F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M I N G D A I , P etitioner
,

v

.

W I L L I A M B A R

R , Attorney

General, Respondent. N o. 15-70776

Ag ency No. A205-555-836

ORDER AND AMENDED DI SSENT

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Submitted October 13, 2017 * San F rancisco, California

F iled March 8, 2018 Amended F ebruary

22, 2019

B efore: Sidney

R. Thomas, Chief J udg e, and Stephen S. T rott and Mary

H. Murg uia * * , Circuit J udg es.

* T h e p an el u n an im o u s ly

co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).

** P rio r to h is d eath
, J u d g e Rein h ard t f u l ly p articip ated in th i s case

an d au th o red th e m aj o rity op in i o n

. Fo llo w in g J u d g e Rein h ard t’ s d e a th
, J u d g e Mu rg u ia w as d raw n b y l o t t o rep lace h im

. Nin t h Circu it Gen eral Ord er 3 .2 h . J u d g e Mu rg u ia h as rev iew ed all case m aterials.D A I V

. B A R R 2

Order;

Dissent to Opinion by

J udg e Trott

SUMMARY * * *

Im m igration

The panel g r a n ted a p etition f or review of the B oard o f I mmig r a tion Appeals’ d enial of asy lum and withhold i n g relief.

The panel held that b eca u s e n either the immig r ation judg e nor the B oard made an ex plicit adver s e c r edibility determination, this court must a ccept Dai’s testimony as true. The p anel ex plained that the REAL I D Act added a provision creating a rebu t table presumption of credibility where the I J fails to make an ex p licit adverse cred ibility determination, but that presumption is rebuttable only before the B oard, and is not rebuttable on petition for review before this court.

The panel held that Dai’s evidence was s ufficiently
p e r s u asive, and compelled the c onclusion that the h arm he

su f f e red from the g overnment d ue to h is resistance to his wife’s forced ab o r t ion rose to the level o f past persecution.

The p anel held that because Dai and his wife w e r e n o t similarly si t u a t e d
, the B oard erred in concluding that Dai’s wife’s voluntary return to China undermined his o w n f ear o f future persecution. The panel further held that in the absence

*** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D A I V

. B A R R 3

of an adverse credibility determinati o n , the B oard erred in

r e l y ing o n Dai’s untruthfulness about h is wife’s volunta r y return to China in concluding that he failed to m e et his burden of proof. The p a n el also noted Dai’s v alid asy lum claim was not undermined b y t h e fact that he may h ave h ad additional r easons (bey ond escaping persecution) for coming
to or remaining in the United States, including seeking economic opportunity

.

The panel held that because D ai established p a st persecu t i o n , h e was entitled to a rebuttable presumption o f future persecution, which the g overnment did not attempt to rebut with e v i d e n ce of chang ed country conditions. The panel stated that g iving the g overnment the o p p o rtunity to present such evidence at this point would be ex ceptionally unfair, and thus, Dai established that he w a s elig ible for
asy lum. The panel remanded for an ex e rcise of discretion o f

w h e ther to g rant Dai asy lum r elief, and to g rant D a i withholding relief.

I n his amended d issent, J u dg e Trott wrote that the serious le ga l consequences of the majority opinion as a circuit precedent are that it (1) demolishes both the purpose and the substance of the REAL I D A ct (2) disreg ards the appropriate standard of review, and ( 3) perpetuates this court’s idio s y ncratic approach to an I J ’ s d e termination that the testimony of a

n asy lum seeker lacks sufficient c redibility o r persuasiveness to prove his case.D A I V

. B A R R 4

COUNSEL

David Z

. Su, L aw O f

f i c e s of David Z

. Su, W est Covina, California, for Petitioner.

Aimee J

. Carmichael, Seni o r L itig ation Counsel; Mary J ane Candaux
, Assistant Directo r ; Office of I mmig ration, Civil Division, United States D epartment of J ustice, W as h i ng ton, D.C.; for Respondent.

ORDER

The dissent f

ile d M ar c h 8, 2 018, is amended, with the following amended dissent to b e substituted in lie u of the orig inal. The petitions for rehearing and rehearing e n banc remain pending
, a

nd no f urther action is required of the parties until further order of the court.

TROTT, Circuit J u d g e, dissenting :

The seriou s leg al consequences of my colleag ues’ opinion

are that it (1) d isreg ards both th e p u r p o se and the substance of the REAL I D Act o f 2005 ( “Act”) 1

, (2) ig nores the appropriate standard of review, and ( 3 ) perpetuates our idiosy ncratic approach to an I mmig ration J u d g e ’s (“I J ”) determination that the testimony of an asy lum s eeker lacks sufficient credibility or p e r s u a siveness to prove his c ase. The majority ’s opinion accomplishes these r e s u lts b y contaminating the issue before us with irrelevancies, the most

1 P u b . L . No . 1 09

- 1 3 , 1 1 9 Stat. 2 3 1

.D A I V

. B A R R 5

troublesome of which is a meritless irrebuttable presumption of credibili t y

. The sole issue should be whether Dai’s unedited presentation compels the conclusion that he carried his burden of proving he is a refug ee an d thus elig ible for a discretionary g rant of asy lum. Only if we can conclude t h at

n o r easonable factfinder could fail to find his evidence conclusive can we g

rant his petition.

The I J ’s decision not to make an ex plicit adverse credibility finding is a r e d herring that throws our analy sis off the scent a

nd preordains a result that is incompatible with the evidentiary r ecord. By o m itting f r om their opinion the I J ’s f a ct-based ex p lanation of his decision, the majority e lides eight material finding s of fact the I J did make, each of which is entitled to substantial d eference. The majority ’s assertion that “there is no finding to which we can defer” is false. F o r this reason, I quot e in f

ull the I J ’s finding s and conclusions about the persuasiveness of D ai’s presentation in Pa rt I V o f
my dissent. The eig ht finding s are as follows.

F irst, the I J speci f

ically found that the information reported by the asy lum o fficer about h i s c onversation with Dai was accurate. The I

J said,

As to the contents of [ the asy lum officer’s notes]
, I g ive the notes full weig ht, insofar as the r espondent has c o nfirmed the contents o f th e q uestions and answers g iven during the

course of that interview. F urthermore, I note that in the sections in which the respondent equivocated, stating that he was nervous a nd
not sure that h e g a v e those precise answers, I nevertheless g ive the Asy lum Officer’s notes

some substantial w eig ht
, i n that they a reD A I V

. B A R R 6

consistent with the respondent’s testimony in
court.

A ccording ly
, the I J a ccepted as a fact that Dai ad m i t t e d that he did not disclose the c o n sequential truth abou t his wife’s and d aug h ter’s travels because he was nervous about how this would be perceived by the asy lum officer in connection with his claim.

Second, the I J accepted Dai’s admission as a fact that he concealed the truth because h e w a s afraid of g iving straig ht

answers r eg arding his wife’s and daug hter’s trip to the United States.

Third, the I J d etermined that Dai had deliberately omitted hig hly relevant information from his F orm I -589 application for asy lum, information that he a lso tried to conceal from the
asy lum officer.

F ourth, the I J fou n d t hat Dai’s omission of his information “ is consistent with his l a c k o f forthrig htness before the asy lum office[ r] as to his wif e a n d d a ug hter’s travel with him. . . .”

F ifth, the I J credited Dai’s admission that when a sked b y t h e a sy lum officer to “tell the real story ” about his family ’ s travels, Dai said he “ w anted a g ood environment for h is child, and his wife had a job, but he d i d not, and that is w hy he stay ed here [ after his wife and daug h ter w ent b a ck to China]

.

Six th, the I J f

ound that Dai admitted he stay ed here a fter they returned “because he was in a bad mood and he wanted to g et a job and ‘a friend of mine is here.’”D A I V

. B A R R 7

Seventh, the I J s a i d “I do not find that [Dai’s]

ex p lanations for [ his wife’s] return to China while he remained here are adequate.” (Emphasis added).

Fi n ally
, the I J a lso c redited Dai’s concessions that h i s wife and d aug hter returned to China because “his d a ug hter’s edu c a t i o n would be cheaper in China,” and that “his wife wanted to g o to take care of her father.”

