip to the United

States.

Third, the IJ determined that Dai had deliberately omitted

highly relevant information from his Form I-589 application

for asylum, information that he also tried to conceal from the

asylum officer.

Fourth, the IJ found that Dai’s omission of his

information “is consistent with his lack of forthrightness

before the asylum office[r] as to his wife and daughter’s 

travel with him. . . .”

Fifth, the IJ credited Dai’s admission that when asked by

the asylum officer to “tell the real story” about his family’s

travels, Dai said 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 [after his wife and daughter went back to China].

Sixth, the IJ found that Dai admitted he stayed here after

they returned “because he was in a bad mood and he wanted

to get a job and ‘a friend of mine is here.’”
DAI V. BARR 7

Seventh, the IJ said “I do not find that [Dai’s]

explanations for [his wife’s] return to China while he

remained here are adequate.” (Emphasis added).

Finally, the IJ also credited Dai’s concessions that his

wife and daughter returned to China because “his daughter’s

education would be cheaper in China,” and that “his wife

wanted to go to take care of her father.”

When Dai’s subterfuge got to the BIA, the BIA said in its

decision that “the record reflects that [Dai] failed to disclose

to both the asylum officer and the IJ” the true facts about his

family’s travels. The BIA noted that Dai had conceded he

was not forthcoming about this material information because

he believed that the truth about their travels “would be

perceived as inconsistent with his claims of past and feared

persecution.”

The IJ’s specific factual findings in connection with Dai’s

failure to satisfy his burden of proof were not the product of

inferences drawn from circumstantial evidence. These

findings were directly based upon revealing answers Dai

admitted he gave to the asylum officer during his interview. 

These facts are beyond debate, and they undercut Dai’s case. 

To quote the BIA, these facts were “detrimental to his claim”

and “significant to his burden of proof.” Nevertheless, the

majority brushes them aside, claiming that an immaterial

presumption of credibility overrides all of them.

In this connection, I note a peculiarity in the majority’s

approach to Dai’s case: Nowhere does Dai assert that he is

entitled to a conclusive presumption of credibility. His brief

does not contain any mention of the presumption argument

the majority conjures up on his behalf. The closest Dai
8 DAI V. BARR

comes to invoking the majority’s inapt postulate is with a

statement that we “should” treat as credible his testimony

regarding persecution in China. He does not take issue with

the IJ’s foundational adverse factual findings, choosing

instead to argue that they were not sufficient in the light of

the record as a whole to support the IJ’s ultimate

determination.

For example, Dai acknowledges in his brief that the “IJ’s

or BIA’s factual findings are reviewed for substantial

evidence” and that the “REAL ID Act’s new standards

governing adverse credibility determinations applies to

applications for asylum, withholding of removal, and CAT

relief made on or after May 11, 2005.” Blue Br. 10

(emphasis added) (quotation marks omitted). Next, he notes

that “an IJ cannot selectively examine evidence in

determining credibility, but rather must present a reasoned

analysis of the evidence as a whole and cite specific instances

in the record that form the basis of the adverse credibility

finding.” Id. (emphasis added) (quotation marks omitted). 

Moreover, Dai notes that “[t]o support an adverse credibility

determination, inconsistencies must be considered in light of

the totality of the circumstances, and all relevant factors”

adding that “trivial inconsistencies . . . should not form the

basis of an adverse credibility determination.” Id. at 10–11

(emphasis added) (quotation marks omitted). He contends

that he “has provided adequate explanation” for his

inconsistencies, i.e., the failure to disclose his family’s

travels. Id. at 14. Finally, after attempting to pick apart the

IJ’s adverse findings, Dai’s bottom line is that “his wife’s

departure from the United States does not adversely affect his

credibility at all,” an assertion that ignores his failed coverup

of it. See id. at 16.
DAI V. BARR 9

In summary, the majority blue pencils a material part of

the evidentiary record even though Dai implores us to

“examine it as a whole,” as he did in his brief to the BIA. Dai

accepts that the viability of his entire presentation is on the

line, but the majority ignores his concession. In this

connection, the Attorney General has responded only to the

claims and arguments Dai included in his brief. The Attorney

General has not been given an opportunity to respond to the

majority’s inventive analysis, nor to the theory concocted by

the majority on Dai’s behalf. Both sides will be surprised by

my colleagues’ artful opinion—Dai pleasantly, the Attorney

General not so much.

I will have more to say in Part V about our Circuit’s

treatment of the role, responsibility, and product of an asylum

officer.

For these reasons, I respectfully dissent.

