FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

M I NG D AI , Petitioner
,

v

.

W I LL IAM P. B AR

R , Attorney General, Respondent. No. 15-70776

Agency No. A205-555-836

ORDER

Filed October 22, 2019

Before: Sidney R. Thom as, Chief Circuit Judge, and Stephen S. Trott and Mary H. Murguia, Circuit Judges.

O rder; Statem ent Respecting Denial by Judge Trott; Dissent by Judge Callahan; Statem ent Respecting Denial by Judges O’Scannlain

and Trott; Dissent by Judge CollinsD AI V

. S E S S I O N S 2

SUMMARY *

Immigration

The panel d e n ie d a petition for rehearing en banc on behalf of the court.

Dissenting from the de n ial of rehearing en banc, Judge Callahan
, j oined b y Judges Bybee, Bea, M. Sm ith, Ikuta, Bennett, R. Nelso n, 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 o f holding that, absent an explicit adverse credibility ruling, an imm igration judge m

u st take as true an asylum applicant’s testim ony that sup p o rt s a claim for asylum
, even in the face of other testim ony from the applicant that would underm ine

an asylum claim
, thereby restoring this circuit’s prior errant “deem ed true” rule that Congress abrogated when it enacted the REAL ID Act. Judge Callahan explained that the panel’s d ec ision ties the hands of IJs who are presented with conflicting evidence, effectively forcing them to accept an applicant’s favorable testim ony as the wh o le truth and to disregard unfavorable evidence—even wh e n it is the applicant’s own testim ony—unless they affirm atively m ake

an adverse credibility fi nding, thus transform ing the lack o f

an express adverse credibility ruling into an affi rmative conclusion that th e applicant’s proffered reason for seeking asylum is true. Judge Callahan wr o te that the panel’s decision is contrary to the statute, this court’s precedent, and the rulings of sister circuits, and that in addition t o

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.D AI V

. S E S S I O N S 3

overstepping the court’s lim ited role in reviewing the agency’s d e cision, is also b ad policy. Judge Callahan also
wrote that by directing the agency to grant withholding relief and treat petitioner as eligible to asylum
, the p anel

com po un de d its error by failing to follow the ordinary

rem and rule, and allowing the agency the first shot at applying the m ajority’s new rule.

Dissenting from th e denial of rehearing en banc, Judge Collins, joined by Judges Bybee, Bea, Ikuta, Bennett, R. Nelson, and Bade, agreed wi th Judge Callahan that the
pane l m ajority’s opinion effectively revives this court’s discredited prior “deem ed-true” rule in c o ntravention o f controlling statutory language, precedent of this court an d other circuits, and comm on sense. In Judge Coll i n s’s v iew, the problem s with the p anel m ajority’s opinion run even deeper by com

m itting a further serious legal error, and reinforcing a circuit split, in holding that th e REAL ID A ct did not abrogate a s e c ond “deem ed-credible” rule, whereby this court conclusively presum es an applicant’s testim ony to be credible unl ess the agency has m ade an explicit adverse credibility finding. Judge Collins wrote that the REAL ID A ct exp ressly ab ro g ated t

h e d eemed -credible rule entirely an d

r e p laced it w ith, at m o st, a rebuttable presum ption o f credibility. Judge Collins reasoned that the Board’s express statem ent that petitioner was not “truthful” was a perm issible application of the REAL ID Act’s rebuttable presum ption o f credibility, and sufficiently explicit to preclude this court’s application of the deem ed-credible rule in this case.

Respecting the d enial of rehearing en banc, Judge Trott, joined b y Judge R. Nelson, wrote that instead of following the REAL ID Act, this court h as perpetuated a contrived rule that in the absence of an adverse credibility finding, a petitionerD AI V

. S E S S I O N S 4

m ust be deem ed credible, and then used th at conclusion to

o v erride a n IJ’s an d t

h e Board’s well-su

p p o rted d etermin atio n that the petitioner’s case was not sufficiently “persuasive” to

m eet h is burden of proof. Judge Trott wrote that, in doing so, the panel has rewritten the REAL ID A ct, ignored Congress, and created an inter-circuit split.

Respecting the d e n i al of rehearing en banc, Judges O’Scannlain and Tr o tt agreed with the views expressed by Judge C allahan in her dissent from the denial of rehearing en banc.

C OUNSEL

David Z. S u, Law Offi c e s of David Z. Su, W est Covina, California; D avid J. Z imm er, Goodwin Procter LLP, B oston, Massachusetts; W illiam M. Jay, Goo dwi n Procter LLP, W ashington, D.C.; for Petitioner.