W h en Dai’s subterfug e g ot to the B I A, the B I A said in its decision that “the r ecord reflects that [ Dai] failed to d isclose
to both the asy lum officer and the I J ” the true facts about his family ’s travels. The B I A noted t h a t Dai had conceded he

was n ot forthcoming about this material information because he believed that the truth a b o u t their travels “would be
pe rc e i v e d as inconsistent with his claims of past a nd feared persecution.”

The I J ’s specific f

actual finding s in connection with Dai’s failure to satisfy his burden of proof were not the product of inferences drawn fr o m c ircumstantial evidence. These fi nding s w ere directly based upon revealing answers D ai admitted he g a ve to the asy l u m o fficer d uring his interview. These facts a

re bey ond debate, and they undercut Dai’s c ase. To quote the B I A, these facts were “detrimental to his claim” and “ sig nifi c ant to his burden of proof.” Nevertheless, the majorit y brushes them aside, claiming that an immaterial presumption of credibility overrides all of them.

I n this connection, I note a p eculiarity in the majority ’s approach to Dai’s case: Now h ere does Dai assert that he is entitled to a conclusive presumption o f c redibility

. His brief does not contain any ment i o n of the p resumption arg ument the majority conjures up on h is behalf. The closest D aiD A I V

. B A R R 8

c o m e s t o invoking the majority ’s inapt postulate is with a statement that we “should” treat as credible his testimo n y reg arding persecution in China. He does not take issue with the I J ’s f

oundational adverse factual finding s, ch oosing ins t e a d to arg ue that they were not sufficient in the lig ht o f the record as a whole to support the I J ’ s u l t i m a te determination.

F or ex ample, Dai acknowledg es in his brief that the “I J ’s

or B I A’s factual finding s are reviewed for substantial evidence” and that th e “ R EAL I D Act’s n ew standards governi n g a dverse credibility d e terminations applies to applications for asy l u m , withholding of removal, and CAT relief ma d e o n or a f

ter May 11, 2005.” B lue B r. 10 (emphasis added) (quotation marks o mitted). N ex t, he notes that “an I J cannot selectively ex amine e vi d en c e in determining c redibility
, but rather must present a reasoned analy sis o f the evidence as a whole and cite specific instances in the r ecord that form the basis of the advers e c r e d i bility finding .” Id. ( emphasis added) (quota t i o n marks omitted). Moreover, Dai notes that “[ t] o support an adverse c redibility determination
, inconsistencies must be considered in lig ht o f the totality of the circums t a n c e s , and all relevant factors” adding that “trivi a l i nconsistencies

. . . should not f orm the basis of an a dverse credibility determination .” I d. at 10–11 (emp h asis a dded) (quotation marks omitted). He contends that he “has p rovided ade q uate ex planation” f

or his inconsistencies
, i.e.
, the failure to disclose his family ’s travels. Id. at 1 4

. Finally
, a fter attempting to pick apart the I J ’s adverse finding s, Dai’s bottom line is that “his wife’s departure from the United States does n ot adversely affect his credibility at all,” an assertion that ig nores his failed coverup of it. See id. at 16.D A I V

. B A R R 9

I n summary , the majority blue pencils a m aterial part o f the evi d e n tiary record even thoug h D ai implores u s to “ex a mine it as a w hole,” as he did in his brief to the B I A. D ai accepts that the v iability of his entire presentat i o n is on the line, but the majority ig nores his concession. I n this connection, the Attorney General has responded only t o t h e claims and a

rg uments Dai included in h is brief. The Attorney General has not b e e n g iven an opportunity to respond to the majority ’s inventive a

naly sis, n or to the theory concocted b y the majority on Dai’s behalf. B oth sides will be surprised b y my colleag ues’ artful opinion—Dai pleasantly
, the Attorney General not so much.

I will ha v e m o re to say in Part V about our Circuit’s
treatment of the role, responsibility
, and p roduct of an asy lum officer.

F or these reasons, I

respectfully

dissent.

I

Backdrop

Over the y ears, our Circuit has manufactured misg uided rules re ga r d i n g the credibility of political asy lum seekers. I beg in with this issue because the majority ’ s mishandling o f it infe c t s t he remainder o f their opinion with error. These result-oriented ad hoc hurdles for the g overnment stem from humanitarian i n t entions, but our court has pursued these intentions with m ethods that violate the institutional differences between a reviewing appellate court, o n one h and, and a trial court o n t h e other, u surping the role of the Department of Homeland Security (“DHS ”) and the B I A in the process. Referring to our approach to witness credibilityD A I V

. B A R R 10

as an “idiosy

ncratic analy

tical 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 immig ration judg e’s adverse credibility d e t ermination. T ime and ag ain, however, we have promulg ated rules that tend
to obscure that clear standard and to flummox immig ratio n judg es, who must contort w hat should be a s imple factual finding to satisfy

our often irreconcilable precedents

. The result of this sly insubordination is t h at a panel that takes Co n g r e s s a t its word a nd accepts that finding s o f fact are “conclusive unless any reasonable adjudicator w ould be compelled to conclude the c o n t rary ,”

. . . o r follows the Supreme Court’s admonition that “[ t] o reverse the BI A finding w e must find that the evidence not o n l y supports that conclusion, but compels it,”

. . . r uns a serious

r isk of f louting o ne of our e clectic, a n d sometimes contradictory , opinions.

Jibril v

. Gonzale s , 423 F .3d 1129, 1 138 (9th Cir. 2 005) (alteration in orig inal) (citations omitted).

Many of our Circuit’s r u l es on this subject and my colleag ues’ d e c ision are irreconcilable with the structural principle set forth in F e deral Rule of Civil Procedure 52(a)(6) that “[ f] inding s of f

a ct, whether b ased on oral or other evidence, must not be set aside unless clearly erroneous, a nd the reviewing cou r t must g ive due reg ard to the trial court’s opportunity to judg e the witnesses’ c r edibility .” A c cording ly
,D A I V

. B A R R 11

we are ex pected to apply a hig h ly d ef e r e n t i a l standard to a t r i al c ourt’s determination reg arding the credibility of a witness. Anderson v. City of Bessemer City
, 470 U.S. 5 64, 573–76 (1985). I n discussing this r ule, the Supreme C o u rt said that “[ w] hen f

inding s are based on determinations
reg arding the credibility o f w itnesses, Rule 52(a) demands

even g reater deference to the trial court’s fin d i n gs ; for only the trial judg e can be aware of the v ariations in demeanor a nd
tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Id. at 575. The Court a dded that the applicable “clearly erroneous” standard of review “plainly d o es not entitle a reviewing c ourt to

r e v e r s e the finding of a trier of fact simply because it is convinced that it w ould have decided the cas e d ifferently

. The reviewing court oversteps the bounds of i t s d u ty under Rule 5 2(a) if it undertakes t o duplicate the role of the lower court.” Id. at 573 (emphasis added).

The Supreme Court sharpened this point a b out our limited role in G onzales v. Th o mas , 547 U.S. 1 8 3 (2006) (per curiam), vacating 409 F .3d 1177 (9th Cir. 2005) (en banc). I n summarily v acating our en banc opinion
, the Court h eld that we h ad ex ceeded our authority and made a determination that belong ed to the B I A. 547 U .S. at 185– 8 6

. T h e C ourt ag reed w ith the S o l i citor General that “ a court’s role in an immig ration case is ty

p ically one of review, not of first view

. ” Id. at 185 (emphasis added) (qu o t a tion marks omitted). T o

su p p o r t its conclusion, the Court cited INS v. Orlando Ventura
, 5 37 U.S. 12 (2002): a “‘judicial judg ment cannot be made to d o servi ce f

or an a dministrative judg ment.’” 547 U.S. at 186 (quoting Ventura
, 537 U .S. at 16). More about Ventura later.D A I V

. B A R R 12

The majority ’s opinio n ’ s use of an incong ruous irrebuttable p resumpt i o n of credibility to e rase the I J ’s finding s of fact a

nd the B I A’s d e c i s i o n and thus to make us

a court of “first view” is another ex ample o f our intransig ence. I f, as they sa y , we are bound by precedent to do it their way , then its time to chang e our precedent.