I

Backdrop

Over the years, our Circuit has manufactured misguided

rules regarding the credibility of political asylum seekers. I

begin with this issue because the majority’s mishandling of

it infects the remainder of their opinion with error. These

result-oriented ad hoc hurdles for the government stem from

humanitarian intentions, but our court has pursued these

intentions with methods that violate the institutional

differences between a reviewing appellate court, on one hand,

and a trial court on the other, usurping the role of the

Department of Homeland Security (“DHS”) and the BIA in

the process. Referring to our approach to witness credibility
10 DAI V. BARR

as an “idiosyncratic analytical framework,” a previous panel

of our court described this inappropriate situation as follows:

The Supreme Court has repeatedly instructed

us on the proper standard to apply when

reviewing an immigration judge’s adverse

credibility determination. Time and again,

however, we have promulgated rules that tend

to obscure that clear standard and to flummox

immigration judges, who must contort what

should be a simple factual finding to satisfy

our often irreconcilable precedents. The

result of this sly insubordination is that a

panel that takes Congress at its word and

accepts that findings of fact are “conclusive

unless any reasonable adjudicator would be

compelled to conclude the contrary,” . . . or

follows the Supreme Court’s admonition that

“[t]o reverse the BIA finding we must find

that the evidence not only supports that

conclusion, but compels it,” . . . runs a serious

risk of flouting one of our eclectic, and

sometimes contradictory, opinions.

Jibril v. Gonzales, 423 F.3d 1129, 1138 (9th Cir. 2005)

(alteration in original) (citations omitted).

Many of our Circuit’s rules on this subject and my

colleagues’ decision are irreconcilable with the structural

principle set forth in Federal Rule of Civil Procedure 52(a)(6)

that “[f]indings of fact, whether based on oral or other

evidence, must not be set aside unless clearly erroneous, and

the reviewing court must give due regard to the trial court’s

opportunityto judge the witnesses’ credibility.” Accordingly,
DAI V. BARR 11

we are expected to apply a highly deferential standard to a

trial court’s determination regarding the credibility of a

witness. Anderson v. City of Bessemer City, 470 U.S. 564,

573–76 (1985). In discussing this rule, the Supreme Court

said that “[w]hen findings are based on determinations

regarding the credibility of witnesses, Rule 52(a) demands

even greater deference to the trial court’s findings; for only

the trial judge can be aware of the variations in demeanor and

tone of voice that bear so heavily on the listener’s

understanding of and belief in what is said.” Id. at 575. The

Court added that the applicable “clearly erroneous” standard

of review “plainly does not entitle a reviewing court to

reverse the finding of a trier of fact simply because it is

convinced that it would have decided the case differently. 

The reviewing court oversteps the bounds of its duty under

Rule 52(a) if it undertakes to duplicate the role of the lower

court.” Id. at 573 (emphasis added).

The Supreme Court sharpened this point about our limited

role in Gonzales v. Thomas, 547 U.S. 183 (2006) (per

curiam), vacating 409 F.3d 1177 (9th Cir. 2005) (en banc). 

In summarily vacating our en banc opinion, the Court held

that we had exceeded our authority and made a determination

that belonged to the BIA. 547 U.S. at 185–86. The Court

agreed with the Solicitor General that “a court’s role in an

immigration case is typically one of review, not of first view.” 

Id. at 185 (emphasis added) (quotation marks omitted). To

support its conclusion, the Court cited INS v. Orlando

Ventura, 537 U.S. 12 (2002): a “‘judicial judgment cannot be

made to do service for an administrative judgment.’” 547

U.S. at 186 (quoting Ventura, 537 U.S. at 16). More about

Ventura later.
12 DAI V. BARR

The majority’s opinion’s use of an incongruous

irrebuttable presumption of credibility to erase the IJ’s

findings of fact and the BIA’s decision and thus to make us

a court of “first view” is another example of our

intransigence. If, as they say, we are bound by precedent to

do it their way, then its time to change our precedent.

II

A False Premise

The majority opinion’s assertion that “we must treat

[Dai’s] testimony as credible” rests on a fallacious premise. 

Judge Reinhardt writes, “Properly understood, the rebuttable

presumption provision of the REAL ID Act applies only to

appeals to the BIA, not to petitions for review in our court.” 

From this inapt premise, he concludes that we must ignore the

IJ’s detailed analysis and findings of fact about Dai’s

presentation. When it comes to our task of reviewing the

credibility of witnesses in a trial court or whether a witness’

testimony suffices to carry his burden of proof, however,

there is no material difference between an appeal and a

petition for review, none. Federal Rule of Civil Procedure

52(a) makes no such distinction. As Anderson said, Rule

52(a) applies to a “reviewing court,” which is what we are in

this capacity. 470 U.S. at 573–74 (emphasis added); see

Thomas, 547 U.S. at 185. Neither the Court nor Rule 52(a)

differentiate between appeals and petitions for review. Nor

would such a distinction make any sense. As Anderson and

Thomas illustrate, the issue is one of function, not of form or

labels. The Act’s use of the word “appeal” does not dictate

how we must go about our process of review. Using the

standards provided by Congress, we are not in a position to

weigh a witness’s credibility or persuasiveness.
DAI V. BARR 13

Federal Rule of Appellate Procedure 20, “Applicability of

Rules to the Review or Enforcement of an Agency Order,”

illustrates the soundness of treating appeals and petitions for

review with a uniform approach. Rule 20 reads, “All

provisions of these rules . . . apply to the review or

enforcement of an agency order. In these rules, ‘appellant’

includes a petitioner or applicant, and ‘appellee’ includes a

respondent.”

