FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MING DAI,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 15-70776

Agency No.

A205-555-836

ORDER

Filed October 22, 2019

Before: Sidney R. Thomas, Chief Circuit Judge, and

Stephen S. Trott and Mary H. Murguia, Circuit Judges.

Order;

Statement Respecting Denial by Judge Trott;

Dissent by Judge Callahan;

Statement Respecting Denial by Judges O’Scannlain

and Trott;

Dissent by Judge Collins
2 DAI V. SESSIONS

SUMMARY*

Immigration

The panel denied a petition for rehearing en banc on

behalf of the court.

Dissenting from the denial of rehearing en banc, Judge

Callahan, joined by Judges Bybee, Bea, M. Smith, Ikuta,

Bennett, R. Nelson, Bade, Collins, and Lee, wrote that in

denying en banc review, the court has condoned a decision by

a three-judge panel that takes the extraordinary position of

holding that, absent an explicit adverse credibility ruling, an

immigration judge must take as true an asylum applicant’s

testimony that supports a claim for asylum, even in the face

of other testimony from the applicant that would undermine

an asylum claim, thereby restoring this circuit’s prior errant

“deemed true” rule that Congress abrogated when it enacted

the REAL ID Act. Judge Callahan explained that the panel’s

decision ties the hands of IJs who are presented with

conflicting evidence, effectively forcing them to accept an

applicant’s favorable testimony as the whole truth and to

disregard unfavorable evidence—even when it is the

applicant’s own testimony—unless they affirmatively make

an adverse credibility finding, thus transforming the lack of

an express adverse credibility ruling into an affirmative

conclusion that the applicant’s proffered reason for seeking

asylum is true. Judge Callahan wrote that the panel’s

decision is contrary to the statute, this court’s precedent, and

the rulings of sister circuits, and that in addition to

* 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. SESSIONS 3

overstepping the court’s limited role in reviewing the

agency’s decision, is also bad policy. Judge Callahan also

wrote that by directing the agency to grant withholding relief

and treat petitioner as eligible to asylum, the panel

compounded its error by failing to follow the ordinary

remand rule, and allowing the agency the first shot at

applying the majority’s new rule. 

Dissenting from the denial of rehearing en banc, Judge

Collins, joined by Judges Bybee, Bea, Ikuta, Bennett,

R. Nelson, and Bade, agreed with Judge Callahan that the

panel majority’s opinion effectively revives this court’s

discredited prior “deemed-true” rule in contravention of

controlling statutory language, precedent of this court and

other circuits, and common sense. In Judge Collins’s view,

the problems with the panel majority’s opinion run even

deeper by committing a further serious legal error, and

reinforcing a circuit split, in holding that the REAL ID Act

did not abrogate a second “deemed-credible” rule, whereby

this court conclusively presumes an applicant’s testimony to

be credible unless the agency has made an explicit adverse

credibility finding. Judge Collins wrote that the REAL ID

Act expressly abrogated the deemed-credible rule entirelyand

replaced it with, at most, a rebuttable presumption of

credibility. Judge Collins reasoned that the Board’s express

statement that petitioner was not “truthful” was a permissible

application of the REAL ID Act’s rebuttable presumption of

credibility, and sufficiently explicit to preclude this court’s

application of the deemed-credible rule in this case.

Respecting the denial of rehearing en banc, Judge Trott,

joined by Judge R. Nelson, wrote that instead of following the

REAL ID Act, this court has perpetuated a contrived rule that

in the absence of an adverse credibility finding, a petitioner
4 DAI V. SESSIONS

must be deemed credible, and then used that conclusion to

override an IJ’s and the Board’s well-supported determination

that the petitioner’s case was not sufficiently “persuasive” to

meet his burden of proof. Judge Trott wrote that, in doing so,

the panel has rewritten the REAL ID Act, ignored Congress,

and created an inter-circuit split. 

Respecting the denial of rehearing en banc, Judges

O’Scannlain and Trott agreed with the views expressed by

Judge Callahan in her dissent from the denial of rehearing en

banc.

COUNSEL

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

California; David J. Zimmer, Goodwin Procter LLP, Boston,

Massachusetts; William M. Jay, Goodwin Procter LLP,

Washington, D.C.; for Petitioner.

Aimee J. Carmichael, Senior Litigation Counsel; Mary Jane

Candaux and John W. Blakeley, Assistant Directors; Donald

Keener, Deputy Director; Office of Immigration, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.
DAI V. SESSIONS 5

ORDER

The full court has been advised of the petition for

rehearing en banc. A judge requested a vote on whether to

rehear the matter en banc. The matter failed to receive a

majority of the votes of the nonrecused active judges in favor

of en banc consideration. Fed R. App. P. 35. Judge Miller

was recused and did not participate in the vote.

The petition for rehearing en banc is denied. Attached are

dissents from and statements respecting the denial of

rehearing en banc.

TROTT, Circuit Judge,** with whom R. NELSON, Circuit

Judge, joins, respecting the denial of rehearing en banc:

Instead of following the REAL ID Act (“Act”), our court

has perpetuated a contrived rule that in the absence of an

adverse credibility finding, a petitioner must be deemed

credible. We then use that conclusion to override an

Immigration Judge’s (“IJ”) and the Board of Immigration

Appeals’ (“Board”) well-supported determination that this

petitioner’s case was not “persuasive.” In so doing, we have

rewritten the Act. We have a long history of ignoring

Congress and the Supreme Court, and here we have done it

** As a judge of this court in senior status, I no longer have the power

to vote on calls for rehearing cases en banc or formally to join a dissent

from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. P.

35(a). Following our court’s general orders, however, I may participate in

discussions of en banc proceedings. See Ninth Circuit General Order

5.5(a).
6 DAI V. SESSIONS

again. See Dai v. Sessions, 916 F.3d 731, 875–93 (9th Cir.

2019) (Trott, J., dissenting). Moreover, the panel majority

opinion creates an intercircuit conflict. I will address that

problem later in Part IV.

I

As explained in his thorough and convincing decision,

Immigration Judge Stephen Griswold, determined that Dai

had not met his statutory burden of persuasion on the central

issue of whether he was eligible as a refugee for asylum. The

documented fatal flaws in Dai’s case were (1) his glaring

attempt to deceive the asylum officer by concealing highly

probative damaging facts that go to the very core of his case,

facts that Dai also omitted from his Form I-589 application

for asylum, (2) his admission when pressed that his deceit

was intentional, driven by his understanding that the

concealed evidence would damage his probability of success,

(3) his inadequate explanations for the contradictions in his

presentation, (4) his telling demeanor on cross examination,

and (5) the “real story” behind his departure from China and

his decision not to return with his wife and daughter. The IJ

regarded these flaws as demonstrating a “lack of

forthrightness.” Accordingly, the IJ concluded pursuant to

the language of the Act that Dai’s case was not “persuasive.”

Reviewing de novo whether Dai had adequately met his

burden of persuasion that he was eligible for asylum, the

Board of Immigration Appeals agreed that he had not. To

support its conclusion, the Board referenced the same

material flaws the IJ found as facts. Their reasoned decision

should end this case, but with all respect, the panel majority

and now our court have converted this straightforward matter

into a textbook example of elevating form over substance,
DAI V. SESSIONS 7

taking a blue pencil to the Act’s requirement that an

applicant’s case must be “persuasive” and inappropriately

substituting our judgment for the Board’s.

II

Here is Judge Griswold’s compelling decision. Reading

it illustrates how wrong our court’s analysis is.

I have carefully considered the respondent’s

testimony and evidence and for the following

reasons, I find that the respondent has failed

to meet his burden of proving eligibility for

asylum.

The principal area of concern with regard to

the respondent’s testimony arose during the

course of his cross-examination. On 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
8 DAI V. SESSIONS

asked this question and that he replied yes,

they had travelled to Taiwan and Hong Kong. 

The respondent was asked whether the

Asylum Officer inquired whether his wife and

daughter had travelled elsewhere. The

respondent then testified before the Court that

he was asked this question, “but I was

nervous.” In this regard, I note that the

respondent did not directly answer the

question; instead leapt directly to an

explanation for what his answer may have

been, namely that he was nervous. The

respondent was then asked specifically

whether the Asylum Officer asked him if his

wife had travelled to Australia in 2007. The

respondent confirmed that he had been asked

this question, and he confirmed that the

answer was in the affirmative. The

respondent also confirmed that the Asylum

Officer had asked him whether she had

travelled anywhere else. He confirmed that he

had been so asked. The respondent was then

asked whether he answered “no,” that she had

not travelled anywhere else. The respondent

answered that he believed so, that he had so

answered. The respondent was then asked,

during the course of cross-examination, why

he had not said to the Asylum Officer that yes,

she had travelled to the United States. The

respondent replied that he had not thought of

it. He stated that they did come with him

(meaning his wife and daughter) and that he

thought the Asylum Officer was asking him if

they had travelled anywhere other than the
DAI V. SESSIONS 9

United States. He explained that he did so

because he assumed the U.S. Government had

the records of their travel to the United States. 

On further questioning, the respondent

eventually hesitated at some length when

asked to further explain why he did not

disclose spontaneously to the Asylum Officer

that his wife and daughter had come with him. 