Aim ee J. Carm ichael, Senior Litigation Counsel; Mary Jane Candaux and John W

. Blakeley, Assistant Directors; D onald Keener, Deputy Director; Office of Imm igration, Civil Division, United States Departm ent of Justice, W ashington, D.C.; for Respondent.D AI V

. S E S S I O N S 5

ORDER

The full court h as been advised of th e p etition for

r e h earing en banc. A judge requested a vote on whethe r t o rehear the m atter en banc. The m atter failed t o r e c e i v e a

m ajority of the votes o f the n onrecused active judges in favor of en banc consideration. F ed R. App

. P. 3 5. Judge Miller was recused and did not participate in the vote.

The petition f

or rehearing en banc is denied. Attached are dissents from an d statem ents respecting the denial o f rehearing en banc.

TROTT, Circuit Judge, * * wi th 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 ab s e n c e o f an adverse credibility finding, a p etitioner m ust be deem ed credible. W e then use that conc l us i o n to override an Imm igration Judge’s (“IJ”) and the Board of I mmigration Appeals’ (“Board”) well-supported determ ination that this petitioner’s case was not “persuasive.” In so doing, we have rewri tten the Act. W e have a long history of ignoring Congress and the Suprem e Court, and h ere we h av e d o ne it

** A s a judge of this court in senior status, I no longer have the power to v ot e o n c a lls for rehearing cases en banc or f orm ally to join a dissent fro m failure to rehear en b anc. See 28 U.S.C. § 46(c); Fed. R. App. P. 35(a). Following our court’s general o rders, however, I m ay participate in discussions of en banc proceedings. See Ninth Circuit Gene ral Order 5.5(a).D AI V

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again. See Da i v. Sessions
, 916 F.3d 731, 875–93 (9th Cir. 2019) (Trott, J., disse nt i n g ). Moreover, the panel m ajority opinion creates an intercircuit conflict. I will address that problemlater in Part IV.

I

As explained in hi s thorough and convincing d ecision, Imm igration Judge Stephen Griswold, de t erm ined that D ai had not m et his statutory burden of persuasion on the central issue o f whether he was eligible as a refugee for asylum

. The docum e nt e d fatal flaws in Dai’s case were (1) his g laring
attem p t to deceive the asylum o fficer by concealing highly probative dam aging facts that go to the very core of h is case, facts that Dai also om itted from h is Form I-589 ap p l i c ation for asylum
, (2) his adm is sion when pressed that his deceit

was intentional, dr iven by h is understanding that the concealed evidence would dam age h is probability of success, (3) his inadequate explanations for the contra d ic t i o ns in his presentation, (4) his telling dem eanor on cross exam ination, and (5) the “real story” b ehind his departure from C hina and his decision not to return w ith his wife and daughter. The IJ
regar d ed these flaws as dem o n strating a “lack o f forthrightness.” Accordingly, the IJ concluded pursu ant to the language o f the Act that Dai’s case w as not “persuasive.”

Reviewing de novo whether Dai had adequat e l y m et his burden of persuasion that he was eli g ible for asylum
, the Board of Imm igration Appe al s a g r e ed that he had not. T o support its conclusion, the Board refere n c ed the sam e

m aterial flaws the IJ found as f acts. Their reasoned decision should end this case, but w ith all respect, the panel m ajority and now our court have converted this straightforward m atter into a textbook exam

ple of elevating form over s ub s tance,D AI V

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taking a blue pencil to the Act’s requirem ent th at an applicant’s case m

ust be “persuasive” and i n appropriately substituting our judgm ent for the Board’s.

II

Here is Judge Griswold’s com pelling decision. Reading it illustrates how wrong our court’s analysis is.

I have carefull y considered the respondent’s testim ony and evidence and f or the following

r e asons, I find that the respondent has fai l e d
to m eet his burden of p roving eli gibility for asylum

.

The principal area of concern with regard to the respondent’s testimony arose during the

course of his cross-exam ination. On crossexam ination, the respondent was asked about

var i o u s aspects of his interview with an Asylum Officer. The Departm ent o f Hom eland Security also subm itted the notes of that interview as Exhibit 5. The respondent

w as asked sp ecif

i c q u estio n s r eg arding several aspects of h is testim ony b efore the Asylum Officer. In the course of cross-exam ination, the res p ondent 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 h ad

a sk ed him if his wife and daughter travelle d anywhere other than to Taiwan and Hong Kong. The respondent conceded that he wasD AI V

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a sked this question and that he replied y e s , they had travelled to T aiwan and Hong Kong. Th e respondent was asked whether the Asylum Officer inquired whether his wife and d aughter had travelled elsewhere. The respondent then testified before the Court that he wa s a s k ed this q

uestion, “but I was nervous.” In this regar d
, I note that the responden t did not directly answer the question; i ns t ead leapt directly to an explanation fo r what his answer m ay have been, n am ely th at he was nervous. The respondent was th en asked specifically whe ther the Asylum Officer asked him if his wi fe had travelled to Australia in 2007. Th e respondent confirm ed that he had been asked this question, and he confirm ed th at the

answer was in th e affirm ative. The

r e spondent also confirm ed that the Asyl um Offi c e r had asked him whether she h ad travelled anywhere else. He confirm ed that he had b een so asked. The respondent was then asked whether he answered “no,” that she h ad
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 -exam ination, why he had not said to the Asylum Officer that y es, she had trave l l e d to the United States. The respondent replied that he had not thought of it. He stated that th ey d i d com e with him (m eaning his wife and daughter) and that he thought the Asylum O fficer was asking him if th ey h ad travelled anywhere other than theD AI V