II

A F a lse P rem ise

The majority opinion’s assertion that “we must treat [ Dai’s] testimony as c r edible” rest s o n a fallacious premise. J udg e Reinhardt writes, “Properly understood, the rebuttable presumption provision of th e R E AL I D Act applies only to appeals to the B I A, not to p etitions for review in our court.” F rom this inapt premise, he concludes that we must ig nore the I J ’s detailed analy sis and finding s o f f act about Dai’s presentation. W hen it c omes to our ta s k of reviewing the credibility

of witnesses in a trial court or whether a witness’ testimony suffices to c arry his burden o f p r oof, however, th e r e i s n o material difference between an appeal and a petition f or review, n one. F ederal Rule of Civil Procedure 52(a) makes no such d istinction. As Anderson said, Ru l e 52(a) applies to a “ reviewing court,” w hich is what we are in this capacity

. 470 U .S. at 573–74 (emphasis added); see Thomas
, 547 U.S. a t 185. Neith e r t he Court nor Rule 52(a) di f ferentiate b etween a

ppeals and petitions for review. Nor would such a distinction make any sense. As A n de r s o n a nd Thomas illustrate, the issue is o ne of function
, not of form o r labels. The Act’s use of the word “appeal” doe s n o t dictate how we must g o a

bout our p r oce s s o f review. Using the

s t a n d ards provided by Cong ress, we are not in a position to weig h a witness’s credibility or persuasiveness.D A I V

. B A R R 13

F ederal Rule of Appellate Procedure 20, “Applicability o f Rules to the R e v i ew or Enforcement of an Ag ency Order,” illustrates the soundness of treating a ppeals and petitions for

re v i e w with a uniform a pproach. Rule 20 reads, “ All
pro v i s ions of these rules

. . . apply to the review o r enforcement of an a g ency order. I n these rules, ‘ap p e l l ant’ includes a petit i o n e r or applicant, and ‘appellee’ includes a respondent.”

Moreover, and directly to the point, the Act itself does not require an I J to make a specific credibility finding in those precise terms. As the B I A correctly said with respect to the Act, “[ c] ontrary

to the respondent’s arg ument on appeal, the I mmig r a tion J udg e need n o t have made an ex plicit adverse credibility finding to nevertheless determine that the respondent did not meet his bu r d e n o f proving his asy lum claim.” See d iscussion infra Section VI

. I f the I J does not

m a k e such an ex plicit finding
, all the respondent is entitled
to is a “ rebuttable presumption of credibility on appeal.” 8 U.S.C. § 1158(b)(1)(B ) (iii) (empha s i s added). B y attempting to restrict this lang uag e to a n appeal to the BIA
, the majority opinion frees itself to appl y derelict Ninth Circuit precedent to Dai’s testimony and a u t o m a tically to deem it credible. 2

My c olleag ues claim that in the absence of a formal adverse credibility finding
, “w e 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 T h e m aj o rity cites Sh e v. Ho l d er , 6 2 9 F.3 d 9 5 8
, 9 6 4 & n .5 (9 t h Cir. 2 0 1 0 ) in s u

p po rt o f th is ip se d ix i t claim

. Ho w ev er, S h e ’ s f o o t n o te 5 say s th at b ecau se th e “ reb u ttab le p resu m pt i o n ” p ro v isio n d o es n o t ap p ly
retro activ ely , it h ad n o ap p l icab ility in S h e ’ s case.D A I V

. B A R R 14

credibility f

indi n g becomes a selective positive credibility finding and dooms a f

ac t

- b a s ed d e termination by an I J a nd the B I A that an applicant’s case is not sufficiently p ersuasive
t o carry his burden o f proof. The majority ’s a ppr o a c h violates all the rules that co n t r o l o ur review of a witness’s testimony before a factfinder.

A conclusive presumption o f credibility has no val i d place in our task of reviewing the persuasiveness of a witness’s testimony

. S u ch an artifice e liminates relevant f actual evidence from consideration and violates Rule 52(a)(6). The deploy ment of a conclusive presump t i o n becomes a misg uided way not only of p utting 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 ex amine and to e valuate the entire record before a

n I J , permitting us instead to d isreg ard f acts that would otherwise discredit our final determination. The evident i a r y r ecord in this case devours a ny such presumption. J udg e Reinhardt’s opinion writes the REAL I D Act and its reference to a rebutt a b l e presumption o f credibility out of ex istence, ev e n thoug h Cong ress specifically intended the A c t to g o vern us , the N inth Circuit Court of Appeals

. Althoug h the c as e focuses on corroboration of an applicant’s testimon y , o ur o pinion in Aden v. H older
, 58 9 F .3d 1040 (9th Cir. 2009) correctly ex plained the effect of the REAL

I D Act on our pre-Act jurisprudence.

W e h ave a line of c ircu it authority for the
pr o p osition that c orroboration cannot be required from an applicant who testif ies credibly

. I n Ladha v. INS
, [215 F .3d 889, 901D A I V

. B A R R 15

(9th Cir. 2000)] we ‘reaffirmed that an alien’s
test i m ony , if unrefuted and credible, direct and specific, is sufficient to establish the facts
t e s t i f i e d w i t h o u t t h e n e e d f o r a n y corrobora t i o n.’ Kataria v. INS [ 232 F .3d 1107, 1113 (9th Cir. 2000)] relied on Ladha in stating that ‘the B I A ma y not require independent corroborative evidence from an

a s y lum 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 a n ex plicit adverse credibility

finding .’. . .

Cong r ess a

brog ated these ho l d ing s in the REAL I D Act of 2005. . . .

The statute additionally restricts the effect o f apparently c r edible testimony by specify ing that the I J n e e d not accept such testimony a s true. . . .

Cong r ess h as thu s swept away our doctrine that ‘when an alien credibly testifies to c ertain facts, those facts are deemed true.’

Aden
, 589 F .3d at 1044-45. M o r e o n t he Act in the nex t section.D A I V

. B A R R 16

III

The REAL ID Act

Cong r ess enacted the REAL I D Act of 2005 beca u s e o f

our Circuit’s outlier precedents on this issue and our r e fusal
to follow the rules. The House Con f e r e n c e Committee Report (“House Report”) 3 ex p lained that “the creation of a uniform standard for credibility is needed to a d d re s s a conflict

. . . between the Ninth Circuit on one hand and other circuits a nd the B I A .” H.R. R e p

. No

. 1 0 9-72 at 167. The House R e p o r

t also said that the Act “resolves conflicts between administrative and judicial tribunals with r espect to standards to be followed in assessing asy lum claims.” Id. at 162. N evertheless, my colleag ues hold that a key part of the Act does not apply

to us, only

to the B I A.

As the Act pertains to this c ase, it established a number o f key principles, a ll of which the majori t y f a ils to follow, perpetuating

the conflicts Cong ress attempted to resolve.

F irst, “ [ t] he burden o f proof is on the appl i c a nt to establish that the applicant is a refug ee . . . .” 4

Second, “[ t] he testimony of the applicant may be sufficient to sustain the a pplicant’ s b urden without corroboration, but o nly if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive
,

3 H.R. Rep

. No

. 1 0 9

- 7 2 (2 0 0 5 ) (Co n f. R e p

. ), rep rin t ed in 2 0 0 5 U.S.C.C.A .N. 2 4 0

.

4 8 U.S.C. § 1 1 5 8 (b )(1 )(B )(i).D A I V

. B A R R 17

and r efers to specif

i c f acts sufficient to demonstrate that the applicant is a refug ee.” 5

Third,

Considering the totality o f the circumstances, and all relevant factors, a trier of fact may base a credibility de t e rmination on the d e m e anor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witne s s ’s account, the consiste n cy between the a pplicant’s o r witness’s w r i t t e n a n d o r al s t a t e m e nts (whenever m ade and whether o r not under oath, and considering the circumstances under which the statements were made), the internal

con s i s tency of each such statement, the consistency of such statemen ts with other evidence of r ecord (inc luding the reports o f
t h e D e p a r t m en t o f State on cou n t r y

c o n d i t i o n s )
, a n d a n y i n a c c u r a c i e s o r falsehoods in such statements, without reg ard
to whether an inconsistency
, inaccuracy
, o r falsehood g oes to the h e ar t of the applicant’s

c l a i m , or any other r elevant factor. There i s

no presumption o f credibility
, however, if no adverse credibility d etermination is ex plicitly made, the applicant o r witness shall have a rebuttable presum p tion of c r edibility on appeal. 6

5 8 U.S.C. § 1 1 5 8 (b )(1 )(B )(ii) (em p h asis ad d ed ).