The respondent paused at some length and I

observed that the respondent appeared

nervous and at a loss for words. However,

after a fairly lengthy pause, the respondent

testified that he is afraid to say that his wife

and daughter came here and why they went

back. The respondent was asked whether he

told the Asylum Officer that he was afraid to

answer directly. The respondent initially

testified that he forgot and did not remember

whether he said that. He again reiterated that

he was very nervous. He was then asked the

question again as to whether he told the

Asylum Officer that he was afraid to answer

why his wife and daughter had gone back. He

then conceded that maybe, yes, he had

answered in that fashion. The respondent was

asked whether the Asylum Officer inquired

why his wife and daughter went back, and the

respondent conceded that he had been so

asked, and he further conceded that he replied

because school in the United States costs a lot

of money (referring to the schooling for his

daughter). The respondent was then asked to

confirm that the Asylum Officer eventually

asked him to tell him the real story as to why
10 DAI V. SESSIONS

his family travelled to the United States and

returned to China. The respondent confirmed

that he was asked this question and when

asked, whether he replied that it was because

he wanted a good environment for his child

and because his wife had a job and he did not

and that that is why he stayed here. He

confirmed that he did, in fact, say that. The

respondent was further asked, during the

course of testimony in court, why his wife and

daughter returned to China. In this regard, the

respondent testified that they came with him,

but returned to China several weeks after

arrival. He testified that they did so because

his father-in-law was elderly and needed

attention, and because his daughter needed to

graduate school in China.

The respondent further claimed that his wife

had, in fact, suffered past persecution in the

form of a forced abortion and the respondent

confirmed that he feared his wife and

daughter would suffer future persecution. In

this regard, the respondent qualified his

answer by saying that his wife was now on an

IUD, apparently thereby suggesting that the

risk of persecution is reduced. However, the

respondent did concede that the risk of future

persecution also pertains to his daughter. 

Indeed, in this regard, the respondent testified

that this is, at least in part, why he applied for

asylum.
DAI V. SESSIONS 11

As to the contents of Exhibit 5, I give the notes

full weight, insofar as the respondent has

confirmed the contents of the questions and

answers given during the course of that

interview. Furthermore, I note that in the

sections in which the respondent equivocated,

stating that he was nervous and not sure that

he gave those precise answers, I nevertheless

give the Asylum Officer’s notes some

substantial weight, in that they are consistent

with the respondent’s testimony in court.

Specifically, I note that the Asylum Officer’s

notes state that the respondent ultimately

indicated that he was afraid of giving straight

answers regarding his daughter and wife’s trip

to the United States and return to China. And

while the respondent did not confirm this in

court, he did give a similar answer as to why

he was testifying in this regard. In other

words, the respondent appears to have stated,

both before the Asylum Officer and in court

that he did not spontaneously disclose the

travel of his wife and daughter with him to the

United States and their return because he was

nervous about how this would be perceived by

the Asylum Officer in connection with his

claim. I further note that the Asylum

Officer’s notes are internally consistent with

regard to references to earlier questions, such

as whether the respondent had stated that he

applied for a visa with anyone else. At page 2

of the notes contained in Exhibit 5, the

respondent was asked whether he applied for

his visa with anyone else and the notes
12 DAI V. SESSIONS

indicated that he stated that, “no, I applied by

myself.” Similarly, I note that the testimony

before the Asylum Officer and the Court is

consistent with the omission in the

respondent’s Form I-589 application for

asylum, of an answer to the question of the

date of the previous arrival of his wife, if she

had previously been in the United States. See

Exhibit 2, page 2, part A.II, question 23. 

When asked about this omission, the

respondent expressed surprise, stating that he

told the preparer about their trip and indicated

that he thought it had been filled out. 

Notwithstanding the respondent’s statement in

this regard, I do observe that the omission is

consistent with his lack of forthrightness

before the asylum office as to his wife and

daughter’s travel with him to the United

States and their subsequent return to China

shortly thereafter.

In sum, the respondent’s testimony before the

Court and his testimony regarding the Asylum

Officer notes, as well as the notes themselves,

clearly indicate that the respondent failed to

spontaneously disclose that his wife and

daughter came with him and then returned to

China. His testimony and the notes also

consistently demonstrate that the respondent

paused at length, both before the Court and

before the Asylum Officer, when asked about

this topic. His testimony and the Asylum

Officer notes are also consistent in indicating

that he ultimately testified that he was afraid
DAI V. SESSIONS 13

to say that his wife came here and was afraid

of being asked about why she went back. 

Furthermore, the respondent has conceded

that he was asked to “tell the real story”

about his family’s travel to the United States

by the Asylum Officer, and that he replied that

he wanted a good environment for his child

and his wife had a job, but he did not, and

that is why he stayed here.

In Loho v. Mukasey, 531 F.3d 1016, 1018–19

(9th Cir. 2008), the Ninth Circuit addressed

the situation in which an asylum applicant has

found safety in the United States and then

returns to the country claimed of persecution

before eventually finding asylum in the

United States. The Ninth Circuit held that the

applicant’s voluntary return to the country of

claimed persecution may be considered in

assessing both credibility and whether the

respondent has a well-founded fear of

persecution in that country. Here, while the

respondent himself has not returned to China,

his wife and daughter did. Indeed they did so

shortly after arriving in the United States, and

the respondent confirmed that they did so

because the schooling is cheaper for his

daughter in China, as well as because his

father-in-law is elderly and needed to be cared

for. The respondent also told the Asylum

Officer that the “real story” about whey [sic]

his family returned was that his wife had a job

and he did not, and that is why he stayed here. 

This is consistent with respondent’s testimony
14 DAI V. SESSIONS

before the Court that he did not have a job at

the time he came to the United States. 

Furthermore, I note that the respondent’s

claim of persecution is founded on the alleged

forced abortion inflicted upon his wife. That

is the central element of his claim. The

respondent claims that he himself was

persecuted through his resistance to that

abortion. Nevertheless, the fact remains that

the fundamental thrust of the respondent’s

claim is that his wife was forced to have an

abortion. In this regard, the respondent’s wife

therefore clearly has an equal, or stronger,

claim to asylum than the respondent himself,

assuming the facts which he claims are true. 

The respondent was asked why his wife did

not stay and apply for asylum and he replied

that he did not know they could apply for

asylum at the time they departed. The

respondent was then asked why he stayed here

after they returned; he said because he was in

a bad mood and he wanted to get a job and a

friend of mine is here.

While Loho v. Mukasey applies to the

applicant himself returning to China, I find

that the reasoning of the Ninth Circuit in that

case is fully applicable to the respondent’s

situation in that his wife, who is the primary

object of the persecution in China, freely

chose to return to China. I do not find that the

respondent’s explanations for her return to

China while he remained here are adequate.

The respondent has stated that he was in a bad
DAI V. SESSIONS 15

mood and that he had found a job and had a

friend here. The respondent has also indicated

that his daughter’s education would be

cheaper in China than here, and he has also

indicated that his wife wanted to go to take

care of her father. I do not find that these

reasons are sufficiently substantial so as to

outweigh the concerns raised by his wife and

daughter’s free choice to return to China after

having allegedly fled that country following

his wife’s and his own persecution.

In view of the for[e]going, I find that the

respondent has failed to meet his burden of

proving eligibility for asylum under Section

208(a) of the Act.

(Emphasis added).

III

Assuming for the sake of argument only that the

Immigration Judge’s findings of Dai’s (1) “lack of

forthrightness,” (2) guilty demeanor, (3) inadequate

explanations for his admittedly contradictory answers, and

(4) willful concealment of relevant information did not

amount to an “explicit” adverse credibility determination,

then Dai is statutorily entitled to a “rebuttable presumption of

credibility on appeal” – to the Board. On appeal to the Board,

however, they dismissed this presumption, as was their

statutory prerogative, concluding in the words of the Act that

Dai’s case was not persuasive:
16 DAI V. SESSIONS

We review for clear error the findings of fact,

including determinations of credibility, made

by the Immigration Judge. We review de

novo all other issues, including whether the

parties have met the relevant burden of proof,

and issues of discretion. The respondent filed

his application for asylum after May 11, 2005,

and thus review is governed by the REAL ID

Act of 2005.

We adopt and affirm the Immigration Judge’s

decision in this case. The Immigration Judge

correctly denied the respondent’s applications

for failure to meet his burden of proof. The

record reflects that the respondent failed to

disclose to both the [DHS] asylum officer and

the Immigration Judge that his wife and

daughter had traveled with him to the United

States and voluntarily returned to China

shortly after. The respondent further

conceded that he was not forthcoming about

this information because he believed that the

true reasons for their return – that his wife

had a job in China and needed to care for her

elderly father, and that their daughter could

attend school in China for less money than in

the United States – would be perceived as

inconsistent with his claims of past and feared

future persecution.

The Immigration Judge correctly decided that

the voluntary return of the respondent’s wife

and daughter to China, after allegedly fleeing

following the persecution of the respondent
DAI V. SESSIONS 17

and his wife, prevents the respondent from

meeting his burden of proving his asylum

claim. Contrary to the respondent’s argument

on appeal, the Immigration Judge need not

have made an explicit adverse credibility

finding to nevertheless determine that the

respondent did not meet his burden of proving

his asylum claim. The respondent’s family

voluntarily returning and his not being

truthful about it is detrimental to his claim

and is significant to his burden of proof.