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United States. He expl a i ne d that he did so because he assum ed the U .S. G overnm ent h ad the records of their travel to the United States. On further questioning, the responden t eventually hesitated at som e leng th when asked to further explain why he did not disclose spontaneously to the Asylum Officer that his wife and daughter had com e with him

. Th e respondent paused at som e length and I observed that the respondent appeared

nervous and at a loss f

or words. However, after a fairly leng thy pause, the respondent testified that he is afraid to say that his wife and d aughter cam e here and why they w ent back. The respondent was asked wheth e r he tol d the Asylum Officer that he was afraid to

answer directly. T he respondent initially testified that h e forgot and did not rem em ber whether he said that. He again reiterated that he was v ery n ervous. H e was then asked the question again as to whether he t ol d the Asylum Officer that he was afraid to answer why his wife and daughter had gone back. He
the n conceded that m aybe, yes, he h a d answered in that f

ashion. The respondent was asked whe ther the Asylum O fficer inquired why his wife and daughter went b ack, 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 m oney (referring to the schooling for his daughter). The respondent was then asked to confirm that the A sy lu m Officer eventually asked him to tell him the real story as to whyD AI V

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his family travelled to the United States and returned to China

. The respondent confirm ed that he was asked this q uestion and when asked, whether he replied that it was because he want ed a good environm ent for his child and because his wife had a job and he did not and that that is why he stayed here. He

c on fi rm ed that he did, in f act, say that. Th e respondent was further asked, dur ing the

course of testim ony in court, why his wife and daughter returned to China. In this regard, the respondent testified that they cam e 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 b ecause his daughter needed to graduate school in China.

The respondent f

urther claim ed that his wife h ad, in fact, suffered past persecution in th e form o f a forced abort ion and the respondent confirm ed that he fe ar e d his wife and daughter would suffer future persecuti o n. In
this regard, the respondent q ualified his

answer by saying that his wife w as now on an IUD, apparently thereby suggesting that the risk o f perse c ut i o n is reduced. However, the respondent did concede that the risk of future persecution also pertai n s to his daughter. Indeed, in this regard, the respondent testified that this is, at least in part, why he applied for asylum

.D AI V

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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 duri ng the course o f that interview. Furthermore, I note that in the sections in which the respondent equivocated, stating that he was nervous and n ot sure that he g ave those precise answers, I nevertheless give the Asylum Officer’s n otes 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 u ltim at e ly 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, h e did give a sim ilar answer as to why he was testifying in this regard. I n other words, the respondent appears to have stated, both before the Asylum Officer and in court that he d i d n ot spontaneously disclose the travel of his wife and daughter with him to the United States and their return because he was

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

. I f

urther note that the Asylum Officer’s notes are internally consistent wi th regard to references to earlier questions, such

as whether the responde nt 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 appliedfor his visa with anyone else a nd the notesD AI V

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indicated that h e stated that, “no, I applied by
mys elf.” Similarly, I note that the testimo n y before the Asylum Officer and the Court is

c o n s is t e n t w i th th e o m is s i o n i n th e respondent’s Form I-589 application for asylum, of an answer to the q uestion of the date of the previous a rrival of h is wife, if she had previously been in the United States

. See Ex h i b i t 2, page 2
, part A.II, question 23. When asked about this om issi on, the respondent expressed surprise, stating that he told the preparer about their trip and indicated that he thought it h a d been filled out. N o tw i th standi n g th e resp o n d ent’s statem e nt in thi s regard, I do observe that the omission is consistent with his lack of forthrightness befor e 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 testim ony before the Court and his testim ony regarding the Asylum Officer notes, as well as the notes them selves,

c learly indicate that the respondent failed t o spontaneously disclose th at his wife and daughter cam e with himand then returned to Ch i n a. His testim o ny and the notes also consistently de m onstrate that the respondent paused at length, both befor e the C ourt and before the Asylum Officer, when asked about this topic. His testim ony and the As y lum Officer notes are also consistent in indicating
that h e ultim ately testified that he was afraidD AI V

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to say that his wife cam e here and was afraid of being asked about why s he went back. Furthermore, th e respondent h as conceded that he was asked to “tell the real story” about h is family’s travel to the United States by the Asylum Officer, and that h e replied that he wanted a good environment for his child

a n d h is wife h ad a job, but he did not, an d that is why he stayed here

.