6 8 U.S.C. § 1 1 5 8 (b )(1 )(B )(iii).D A I V

. B A R R 18

W e h a ve attempted in a number o f panel opinions aft e r the Act to adjust our approach to a p p l i c a nt credibility a nd persuasiveness issues, b ut a s the majority opinion illustrates, “old way s die hard.” Hu a n g v

. H older
, 744 F .3d 1149 (9th Cir. 2014) captures where we should be on this issue:

[ W ] e have concluded that “ the REAL I D Act requires a h ealthy measure o f deference to ag ency c redibility determinations.” This deference “makes sense because I J s are in the best position to assess demeanor and other credibility c ues that we cannot readily access

on review.” “[ A] n immig ration judg e alone is in a position to obs er ve an alien’s tone a nd demeano r, to e x plore inconsistencies in
te s timony
, and to a

p p ly workable a

nd consistent standards in the evaluati o n o f testimonial evidence.” B y v i rtue of their

ex p ertise, I J s are “uniquely qualified to decide whether an a l i e n ’s testimony has about it the ring of truth.”

The need for deference is particularly strong in the contex t of demeanor a ssessments. Such determinations will often be based on nonverba l c u es, and “[ f] ew, if any , of these ephemeral indicia of credibility can be
convey ed by a paper record of the proceeding s a

nd it would be e x traordinary for

a reviewing court to substitute its second-hand impress i o n of the petitioner’s demeanor, candor, or responsiven ess for that of the I J

. ” I ndeed, even before the enactment of t h e REAL I D Act, w e recog niz ed the need to g iveD A I V

. B A R R 19

“ s p e c i a l d e f

e r e n c e t o a c r e d i b i l i t y determination that is based on de m e a nor,” because the important elements of a witness’s demeanor that “ma y c o nvince the observing tri a l judg e that the witness is testify ing truthfully or falsely ” are “entirely unavailable
to a reader o f the transcript, such as the B oard

or the Court o f A ppeals.” The same principles underlie the deference we accord to t he credibility determinations of juries a nd trial judg es.

Id. at 1153–54 (alterations in origi n a l ) (citations omitted). This “healthy measure of deference” should a lso apply to the
ag ency ’s determination with respect to whether an applicant has satisfied the ag ency ’ s “ trier of fact ”

— n o t us —that his evidenc e i s p e rsuasive, an issue that is in the wheelhouse o f a jury or a judg e or an I J hearing a case as a factfinder.

I n Kho v. Keisler
, 505 F .3d 50 ( 1st Cir

. 2 0 07), the F irst Circuit understood the Act’s e f fect on the issue of an applicant’s credibility

. Not o nly did ou r s i ster circuit correctly comprehend the A ct’s impact, but it considered a nd rejected our approach to this important subject.

Kho supplements his ‘disfavored g roup’ approach with an arg ument that because the I J did not make an ex pli c i t finding concerning Kho’s credibility
, his testimony ‘must be accepted as true’ b y this c ourt. Kho bases this proposed ru l e a s well on a series of Ninth Circuit cases. . . .D A I V

. B A R R 20

W e have already rejected the proposition that aliens are entitled to a presumpt i o n o f credibility on review in this court if there is no

ex p ress credibility determination made by an I J

. . . .

The REAL I D Act also provid e s no support for Kho' s arg ument. . . .

Kho , 505 F

. 3d at 56-57.

The c ourt f

urther ex p lained tha t t h e A ct’s reference to a “rebuttable p r esumption” applies only to an applicant’s appeal to the B I A, not to “reviewing courts of appeal.” Id. at 56.

Thus, n ot only does my colleag u es ’ o p inion violate the directions of the Act, but it creates a n intercircuit conflict with Kho , and an intra-circuit conflict with Aden

.

IV

The IJ’s Decision

T h e I J in this case concluded that Ming Dai had no t satisfied his statuto r y b u rden of establishing that h e is a refug ee pursuant t o § 1158(b)(1)(B )(i). The I J g ave a s his “principle area of concern” Da i ’s implausible unpersuasive testimony
, another way of say ing it wasn’t credible. A s Dai’s brief correctly demonstrates, there is barely a dime’s worth o f substantive difference between “credible” and “persuasive.” Here is how t h e I J e x plained his decision in terms o f § 1158(b)(1)(B )(i) and (ii):D A I V

. B A R R 21

I have carefully c onsidered t he r espondent’s testimony a

nd e vidence a

nd for the following

r e asons, I find that the respondent has faile d
to meet h is burde n of proving e lig ibility for
asy lum.

The principal a r ea of concern with regard to
t he respondent’s testimony a r ose during the

c o urse of his c ross-ex amination. On crossex a mination, the respondent was asked about various aspects of his inte rv iew with an Asy lum Officer. The Department o f Homeland Security also submitted the notes of that interview a s Ex hibit 5. T he respondent

w a s a s k ed specific questions reg arding severa l aspects o f his testimony b efore the Asy lum Officer. I n the course of cr o ss-ex amination, the respondent was asked reg arding his questions and answers as to w hether his wife and daug h ter travelled with h im to the United States. The respondent’s respons e s included the question of whether the asy lum officer h ad

a s k ed him if h is wife a

n d daug h ter travelle d
any w here other than t o Taiwan and Hong Kong

. The respondent conceded that h e was asked this question and that he repl i e d y es, they had travelled to T aiwan and Hong Kong

. The respondent was a sked whether the Asy lum Officer inquired whether his wife a nd daug hter had travelled els ewhere. The respondent then testified before the Court that he was asked this question, “ but I was nervous.” I n this reg ard, I no t e that the respondent did not directly answer theD A I V

. B A R R 22

question; instead leapt directly to an

ex p lanation for w hat his answer m a y have b een, namely that h e was n ervous. Th e

r e spondent was then asked specifically

w h e t h er the A sy lum Officer asked him if hi s wife had travelled to A u s tralia in 2007. The respondent confirmed that he had been asked th i s q uestion, and he confirmed that the

answer was in the affirmative. The respondent also confirmed that the Asy lum Off i c e r had asked him whether she h ad travelled any

w here else. He confirmed that he had b een so asked. The respondent was then asked whether h e answered “no,” that she h ad
not t r avelled any

w here else. The respondent answered that he believed so, t h at he had so answered. The respondent was then as k ed
, during the course of cross-ex ami n a tion, why he h ad not said to the Asy lum Officer that y es, she ha d travelled to the United States. The respondent replied that he had not thoug ht o f it. He stated that they d i d come with him (meaning his wife and daug hter) and that he thoug ht the Asy lum Officer was a sking him if they had travelled an y

where other than the United States. He e x plained that he did so because he assumed the U.S. Government h ad the r ecords of their travel to the United States. On further questioning
, the respondent eventually h e s i tated a t some leng th when asked to f

urth e r ex plain w hy he did not disclose spontaneously to the A sy lum Officer that his wife and daug hter h ad c ome with him. The respondent pause d a t some leng th and ID A I V

. B A R R 23

o b served that the respondent appeared

nervous a nd at a loss for words. Ho w e v e r, after a fairly leng thy p ause, t he respondent testified that he is afraid to say tha t h is wife and daug hter came h e r e and why they w ent back. The respondent was asked wh ether he
to l d the A sy lum Officer that he w as afraid to

answer direc t l y

. The respondent initially testifi ed t hat he forg o t and did not remember whether he said that. He ag ain reiterated that h e was very nervous. He was then asked the question ag ain as to whether he told the Asy lum Officer t h at he was afraid to answer why h is wife and daug hter had g one back. He then conceded that may be, y es, he h ad answered in that fashion. The respondent was asked whether the Asy lum O fficer inq uired why his wife a

nd daug hter went b ack, and the

r e spondent conceded that he had been s o asked, and he further conceded that he replied because school in the United States cost a lot of money (referr i ng to the schooling for his daug hter). The respondent was then asked to conf i r m that the Asy lum Officer eventually asked him to tell him the real story a s to why his f amily travelled to the U n ited States a nd returned to China. The respondent confirmed that he was a sked this question a nd when asked, whether he replied that it was because he wanted a g ood envir o n m e n t for his child and because h is wife had a job and he did not

an d that that is why he stay ed here. He

c o n firmed that he did, in fact, say that. Th e respondent was further a sked, du r ing theD A I V

. B A R R 24

course of testimony in c ourt, why his wife a nd daug hter returned to China. I n this reg ard, the respondent testified that they came with him, but returned to C h i n a several weeks a fter

arr i val. He testified that they did so because his father-i n

- law was e lderly and needed attention, and because his d aug hter needed to g raduate school in China.