(Emphasis added) (footnote and citations omitted).

IV

In Kho v. Keisler, 505 F.3d 50 (1st Cir. 2007), the First

Circuit understood the Act’s effect on the issue of an

applicant’s credibility. Not only did our sister circuit

correctly comprehend the Act’s impact, but it considered and

rejected our approach to this important subject.

Kho supplements his ‘disfavored group’

approach with an argument that because the IJ

did not make an explicit finding concerning

Kho’s credibility, his testimony ‘must be

accepted as true’ by this court. Kho bases this

proposed rule as well on a series of Ninth

Circuit cases. . . .

We have already rejected the proposition that

aliens are entitled to a presumption of

credibility on review in this court if there is no
18 DAI V. SESSIONS

express credibility determination made by an

IJ. . . .

The REAL ID Act also provides no support

for Kho's argument. . . .

Kho, 505 F.3d at 56–57.

The court further explained that the Act’s reference to a

“rebuttable presumption” applies only to an applicant’s

appeal to the BIA, not to “reviewing courts of appeal.” Id.

at 56.

Accordingly, not only does our court’s decision violate

the directions of the Act, but it creates an intercircuit conflict

with Kho.

V

Whether or not this petitioner attains asylum in our

country is of minor concern, but the significant damage our

court has done to the Act and to Congress’ attempt to stop us

from substituting our judgment for the Board’s are matters

that must be corrected. Thus, I disagree with our decision not

to rehear en banc this case.
DAI V. SESSIONS 19

CALLAHAN, Circuit Judge, with whom BYBEE, BEA,

M. SMITH, IKUTA, BENNETT, R. NELSON, BADE,

COLLINS, LEE, Circuit Judges, join, dissenting from denial

of rehearing en banc:

Under the REAL ID Act of 2005, an immigration judge

(IJ) has the task of evaluating an asylum application. Here, in

denying en banc review, we have condoned a decision by a

three-judge panel that takes the extraordinary position of

holding that, absent an explicit adverse credibility ruling, an

IJ must take as true an asylum applicant’s testimony that

supports a claim for asylum, even in the face of other

testimony fromthe applicant that would undermine an asylum

claim. This makes no sense and ignores the realities of

factfinding. Our decision restores our prior errant rule that

Congress abrogated. As we have declined to correct this

erroneous decision ourselves, hopefully the Supreme Court

will do so.

Before Congress enacted the REAL ID Act, our court had

fashioned unique rules devised to restrict the agency’s

discretion in adjudicating asylum claims. The REAL ID Act

broadened the agency’s discretion. In explaining the

amendments, Congress singled out our court for adopting

rules that strayed from all other circuits and the Board of

Immigration Appeals. In this case, the divided panel ignored

this history and revived a rule that we previously said was

“swept away” by the REAL ID Act. Aden v. Holder,

589 F.3d 1040, 1045 (9th Cir. 2009).

The immigration judge here was presented with

conflicting statements from the asylum applicant, Ming Dai,

about why he came to and sought to remain in the United

States. The IJ did not make an express adverse credibility
20 DAI V. SESSIONS

finding but instead found Dai’s testimony was not sufficiently

persuasive to meet his burden of proof. The panel majority

erroneously concluded that, absent an explicit, cogentlyexplained adverse credibility finding, an IJ is required to

accept the favorable portions of an asylum applicant’s

testimony as the unassailable truth.

According to the panel, in weighing the persuasiveness of

the asylum applicant’s testimony, an IJ must ignore any

unfavorable testimony because such testimony—which could

impugn the applicant’s credibility—“cannot be smuggled into

the persuasiveness inquiry.” Dai v. Sessions, 884 F.3d 858,

872 (9th Cir. 2018). The panel’s holding allowed it to

“expunge from the record the blatant flaws in Dai’s

performance involving demeanor, candor, and

responsiveness,” Dai v. Barr, 916 F.3d 731, 747 (9th Cir.

2018) (Trott, J., dissenting), thus tying the IJ’s hands in

carrying out the statutory role as trier of fact.

The panel’s holding is contrary to the statute, our own

precedent, and the rulings of our sister circuits. In addition to

overstepping our limited role in reviewing the agency’s

decision, the holding is also bad policy. Just because

testimony is credible (i.e., believable), it doesn’t mean it must

be wholly accepted as the truth. A factfinder may resolve

factual issues against a party without expressly finding that

party not credible. This is a regular, non-controversial

occurrence in everyday litigation.

On close examination, the panel’s artful evasion of the

REAL ID Act is nothing short of an outright arrogation of the

agency’s statutory duty as trier of fact. After adopting its illadvised rule, the panel took up the mantle of factfinder and

pronounced that Dai’s testimony is persuasive. In doing so,
DAI V. SESSIONS 21

the panel “intrude[d] upon the [factfinding] domain which

Congress has exclusively entrusted to an administrative

agency.” INS v. Ventura, 537 U.S. 12, 16 (2002) (quoting

SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)). We are

asking yet again to be summarily reversed for violating the

“ordinary remand rule.” See Gonzales v. Thomas, 547 U.S.

183, 187 (2006); Ventura, 537 U.S. at 18.

I.

A.

Petitioner Ming Dai, a citizen of China, challenged the

IJ’s finding—adopted and affirmed by the BIA—that Dai’s

testimony was not persuasive in showing that he is a refugee. 

Dai’s claim for asylum is premised on events occurring in

China in July 2009, when family planning officials came to

take his pregnant wife for an abortion. Dai claimed he fought

with officers, after which he was detained for ten days and

eventually fired from his job. While Dai was detained, his

wife was allegedly subjected to a forced abortion.

Dai stated in the affidavit accompanying his application

that he sought asylum because he wished to “bring [his] wife

and daughter to safety.” In fact, Dai’s wife and daughter had

entered the United States with him but had voluntarily

returned to China shortly thereafter. Dai neglected to disclose

this information in his application, affidavit, interview with

the asylum officer, or on direct examination before the IJ.

The IJ found Dai’s claim for asylum unpersuasive. In the

IJ’s view, “[t]he principal area of concern” was Dai’s

testimony during cross-examination. The IJ noted Dai’s

evasive answers to questions about his interview with the
22 DAI V. SESSIONS

asylum officer. During cross-examination, Dai was asked

why he had not revealed that his wife and daughter had come

with him to the United States and why they returned to China

shortly thereafter. “[A]fter a fairly lengthy pause,” and

appearing to the IJ to be “nervous and at a loss for words,”

Dai stated that he was afraid to speak about his wife and

daughter. When asked by the asylum officer what he was

afraid of, Dai said he was afraid the officer would ask why

his wife and daughter willingly went back to China. Dai was

apparently concerned that revealing the facts about his wife

and daughter would undercut his claim that he wished to

bring them to safety. Dai eventually admitted that the “real

story” for why he stayed in the United States when his family

returned to China was because “he was in a bad mood and he

wanted to get a job and a friend of mine is here.” In essence,

the IJ credited Dai’s “real story” that he came to the United

States to seek employment, rather than his story that he came

to flee persecution.

The BIA adopted and affirmed the IJ’s decision,

concluding that the voluntary return of Dai’s family to China

and his failure to be forthcoming with that information was

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

proof.”

B.

Dai sought review in our court. In his brief, Dai

presumed the agency made an adverse credibility finding, and

he argued only that the IJ’s determination that he failed to

meet his burden of proof was not supported by substantial

evidence. The government, in response, argued Dai failed to

show that the record compels a conclusion that he met his

burden of proof.
DAI V. SESSIONS 23

A split panel granted Dai’s petition. The majority stated

that, under the REAL ID Act, an applicant’s testimony alone

“is sufficient”1to establish eligibility for asylum provided the

“testimony is credible, is persuasive, and refers to specific

facts sufficient to demonstrate that the applicant is a refugee.” 

Dai, 884 F.3d at 867 (citing 8 U.S.C. § 1158(b)(1)(B)(ii)). 

Departing from the issue as framed by the parties,2

the

majority held that, because neither the IJ nor BIA made an

explicit adverse credibility ruling, Dai must be “deemed

credible.” Dai, 884 F.3d at 868. The majority concluded that

nothing in the REAL ID Act abrogated our pre-REAL ID Act

rule that an applicant must be deemed credible in the absence

of an explicit adverse credibility determination. Id.

at 868–69.

The panel majority then expanded the impact of that

holding by adopting a novel rule constraining an IJ’s ability

to weigh the evidence when no express adverse credibility

ruling has been made. The majority held that, in weighing

the persuasiveness of an applicant’s claim, an IJ is precluded

from considering evidence—even the applicant’s own

admissions—that might impugn the applicant’s credibility. 

Id. at 872 (“Credibility concerns that do not justify an adverse

credibility finding cannot be smuggled into the

1 The statute actually says “may be sufficient,” not “is sufficient.” 

See 8 U.S.C. § 1158(b)(1)(B)(ii).

2 As noted in Judge Trott’s dissent, because the government

“responded only to the claims and arguments Dai included in his brief,”

it did not have “an opportunity to respond to the majority’s inventive

analysis, nor to the theory concocted by the majority on Dai’s behalf.” 