In Loho v. Mukasey
, 5 3 1 F.3d 1 0 16, 1018–19 (9th C ir. 2008), th e Ninth Circuit addressed the situation in which an asylum applicant has found safety in th e United S tates and then
returns to the country claim ed of persecuti on before ev e ntually finding asylum in the United States. The Ninth Circuit held that the applicant’s v oluntary return to the country o f claim ed perse cution m ay be considered in assessing b o th credibility and whether the respondent has a well-founded f ear o f persecution in that country. Her e, while the respondent him self has not returned to China, his w ife and daughter did. Indeed they did so shortly after arriving in the United States, and the respo n d ent confirm ed that they did so because the sc h o o ling is cheaper for his daughter in China, a s well as because his father-in-law is elderly and needed to be cared for. The respondent also t o l d the Asylum Officer that the “real story” about whey [sic] his fam ily returned was that his wife had a job and he did not, and that is why he stayed here. T h is is co nsistent with respondent’s testim o nyD AI V

. S E S S I O N S 14

b e fo re the Court that he did not have a job at the tim e he cam e to the United St at e s

. Furthermo r e, I note that the respondent’s claim of persecution is founded o n the alleged forced abortion inflicted upon his wife. That i s th e central elem ent o f his claim

. The respondent c laim s that he him self was persecuted through his resistance to that abortion. N ev e rtheless, the fact rem ains that the fundam ental thrus t of the respondent’s claim is that his wife was forced to have an abortion. In this regard, the respondent’s wife therefore clearly h as an equa l, or stronger, claimto asylum than the respondent him self, assumi ng the facts which h e claim s are true. The r e sp o n dent was asked why his wife did
not stay and apply for as ylum and he replied that he did no t kn o w they could apply for asylum at the tim e they depart e d

. The respondent was then asked why h e 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

.

Wh ile Loho v. Mukasey applies to th e applicant him self returning to China, I find that the reasoning of the Ninth Circuit in that

cas e is fully applicable to the respondent’s situation in that his wife, who is the primary object of the persecution in China, f reely chose to return to C hina. I d o notfind that the respondent’s ex

p lanations for her return to China while he rema ined here are adequate

. The respondent has stated that he was in a b adD AI V

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m ood and that he had found a job and had a friend here. T he respondent has also indicated that h is daughter’s education would be cheaper in China than her e , an d he has also indicated that his wife wanted to go t o t ak e

c ar e of her f

ather. I do not find that the s e

rea s o ns are sufficiently substantial so as to outweigh the concerns raised by his wife and daughter’s free choice to return to China after h aving allegedly fled that country followin g his wife’s and his own persecution.

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

res pondent has failed to m eet his burden o f provi n g eligibility for asylum under Section 208(a) of the Act.

(Em phasis added).

III

Assum ing for the sake of argum ent only that the Imm igration Judge’s findings of Dai’s (1) “ l a ck o f forthrightness,” (2) guilty dem eanor, (3) inadequate explanat i ons for his adm ittedly contradictory answers, and (4) willful concealm ent of relevant inform at i o n did not

am o unt to an “explicit” adverse credibility determ ination, then Dai is statutorily entitled to a “rebuttable presum ption o f credibility on appeal” – to the Board. On appeal to the Board, however, they dism issed this pr e s ump tion, as was their statutory prerogative, concluding in the words of the Act that Dai’s case was not persuasive:D AI V

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W e review for clear error the findings of fact, including determ inations of credibility, m ade by the Imm igration Jud g e

. W e review de

novo all other issues, incl ud ing whether the parties have m et 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.

W e adopt and affirm the Imm igration Judge’s decision in this case. The Imm igration Judge

co rrectly denied the respondent’s applicatio n s for f ailure to m eet his b urden of proo f. The

r e cord reflects that the respondent failed t o disclose to both the [DHS] asylum officer and the I mmigration Judge that his wife and daughter had traveled with himto the United States and v oluntarily returned to China shortly after. The respondent f u r ther conceded that he was n ot forthc o mi ng 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 eld erly father, a n d that their daughter could attend school in China for less money than in the United States – would be perce ived as inconsistent with his claims of past and feared future persecution

.

The Imm igration Judge correctly decided that the voluntary return of the respondent’s wife and daughter to China, after allegedly fleeing fo l l owing the persecution of the respondentD AI V

. S E S S I O N S 17

and h is wi fe, prevents the respondent from

m eeting his b urden of p r oving his asylum claim

. Contrary to the resp o n d en t’s a rgument

on appeal, the Immigration Judge n e ed not have made an explicit adverse credibility finding to nevertheless de termine that the respondent did n ot m eet h is burden of proving his asylum claim

. The r e s pondent’s fam ily voluntarily returning and his not being truthful about it is d

etrimental to his claim and is significant to his burden of proof

. (Em phasis added) (footnote and citations om itted).