Moreover, and directly to the point, the Act itself does not

require an IJ to make a specific credibility finding in those

precise terms. As the BIA correctly said with respect to the

Act, “[c]ontrary 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.” See discussion infra Section VI. If the IJ does not

make such an explicit finding, all the respondent is entitled

to is a “rebuttable presumption of credibility on appeal.” 

8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). By

attempting to restrict this language to an appeal to the BIA,

the majority opinion frees itself to apply derelict Ninth

Circuit precedent to Dai’s testimony and automatically to

deem it credible.2

My colleagues claim that in the absence of a formal

adverse credibility finding, “we are required to treat the

petitioner’s testimony as credible.” The practical effect of the

majority’s rule is breathtaking: The lack of a formal adverse

2 The majority cites She v. Holder, 629 F.3d 958, 964 & n.5 (9th Cir.

2010) in support of this ipse dixit claim. However, She’s footnote 5 says

that because the “rebuttable presumption” provision does not apply

retroactively, it had no applicability in She’s case.
14 DAI V. BARR

credibility finding becomes a selective positive credibility

finding and dooms a fact-based determination by an IJ and

the BIA that an applicant’s case is not sufficiently persuasive

to carry his burden of proof. The majority’s approach

violates all the rules that control our review of a witness’s

testimony before a factfinder.

A conclusive presumption of credibilityhas no valid place

in our task of reviewing the persuasiveness of a witness’s

testimony. Such an artifice eliminates relevant factual

evidence from consideration and violates Rule 52(a)(6). The

deployment of a conclusive presumption becomes a

misguided way not only of putting a heavy thumb on one tray

of the traditional scales of justice, but also of removing

relevant evidence from the other. This approach allows us to

evade our responsibilities to examine and to evaluate the

entire record before an IJ, permitting us instead to disregard

facts that would otherwise discredit our final determination.

The evidentiary record in this case devours any such

presumption. Judge Reinhardt’s opinion writes the REAL ID

Act and its reference to a rebuttable presumption of

credibility out of existence, even though Congress

specifically intended the Act to govern us, the Ninth Circuit

Court of Appeals.

Although the case focuses on corroboration of an

applicant’s testimony, our opinion in Aden v. Holder,

589 F.3d 1040 (9th Cir. 2009) correctly explained the effect

of the REAL ID Act on our pre-Act jurisprudence.

We have a line of circuit authority for the

proposition that corroboration cannot be

required from an applicant who testifies

credibly. In Ladha v. INS, [215 F.3d 889, 901
DAI V. BARR 15

(9th Cir. 2000)] we ‘reaffirmed that an alien’s

testimony, if unrefuted and credible, direct

and specific, is sufficient to establish the facts

testified without the need for any

corroboration.’ Kataria v. INS [232 F.3d

1107, 1113 (9th Cir. 2000)]relied on Ladha in

stating that ‘the BIA may not require

independent corroborative evidence from an

asylum applicant who testifies credibly in

support of his application.’ Kataria stated

that ‘we must accept an applicant’s testimony

as true in the absence of an explicit adverse

credibility finding.’. . .

Congress abrogated these holdings in the

REAL ID Act of 2005. . . .

The statute additionally restricts the effect of

apparently credible testimony by specifying

that the IJ need not accept such testimony as

true. . . .

Congress has thus swept away our doctrine

that ‘when an alien credibly testifies to certain

facts, those facts are deemed true.’

Aden, 589 F.3d at 1044-45. More on the Act in the next

section.
16 DAI V. BARR

III

The REAL ID Act

Congress enacted the REAL ID Act of 2005 because of

our Circuit’s outlier precedents on this issue and our refusal

to follow the rules. The House Conference Committee

Report (“House Report”)3explained that “the creation of a

uniform standard for credibility is needed to address a

conflict . . . between the Ninth Circuit on one hand and other

circuits and the BIA.” H.R. Rep. No. 109-72 at 167. The

House Report also said that the Act “resolves conflicts

between administrative and judicial tribunals with respect to

standards to be followed in assessing asylum claims.” Id. at

162. Nevertheless, my colleagues hold that a key part of the

Act does not apply to us, only to the BIA.

As the Act pertains to this case, it established a number of

key principles, all of which the majority fails to follow,

perpetuating the conflicts Congress attempted to resolve.

First, “[t]he burden of proof is on the applicant to

establish that the applicant is a refugee . . . .”4

Second, “[t]he testimony of the applicant may be

sufficient to sustain the applicant’s burden without

corroboration, but only if the applicant satisfies the trier of

fact that the applicant’s testimony is credible, is persuasive,

3 H.R. Rep. No. 109-72 (2005) (Conf. Rep.), reprinted in 2005

U.S.C.C.A.N. 240.