Dai, 916 F.3d at 733 (Trott, J., dissenting). Judge Trott predicted that

“[b]oth sides will be surprised by my colleagues’ artful opinion—Dai

pleasantly, the Attorney General not so much.” Id.
24 DAI V. SESSIONS

persuasiveness inquiry . . . .”). That remarkable holding bears

repeating: An applicant’s admissions (or other evidence) that

undermine the persuasiveness of an asylum claim must be

disregarded if that evidence also bears on the applicant’s

credibility.

This invented rule enabled the majority to reject the

agency’s reasons for finding Dai’s claim not persuasive. Id.

at 870–73. Having wiped from the record Dai’s unfavorable

testimony, the majority assumed the role of trier of fact and

pronounced that “nothing [in the (now-cleansed) record]

undermines the persuasiveness of Dai’s credible testimony.” 

Id. at 871. The majority thus held that Dai was eligible for

asylum and entitled to withholding of removal. Id. at 874. 

The majority remandedwith instructions to grant withholding

of removal and to decide whether Dai should also be granted

asylum as a matter of discretion. Id.

In dissent, Judge Trott wrote that “[t]he practical effect of

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

adverse 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.” Dai, 916 F.3d

at 735 (Trott, J., dissenting). Judge Trott argued that “[t]he

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.” Id. at 731. Judge Trott asserted that the

majority ignored “the IJ’s fact-based explanation for his

decision” and several material findings of fact, “each of

which is entitled to substantial deference.” Id.
DAI V. SESSIONS 25

II.

A.

Before the enactment of the REAL ID Act, our court

created what we characterized as a “deemed true” rule. 

Ladha v. INS, 215 F.3d 889, 900 (9th Cir. 2000). Under that

rule, when “an alien credibly testifies to certain facts, those

facts are deemed true.” Id. The “deemed true” rule

developed as an extension of two other rules—the rule that an

applicant would be deemed credible in the absence of an

adverse credibility ruling and the rule prohibiting factfinders

from requiring corroborative evidence from credible

applicants.3Id. at 899–900; see id. at 899 (“‘[T]his court

does not require corroborative evidence,’ Cordon-Garcia v.

INS, 204 F.3d 985, 992 (9th Cir. 2000), from applicants for

asylum and withholding of deportation who have testified

credibly.”).

The “deemed true” rule and the rule against requiring

corroborative evidence did not escape criticism. In prior

opinions, members of our court observed that some of our

rules concerning credibility and standard of proof were out of

3

In some of our cases, we have not been careful in our phrasing,

using the expressions “deemed credible” and “deemed true”

interchangeably. For example, the primary case that the panel majority

cited in support of the proposition that the “deemed credible” rule survives

the REAL ID Act states that the testimony must be treated as though it is

“true.” Hu v. Holder, 652 F.3d 1011, 1013 n.1 (9th Cir. 2011). Before the

REAL ID Act and its introduction of a requirement for corroborative

evidence and the weighing of credible evidence, this imprecision of

language arguably made no practical difference. The new provisions of

8 U.S.C. § 1158(b)(1)(B) now require adjudicators to distinguish between

credibility and truth.
26 DAI V. SESSIONS

line with the approach followed by other circuits and contrary

to the limited standard of review mandated by Congress. See,

e.g., Quan v. Gonzales, 428 F.3d 883, 892 (9th Cir. 2005)

(O’Scannlain, J., dissenting) (“I do not believe that an IJ’s

decision should be overturned merely because the reviewing

panel disagrees with it or can point to a plausibly analogous

case from our abundant and inconsistent precedent.”); Jibril

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

again, however, we have promulgated rules that tend to

obscure th[e] clear standard [of review] and to flummox

immigration judges, who must contort what should be a

simple factual finding to satisfy our often irreconcilable

precedents.”); Abovian v. INS, 257 F.3d 971, 980 (9th Cir.

2001) (Kozinski, J., dissenting from denial of rehearing en

banc) (“[T]his case is hardly atypical of our circuit’s

immigration law jurisprudence. Rather, it is one more

example of the nitpicking we engage in as part of a

systematic effort to dismantle the reasons immigration judges

give for their decisions.”).

To correct our misguided rules, Congress passed the

REAL ID Act. Congress made clear its intent to bring

us—the Ninth Circuit—in line with other circuits and the

BIA. See H.R. Rep. No. 109-72, at 167 (2005) (Conf. Rep.),

as reprinted in 2005 U.S.C.C.A.N. 240 (“[T]he creation of a

uniform standard for credibility is needed to address a

conflict on this issue between the Ninth Circuit on the one

hand and other circuits and the BIA.”). The REAL ID Act

states that the applicant “may” sustain his burden through

testimony alone, “but only if the applicant satisfies the trier

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

persuasive, and refers to specific facts sufficient to

demonstrate that the applicant is a refugee.” 8 U.S.C.

§ 1158(b)(1)(B)(ii). That provision also states that “the trier
DAI V. SESSIONS 27

of fact may weigh the credible testimony along with other

evidence of record.” Id. The REAL ID Act creates a “bias

toward corroboration” that makes asylum litigation more like

other types of litigation in that the trier of fact need not accept

testimony as true even if it’s credible. Aden, 589 F.3d

at 1045. Lest there was any doubt that the REAL ID Act

abrogated our “presumed true” rule, we expressly stated so in

Aden: “Congress has thus swept away our doctrine that ‘when

an alien credibly testifies to certain facts, those facts are

deemed true.’” Id. (quoting Ladha, 215 F.3d at 900).

Ignoring what we said in Aden, the panel majority crafted

a new rule that, in conjunction with the deemed credible rule,

operates to revive the congressionally disapproved “deemed

true” rule. This revival occurred in two steps. The panel first

held that nothing in the REAL ID Act “explicitly or implicitly

repealed the rule that in the absence of an adverse credibility

finding by the IJ or the BIA, the petitioner is deemed

credible.” Dai, 884 F.3d at 868.4

4 Again, precision of language is important here. Even assuming that

when the agency makes no credibility finding, the petitioner’s testimony

is deemed credible, that is not enough. Credibility alone doesn’t make a

person persuasive or eligible for asylum, nor must credible testimony be

accepted as true. Aden, 589 F.3d at 1044 (“Credible testimony is not by

itself enough.”); see also Sandie v. Att’y Gen. of U.S., 562 F.3d 246, 252

(3d Cir. 2009) (“But the assumption that his testimony is credible does not

imply that that testimony is sufficient to meet his burden of proof. In fact,

credible testimony alone is not always sufficient to meet the burden of

proof.”). An applicant’s testimony may be sufficient to show asylum

eligibility, “but only if the applicant satisfies the trier of fact that the

applicant’s testimony is credible, is persuasive, and refers to specific facts

sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C.

§ 1158(b)(1)(B)(ii) (emphasis added).
28 DAI V. SESSIONS

The panel’s second, decisive step in reviving our old

“deemed true” rule was to limit the evidence an IJ can

consider in weighing the persuasiveness of an applicant’s

testimony. The panel held that if the agency makes no

adverse credibility finding, “[c]redibility concerns . . . cannot

be smuggled into the persuasiveness inquiry.” Id. at 872. 

The panel reasoned that if the agency makes no adverse

credibility finding, any evidence that would cast doubt on the

applicant’s credibility must be ignored when considering the

persuasiveness of the applicant’s claim. The panel deployed

its holding to erase fromthe record Dai’s own admissions that

undermine his claim. For example, the IJ accepted as fact

Dai’s admission that he failed to disclose the truth about his

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

about how this would be perceived by the asylum officer. 

The IJ also credited Dai’s admitted “real story” for why he

stayed in the United States when his wife and daughter

returned home: “he was in a bad mood and he wanted to get

a job and a friend of mine is here.” The panel’s decision bars

the IJ from considering this and other testimony that could be

(and was) construed as detrimental to Dai’s case.5

The panel’s decision ties the hands of IJs who are

presented with conflicting evidence, effectively forcing them

to accept an applicant’s favorable testimony as the whole

truth and to disregard unfavorable evidence—even when it is

5

In his dissent, Judge Trott identified other examples of Dai’s

testimony that the IJ relied on in finding his claim unpersuasive. See Dai,

916 F.3d at 732 (Trott, J., dissenting) (listing eight findings rendered by

the IJ); id. at 747–48 (“My colleagues expunge from the record the blatant

flaws in Dai’s performance involving demeanor, candor, and

responsiveness . . . . 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.”).
DAI V. SESSIONS 29

the applicant’s own testimony—unless they affirmatively

make an adverse credibility finding. The panel’s two-fold

holding thus transforms the lack of an express adverse

credibility ruling into an affirmative conclusion that the

applicant’s proffered reason for seeking asylum is true.

The resuscitation of our old “deemed true” rule flouts

Congress’s purpose in enacting the REAL ID Act.6 First, the

panel’s holding violates the statute’s directive that the agency

is to conduct the factfinding and that our court may disturb

the agency’s decision only where “any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B). “[T]he law is that ‘[t]o reverse the BIA

finding we must find that the evidence not only supports that

conclusion, but compels it.’” Aden, 589 F.3d at 1046

(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1

(1992)). The majority’s holding cannot be squared with the

limited nature of our review of the agency’s decision.