IV

In Kho v. Keis le r , 505 F.3d 50 (1st C ir. 2007), the First Circuit understood the A c t’s effect on the issue of an applicant’s credib ility. Not only did our sister circuit correctly com

prehend the Act’s im

pact, but it considered and rejected our approach to this imp ortant subject.

Kho supplem ents his ‘disfavored group’ approach with an argum ent that because the IJ did not m ake an explicit finding concerning Kho’s cre d i b ility, his testim o ny ‘m ust be accepted as true’ by this court. Kho bases this
pro p o sed rule as well on a series of Ninth Circuit cases. . . .

W e have already rejected the proposition that aliens are entitled to a p resum ption o f credibility on review in this court if there is noD AI V

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express credibility determ ination m ade by an IJ. . . .

The REAL ID Act also provides no support for Kho' s argum ent. . . .

Kho , 505 F.3d at 56–57.

Th e court f

urther explained that the Act’s reference to a “rebuttable presum

ption” applies only to an appl i c ant’s appeal to the BIA, not to “reviewing courts of appeal

. ” I d

. at 56.

Accordingly, not only does our co urt ’ s decision violate the directions of the Act, but it creates an intercircuit conflict with Kho

.

V

Whether or n ot this petitioner attains asyl um i n our country is o f mi n or concern, but the significant dam age our court has done to the Act and to Congress’ attem pt to stop us from substi tut i ng o ur judgm ent for the Board’s are m atters that m u st be corrected. Thus, I disagree with our decision not to rehear en banc this case.D AI V

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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 imm igration judge (IJ) has the task o f evaluating an asylum application. Here, in denying en b an c r e view, we have condoned a d ecision b y a three-judge panel that takes the extrao rdinary position o f holding that, absent an explicit adverse credibility ruling, an IJ mu s t take as true an asylum applicant’s testim ony that

s up ports a claim for asylum
, even in the face of o th e r testimo n y f ro m th e ap plicant that w ould underm ine an asylum claim

. This m akes no sense and ignores the realities o f factfinding. O ur decision restores our p rior errant rule that Con g r e s s abrogated. As we have declined to correct this

erroneous deci s i on ourselves, hopefully the Suprem e Court will do so.

Before Congress enacted the REAL ID Act, our court h ad fashioned unique rules d evised to restrict the ag e n c y ’s discretion in adjudicating asylum claim s. The REAL ID A ct broadened the agency’s discretion. In explaining the

am endm ents, Congress si n gled out our court for adopting rules that strayed from all other circuits and the Board o f Imm igration Appeals. In this case, the divided panel ignored this history and revived a rule that we p r eviously said was “swept away” by the REAL ID Act. Aden v. H older
, 589 F.3d 1040, 1045 (9th Cir. 2009).

The immigration ju d ge here was presented with conflicting statem ents from the asylum applicant, Ming Dai, abo ut why he cam e to and sought to rem ain in the United States. T he IJ did not m ake an express adverse cred i b i lityD AI V

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finding b ut instead f

o un d Dai’s testim o ny was not sufficiently persuasi v e t o meet his burden of p roof. The p anel m ajority erroneously concluded that, absent an explicit, cogentlyexplained adverse credibility finding, an IJ is required to accep t th e favorable p ortions of an asylum applicant’s testim ony as the unassailable truth.

According to the panel, in weighing the p ersuasiveness o f the asylum applicant’s testim o ny, an IJ m ust ignore any unfavorable testim ony b e cau se su ch t estimo ny —which could im pugn the app lican

t’s credib ility

—“ can n o t b e sm u g g led into the persuasiveness inquiry.” Dai v. Sessio n s , 8 8 4 F.3d 858, 872 (9th Cir. 2018). The p anel’s holding allowed it to “expunge f

rom the r ecord the blatant flaws in Dai’s
p e r f o r m a n c e i n v o l v i n g d e m e a n o r , c a n d o r , a n d responsiveness,” Dai v. Barr
, 916 F.3d 731, 747 (9th Cir. 2018) (Trott, J., dissenting), thus ty ing the IJ’s hands in carrying out the statutory role as trier of fact.

The p anel’s holding is contrary to the s t atute, our o wn precedent, and the rulings of our sister circuits. In addition to

ove r s t e p ping o ur lim ited role in reviewing the agency’s decision, the holding is also bad policy. Just because testim ony is credible (i.e., believable), it d oesn’t m ean it m ust be whol l y a cc e p ted as the truth. A f actfinder m ay resolve factual i ss ues against a party without expressly finding that party not credible. This is a regular, n on-controversial occurrence in everyday litigation.

On close exam ination, the pan el ’s artful evasion of the REAL ID Act is nothing short of an outright arrogation of the agency’s statutory duty as trier of f act. After adopting its illadvised rule, th e pan el took up the m antle of factfinder and pronounced that Dai’s testim ony is persuasive. In doing so,D AI V

. S E S S I O N S 21

the panel “intrude[d] upon the [factfin d i n g ] dom ain which Congress has exclusivel y entrusted to an adm inistrative agency.” INS v. Ventura
, 537 U.S. 12, 16 ( 2 002) (quoting SEC v. Chenery Corp.
, 318 U.S. 80, 88 (1943))

. W e are asking yet again to be summ arily reversed for vio lat i n g the “ordinary rem and rule.” S ee Gonzales v. Thomas
, 5 4 7 U.S. 183, 187 (2006); Ventura , 537 U.S. at 18.