The resp o ndent further claimed that his wife had, in fact, suffered past persecution in th e form of a f

o r ce d abortion a

nd the respondent confirmed t h a t he feared his wife a nd d aug hter would suffer future p ersecution. I n this reg a rd, the respondent q

ualified his

answer by say ing that his wife was now on an I UD
, a pparently thereby sug g esting that the risk o f p e r s ecution is reduced. However, the respondent did concede that the risk of future persecution a lso p ertains to his daug hter. I ndeed, in this r eg ard, the respondent testified that this is, at least in part, w hy he applied for
asy lum.

As to the contents of

Exhibit 5, I give the notes full weight, insofar as t he respondent has confirmed the contents of the quest i ons and

answers given during the course o f 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 Asyl u m Officer’s notes some substantial weight, in that they are consistentD A I V

. B A R R 25

w ith the respondent’s testimony in court. Specifically
, I n ote that the Asy lum Officer’s
notes state that the resp o n dent ultimately indicated that he was afraid of g iving straig ht

answers reg arding his daug hter and wife’s trip
to the United States and return to China. And while t h e r e spondent did not confirm this in court, h e did g ive a similar a nswer as to why he w as testify ing in this rega r d

. I n other words, the respondent appears to have stated, b oth before the Asy lum Officer and in court that he di d n o t spontaneously disclose the travel of his wife and daug hter with him to the United States and their return b ecause he was

nervous a bout how this would be perceived by the Asylum Officer in connection with his claim

. I fur t h er note that the Asy lum Officer’s notes are in ternally consistent with
reg ard to references to earlier questions, such

as w he t h e r the respondent had stated that he applied for a visa with any o ne else. At page 2 of the notes co ntained in Exhibit 5, the respondent was asked whether he applied for his visa with anyone else a n d the notes indicated that he stated that, “no, I applied by myself.” Similarly, I n ote that the testimony before the Asylum Officer and the Court is

c o n s i s t e n t w i t h t h e o m i s s i o n i n t h e respondent’s F

orm I-589 application for asylum, of an answer to the question o f t he date of the previous arrival of his wife, if she had previously been in the United States

. See Ex hibit 2, pag e 2, part A.I I
, question 23. W h en asked about this omiss i o n, theD A I V

. B A R R 26

respondent ex pressed surprise, stating that he told the preparer about their trip and indicated that he thoug ht it h ad been fil l ed out. Notwithstanding t

h e r e s p o n d e n t ’ s s t a

t ement in this reg ard, I do observe that the omission i s consistent with his lack of forthr i g h tness before the asy l u m office as to his wife and da u g hter’s travel with him to the United States and their subsequent r eturn to China shortly thereafter

.

I n sum, the respondent’s testimony before the Court a nd his testimony reg arding the Asy lum Officer notes, as w ell as the notes themselves,

c l early indicate that the r espondent failed t o sp ontaneously disclose that his wife a nd daug hter came with h im and then returned to C hina. His testimony and the notes also consistently demonstrat e that the respondent
paus e d a t leng th, b oth before the Court a nd before the Asy lum Officer, w hen asked about this topic. His testimony a nd the As y l u m Officer notes are a lso consistent in indicating that he ultimately testifi e d that he was a fraid
to say that his wife came here and was a fraid of being asked about why she went back. Furthermore, the respondent has conceded th a t h e was asked to “tell the real story” about his family’s travel to the United States by the Asylum Officer, a nd that he replied that he wanted a g ood environment for his child and his wife had a job, but he did not, and that is why he stayed here

.D A I V

. B A R R 27

I n Loho v. Mukasey
, 531 F .3d 1016, 1018–19 (9th C ir. 2008), the N inth Circuit addressed the situation in which an asy lum applicant has found safety i n t he United States and then
returns to the country claimed of persecution before eventually f

inding a s y lum in the United States. T h e Ninth Circuit held that the applicant’s voluntary r e turn to the country o f claimed persecution may be considered in assessing both credibility and w hether the

res pondent has a w ell-founded fear o f persecution in that country

. Here, w h i l e the respondent himself has not returned to China, his wife a nd d aug hter did. I n deed they did so shortly after arriving in the United States, a nd the respondent confirmed that they did so because the schooling is cheaper for his daug hter in China, as well a s b ecause his father-in-law is elderly a

n d needed to be cared for. T he r e s p o n dent a lso told the Asy lum O ff icer that the “real story ” about whey [ sic ] his family r eturned was that his wife had a job and he did not, a

nd that is why he stay ed h ere. This is consistent w ith respondent’s testimony b e f ore the Court that he did not have a job at the time he c ame to th e U n ited States. F urthermore, I note that the responden t ’s claim of persecution is founded on the alleg ed forced abortion inflicted upon his wife. That is the central e l e m ent o f his claim. The responden t claims that he himself was persecuted throug h his resistance to th at abortion. Nevertheless, the f act remains that the fundamental thru st of the r espondent’sD A I V

. B A R R 28

claim is that his wif e was forced to have an abortion. I n this reg ard, the respondent’s wife therefore clearly has an e qual, or strong er, claim to a sy lu m than the respondent himself, assuming the facts which h e claims are tr u e. T h e respondent was asked why his wife did
not sta y a nd a pply for asy lum and he replied that he did not k

now they could apply for
asy lum 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

.

W h ile Loho v. M

ukas e y a p plies to the applicant himself r eturning to China, I find that the reasoning

of the N inth Circuit in that

case is fully applicable to the responde n t ’s

s ituation in that his w ife, who is the primar y object of the persecution in China, freely chose to return to China. I d o not find that the respondent’s explanations for her return to China while he r em ained here are adequate

. The respondent has stated that he was in a b ad mood and that he had found a job an d had a friend here. The respondent has a lso indicated that his daug hter’s e d u cation would be cheaper in China than here, and he has also indicated that his wife wante d to g o to take

care of her father. I do not f ind th a t these

reasons a re suffi c i e ntly substantial so as to outweig h the concerns raised b y his wife a

nd daug hter’s free choice to return to China a fterD A I V

. B A R R 29

having alleg edly fled that country following his wife’s and his own persecution.

I n view of the f

or[ e ] g oing
, I find that the respondent has failed to meet his burden o f proving elig ibility for asy lum under Section 208(a) of the Act.

(Emphasis added).

To erase any doubts about Dai’s problematic t e s t i m o ny , the following is an ex cerpt from it.

MS. HANNETT TO MR. DAI

Q. And isn’t it also true that t he [ a sy lum] officer asked why d i d they g o back and y ou replied
, so that my daug hter can g o to school and in the U.S., y ou have to pay a lot of money ?

A. Yes, that’s what I

said.

Q. O kay

. And isn’t it also true tha t the officer asked y

ou, can y ou tell

me the real story about y ou and
y our family ’s travel to the U.S., and y ou replied I wanted a g ood environment for my c h ild. My wife had a job and I d idn’t, and that is why I stay ed here. My wife and child g o home first.D A I V

. B A R R 30

A. I believe I

said that.

* * *

Q. So, once y ou g ot to the Uni t e d States, why didn’t y our wife apply for asy lum?

A. My wife just returned to China.

Q. Rig ht, and my q

ues t i o n is why didn’t she stay here a n d apply for
asy lum?

A. At that time, we didn’t know the apply
, w e didn’t know that we can apply for asy

lum.

Q. W ell, if y ou d idn’t k now that y ou could apply for asy lum, why did
y ou stay here after they

returned?

A. B ec a u s e at that time, I was in a bad mood and I couldn’t g et a job,

s o I want to stay here for a bit long er a nd another friend of mine is also here.

The asy lum of

fi c er’s interview notes discussed by the I J (and foun d t o be consistent w ith D ai’s testimony before the I J ) read as follows:

Earlier y ou said y o ur wife has only traveled to Australia, Taiwan and HK. You also said thatD A I V

. B A R R 31

y o u traveled to the US alone. Government records indi c a t e that y o ur wife traveled with
y ou to the United States. Can y ou ex plain?

[ long pause] the reason is I ’m afraid to say that my wife came here, then why did she g o back.