Second, the majority’s revival of the “deemed true” rule

nullifies the statutory provision that, “[i]n determining

6 The majority turns somersaults to dodge Congress’s explicit attempt

to rein us in. The statute provides: “There is no presumption of

credibility, however, if no adverse credibility determination is explicitly

made, the applicant or witness shall have a rebuttable presumption of

credibility on appeal.” 8 U.S.C. § 1158(b)(1)(B)(iii). The majority,

ignoring the phrase “[t]here is no presumption of credibility,” apparently

presumed it to apply only in immigration court proceedings. The majority

reasoned that the “rebuttable presumption of credibility on appeal” does

not apply in our court because this case is a petition for review not an

appeal. Dai, 884 F.3d at 869 (“A provision that applies ‘on appeal’

therefore does not apply to our review, but solely to the BIA’s review on

appeal from the IJ’s decision.”). According to the majority’s logic, this

gives us carte blanche to adopt whatever rule we want on the evidence an

IJ must (and must not) credit.
30 DAI V. SESSIONS

whether the applicant has met the applicant’s burden, the trier

of fact may weigh the credible testimony along with other

evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). We have

held that this provision means that an “IJ need not accept

[credible] testimony as true.” Aden, 589 F.3d 1044. If

credible testimony must be accepted as true, there would be

nothing for the trier of fact to “weigh.” See Doe v. Holder,

651 F.3d 824, 830 (8th Cir. 2011) (“Congress thus rejected a

rule that ‘credible’ testimony necessarily means that the facts

asserted in that testimony must be accepted as true.” (citing

Aden, 589 F.3d at 1045)).7

B.

In addition to contravening the language and intent of the

REAL ID Act, the panel’s decision squarely conflicts with

our own precedent and every other circuit to address the

issue.

The panel’s decision is contrary to Aden’s clear

acknowledgement that the REAL ID Act abrogated our

“deemed true” rule. The decision is also at odds with Singh

v. Holder, 753 F.3d 826 (9th Cir. 2014). In Singh, we held

that the agency did not err in discounting the petitioner’s

credible evidence that the police were looking for him, when

weighed against country reports that stated that the police no

7 To be clear, the panel majority held that absent an adverse

credibility ruling, the trier of fact must disregard any evidence that would

call into question the applicant’s credibility. See Dai, 884 F.3d at 872

(“Credibility concerns that do not justify an adverse credibility finding

cannot be smuggled into the persuasiveness inquiry so as to undermine the

finding of credibility we are required to afford Dai’s testimony.”). There

is no meaningful difference between this holding and a suggestion that

credible testimony must be accepted as true.
DAI V. SESSIONS 31

longer targeted Sikh activists like the petitioner. Singh,

753 F.3d at 836. We recognized that “there is a difference

between an adverse credibility determination, on the one

hand, and a decision concerning how to weigh conflicting

evidence, on the other hand.” Id. We emphasized that, even

in the absence of a credibility ruling, the immigration judge

was required to weigh the persuasiveness of the testimony

against the record as a whole. Id.

In Doe, the Eighth Circuit held that an applicant’s

inability to provide important details and key

dates—information the immigration judge identified as

“damaging to [Doe’s] credibility,” but without making an

“explicit” adverse credibility finding—was sufficient to

support the BIA’s conclusion that his testimony was

unpersuasive. Doe, 651 F.3d at 829–30 (alteration in

original). The court relied in part on our decision in Aden for

the proposition that testimony may be “credible” without

being persuasive, and thus need not be “accepted as true.” Id.

at 830.

Similarly, the First Circuit has rejected the notion that a

reviewing court is bound “to accept a petitioner’s statements

as fact whenever an IJ simply has not made an express

adverse credibility determination.” Kho v. Keisler, 505 F.3d

50, 56 (1st Cir. 2007). The Tenth Circuit likewise held that

the agency was free to “discount” the applicant’s testimony

based on “gaps” in his story, even though there was no

adverse credibility ruling. Gutierrez-Orozco v. Lynch,

810 F.3d 1243, 1246 (10th Cir. 2016) (citing Aden, 589 F.3d

at 1044–45).
32 DAI V. SESSIONS

The panel’s holding splits with Aden and places us again

at a table of one when it comes to interpreting the standards

applicable to the agency’s determination of asylumeligibility.

C.

The panel majority’s rule also ignores the common sense

reality that triers of fact may—and frequently do—decide

factual issues against a party without affirmatively finding

that party not credible. Opposing parties who present

conflicting factual accounts might both be credible even if

only one party’s version is true.8 And even if a witness’s

testimony is treated as “honest or ‘credible,’” the “inability to

provide important details and key dates” may render “the

testimony unpersuasive in establishing a likelihood of

torture.” Doe, 651 F.3d at 830.

Indeed, we regularly require that juries decide between

competing versions of the “facts” and we do not suggest that

one perspective can be discounted only if the witness is not

believable (i.e., not credible). The REAL ID Act recognizes

this reality when it commands the trier of fact to “weigh the

credible testimony along with other evidence of record.” 

8 U.S.C. § 1158(b)(1)(B)(ii). A rule that bars an IJ from

questioning the persuasiveness of a witness’s testimony

unless the witness is affirmatively found to be not credible

ignores the realities of factfinding.

8

 As we stated in Aden, “[a]pparently honest people may not always

be telling the truth, apparently dishonest people may be telling the

absolute truth, and truthful people may be honestly mistaken or relying on

unreliable evidence or inference themselves.” Aden, 589 F.3d at 1045.
DAI V. SESSIONS 33

The panel’s holding here defies common sense for

another reason. The evidence that the IJ and the BIA found

to weigh against asylum eligibility was Dai’s own testimony. 

As Judge Trott pointed out, the agency thus credited Dai’s

admissions that tended to undercut his claim. It makes no

sense to say that the IJ is powerless to credit unfavorable

testimony given by an applicant unless the IJ expressly finds

the applicant not credible.

This case is an instance of our court “promulgat[ing] rules

that tend to obscure [the proper] standard and to flummox

immigration judges.” Jibril, 423 F.3d at 1138. By essentially

forcing IJs to make an express adverse credibility finding

whenever they do not accept an applicant’s proffered reasons

as the whole truth, the panel’s holding calls into question

virtually every IJ decision denying a claim for asylum that

lacks an explicit adverse credibility finding. Cf. Morgan v.

Holder, 634 F.3d 53, 57 (1st Cir. 2011) (declining to require

a “gratuitous credibility determination” when the IJ’s

decision was premised on the petitioner’s “failure to carry his

burden of proof”). With all of the cases we see that are

adjudicated at the asylum eligibility stage, the impact of the

panel’s holding will be far-reaching.

D.

The panel’s revival of the “deemed true” rule effectively

strips the agency of its factfinding role, allowing us to take

that role for ourselves. Indeed, that is exactly what the panel

did here. After “wip[ing] the record clean of everything

identified by the IJ and the BIA as problematic,” see Dai,

916 F.3d at 748 (Trott, J., dissenting), the majority stepped

into the void created by its new rule and weighed for itself the

persuasiveness of Dai’s testimony. “[T]aking into account
34 DAI V. SESSIONS

the record as a whole,” the majority concluded, “nothing

undermines the persuasiveness of Dai’s credible testimony.” 

Dai, 884 F.3d at 871.9 That is not our role.

In addition to creating a rule that conflicts with the statute

and precedent, the panel compounded its error by failing to

remand to allow the agency the first shot at applying the

majority’s new rule against “smuggl[ing]” credibility

concerns “into the persuasiveness inquiry,” see Dai, 884 F3d.

at 872. The Supreme Court has summarily reversed us on

multiple occasions for making this very error. See, e.g.,

Thomas, 547 U.S. at 187; Ventura, 537 U.S. at 18.

In Ventura, a panel of our court took it upon itself to

consider (and reject) the government’s factual argument that

had been accepted by the IJ but not ruled on by the BIA. 

Ventura, 537 U.S. at 13–14. The Supreme Court concluded

that “well-established principles of administrative law”

required a remand to the agency:

Within broad limits the law entrusts the

agency to make the basic asylum eligibility

decision here in question. In such

circumstances a ‘judicial judgment cannot be

made to do service for an administrative

judgment.’ Nor can an ‘appellate court . . .

intrude upon the domain which Congress has

exclusively entrusted to an administrative

agency.’”

9 When the panel majority quoted the statute’s requirement of

persuasiveness, it left out the part that an asylum applicant must “satisf[y]

the trier of fact that the applicant’s testimony is . . . persuasive,” 8 U.S.C.

§ 1158(b)(1)(B)(ii) (emphasis added). See Dai, 884 F.3d at 867.
DAI V. SESSIONS 35

Id. at 16 (citations omitted) (quoting Chenery Corp., 318 U.S.

at 88). In summarily reversing us, the Court stated that we

“committed clear error,” “seriously disregarded the agency’s

legally mandated role,” and “created potentially far-reaching

legal precedent . . . without giving the BIA the opportunity to

address the matter in the first instance in light of its own

expertise.” Id. at 17.

The clear, unanimous reversal in Ventura should have

been enough, but, as Judge Trott put it, “old ways die hard.” 