4

 8 U.S.C. § 1158(b)(1)(B)(i).
DAI V. BARR 17

and refers to specific facts sufficient to demonstrate that the

applicant is a refugee.”5

Third,

Considering the totality of the circumstances,

and all relevant factors, a trier of fact may

base a credibility determination on the

demeanor, candor, or responsiveness of the

applicant or witness, the inherent plausibility

of the applicant’s or witness’s account, the

consistency between the applicant’s or

witness’s written and oral statements

(whenever made and whether or not under

oath, and considering the circumstances under

which the statements were made), the internal

consistency of each such statement, the

consistency of such statements with other

evidence of record (including the reports of

the Department of State on country

conditions), and any inaccuracies or

falsehoods in such statements, without regard

to whether an inconsistency, inaccuracy, or

falsehood goes to the heart of the applicant’s

claim, or any other relevant factor. 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.6

5

 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added).

6

 8 U.S.C. § 1158(b)(1)(B)(iii).
18 DAI V. BARR

We have attempted in a number of panel opinions after

the Act to adjust our approach to applicant credibility and

persuasiveness issues, but as the majority opinion illustrates,

“old ways die hard.” Huang v. Holder, 744 F.3d 1149 (9th

Cir. 2014) captures where we should be on this issue:

[W]e have concluded that “the REAL ID Act

requires a healthy measure of deference to

agency credibility determinations.” This

deference “makes sense because IJs are in the

best position to assess demeanor and other

credibility cues that we cannot readily access

on review.” “[A]n immigration judge alone is

in a position to observe an alien’s tone and

demeanor, to explore inconsistencies in

testimony, and to apply workable and

consistent standards in the evaluation of

testimonial evidence.” By virtue of their

expertise, IJs are “uniquely qualified to decide

whether an alien’s testimony has about it the

ring of truth.”

The need for deference is particularly strong

in the context of demeanor assessments. Such

determinations will often be based on nonverbal cues, and “[f]ew, if any, of these

ephemeral indicia of credibility can be

conveyed by a paper record of the

proceedings and it would be extraordinary for

a reviewing court to substitute its second-hand

impression of the petitioner’s demeanor,

candor, or responsiveness for that of the IJ.” 

Indeed, even before the enactment of the

REAL ID Act, we recognized the need to give
DAI V. BARR 19

“special deference to a credibility

determination that is based on demeanor,”

because the important elements of a witness’s

demeanor that “may convince the observing

trial judge that the witness is testifying

truthfully or falsely” are “entirely unavailable

to a reader of the transcript, such as the Board

or the Court of Appeals.” The same

principles underlie the deference we accord to

the credibility determinations of juries and

trial judges.

Id. at 1153–54 (alterations in original) (citations omitted).

This “healthy measure of deference” should also apply to the

agency’s determination with respect to whether an applicant

has satisfied the agency’s “trier of fact”—not us—that his

evidence is persuasive, an issue that is in the wheelhouse of

a jury or a judge or an IJ hearing a case as a factfinder.

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. . . .
20 DAI V. BARR

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.

Thus, not only does my colleagues’ opinion violate the

directions of the Act, but it creates an intercircuit conflict

with Kho, and an intra-circuit conflict with Aden.

IV

The IJ’s Decision

The IJ in this case concluded that Ming Dai had not

satisfied his statutory burden of establishing that he is a

refugee pursuant to § 1158(b)(1)(B)(i). The IJ gave as his

“principle area of concern” Dai’s implausible unpersuasive

testimony, another way of saying it wasn’t credible. As Dai’s

brief correctly demonstrates, there is barely a dime’s worth of

substantive difference between “credible” and “persuasive.” 

Here is how the IJ explained his decision in terms of

§ 1158(b)(1)(B)(i) and (ii):
DAI V. BARR 21

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 crossexamination, 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
22 DAI V. BARR

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
DAI V. BARR 23

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 cost 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
24 DAI V. BARR

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
DAI V. BARR 25

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
26 DAI V. BARR

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’sstatement 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.
DAI V. BARR 27

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
28 DAI V. BARR

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
DAI V. BARR 29

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).

To erase any doubts about Dai’s problematic testimony,

the following is an excerpt from it.

MS. HANNETT TO MR. DAI

Q. And isn’t it also true that the

[asylum] officer asked why did

they go back and you replied, so

that my daughter can go to school

and in the U.S., you have to pay a

lot of money?

A. Yes, that’s what I said.

Q. Okay. And isn’t it also true that

the officer asked you, can you tell

me the real story about you and

your family’s travel to the U.S.,

and you replied I wanted a good

environment for my child. My

wife had a job and I didn’t, and

that is why Istayed here. My wife

and child go home first.
30 DAI V. BARR

A. I believe I said that.

* * *

Q. So, once you got to the United

States, why didn’t your wife apply

for asylum?

A. My wife just returned to China.

Q. Right, and my question is why

didn’t she stay here and apply for

asylum?

A. At that time, we didn’t know the

apply, we didn’t know that we can

apply for asylum.

Q. Well, if you didn’t know that you

could apply for asylum, why did

you stay here after they returned?

A. Because at that time, I was in a

bad mood and I couldn’t get a job,

so I want to stay here for a bit

longer and another friend of mine

is also here.