I.

A

.

Petitioner Ming D ai, a c it izen of China, challenged the IJ’s finding—adopted and affirm ed b y the BIA—that Dai’s testim ony was not persuasive in showing that he is a refugee. Dai’s claim fo r a sylum is p rem ised on events occurring in China in July 2009, whe n fami l y planning officials cam e to take h is pregnant wife for an abortion. Dai claim ed he f ought with officers, after whi c h he was d etained for ten days and eventually fired fr om h i s job. While Dai was detained, his wife was allegedly subjected to a forced abortion.

Dai stated in the affidavit accom panying his application that he sought asylum because he wished to “bring [his] wife and daughter to safety.” In fact, Dai’s wife and daughter h ad entered the United States with him but had voluntarily returned to C hina shortly thereaf ter. Dai neglected to disclose this inform ation in his application, affidavit, interview with the asylumofficer, or on direct exam ination before the IJ.

The IJ found Dai’s claim for asylum unpersuasive. In the IJ’s v ie w, “[t]he principal area of concern” was Dai’s
tes t i mo ny d

uring cross-exam ination. The IJ noted Dai’s evasive answers to questions about his interview wi th theD AI V

. S E S S I O N S 22

asylum officer. During c r oss-exam ination, Dai was asked why he had not revealed that his wife and daughter had com e with him to the United States and why they returned to China shortly thereafter. “[A]fter a fairly lengthy pau s e, ” and appearing to the IJ to be “nervous and at a loss for wo r d s,” Dai stated that he was afraid to speak about his wi fe and daughter. When as k e d by the asylum officer what he was afraid o f, Dai said he was afraid the officer would ask why his wife and daughter willingly went back to China. Dai was app ar ently concerned that revealing the facts about his wife and d au g hter would undercut h is claim that he wished to bring them to safety. Da i eventually admitted that the “real story” f o r why he stayed in the United States when h is f am ily returned to China was because “he was in a bad m ood and he wanted to get a job and a friend o f m ine is here.” In essence, the IJ credited Dai’s “real s t o ry ” that he cam e to the United States to seek em

ploym ent, rather than his story that he cam e to flee persecution.

The B IA adopted and affirm ed the IJ ’ s d ecision, concluding that the voluntary return of D ai’s fam ily to China and hi s fa ilure to be forthcom ing with that inform ation was “detrim ental to his claim ” and “significant to his burden o f proof.”

B.

Da i sought review in our court. In his bri e f, Da i
presum ed the agency m ade an adverse credibility findin g , and he argued only that the IJ’s determ ination that he failed to

m eet his burden o f proof was not supported b y substantial evidence. The governm ent, in response, argued Dai failed to show that the record com pels a conclusion that h e m et his burden of proof.D AI V

. S E S S I O N S 23

A split p anel granted Dai’s petition. The m ajority stated that, under the REAL ID Act, an applicant’s testim ony alone “is sufficient” 1 to establish eligibility for asylum provided the “testim ony i s credible, is persuasive, and refers to specific facts sufficient to dem onstrate that the applicant is a refugee.” Dai
, 884 F.3d at 867 (citing 8 U .S.C. § 115 8 ( b ) ( 1 ) (B)(ii)). De parting from the issue as fram ed by the parties, 2 th e

m ajority h eld that, because n either the I J n or BIA m ade an explicit adverse c r e d ibility ruling, Dai m ust b e “deem ed credible.” Dai
, 8 8 4 F.3d at 868. T he m ajority concluded that nothing in the REAL ID Act abrogated our pre-REAL ID A ct rule that an applicant m

ust be deem ed credible in the absence of an exp l i ci t adverse credibility determ ination. Id. at 868–69.

The panel m ajority th e n expanded the im pact of that holding by adopting a n o vel rule constraining an IJ’s ability
to weigh the evi d e n c e when no express adverse credibility ruling has been m ad e

. Th e m ajority held that, in weighing the persuasiveness of an applicant’s claim
, an IJ is precluded from considering evidence—even th e applicant’s o wn adm issions—that might imp u g n the applicant’s credibility. Id. at 872 (“Credibility concerns that do not justify an adverse

c r e d i b i l i ty f

i n d i n g c a n n o t b e s mu g g l e d i n t o t h e

1 The statute actually says “m ay be sufficient,” not “is s u ffi c i e nt.” See8 U.S.C. § 1158(b)(1)(B)(ii).

2 As noted in Judge Trott’s dissent, because the go v ernm ent “responded only to the claim s and argum ents D ai inc l u d e d i n his brief,” it did not have “an o p p o rtun i ty to respond to the m ajority’s inventive analysi s , nor to the theory concocted by the m ajority on Dai’s behalf.” D a i
, 9 16 F .3d at 733 (Trott, J., dissenting). Judge Trott predicted t hat “[b]oth sides will be surprised by m y colleagu es’ artful o pinion—Dai pleasantly, the Attorney General not so m uch.” Id.D AI V