Dai, 916 F.3d at 737 (Trott, J., dissenting). Just two years

later, we repeated our error in Thomas, only this time we

were sitting en banc when we adopted a new rule and applied

it to the case without allowing the agency to consider the

question. Thomas, 547 U.S. at 184. The Supreme Court

agreed with the Solicitor General that not only was our failure

to remand erroneous, our error was “obvious in light of

Ventura.” Id. at 185.

Setting aside for the moment the problems with the

majority’s new rule, the panel should have remanded to allow

the agency an opportunity to determine Dai’s eligibility for

asylum within the new constraints imposed by the panel’s

decision.

III.

The panel’s insistence that an IJ must accept an

applicant’s favorable testimony as the whole truth, unless the

IJ makes an explicit adverse credibility finding, is contrary to

our limited scope of review under the REAL ID Act, contrary

to precedent (from both our court and other circuits), contrary

to reality, and just plain wrong. And in directing the agency

to grant withholding of removal and treat Dai as eligible for
36 DAI V. SESSIONS

asylum, rather than allowing the agency to apply the panel’s

new rule, the panel disregarded the Supreme Court’s repeated

admonishment against our seizing the role statutorily given to

the agency.

I respectfully dissent fromthe denial of rehearing en banc.

O’SCANNLAIN and TROTT, Senior Circuit Judges,

respecting the denial of rehearing en banc:

We agree with the views expressed by Judge Callahan in

her dissent from the denial of rehearing en banc.

COLLINS, Circuit Judge, with whom BYBEE, BEA,

IKUTA, BENNETT, R. NELSON, and BADE, Circuit

Judges, join, dissenting from the denial of rehearing en banc:

I agree with Judge Callahan that the panel majority’s

opinion effectively revives, for a potentially wide swath of

cases, this court’s discredited prior rule that when an alien

seeking asylum is either found or deemed to have testified

credibly to certain facts, those facts will be conclusively

deemed to be true. As Judge Callahan persuasively explains,

the panel majority’s effective revival of this previously

disavowed “deemed-true” rule contravenes controlling

statutory language, the precedent of this court, the decisions

of other circuits, and common sense. I therefore join in full

her dissent from the order denying rehearing en banc.
DAI V. SESSIONS 37

In my view, however, the problems with the panel

majority’s opinion run even deeper, thereby greatly

augmenting the potential damage that may flow from its

flawed decision. Specifically, the panel majority commits a

further serious legal error, and reinforces a circuit split, in

holding that the REAL ID Act does not abrogate a second

rule that we have applied in asylum cases—namely, the rule

that unless the agency has made an explicit finding that the

applicant’s testimony is not credible, this court will

conclusively presume that testimony to be credible. As this

case well illustrates, we have inflexibly applied this

conclusive presumption as, in effect, a “Simon says” rule:

even where (as here) the record overwhelmingly confirms

that the agency actually disbelieved critical portions of the

applicant’s testimony, we will nonetheless conclusively treat

that testimony as credible if the agency did not make an

explicit adverse credibility determination. The panel

majority’s reaffirmation of this unwarranted “deemedcredible” rule thus perpetuates a regime in which—unlike

other circuits—this court misreads the evidentiary record in

asylum cases through the truth-distorting lens of

counterfactual conclusive presumptions. In doing so, the

panel majority defies Congress’s elimination of the deemedcredible rule in the REAL ID Act, which expressly replaces

that rule’s conclusive presumption of credibility with (at

most) a “rebuttable presumption of credibility.” 8 U.S.C.

§ 1158(b)(1)(B)(iii) (emphasis added). But the panel

majority here slips the Act’s bonds, and we have abetted that

escape by failing to take this case en banc. I respectfully

dissent.
38 DAI V. SESSIONS

I.

In reviewing whether substantial evidence supports the

agency’s factual findings in asylum cases, this court has long

employed a variety of “rules that tend to obscure” what

should be a clear and deferential standard of review. Jibril v.

Gonzales, 423 F.3d 1129, 1138 (9th Cir. 2005). Among those

rules are a pair of presumptions about how to read the record

in asylum cases—namely, our deemed-credible rule and our

deemed-true rule. Under our traditional deemed-credible

rule, both this court and the Board of Immigration Appeals

(“BIA”) were required to apply a conclusive presumption that

an applicant was credible unless the Immigration Judge (“IJ”)

made an explicit adverse credibility finding. See, e.g., Dai v.

Sessions, 884 F.3d 858, 868 (9th Cir. 2018) (“Prior to the

REAL ID Act, we held that in the absence of an explicit

adverse credibility finding by the IJ or the BIA we are

required to treat the petitioner’s testimony as credible.”); She

v. Holder, 629 F.3d 958, 964 (9th Cir. 2010) (“Absent an

adverse credibility finding, the BIA is required to ‘presume

the petitioner’s testimony to be credible.’”). Under our

further deemed-true rule, the facts recited in testimony found

to be credible—or presumed to be credible by virtue of our

deemed-credible rule—would then in turn be taken as true. 

See, e.g., Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000)

(“In the absence of an explicit adverse credibility finding, we

must assume that Kataria’s factual contentions are true.”);

Yazitchian v. INS, 207 F.3d 1164, 1168 (9th Cir. 2000)

(“Because the immigration judge found the Yazitchians’

testimony credible, and the BIA did not make a contrary

finding, we must accept as undisputed the facts as petitioners

testified to them.”).
DAI V. SESSIONS 39

By requiring the application of potentially counterfactual

conclusive presumptions, these rules create an obvious risk of

seriously distorting appellate review of the factual record. 

Thus, under our deemed-credible rule, no matter how clear it

might be from the overall record that the IJ in fact disbelieved

portions of the petitioner’s testimony, that obvious disbelief

must be ignored if the IJ did not explicitly state that the IJ

disbelieved that testimony. In turn, under our deemed-true

rule, the facts recited in that now-deemed-credible testimony

then have to be taken as true.

This case well illustrates the truth-distorting effect of

applying these conclusive presumptions. As both the BIA

and the IJ explained, Dai’s claim that his wife’s forced

abortion in China caused him to have a well-founded fear of

persecution (thereby rendering him eligible for asylum) was

severely undercut by the fact that his wife and daughter had

not stayed with him in the United States but had voluntarily

returned to China—a critical fact that Dai had initially

attempted to conceal. Dai v. Barr, 916 F.3d 731, 738–42,

746–47 (9th Cir. 2018) (Trott, J., dissenting) (reproducing

relevant portions of the IJ’s and BIA’s decisions).1 As Judge

Trott’s panel dissent explains in detail, the IJ made eight

specific findings concerning Dai’s statements about his wife’s

and daughter’s voluntary return from the United States and

about Dai’s motivations for staying in this country, and those

detailed findings are flatly incompatible with the view that

the IJ credited all of Dai’s statements. Id. at 732. Because

the record amply confirms that the IJ obviously (even if not

1 At the time Judge Trott filed his amended panel dissent, the case

caption had changed to reflect the corresponding change in Attorney

General since the earlier filing of the panel opinion. See Fed. R. App. P.

43(c)(2).
40 DAI V. SESSIONS

explicitly) disbelieved certain of Dai’s statements about his

family’s return, the BIA properly construed the IJ’s findings

as establishing that Dai had “‘not be[en] truthful’” about his

“‘family voluntarily returning.’” Id. at 747 (quoting BIA

decision) (emphasis added by Judge Trott). Put another way,

a review of the record confirms that any presumption that the

IJ found Dai’s core statements to be credible has been

overwhelmingly rebutted. Nonetheless, because the IJ did not

explicitly find Dai’s testimony not to be credible, the panel

majority invokes a counterfactual conclusive presumption of

credibility—and in doing so, it “expunge[s] from the record

the blatant flaws in Dai’s performance involving demeanor,

candor, and responsiveness” and “disregard[s] 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.” Id. Moreover, by holding

that “[c]redibility concerns that do not justify an adverse

credibility finding cannot be smuggled into the

persuasiveness inquiry so as to undermine the finding of

credibility” required by the deemed-credible rule, see

884 F.3d at 872, the panel majority effectively requires that

this deemed-credible testimony must also be deemed true. 

See Judge Callahan’s Dissent at 30.

The REAL ID Act sought to eliminate our use of such

truth-distorting conclusive presumptions. Indeed, we have

previously recognized that the REAL ID Act indisputably

“swept away” our deemed-true rule, Aden v. Holder, 589 F.3d

1040, 1045 (9th Cir. 2009), and the panel majority’s opinion

does not expressly dispute that point. Instead, as Judge

Callahan explains, the panel majority effectively revives the

deemed-true rule, as a practical matter, by improperly

“limit[ing] the evidence an IJ can consider” in determining

whether an alien’s credible testimony is sufficiently
DAI V. SESSIONS 41

persuasive, in light of the record as a whole, to carry the

alien’s burden of proof. See Judge Callahan’s Dissent at 28;

see also 8 U.S.C. § 1158(b)(1)(B)(ii) (asylum applicant’s

testimony may be sufficient to carry burden of proof if it “is

credible, is persuasive, and refers to specific facts sufficient

to demonstrate that the applicant is a refugee”) (emphasis

added).