The asylum officer’s interview notes discussed by the IJ

(and found to be consistent with Dai’s testimony before the

IJ) read as follows:

Earlier you said your wife has only traveled to

Australia, Taiwan and HK. You also said that
DAI V. BARR 31

you traveled to the US alone. Government

records indicate that your wife traveled with

you to the United States. Can you explain?

[long pause] the reason is I’m afraid to

say that my wife came here, then why

did she go back.

Your wife went back? Yes

When did she go back to China? February

Why did she go back? Because my child

go to school

Earlier you said you applied for your visa

alone. Our records indicate that your child

also obtained a visa to the US with you. Can

you explain?

[long pause]

Daughter came with wife and you in January?

Yes

Can you explain? I’m afraid

Please tell me what you are afraid of. That is

what your interview today is for. To

understand your fears?

I’m afraid you ask why my wife and

daughter go back
32 DAI V. BARR

Why did they go back?

So that my daughter can go to school

and in the US you have to pay a lot of

money.

Can you tell me the real story about you and

your family’s travel to the US?

I wanted a good environment for my

child. My wife had a job and I didn’t

and that is why I stayed here. My

wife and child go home first.

(bracketed notations in original).

V

The Role of an Asylum Officer

The majority’s opinion perpetuates another acute error

our Circuit has made in its effort to control the DHS’s

administrative process. In footnote 2, the majority say that if

Dai concealed relevant information “it was only from the

asylum officer.” Only from the asylum officer? So Dai’s

admitted concealment under oath of germane information

during a critical part of the evaluation process is of no

moment?

The majority’s misunderstanding of the role of an asylum

officer represents a sub silentio application of another faulty

proposition on the books in our circuit: Singh v. Gonzales,

403 F.3d 1081 (9th Cir. 2005).
DAI V. BARR 33

Certain features of an asylum interview make

it a potentially unreliable point of comparison

to a petitioner’s testimony for purposes of a

credibilitydetermination. Barahona-Gomez v.

Reno, 236 F.3d 1115 (9th Cir. 2001),

explained the significant procedural

distinctions between the initial quasiprosecutorial “informal conferences

conducted by asylum officers” after the filing

of an asylum application, and the “quasijudicial functions” exercised by IJs . . . .

Id. at 1087 (emphasis added).

First of all, we may not have in this case a verbatim

transcript of Dai’s testimony, but we have the asylum

officer’s notes, which the IJ explicitly found to be accurate. 

Moreover, when appropriatelyconfronted under oath with the

notes, Dai admitted they correctly captured what he said. 

Under these circumstances, any concern that the asylum

interview might be a “potentially unreliable point of

comparison” to Dai’s testimony is irrelevant. The record

(thanks to Dai himself) eliminates any potential for

unreliability.

Second, the pronouncement in Singh v. Gonzales that an

asylum officer’s interview in an affirmative asylum case is

“quasi-prosecutorial” in nature is flat wrong and reveals our

fundamental misunderstanding of the process.7 An asylum

7 An affirmative asylum case differs from a defensive asylum case

involving someone already in removal proceedings. See Obtaining

Asylum in the United States, DEP’T OF HOMELAND SEC., 
34 DAI V. BARR

officer in an affirmative asylum case does not “prosecute”

anyone during the exercise of his responsibilities, and the

process is not “quasi-prosecutorial” in nature. In fact, unlike

a prosecutor, an asylum officer has the primary authority and

discretion to grant asylum to an applicant should the applicant

present a convincing case. The asylum officer’s role is

essentially judicial, not prosecutorial. We miss the mark here

because we see only those cases where an affirmative asylum

applicant did not present a sufficiently credible persuasive

case to an asylum officer to prevail, and we mistakenly

conclude from that unrepresentative sample that asylum

officers tend to decide against such applicants.

The true facts emerge from DHS’s June 20, 2016 report

to Congress, Affirmative Asylum Application Statistics and

Decisions Annual Report, covering “FY 2015 adjudications

of affirmative asylum applications by USCIS [U.S.

Citizenship & Immigration Services] asylum officers for the

stated period.”8 By way of background, the Report points out

that asylum officers have a central determinative role in the

process. Asylum determinations “are made by an asylum

officer after an applicant files an affirmative asylum

application, is interviewed, and clears required security and

background checks.” Id. at 2.

https://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining

-asylum-united-states (last updated Oct. 19, 2015).

8

2016 DHS Congressional Appropriations Reports,

DEP’T OF HOMELAND SEC., https://www.dhs.gov/publication/2016-dhscongressional-appropriations-reports (last published Feb. 12, 2018)

(follow “United States Citizenship and Immigration Services (USCIS) -

Affirmative Asylum Application Statistics & Decisions FY16 Report”

hyperlink).
DAI V. BARR 35

The Report contains statistics about the activity of asylum

officers. According to the FY2015 statistics, asylum officers

completed 40,062 affirmative asylum cases. They approved

15,999 applications for an approval rate of 47% for

interviewed cases. Id. at 3.