. S E S S I O N S 24

persuasiveness inquiry

. . . .”). T hat rem arkable h olding bears repeating: An applicant’s adm issions (or other evidence) that underm ine the persuasiveness of an a sylum claim m ust be disregarded if that evidence also bears on the ap p l icant’s credibility.

Th is invented rule enabled the m ajority to reject th e agency’s reasons for finding D ai’s claim not persuasive. Id.
at 870–73. Having wiped from the record Dai’s unfavorable testim ony, the m ajority assum ed the role of trier o f fa c t and
pro n ounced that “nothing [in the (now-cleansed) record] underm ines the persuasiveness of D ai’s credible testim o ny.” Id. at 871. T he m ajority thus held that Dai was eligible for asylum and entitled to withholding of rem oval. Id. at 8 7 4

. The m ajority reman d e d w ith in structions to grant withholding of rem o val and to decide whether D ai should also be granted asylum as a m atter of discretion. Id.

In dissent, Judge Trott wrote that “[t]he practical effect o f the m ajority’s rule i s breathtaking: T h e lack of a form al adverse credibility finding becom es a selective positive credibility finding and doom s a fact-based determ ination by

an IJ and the BIA that an applicant’s case is not suffi c i e nt l y p ersuasive to carry his burden of proof.” Dai
, 916 F. 3 d
at 735 (Trott, J.
, d i s s enting). Judge Trott argued that “[t]he IJ’s decision not to m ake an exp l icit adverse credibility finding is a red herring that throws our analysis off the scent and preordains a result that is incom patible with the evidentiary record.” Id. at 731. Judge Trott asserted that the

m ajority ignored “the IJ’s fact-based exp l anation for his decision” and several m aterial findings o f fact, “each o f which is entitled to substantial deference.” Id.D AI V

. S E S S I O N S 25

II.

A

.

Befo re th e enactm ent of the REAL ID Act, our court created what we characterized as a “deem ed true” rule. Ladha v. INS
, 215 F.3d 889, 900 (9th Cir. 2000). Under that rule, when “ an al i en credibly testifies to certain facts, those facts are d e em ed true.” Id. The “deem ed true” rule developed as an extension of two other rules—the rule that an app l i c ant would be deem ed credible in the absence of an adverse credibility ruling and the rule prohibiting factfinders from requiring corroborative evidence from c redible applicants. 3 Id. at 899–90 0 ; se e i d. at 899 (“‘[T]his court does not require corroborat i v e evidence,’ Cordon-Garcia v. INS
, 204 F.3d 985, 992 (9th Cir. 2000), from applicants for asylum an d w ithholding of deportation who have testified credibly.”).

The “deem ed true” rule and the rule against requiring corroborative e v i d e n ce did not escape criticism

. In p rior opinions, m em

bers o f our court observed that som e of our rules concerning credibility and standard of proof were out o f

3 In som e of o ur c a s es, w e have not been careful in our phrasing, using the e xp ressions “deem ed credible” and “deem ed true” interchangeably. For exam ple, the prim ary cas e th at the panel m ajority cited in support of the proposition that the “deem ed credible” rule survives the REAL ID Act states that the testim ony m ust b e treated as though i t is “true.” H u v. Holder
, 652 F.3d 1011, 1013 n .1 (9th Cir. 2011). Before the REAL ID Act and its i ntro duction of a requirem ent for corroborative evidence an d th e weighing of credible evidence, this im p r ecision o f language arguably m ade no p ractical difference. The n e w provisions o f 8 U .S.C. § 1158(b)(1)(B) now require adjudicators to distinguish between credibility and truth.D AI V

. S E S S I O N S 26

line with the approach followed by other circuits and contrary to the lim ited standard of review m andated by Congress. See,
e.g. , Quan v. Gonzales
, 428 F.3d 8 8 3, 892 ( 9 th Cir. 2 005) (O’Scannlain
, J., dissenting) (“I do not believe that an IJ’s decision should be overturned m erely 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, 1 138 (9th C ir. 2005) (“Tim e and again, h o wever, we have prom ulgated rules that tend to obscure th[e] clear standard [of review] and to flumm ox imm igration judg e s, who m ust contort what should be a sim ple factual finding to satisfy o ur o ften irreconcilable precedents.”); Abovian v. INS
, 257 F.3d 971, 980 (9th Cir. 2001) (Kozinski, J., dissenting from d enial o f reheari ng en banc) (“[T]his case is h ardly atypical of o ur circuit’s i mmigration law jurisprudence. Rather, it is one mo r e

e x am p le of the nitpicking we engage in as p art o f a system atic effort to dism antle the reasons imm igration judges give for their decisions.”).