As to the deemed-credible rule, the panel majority itself

acknowledges that the REAL ID Act frees the BIA from

having to follow that rule’s conclusive presumption, “so that

the BIA [now] must only afford ‘a rebuttable presumption of

credibility’ when the IJ does not make an adverse credibility

finding.” Dai, 884 F.3d at 868 n.8 (citation omitted); see also

8 U.S.C. § 1158(b)(1)(B)(iii) (“if no adverse credibility

determination is explicitly made, the applicant or witness

shall have a rebuttable presumption of credibility on appeal”). 

Nonetheless, the panel majority insists that the REAL ID Act

preserves the deemed-credible rule’s conclusive presumption

in this court. 884 F.3d at 868–69. As a result, the panel

majority reasoned that if the IJ does not make an explicit

adverse credibility determination and the BIA does not

explicitly determine that the resulting presumption of

credibility on appeal has been rebutted, then this court must

conclusively presume the petitioner’s testimony to be

credible. Id. at 869–70. Concluding that “neither the IJ nor

the BIA made an adverse credibility determination in Dai’s

case,” the panel majority held that the deemed-credible rule

applies and that this court therefore “must treat his testimony

as credible.” Id. at 870.

In my view, the panel majority’s invocation of the

deemed-credible rule rests on two critical legal errors, and we
42 DAI V. SESSIONS

should have taken this case en banc to correct and clarify the

governing principles in this vital area of the law.

II.

First, even if the panel majority were correct in

concluding that “neither the IJ nor the BIA made an adverse

credibility determination,” Dai, 884 F.3d at 870; but see infra

at 48–51, the REAL ID Act expressly prohibits this court

from then applying a conclusive presumption of credibility. 

Instead, in reviewing the record, we would at most apply a

rebuttable presumption of credibility—and here the facts

found by the IJ overwhelmingly rebut any presumption that

the IJ believed Dai’s statements concerning his family’s

return to China. See Dai, 916 F.3d at 747 (Trott, J.,

dissenting) (“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,” the majority wrongly holds that “we must

selectively embrace [his testimony] as persuasive....”).

A.

Section 208(b)(1)(B) of the Immigration and Nationality

Act (“INA”), as added by section 101(a)(3) of the REAL ID

Act of 2005, Pub. L. 109-13, Div. B, 119 Stat. 302, 303

(2005), directly addresses the questions of whether and when

a presumption of credibility should be applied in reviewing

an application for asylum. Specifically, subsection

208(b)(1)(B)(iii) provides, in relevant part, as follows:

There is no presumption of credibility,

however, if no adverse credibility
DAI V. SESSIONS 43

determination is explicitly made, the applicant

or witness shall have a rebuttable presumption

of credibility on appeal.

8 U.S.C. § 1158(b)(1)(B)(iii). There is an obvious scrivener’s

error in this run-on sentence (the first comma should have

been a semi-colon), but the effect of its “however” clause is

nonetheless clear: it abrogates our deemed-credible rule’s

conclusive presumption of credibility and replaces it with

only a “rebuttable presumption of credibility.” Id. (emphasis

added). As noted earlier, see supra at 38, under our preREAL ID Act case law, “in the absence of an explicit adverse

credibility finding” by the IJ, both the BIA and this court

were “required to treat the petitioner’s testimony as credible.” 

Dai, 884 F.3d at 868. But after the REAL ID Act’s

amendments, the IJ’s failure to make an explicit adverse

credibility determination gives rise only to a rebuttable

presumption that the IJ found the applicant’s testimony to be

credible. Thus, if a review of the record otherwise makes

clear that (despite the lack of an express credibility

determination) the IJ did not believe certain aspects of the

applicant’s statements, the “presumption of credibility on

appeal” is rebutted, and the BIA and this court no longer need

to close their eyes to that fact and no longer need to pretend

that the IJ found the testimony credible.

The panel majority conceded that this statutory language

abrogates our deemed-credible rule and replaces it with a

“‘rebuttable presumption of credibility on appeal,’” Dai,

884 F.3d at 868 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)), but

the majority holds that this provision “applies only to appeals

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

(emphasis added); see also id. at 868 n.8. That is true, the

panel majority concludes, because the rebuttable presumption
44 DAI V. SESSIONS

applies by its terms only “on appeal,” 8 U.S.C.

§ 1158(b)(1)(B)(iii), and (unlike the BIA) we exercise review

in immigration cases by way of a “petition for review” under

section 242(a)(5) of the INA, 8 U.S.C. § 1252(a)(5), and not

by way of an “appeal.” 884 F.3d at 869 (noting the formal

differences between a “petition for review” and an “appeal”). 

Because, according to the panel majority, the BIA here failed

to invoke the REAL ID Act’s rebuttable presumption to

determine that any aspect of Dai’s testimony was not

credible, but see infra at 48–51, this court is required to

adhere to our deemed-credible rule and to conclusively

presume that Dai’s testimony is credible.

This argument fails, because the panel majority’s sharp

distinction between a “petition for review” and an “appeal”

is refuted by the very statutory provision on which the

majority relies. Section 242 of the INA does in fact state that

our review of removal orders is by means of a “petition for

review,” 8 U.S.C. § 1252(a)(5), but elsewhere in that very

same section, the resulting proceeding in this court is

expressly referred to as an “appeal.” See 8 U.S.C.

§ 1252(b)(3)(C) (stating that, if the alien fails to file a brief in

support of the “petition for judicial review,” then “the court

shall dismiss the appeal”) (emphasis added). Given that the

judicial-review provision on which the panel majority relies

itself expressly refers to a “petition for review” as giving rise

to an “appeal,” there is no textual basis for the panel

majority’s conclusion that the reference to an “appeal” in

section 208(b)(1)(B)(iii) excludes a “petition for review.” 

See Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018)

(reaffirming, and applying to the INA, the “‘normal rule of

statutory construction that identical words used in different

parts of the same act are intended to have the same

meaning’”) (citation omitted). Moreover, applying section
DAI V. SESSIONS 45

208(b)(1)(B)(iii)’s “rebuttable presumption of credibility on

appeal” to both the BIA and the courts of appeals is

consistent with the ordinary meaning of the phrase “on

appeal,” which refers to the process of appellate review,

without regard to whether such review is formally

denominated as an “appeal.” See Dai, 916 F.3d at 735 (Trott,

J., dissenting) (“[T]he issue is one of function, not of form or

labels.”). Congress’s explicit abrogation of the deemedcredible rule thus extends to this court.

Contrary to the panel majority’s view, the abrogation of

the deemed-credible rule in this court, and its replacement

with a rebuttable presumption of credibility, would not

intrude on the agency’s factfinding role. See Dai, 884 F.3d

at 874 & n.14. As applied on appeal, the REAL ID Act’s

rebuttable presumption provides a rule about how to read the

record of the IJ’s factfinding: if no express adverse credibility

determination was made by the IJ, we should presume that

the IJ found the applicant’s statements credible unless (as

here) the findings as a whole nonetheless confirm that certain

statements were disbelieved by the IJ. The rebuttable

presumption is thus not a license for the BIA or this court to

engage in factfinding. Cf. 8 C.F.R. § 1003.1(d)(3)(iv)

(“Except for taking administrative notice of commonly

known facts such as current events or the contents of official

documents, the Board will not engage in factfinding in the

course of deciding appeals.”). Instead, it is an instruction to

stop reading IJ decisions through the distorted lens of our

deemed-credible rule. In fact, it is the panel majority’s

adherence to the deemed-credible rule’s irrebuttable

presumption of credibility that usurps the agency’s authority. 

As this case well illustrates, the effect of that rule is to require

the Court automatically to accept as credible statements that
46 DAI V. SESSIONS

the IJ plainly disbelieved. See 916 F.3d at 747 (Trott, J.,

dissenting).

B.

But even if the panel majority were correct that the REAL

ID Act’s “rebuttable presumption” of credibility does not

apply to petitions for review in this court, that would not have

the consequence of preserving the deemed-credible rule. On

the contrary, it would have the opposite effect: it would mean

that no presumption of credibility applies in this court.

The panel majority overlooks the full language of the last

sentence of section 208(b)(1)(B)(iii), which (1) establishes a

general rule that “[t]here is no presumption of credibility” at

all, and (2) then carves out an exception under which a

rebuttable presumption of credibility will apply “on appeal”

if “no adverse credibility determination is explicitly made.” 

8 U.S.C. § 1158(b)(1)(B)(iii). Indeed, this sentence of the

REAL ID Act previously contained only the initial language

eliminating entirely any presumption of credibility, see

151 Cong. Rec. H536–37 (daily ed. Feb. 10, 2005)

(reproducing text of H.R. 418, as considered by the House);

the exception to that general rule was later added by a HouseSenate conference committee before final passage, see H.R.

Conf. Rep. No. 109-72, at 73–74 (2005); see also id. at 168,

reprinted in 2005 U.S.C.C.A.N. 240, 293. Accordingly, if the

panel majority is correct that the “rebuttable presumption”

exception does not apply in this court, then the result would

be that the default general rule applies instead—i.e., that

“[t]here is no presumption of credibility” in this court. That

would abrogate the deemed-credible rule completely, and it

would mean that this court would not use any presumption of

credibility (rebuttable or irrebuttable) in conducting its
DAI V. SESSIONS 47

otherwise deferential review of the agency’s decision. See

Huang v. Holder, 744 F.3d 1149, 1153 (9th Cir. 2014).