USCIS has a Policy Manual. Chapter 1 of Volume 1

establishes its “Guiding Principles.”9 A “Core Principal”

reads as follows:

The performance of agency duties inevitably

means that some customers will be

disappointed if their cases are denied. Good

customer service means that everyone USCIS

affects will be treated with dignity and

courtesy regardless of the outcome of the

decision.

* * *

USCIS will approach each case objectively

and adjudicate each case in a thorough and

fair manner. USCIS will carefully administer

every aspect of its immigration mission so

that its customers can hold in high regard the

privileges and advantages of U.S.

immigration.

Id.

9 Policy Manual, U.S. CITIZENSHIP & IMMIGRATION SERVS.,

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume1-

PartA-Chapter1.html (Aug. 23, 2017).
36 DAI V. BARR

Finally, we look at the training given to asylum officers

in connection with their interviews of affirmative asylum

applicants. In USCIS’s Adjudicator’s Field Manual, we find

in Appendix 15-2, “Non-Adversarial Interview Techniques,”

the following guidance.10

I. OVERVIEW

An immigration officer will conduct an

interview for each applicant, petitioner or

beneficiary where required by law or

regulation, or if it is determined that such

interviewed [sic]is appropriate. The interview

will be conducted in a non-adversarial

manner, separate and apart from the general

public. The officer must always keep in mind

his or her responsibility to uphold the integrity

of the adjudication process. As representatives

of the United States Government, officers

must conduct the interview in a professional

manner.

* * *

Due to the potential consequences of incorrect

determinations, it is incumbent upon officers

10 Adjudicator’s Field Manual - Redacted Public Version,

U . S . C I T I Z E N S H I P & I M M I G R A T I O N S E R V S . ,

https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1.html

(follow “Appendices” hyperlink; then follow “15-2 Non-Adversarial

Interview Techniques” hyperlink) (last visited Feb. 15, 2018) (emphasis

added).
DAI V. BARR 37

to conduct organized, focused, and wellplanned, non-adversarial interviews . . . .

* * *

III. NON-ADVERSARIAL NATURE OF

THE INTERVIEW

A. Concept of the Non-adversarial

Interview

A non-adversarial proceeding is one in which

the parties are not in opposition to each other.

This is in contrast to adversarial proceedings,

such as civil and criminal court proceedings,

where two sides oppose each other by

advocating their mutually exclusive positions

before a neutral arbiter until one side prevails

and the other side loses. A removal

proceeding before an immigration judge is an

example of an adversarial proceeding, where

the Service trial attorney is seeking to remove

a person from the United States, while the

alien is seeking to remain.

The interview is part of a non-adversarial

proceeding. The principal intent of the Service

is not to oppose the interviewee’s goal of

obtaining a benefit, but to determine whether

he or she qualifies for such benefit. If the

interviewee qualifies for the benefit, it is in

the Service’s interest to accommodate that

goal.
38 DAI V. BARR

* * *

B. Points to Keep in Mind When

Conducting a Non-adversarial Interview

The officer’s role in the non-adversarial

interview is to ask questions formulated to

elicit and clarify the information needed to

make a determination on the petitioner or

applicant’s request. This questioning must be

done in a professional manner that is nonthreatening and non-accusatory.

1. The officer must:

a. Treat the interviewee with respect. Even

if someone is not eligible for the benefit

sought based on the facts of the claim, the

officer must treat him or her with respect. The

officer may hear similar claims from many

interviewees, but must not show impatience

towards any individual. Even the most nonconfrontational officer may begin to feel

annoyance or frustration if he or she believes

that the interviewee is lying; however, it is

important that the officer keep these emotions

from being expressed during the interview.

b. Be non-judgmental and non-moralistic.

Interviewees may have reacted to situations

differently than the officer might have

reacted. The interviewee may have left family

members behind to fend for themselves, or

may be a member of a group or organization
DAI V. BARR 39

for which the officer has little respect.

Although officers may feel personally

offended by some interviewee’s actions or

beliefs, officers must set their personal

feelings aside in their work, and avoid passing

moral judgments in order to make neutral

determinations.

c. Create an atmosphere in which the

interviewee can freely express his or her

claim. The officer must make an attempt to

put the interviewee at ease at the beginning of

the interview and continue to do so

throughout the interview. If the interviewee is

a survivor of severe trauma (such as a battered

spouse), he or she may feel especially

threatened during the interview. As it is not

always easy to determine who is a survivor,

officers should be sensitive to the fact that

every interviewee is potentially a survivor of

trauma.

Treating the interviewee with respect and

being non-judgmental and non-moralistic can

help put him or her at ease. There are a

number of other ways an officer can help put

an interviewee at ease, such as:

• Greet him or her (and others)

pleasantly;

• Introduce himself or herself by

name and explain the officer’s role;
40 DAI V. BARR

• Explain the process of the

interview to the interviewee so he or

she will know what to expect during

the interview;

• Avoid speech that appears to be

evaluative or that indicates that the

officer thinks he or she knows the

answer to the question;

• Be patient with the interviewee;

and

• Keep language as simple as

possible.

d. Treat each interviewee as an individual.