Your wife went back? Yes

W h en did she g o back to China? F ebruary

W h y did she g o back? B e c a u s e m y c h i l d

g o to school

Ea rlier y ou said y o u applied for y our visa alone. Our re c o r d s indicate that y o ur child also obtained a visa to the US with y ou. Can
y ou ex plain?

[ long pause]

Daug hter came with w ife and y ou in J anuary ? Yes

Can y ou ex p lain? I ’m afraid

Please tell me what y ou are afraid of. That is what y our interview today is for. T o understand y our fears?

I ’m afraid y ou ask why my wife and daug hter g o backD A I V

. B A R R 32

W h y

did they g o back?

So that m y d aug hter can g o to school and in the US y ou have to pay a lot of
money

.

Can y ou tell me the real story about y ou a nd
y our family ’s travel to the US?

I wanted a g ood e n vironment for my child. My w ife had a job and I didn’t and that i s why I stay ed here. My wife and child g o home first.

(bracketed notations in orig inal).

V

The Role of

an Asylum Of

f icer

The maj o r ity ’s o p inion p erpetuates another acute error

ou r Circuit has made in its effort to control the DHS’s administrative process. I n f ootnote 2, the majority say that if D a i c oncealed relevant information “ it was o nly from t h e asy lum officer.” Only from the asy lum offic er? So Dai’s admitted concealment under oath o f g ermane i n formation during a critical p art of the evaluation proce s s is of no moment?

The majority ’s misunderstanding of the role of an asy lum officer represents a sub silentio a pplication of another faulty
pro p o s i t i on o n the books in our c ircuit: Singh v. G onzales
, 403 F .3d 1081 (9th Cir. 2005).D A I V

. B A R R 33

Certain features of an a sy lum interview make it a potentially unreliable point of comparison
to a p etitioner’s testimony for purpo s es of a credibility de t e r

m i n a t i o n

. Barahona-Gomez v

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

e x p l a i n e d t h e s i g n i f i c a n t p r o c e d u r a l distinctions between the initial quasip r o s e c u t o r i a l “ i n f

o r m a l c o n f

e r e n c e s conducted by asy lum officers” after the filing of an asy l u m application, and the “quasijudicial functions” ex ercised by I J s . . . .

Id. at 1087 (emphasis added).

F irst of all, we m a y n ot have in this case a verbatim transcript of Dai’s testimo n y , but we have the asy lum officer’s notes, wh ich the I J ex plicitly found to be accurate. Moreover, when appropriately c o nfronted under oath with the notes, Dai admitted they correctly cap t u r e d what he said. U n d e r these circumstances, any concern that the asy lum interview mig ht be a “ p otentially unreliable p oint o f comparison” to Dai’s testimony is irrelev ant. The record (th anks to Dai himself) eliminates any potential for unreliability

. Second, the pronouncement in Singh v. Gonzales that an
asy lum officer’s i nterview in an affirmative asy lum c ase is “quasi-prosecutorial” in nature is flat wrong and reveals our fundamental misunderstanding of the process. 7 An asy lum

7 A n af f i rm ativ e asy lu m case d if

f ers f ro m a d ef en siv e asy lu m case in v o lv in g so m eo n e alread y in rem o v al p ro ceed in g s. S ee Ob ta i n i n g A s y l u m i n t h e U

n i t e d S t a t e s , D EP ’ T O F H O M E L A N D S E C

. ,D A I V

. B A R R 34

o fficer in a

n affirmative asy lum case does not “prosecute ”
any one during the ex ercise of his r e s p onsibilities, and the
process is not “quasi-prosecutorial” in nature. I n fact, unlike

a prosecutor, an asy lum officer has the primary authority a nd discretion to g rant asy lum to a n applicant should the applicant
p r e s ent a convincing case. The asy lum officer’s r o le is essentially judicial, not prosecutorial. We miss the mark here because we see only those c ases where an affirmative asy lum applicant did not present a sufficiently credible p ersuasive

c a s e to an a sy lum o fficer to prevail, and we mistake n l y conclude f

rom that unrepresentative sample that asy lum officers tend to decide ag ainst such applicants.

The true f a c ts emerg e from DHS’s J une 20, 2016 report to Cong ress, Affirmative Asylum Application S t a tistics and Decisions Annual Report
, covering “ F Y 2015 adjudications of affirmative asy l u m applications by USCI S [ U.S. Citiz enship & I mmig ration Services] asy lum officers for the stated period.” 8 B y way o f backg round, the Report points out that asy lum officers have a central determinati ve r ole in the
process

. A s y lum d eterminations “ are made by an asy lum officer after an applicant files an affirmative asy lum application, is interviewed, a nd clears required security a nd backg round checks.” Id. at 2.

h t t p s ://w w w .u scis.g o v /h u m a n i t a r i a n/ r e fu g e e s -a s y l u m / a s y l u m / o b t a i n i ng

- asy lu m

- u n i t ed

- states (last u p dated Oct. 1 9 , 2 01 5 ).

8 2 0 1 6 D H

S C o n g r e s s i o n a l A

p p r o p r i a t i o n s R e

p o r t s , D E P ’ T OF H OME L

A ND S E C

. , h ttp s://w

w w .d h s.g o v /p u

b licatio n /2 01 6

- d h s

co n g ressio n al- ap p ro p riatio n s- rep o rts (l a s t p u blish ed Feb

. 1 2
, 20 1 8) (f o llo w “ Un ited S tates Citizen sh ip an d Im m ig ratio n Serv ices (U SC I S )

- A f f irm ativ e A sy lu m A

p plicatio n Statis tics & D ecisio n s FY1 6 Rep o rt” h y p erlin k ).D A I V

. B A R R 35

The Report contains statistics about the activity of asy lum officers. According to the F Y 2015 statistics, asy lum officers completed 40,062 affirmative asy lum cases. They approved 15,999 applications f

or an approval rate o f 47% for interviewed cases. Id. at 3.

U S C I S has a Policy Manual. Chapter 1 of Volu m e 1 establishes its “Guiding Principles.” 9 A “Core Principal” reads as follows:

The performance of a g ency duties inevitably

m ea n s that s o m e c u s t o m e rs w i l l b e disappointed if t h e i r cases are denied. Good
customer service means that every one USCI S affects w i ll be treated with dig nity a nd

cou r tesy reg a

rdless of the outcome of the decision.

* * *

USCI S will approach each case ob j e c tively and a djudicate each case i n a thoroug h a nd fair manner. U SCI S will carefully administer

ever y a spect of its immig ration mission so that its customers can hold in h ig h reg ard the
p r i v i l e g e s a n d a d v a n t a g e s o f U

. S

. immig ration.

Id.

9 P o licy Ma n u a l
, U.S. C I T I Z E NSHI P & I MMI G RA T I ON S E RVS

. , h t t p s : / / w w w

. u s c i s

. g o v / p o l i c y m a n u a l / H T M L/ P o l i c y M a n u a l

- V o l u m e 1

- P artA

- Ch ap ter1 .h tm l (A u g . 2 3, 2 0 1 7 ).D A I V

. B A R R 36

F inally
, we look a t t h e t raining g iven to asy lum officers in connection with th eir interviews of affirmative asy lum applicants. I n USCI S’s Adjudicator’s F ield Manual, w e find in A p pendix 15-2, “Non-Adversarial I n terview Techniques,” the following g uidance. 1 0

I. OVERVIEW

An immig ra t ion officer will conduct an interview for e a c h applicant, petitioner o r ben eficiary where required by law o r reg ulation, or if it is determined that such interviewed [ sic] is appropriate. The interview will be co n d

ucted in a non-adversarial

manner , separate and a

p a r t from the g eneral public. The officer must alway s keep in mind his or her responsibility to uphold the integ rity

o f the adjudication process. As r epresent a t i v e s of the United States Government, officers
must conduct the interview in a professional

manner.

* * *

Due to the potential consequences of incorrect determinations, it is incum b ent upon officers

10 Ad ju d ica to r’ s F ield M

a n u a l - Red

a cted Pu b lic Versio n , 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

. , h t t p s : / / w w

w

. u s c i s

. g o v / i l i n k/ d o c V i e w / A F M / H T M L/ AF M / 0 -0 -0 -1

. h t m l (f o llo w “ A pp en d ic e s ” h y

p erlin k ; th en f

o l lo w “ 1 5

- 2 N o n

- A d v ersarial In terv iew T ech n i q u es” h y

p erlin k ) (last v isited F eb

. 1 5
, 2 0 1 8 ) (em p h asis ad d ed ).D A I V

. B A R R 37

t o conduct org aniz e d, focused, and w e l l

planned, non-adversarial interviews

. . . .