Notably,such a reading ofsection 208(b)(1)(B)(iii) would

bring our approach to review in line with that of the First

Circuit, which has “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.” Kho v. Keisler, 505 F.3d 50, 56 (1st Cir. 2007); see also

Zeru v. Gonzales, 503 F.3d 59, 73 (1st Cir. 2007) (“There is

no presumption that an alien seeking refugee status is

credible. Nor is there an assumption that if the IJ has not

made an express finding of non-credibility, the alien’s

testimony must be taken as credible.”). Although Kho agrees

with the panel majority’s conclusion that the REAL ID Act’s

rebuttable presumption of credibility does not apply in the

courts of appeals, see 505 F.3d at 56—a conclusion I think is

wrong for the reasons stated above—the First Circuit reached

that conclusion only in the course of rejecting the petitioner’s

contention that the REAL ID Act required the First Circuit to

replace its rule of no presumption of credibility with a

rebuttable presumption. See id. at 56–57. The resulting First

Circuit position—that no presumption of credibility

applies—conflicts with our continued adherence to the

deemed-credible rule, thereby confirming a circuit split. 

Moreover, unlike our deemed-credible rule, the First Circuit’s

no-presumption rule is at least consistent with the default rule

that would apply under the REAL ID Act if the First Circuit

and the panel majority were correct in holding that the

rebuttable-presumption exception does not apply in the courts

of appeals. See 8 U.S.C. § 1158(b)(1)(B)(iii) (“There is no

presumption of credibility....”).
48 DAI V. SESSIONS

III.

Second, the panel majority committed a wholly separate

legal error in declining to give effect to the BIA’s express

conclusion that, given the IJ’s detailed findings, Dai had not

been truthful concerning his family’s return to China.

While agreeing that the IJ had not made an “explicit

adverse credibility finding,” the BIA here went on to note that

the IJ’s detailed findings established that Dai had not been

“truthful” about his “family voluntarily returning” to China. 

Dai, 916 F.3d at 747 (Trott, J., dissenting) (reproducing BIA

decision). In thus correctly recognizing that the IJ’s findings

precluded any suggestion that the IJ found these aspects of

Dai’s statements credible, the BIA did not engage in its own

factfinding, but instead properly read the record of the IJ’s

findingsin accord with the applicable rebuttable presumption

of credibility. 8 U.S.C. § 1158(b)(1)(B)(iii); cf. 8 C.F.R.

§ 1003.1(d)(3)(iv) (BIA does not engage in independent

factfinding).2 Although the BIA did not expressly invoke that

2 Throughout its opinion, the panel majority uses imprecise language

that could be misread to suggest that, under the REAL ID Act, the BIA

has independent authority to make an adverse “finding” of credibility that

the IJ did not make. See, e.g., Dai, 884 F.3d at 863 (“We think it not too

much to ask of IJs and the BIA that they make an explicit adverse

credibility finding”) (emphasis added); id. at 865 (“The BIA

acknowledged that the IJ did not make an adverse credibility finding and

also did not make one itself.”) (emphasis added); id. at 867 (noting that the

BIA “also made no adverse credibility finding”) (emphasis added); id.

at 869 (deemed-credible rule applies “when the BIA has on appeal neither

affirmed an adverse credibility finding made by the IJ nor made its own

finding after deeming the presumption of credibility rebutted”) (emphasis

added). Given that only the IJ engages in factual finding, and not the BIA,

see 8 C.F.R. § 1003.1(d)(3)(iv), I construe these comments by the panel

majority to instead be referring only to the BIA’s explicit authority under
DAI V. SESSIONS 49

rebuttable presumption, its analysis in construing the IJ’s

findings reflects precisely what the REAL ID Act authorizes

the BIA to do. In turn, the resulting express adverse

credibility determination that is properly recited in the BIA’s

decision should have precluded the panel majority from

invoking the deemed-credible rule even on that rule’s own

terms. Cf. Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.

2010) (so long as the finding is “explicit,” an “adverse

credibility finding does not require the recitation of a

particular formula”).

The panel majority nonetheless refused to give effect to

the BIA’s explicit determination that the record established

that Dai had not been truthful, and it therefore proceeded to

apply the deemed-credible rule. The panel majority gave

several reasons for doing so, but all of them are flawed.

First, the panel majority wrongly dismissed the BIA’s

determination as the “‘sort of passing statement [that] does

not constitute an adverse credibility finding.’” Dai, 884 F.3d

at 867 (quoting Kaur v. Holder, 561 F.3d 957, 962–63 (9th

Cir. 2009)) (emphasis added). As Judge Trott’s dissent

makes clear, the BIA’s express adverse credibility

determination on this point was not a “passing” one—it

related directly to the central issue of why Dai sought to

remain in the United States, and it refuted his claim that he

had a well-founded fear of persecution if he returned to

China. See Dai, 916 F.3d at 747–48 (Trott, J., dissenting). 

the REAL ID Act to determine that the record rebuts the presumption that

the IJ found the applicant credible. To avoid any suggestion that the BIA

is itself engaging in independent factfinding, I will refer in this dissent to

the BIA’s “determination” concerning what the IJ’s findings show about

the applicant’s credibility.
50 DAI V. SESSIONS

For the same reasons, the panel majority is equally wrong in

its assertion that Dai’s untruthfulness related only to a

“tangential point.” Dai, 884 F.3d at 873.

The panel majority’s citation of Kaur only highlights its

error on this score. In Kaur, we held that the BIA erred when

it invoked the IJ’s vague and passing comment that “there are

certain instances where this court does not find the

Applicants’ testimony to be credible” in order to overturn the

IJ’s explicit “affirmative credibility finding” as to one of the

two Applicants—i.e., Kaur. 561 F.3d at 962–63; see also id.

at 962 (noting that the IJ had found that Kaur was “a

convincing witness” with a “credible demeanor” and whose

“testimony was detailed, consistent and plausible”). As we

explained, the IJ’s “passing” and “selected reference” was

“not even specific to Kaur” and could not properly be read to

“undermine or detract” from the specific and detailed

“positive credibility finding” as to Kaur. Id. at 963; see also

id. (“From this truncated reference, one would be hard

pressed to identify any basis for finding a lack of credibility

as the IJ identified none.”). Here, in sharp contrast to Kaur,

(1) the BIA did not overturn an express finding of credibility

by the IJ; and (2) the BIA made a specific determination that

the IJ’s findings established that Dai was not credible as to a

particular point.

Second, the panel majority alternatively stated that the

BIA’s determination that Dai had “lied about one particular

fact” could be disregarded because it did not amount to a

“general adverse credibility finding.” Dai, 884 F.3d at 867

(emphasis added). That is plainly incorrect, and the

implications of such a rule would be quite troubling. The

normal rule in any adjudication is that a trier of fact may

believe or disbelieve a witness’s testimony in whole or in
DAI V. SESSIONS 51

part, see, e.g., Li v. Holder, 738 F.3d 1160, 1163 (9th Cir.

2013), and there is no basis for adopting, in the immigration

context, the distinctive (and illogical) rule that credibility

must be determined on a “general” basis. Cf. Toufighi v.

Mukasey, 538 F.3d 988, 994–95 (9th Cir. 2008) (although, as

the applicant noted, “the IJ found him generally credible,”

this court concluded “that the IJ did make an express adverse

credibility determination” as to the specific issue of his

“claim that he converted to Christianity”). In support of its

position, the panel majority pointed to authority holding that

a vague and tentative statement “‘that a petitioner is “not

entirely credible” is not enough’ to constitute an adverse

credibility finding,” Dai, 884 F.3d at 867 (quoting AguileraCota v. INS, 914 F.2d 1375, 1383 (9th Cir. 1990)) (emphasis

added), but here the BIA’s adverse credibility determination

was explicit, direct, and specific. Accordingly, nothing in

Aguilera-Cota supports the panel majority’s novel suggestion

that a partial finding of untruthfulness is inadequate, and that

only a “general adverse credibility finding” will do. (And if

Aguilera-Cota had adopted that view, then we should

overrule that case en banc as well.)

Moreover, by failing to give effect to the BIA’s explicit

determination that the record revealed Dai’s partial lack of

truthfulness, the panel majority effectively created yet

another flawed “Simon says” rule, in addition to our deemedcredible rule. Under the panel majority’s decision, the BIA’s

failure to expressly state that it was invoking the REAL ID

Act’s rebuttable presumption in this case means that this

court should act as if the BIA had not done so. The panel

majority erred by yet again devising counterfactual

presumptions that distort our reading of the administrative

record on appeal.
52 DAI V. SESSIONS

* * *

Given that we have eschewed a magic-words approach to

explicit credibility determinations, the BIA’s express

statement that Dai was not “truthful” was a permissible

application of the REAL ID Act’s rebuttable presumption of

credibility, and that statement is sufficiently explicit to

preclude application of the deemed-credible rule on its own

terms. But more importantly, the REAL ID Act expressly

abrogates the deemed-credible rule entirely and replaces it

with, at most, a rebuttable presumption of credibility. And

here, any presumption that the IJ actually believed Dai’s

statements about his family’s voluntary return has been

amply rebutted. Our persistence in applying an irrebuttable

presumption that is at odds with the statute and at odds with

a common-sense reading of this record is deeply troubling

and warrants en banc review.

I respectfully dissent fromthe denial of rehearing en banc.