Although many claims may be similar, each

claim must be treated on a case-by-case basis

and each interviewee must be treated as an

individual. Officers must be open to each

interviewee as a potential approval.

e. Set aside personal biases. Everyone has

individual preferences, biases, and prejudices

formed during life experiences that may cause

them to view others either positively or

negatively. Officers should be aware of their

personal biases and recognize that they can

potentially interfere with the interview

process. Officers must strive to prevent such

biases from interfering with their ability to

conduct interviews in a non-adversarial and

neutral manner.
DAI V. BARR 41

f. Probe into all material elements of the

interviewee’s claim. The officer must elicit all

relevant and useful information bearing on the

applicant or beneficiary’s eligibility. The

officer must ask questions to expand upon and

clarify the interviewee’s statements and

information contained on the form. The

response to one question may lead to

additional questions about a particular topic or

event that is material to the claim.

g. Provide the interviewee an opportunity to

clarify inconsistencies. The officer must

provide the interviewee with an opportunity

during the interview to explain any

discrepancy or inconsistency that is material

to the determination of eligibility. He or she

may have a legitimate reason for having

related testimony that outwardly appears to

contain an inconsistency, or there may have

been a misunderstanding between the officer

and the interviewee. Similarly, there may be

a legitimate explanation for a discrepancy or

inconsistency between information on the

form and the interviewee’s testimony.

On the other hand, the interviewee may be

fabricating a claim. If the officer believes that

an interviewee is fabricating a claim, he or she

must be able to clearly articulate why he or

she believes that the interviewee is not

credible.
42 DAI V. BARR

h. Maintain a neutral tone throughout the

interview. Interviews can be frustrating at

times for the officer. The interviewee may be

long-winded, may discuss issues that are not

relevant to the claim, may be confused by the

questioning, may appear to be or may be

fabricating a claim, etc. It is important that the

officer maintain a neutral tone even when

frustrated.

2. The officer must not:

• Argue in opposition to the applicant or

petitioner’s claim (if the officer engages in

argument, he or she has lost control of the

interview);

• Question the applicant in a hostile or

abusive manner;

• Take sides in the applicant or petitioner’s

claim;

• Attempt to be overly friendly with the

interviewee; or

• Allow personal biases to influence him or

her during the interview, either in favor of or

against the interviewee.

I hope that by exposing the particulars of the affirmative

application process we will correct our understanding of the

applicant interview process, and that we will drop our

uninformed characterization of it as “quasi-prosecutorial.” 
DAI V. BARR 43

While under oath, Dai intentionally concealed material

information from the asylum officer during a critical aspect

of the process. To diminish the import of this potential

crime11because the government official was “only” an

asylum officer is a serious mistake.

VI

The BIA’s Decision

Dai unsuccessfully appealed the IJ’s decision denying his

application for asylum, withholding of removal, and

protection under the Convention Against Torture. The BIA’s

decision follows.

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

11 18 U.S.C. § 1001 makes it a crime knowingly and willfully to make

a material false statement in any matter within the jurisdiction of the

executive branch of Government.
44 DAI V. BARR

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).
DAI V. BARR 45

VII

The IJ Becomes a Potted Plant

My colleagues’ opinion boils down to this faulty

proposition: Simply because the IJ did not say “I find Dai not

credible” but opted instead to expose the glaring factual

deficiencies in Dai’s presentation and to explain in specific

detail and at length why Dai had not persuasively carried his

burden of proving his case, we must selectively embrace as

persuasive Dai’s problematic presentation regarding the core

of his claim.12I invite the reader to review once again the IJ’s

decision and to decide on the merits whether Dai’s case is

persuasive. It is anything but.

My colleagues expunge from the record the blatant flaws

in Dai’s performance involving demeanor, candor, and

responsiveness, claiming that “taking into account the record

as a whole, nothing undermines the persuasiveness of Dai’s

credible testimony. . . .” Nothing? They disregard

inaccuracies, inconsistencies, and implausibilities in his story,

and his barefaced attempt to cover up the truth about his

wife’s and daughter’s travels and situation. They even sweep

aside Dai’s admission to the asylum officer that the “real

story” is that (1) he wanted a good environment for his child,

(2) his wife left him behind because she had a job in China

and he did not, and (3) he was in a “bad mood,” couldn’t get

a job, and wanted to stay here “for a bit longer.” In their

opinion, there is not a single word regarding the factors cited

by the IJ to explain his observations, findings, and decision,

including the fact that Dai’s wife, allegedly the initial subject

12 And if an IJ does make an adverse credibility finding, we have

manufactured a multitude of ways to disregard it.
46 DAI V. BARR

of persecution in China, made a free choice to return. The

effect of the presumption is to wipe the record clean of

everything identified by the IJ and the BIA as problematic.

The irony in my colleagues’ analysis is that once they

proclaim that Dai’s testimony is credible, they pick and

choose only those parts of his favorable testimony that

support his case—not the parts that undercut it. If we must

accept Dai’s presentation as credible, then why not also his

“real story” when confronted with the facts that he came to

the United States because he wanted a good environment for

his daughter, and that he did not return to China with his wife

because she had a job and he did not? What becomes of his

attempted cover up of the travels of his wife and daughter?