* * *

III. NON-ADVERSARIAL N A TURE OF THE INTERVIEW

A. Concept of the Non-adv ersarial Interview

A non-adversarial proceeding is o ne in which the parties are not in o pposition to each other. This is in contrast to adversarial proceeding s, such as civil a

nd criminal court proceeding s, wh e re two sides o ppose each other b y advocating their mutually ex c lusive positions before a neutral arbiter until one side prevails and the other sid e loses. A removal proceeding before an immigration judge is an example of an a dversarial 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 p a r t of a non-adversarial proceeding

. The p rincipal intent of the Service is not to oppose the interviewee’s g oal o f obtaining a benefit, but to determine whether he or she qu a l i f

i e s for such benefit. I f the interviewee qualifies for the be n e f i t, it is in the Service’s interest to accommodate that
g oal.D A I V

. B A R R 38

* * *

B. P oints to K eep in Mind When Conducting a Non-adversarial Interview

The officer’s role in the n on

- a dversarial interview is t o a s k questions formulated to elicit and clarify the information n e eded to make a determinati o n on the petitioner o r applicant’s request. This questioning must be done in a professiona l manner that is nonthreatening

and non-accusatory

.

1. The officer must:

a. Treat the interviewee with respect. Even i f someone is not elig ible for the bene f i t soug h t based on the facts of the c laim, the officer must treat him or her with respect. The officer may h e ar similar c laims from many interviewees, but must not show impat ience towards any individual. E v en the most nonconfrontational o fficer may b egin to feel
annoy ance or frustration if he or she believes th at the interviewee is ly ing ; however, it is important that the officer keep these emotions from being ex pressed during the interview.

b. B e non-judg mental a

nd non-moralistic. I nterviewees may have reacted to sit u ations differently th an the officer mig h t have reacted. The interviewee may have left family members behind to f

end for them s e l v es, o r may be a member o f a g roup or org aniz ationD A I V

. B A R R 39

f o r w hich the officer has little respect. Althoug h officers may feel personally offended by some interviewee’s actions o r beliefs, officers m u st set their personal feeling s aside in their work, and avoid passing moral judg me n t s in order to make neutral determinations.

c. Create an a t m o sphere in which the interviewe e c a n freely ex press his or her claim. The officer mu s t m ake an attempt to put the interviewee at ease at the beg inning o f the interview and continue to do so throug hout the interview. I f the interviewee is

a survivor of severe trauma (such as a battered spouse), he o r she may feel especially threatened during the inter view. As it is not alway s easy to determine who is a survivor, officers should be sensitive to t h e f act that
every interviewee is p o t entially a survivor o f
trauma.

Treatingthe interviewee with respect and being non-judg mental a

nd n on-moralistic can help put him or her at ease. There ar e a number of other w ay s an officer can help put an interviewee at ease, such as:

• G r e et him o r her (and others) pleasantly ;

• I ntroduc e himself or herself by name and ex plain the officer’s role;D A I V

. B A R R 40

• Ex plain the p r ocess of the

interview to the interviewee so he or she wil l k now what to ex pect during the interview;

• Avoid speech that appears t o be evaluative or that indicates that the officer thinks h e o r she k nows the answer to the question;

• Be patient with the interviewee ; and

• Keep lan g uag e as simple as possible.

d. T r eat each interviewee as an individual. Althoug h many claims may be s i milar, e ach claim must be treated on a case-by -case basis and e a c h i n terviewee must be treated as an individual. Officers must b e open to e ach interviewee as a potential approval.

e

. Set aside personal biases. E very one h a s individual p references, biases, and prejudices formed during life ex periences that may cause them to view others either p o s itively o r neg atively

. O fficers should b e a w a r e of their
persona l biases and recog niz e that they can potentially interfere with the interview
process. O fficers m u s t strive to p revent such b iases from interfering with their ability t o conduct interviews in a non-adversari a l a nd neutral manner.D A I V

. B A R R 41

f

. Probe into all material elements of th e interviewee’s claim. The o fficer must elicit all relevant and useful information bearing on the applicant or beneficiary ’s elig ibility

. The officer must ask questions to e x pand upon a nd clarify the i nterviewee’s statements a nd inf o r m ation contained on the form. The
response to one qu e s tion may lead to additional q

u estions about a particular topic o r event that is material to the claim.

g

. Provide the interviewee an opportunity to clarify inconsistencies. Th e officer must pr o vide the interviewee with a n opportunity d u r i ng the i n t e r v i e w t o e x p l a i n a n y di s c r epancy or inconsistency that is material
t o the d etermination of elig ibility

. He or sh e

m ay h ave a leg itimate reason for h aving related testimony t h at outwardly appears to cont a i n an inconsistency
, or there may have been a misunderstanding between t h e officer and the intervie wee. Similarly
, there may be

a leg itimate ex p lanation for a d iscrepancy o r in c onsistency between information on the form and the interviewee’s testimony

.

On the other hand, the interviewee may be fabricating a claim. I f the officer believes that

an interviewee is f

abricating a c laim, h e or she
must be a

ble to clearly a

rticulate why he o r she believes that the interviewee is not credible.D A I V

. B A R R 42

h. Maintain a neutral tone t h ro u g hout the interview. I nterviews can be frustrating at times for the officer. The interviewee may be long -winded, m ay 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. I t is important that the officer maintain a neutral tone even when frustrated.

2. The officer must not:

• Arg ue in opposition to the applicant o r p e titioner’s claim (if the officer eng ag es i n arg ument, he or she has lost co n t rol of the interview);

• Question the appli c a n t in a hostile o r abusive manner;

• Take sides in the applicant or petitioner’s claim;

• Attempt to be overly f ri e n dly with the interviewee; or

• Allow p ersonal biases to influence him o r her during the interview, e ither in favor of o r ag ainst the interviewee.

I hope that by

ex posing the particulars of the affirmative application p rocess we will correct our u nderstanding of the applicant interview process, and that w e will drop our uninformed characteriz ation of it as “quasi-prosecutoria l

. ”D A I V

. B A R R 43

W h ile u nder oath, Dai intenti o n a l ly concealed material information f

r o m t he asy lum officer during a critical aspect of the process. To di m inish the import of this potential crime 1 1 because the g overnment official was “only ” an asy lum officer is a serious mistake.

VI

The BIA’s Decision

Dai unsuccessfully appealed the I J ’s decision deny ing his application for asy lum, w ithholdin g o f removal, a nd protection under the Convention Ag ainst Torture. The B I A ’s decision follows.

W e review for clear error the finding s of fact, including determinations of c redibility , made by the I mmig ration J u dg e. W e review de

novo all other issues, including whether the parties have met the r elevant burden of proof, and issues of discretion. The respondent filed his application for asy lum after May 11, 2005, and thus review is g overned by the REAL

I D Act of 2005.

W e adopt and affirm the Immigration Judge’s decision in this case

. The Immigration Judge correctly denied the r e

s p o n d e n t ’ s a p p l i c a tions for failure t o m eet his burden ofproof

. The record reflects that the respondent f a i l ed to

11 18 U.S.C. § 1 0 0 1 m ak es it a crim e k n o w in g ly an d w illf

u lly to m ak e

a m aterial f

alse st a t em en t in an y m atter w ith in th e j u risd ictio n o f th e

ex ecu tiv e b ran ch o f

Go v ern m en t

.D A I V

. B A R R 44

disclose to both the [ D HS] asy lum officer a nd the I mmig ration J udg e that his wife a nd daug hter had traveled with him to the United States and voluntarily returned to China

s hortly after. The respondent further conceded that he was n ot forthcomi n g a bout th is information b ecause he believed that the
t r ue reasons for their return—that his wife had a job in China and needed to care for her elderly father, a nd that their d aughter could attend school in China for less money than in the United St a t e

s—would b e perceived as inconsistent with his c laims of p ast and feared future persecution

.