Furthermore, my colleagues’ treatment of the IJ’s opinion

is irreconcilable with the BIA’s wholesale acceptance of it. 

In words as clear as the English language can be, the BIA

said, “We adopt and affirm the Immigration Judge’s

decision.” To compound their error, the majority then seizes

upon and pick apart the BIA’s summary explanation of why

it concluded on de novo review that the IJ’s decision was

correct. What the BIA did say was that Dai’s failure to be

truthful about his family’s voluntary return to China was

“detrimental to his claim” and “significant to his burden of

proof.”

VIII

Analysis

And so we come at last to the statutory requirement of

persuasiveness, an issue uniquely suited to be determined by

the “trier of fact,” as the Act and 8 U.S.C. § 1158(b)(1)(B)(ii)
DAI V. BARR 47

dictate. The majority opinion freights this inquiry with an

incomplete record. The opinion sweeps demeanor, candor,

and plausibility considerations—as well as the IJ’s extensive

findings of fact—off the board. Once again, the opinion

ignores Huang, a post-Act case.

The need for deference is particularly strong

in the context of demeanor assessments. Such

determinations will often be based on nonverbal cues, and “[f]ew, if any, of these

ephemeral indicia of credibility can be

conveyed by a paper record of the

proceedings and it would be extraordinary for

a reviewing court to substitute its second-hand

impression of the petitioner’s demeanor,

candor, or responsiveness for that of the IJ.”

744 F.3d at 1153 (alteration in original) (quoting Jibril,

423 F.3d at 1137).

Here, the IJ determined that Dai’s testimony was not

persuasive based on demeanor, non-verbal cues, and other

germane material factors that went to the heart of his case. 

The IJ explained his decision in exquisite detail, and our

approach and analysis should be simple. In order to reverse

the BIA’s conclusion that Dai did not carry his burden of

proof, “we must determine ‘that the evidence not only

supports [a contrary] conclusion, but compels it—and also

compels the further conclusion’ that the petitioner meets the

requisite standard for obtaining relief.” Garcia-Milian v.

Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (alteration in

original) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481

n.1 (1992)). If anything, this record compels the conclusion

that the IJ and the BIA were correct, not mistaken. Are my
48 DAI V. BARR

colleagues seriously going to hold that an IJ cannot take

universally accepted demeanor, candor, responsiveness,

plausibility, and forthrightness factors into consideration in

assessing persuasiveness, as the IJ did here? And that this

detailed record, which is full of Dai’s admissions of an

attempted coverup, compels the conclusion that Dai was so

persuasive as to carry his burden? Dai accurately understood

the damaging implications of his wife’s return to China. So

did the IJ and the BIA. As the BIA stated, the truth is

“inconsistent with his claims of past and feared future

persecution.”

IX

The More Things Change, The More They Stay The

Same

In Elias-Zacarias, 921 F.2d 844 (9th Cir. 1990), rev’d,

502 U.S. 478 (1992), our court substituted the panel’s

interpretation of the evidence for the BIA’s. The Supreme

Court reversed our decision, calling the first of the panel’s

two-part reasoning “untrue,” and the second “irrelevant.” 

502 U.S. at 481. The Court warned us that we could not

reverse the BIA unless the asylum applicant demonstrates that

“the evidence he presented was so compelling that no

reasonable factfinder could fail to find the requisite fear of

persecution.” Id. at 483–84 (emphasis added). In our case,

we again fail to follow this instruction.

In INS v. Orlando Ventura, 537 U.S. 12, 13 (2002) (per

curiam), the Court noted that both sides, petitioner and

respondent, had asked us to remand the case to the BIA so

that it might determine in the first instance whether changed

conditions in Guatemala eliminated any realistic threat of
DAI V. BARR 49

persecution of the petitioner. Our panel did not remand the

case, evaluating instead the government’s claim of changed

conditions by itself and deciding the issue in favor of the

petitioner. Id. at 13–14. The Supreme Court summarily

reversed our decision, saying “[T]he Court of Appeals

committed clear error here. It seriously disregarded the

agency’s legally mandated role.” Id. at 17.

A mere two years after Ventura’s per curiam opinion, we

knowingly made the same mistake in Thomas v. Gonzales,

409 F.3d 1177 (9th Cir. 2005) (en banc), vacated, 547 U.S.

183 (2006). We disregarded four dissenters to that flawed

opinion, who argued in vain that our court’s decision was

irreconcilable with Ventura. In short order, the Supreme

Court vacated our en banc opinion, saying that our “error is

obvious in light of Ventura, itself a summary reversal” and

that the same remedy was once again appropriate. 547 U.S.

at 185.

With all respect, the majority opinion follows in our

tradition of seizing authority that does not belong to us,

disregarding DHS’s statutorily mandated role. Even the

REAL ID Act has failed to correct our errors.

Thus, I dissent.