The I mmig ration J udg e correctly decided that the voluntary return of the respondent’s wife and daug hter to China, after alleg edly fleeing following the p ers ecution of the respondent and hi s w i fe, prevents the r espondent f rom meeting his burde n of proving his asy lum claim. Contrary t

o t he respondent’s argument

on appeal, the Immigration Ju d g e need not have made an explicit adverse credibility finding to nevertheless determine t h a t the respondent did n ot m eet his burden o f proving his asylum cl a im

. The respondent’s family voluntarily returnin g and his not being truthful abo u t it is detrimental to his claim and is significant to his burden of proof

. (Emphasis added) (footnote and citations omitted).D A I V

. B A R R 45

VII

The IJ Becom es a P otted P lant

My colleag ues’ o pinion b oils down to this fau l ty proposition: Simply because the I J did not say “ I find Dai not credible” but opted instea d t o ex pose the g laring f actual deficienc i es in Dai’s presentation and to ex p lain in specific detail and a t leng th why D ai had not persuasively carried his burden of proving his c ase, w e must selectively embrace a s persuasive D ai’s problematic presentation reg arding the core of his claim. 1 2 I invite the reader to review once ag ain the I J ’s decision a

nd to decide on the merits whether D a i ’ s c ase is persuasive. I t is any

thing but.

My colleag ues ex pung e from the record the blatant flaws in Dai’s p erformance involving demeanor, c andor, a nd responsiveness, claiming that “taking into account the record

as a whole, nothing u ndermines the pers u a siveness of Dai’s credible testimony

. . . . ” N othing ? They d isreg ard inaccur a c i e s , i n c o n s i s t encies, and implausibilities in his story , and his barefaced attempt to cover up the t r uth about his wife’s and daug hter’s travels and situation. They even sweep aside Dai’s admission to the asy lu m o f f icer that the “real story ” is that (1) he wanted a g o od environment for his child, (2) his w ife left h im behind because she had a job in China and he did not, and (3) he was in a “bad mood,” couldn’t g et

a j o b
, a n d w anted to stay here “for a bit long er.” I n their opinion, there is not a sing le w ord reg arding the factors cited by the I J to ex plain his o b servations, f inding s, and decision, including the fact that Dai’s wife, a lleg edly the initial subject

12 A n d if an IJ d o es m ak e an ad v erse cred ib ilit y fi nd in g , w e h av e

m an u f actu red a m

u ltitu d e o f

w ay s to d i sreg ard it.D A I V

. B A R R 46

of persecution in China, made a free c h o ice to return. The effect of the presumption is to wipe the rec ord clean o f
every thing identified by

the I J and the B I A as problematic.

The i ro ny in my colleag ues’ analy sis is that once they
p r o c laim that Dai’s testimony is credible, they pick a nd choose only those parts of his favora ble testimony that support his case—not the parts that underc u t i t. I f we must accept Dai’s presentation as credible
, t h en why not also his “real stor y ” w h e n confronted with the f acts that he came to the United States because he wanted a g ood environment for his daug hter, and that he d id n ot return to China with his wife because she had a job and he did not? W hat becomes of his attempted cover up of the travels of his wife and daug hter?

F urthermore, my colleag ues’ treatment of the I J ’s opinion i s irreconcilable with the B I A’s wholesale acceptance of i t

. I n words as clear as the Eng lish langu a ge c a n be, the B I A said, “W e adopt and a ffirm the I mmig r a tion J udg e’s decision.” To compound their error, the majority then seiz e s upon and pick apart the B I A’s summary ex planation of why it c oncluded on de novo review that the I J ’ s d ecision was correct. W hat the B I A d id say w a s t h at Dai’s f ailure to be truthful about his f

amily ’s voluntary r etur n t o China was “detrimental to h i s c l aim” and “sig nificant to his burden o f proof.”

VIII

Analysis

And so we come at last to the s t a tutory requirement o f persuasiveness, an issue uniquely suited to be d etermined b y the “ trier o f fact,” as the Act a n d 8 U.S.C. § 1158(b)(1)(B )(ii)D A I V

. B A R R 47

dictate. The maj o r i t y o pinion freig hts this inquiry with an incomplete record. The opinion sweeps demea n o r , candor, and plausibility considerations—as well as the I J ’s ex tensive finding s of fact—off the board. Once ag ain, the o p i n ion ig nores Huang , a post-Act case.

The need for defe r ence is particularly strong in the contex t of demeanor a ssessments. Such d eterminations will often be based on nonverbal cue s , a nd “[ f] ew, if any , of these ephemeral indicia of credibility can be
convey ed by a paper record of the proceeding s a

nd it w ould b e ex traordinary for

a reviewing court to substitute its second-hand impress i o n of the petitioner’s demeanor, candor, or responsiveness for that of the I J .”

744 F .3d at 1153 (alteration in orig inal ) (quoting Jibril
, 423 F .3d at 1137).

Here, the I J determined that Dai’ s t e stimony was not persuasive based on demeanor, non-verbal cues, a n d o t her
g ermane material factors th at went to the heart of h is c ase. The I J ex plained his d ecision in e x quisite detail, and our approach and anal y s is should be simple. I n order to reverse the B I A’s conclusion that Dai did n ot carry h i s b u rden o f proof, “we must dete r m ine ‘that the evidence not only supports [a contrary ] conclusion, but compels i t —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 ( 9 t h Cir. 2014) (alteration in ori gi nal) (quoting INS v. E lias-Zacarias
, 502 U.S. 478, 481 n.1 (1992)). I f any

thing , this record compels the conclusion
t hat the I J and the B I A were correct , n ot mistaken. Are m yD A I V

. B A R R 48

colleag ues seriously go i n g to hold that an I J cannot take universally accepted demeanor, cando r, responsiveness, plausibility
, and forthrig h tness f actors into consideration in

as s e ssing persuasiveness, as the I J d id here? And that this detailed record, which is full of Dai’s admissions of an attempted coverup, compels the conclusion that D ai was so persuasive a s to carry his burden? Dai accurately u nderstood the damag ing implications of his wife’s return to China. So did the I J a n d t h e B I A. As the B I A stated, the truth is “inconsistent with his claims of past and feared future persecution.”

IX

The More Things Change, The More They Stay The

Sam e

I n E lias-Zacarias
, 9 21 F .2d 844 (9th C i r

. 1990), rev’d
, 502 U.S. 478 ( 1992), our c ourt substituted the panel’s interpretation o f the evidence for the B I A’s. The Supreme Court reversed our decision, calling the first of the panel’s two-part reasoning “untrue,” and the seco n d “irrelevant.” 502 U.S. at 481. The Court warned us that we c ould not

reverse the B I A unless the asy lum a pplicant demonstrates that “the e vidence h e presente d w as so compelling that no

r e a s o nable factfinder could fail to find the requisite fear of
persecu t i o n

. ” Id. a t 483–84 (emphasis added). I n our c ase, we ag ain fail to follow this instruction.

I n INS v. Orland

o V e ntura , 537 U.S. 12, 13 (2002) (per curiam), the Court n o t e d that both sides, petitioner a nd

r e spondent, had asked us to remand the case to the BI A s o that it mig ht determine in the first instance whether chang ed conditions in Guatemala e l i minated any realistic threat o fD A I V

. B A R R 49

persecution of th e p e t i t i oner. Our panel did not r emand the

c a se, evaluating instead the g overnment’s claim o f change d conditions by itself a

nd decidi n g the issue in favor of the petitioner. Id. at 13

– 1 4

. T he Supreme Court summarily reversed o ur decision, say ing “[ T] h e Court of Appeals committed c lear error her e

. I t seriously disreg arded the
ag ency ’s leg ally

mandated role.” Id. at 17.

A mere two y ears a fter Ventura ’ s per curiam opinion, we knowing ly made the same mistake in Tho m a s v. G onzales
, 409 F .3d 1177 (9th Cir. 2005) (en banc), vacate d
, 5 4 7 U.S. 183 (2006). W e disreg arded four dissenters to that f lawed opinion, w ho arg ued in vain that o u r court’s decision was irreconcilable with Ventura

. I n s h o r t order, the Supreme Court v a c a t ed our en banc o p inion, say ing that our “error is obvious in lig ht of Ventura
, itself a summary rever s al ” a nd that the same remedy w as o nce ag a in appro p riate. 547 U.S. at 185.

W ith all r e s p e c t , the majority opinion follows in our tradition of seiz ing a

u thority that d o es n o t belong to us, di s r e g arding DHS’s statutorily mandated role. Even the REAL I D Act has failed to correct our errors.

Thus, I dissent.