To correct our m isguided rules, Congress passe d th e REAL I D Act. Congress m ade clear its intent to bring us—the Ninth Circuit—in line with o ther circu i t s an d the BIA. See H.R. Rep. No. 1 09-72, 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 b etween the Ni nth Circuit on the o ne hand and o ther circuits and the BIA.”). The REAL ID A ct

s tat e s that the applicant “m ay” sustain his burden throug h testim ony alone, “but only if th e applicant satisfies the trier of fact that the applicant’s testim ony is cre d i ble, is
persu a s i v e, and refers to specific facts sufficient to demo n s trate that the applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii). T h at p rovision also states that “the trierD AI V

. S E S S I O N S 27

of fact m ay weigh the credible testim o ny a l o ng with other evidence of record.” Id. The REAL ID Act creates a “ b i as toward corroboration” that m akes asylum litigation m ore like other types of litigation in that the trier of fact need not accept testim ony as true even if it’s credible. Aden
, 5 8 9 F. 3 d
at 1045. Le s t there was any doubt that the REAL ID A ct abrogated o ur “presum ed true” rule, w e expressly stated so in Aden : “Congress has thus swept away our doctrine that ‘when

an a li e n c redibly testifies to certain facts, those facts are deem ed true.’” Id. (quoting Ladha , 215 F.3d at 900).

Ignoring what w e said in Aden
, the panel m ajority crafted

a new rule that, in conjunction with the deem ed credible rule, operates to revive the congressionally disapproved “deem ed true” rule. This revival occurred in two steps. The panel first held that nothing in the REAL ID Act “explicitly or im p licitly repealed the rule that in the absence of an adverse credibility finding b y the IJ or the BI A, the petitioner is deem ed credible.” Dai , 884 F.3d at 868. 4

4 A gain, precision o f language is im portant here. Even assum i ng t hat when the agency m akes no credibility finding, the petitioner’s testim o ny is deem ed credible
, that is not enough. Credibility alone doesn’t make a person persuasive or eligible for asylum , nor m ust credible testim ony be accepted as t

rue. Aden , 589 F.3d at 1044 (“Credible testim ony is not b y itself enough.”); see also Sandie v. Att’y Gen. o f U.S.
, 562 F.3d 246, 2 5 2 (3d Cir. 2 009) (“But the assum ption that his testim ony is credible does not im ply that that testim ony i s sufficient to m eet his burden of proof. In fact, credible testim ony alone is not always sufficient t o m e et the burden o f proof.”). An app l i c ant ’s t estim ony m ay b e sufficient to show asylum eligibility, “but o n l y i f the applicant satisfies the t rier of fact t

hat the applicant’s t estim ony is credible, is persuasive
, and refers to specific facts sufficient to d em onstrate that the app l i c ant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii) (em

phasis added).D AI V

. S E S S I O N S 28

The panel’s second, decisive step in reviving our o l d “deem ed true” rul e was to lim it the evidence an IJ can consider in weighing the persuasiveness of an applicant’s testim ony. The panel h eld that if the agency mak e s no adverse credibility finding, “[c]redibility concerns

. . . cannot be sm uggled into the persuasiveness inquiry.” I d. at 872. The panel reasoned that if the ag e ncy m akes no adverse credibility finding, any evidence that would cast doubt on the applicant’s credibility m

ust b e ignored when considering the persuasiveness of the applicant’s claim

. The panel deployed its holding to erase from the record Dai’s own adm issions that underm ine his claim

. F or exam ple
, the IJ accepted as fact Dai’s adm ission that he failed to disclose the truth about his wife’s and his daughter’s travels because he wa s n ervous about how this would b e perceived by the asylum officer. The IJ also credited Dai’s adm itted “real s t o ry” for why he stayed in th e United S tates when his wife and daughter returned hom e: “he was in a bad m ood and he wanted to get

a job and a f

riend of m ine is here.” The panel’s decision bars the IJ from considering this and other testim ony that could be (and was) construed as detrim ental 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 favor able testim ony as the whole truth and to disregard unfavorable evidence—even when it is

5 In his dissent, Judge Trott identified other e x am ples of Dai’s testim ony that the IJ relied o n in f inding h is claim unpersuasive. See Dai
, 916 F.3d at 732 ( Trott, J., dissenting) (listing eight findi n gs re nd e red b y the IJ); id. at 747–48 (“My colleagues expunge from the r ecord the blatant flaws i n Dai’s perform an c e involving dem eanor, candor, and responsiveness

. . . . T hey disregard inaccuracies, inconsistencies, and im plausibilities in his story, and his barefaced attem pt t o cover up the truth about his wife’s and daughter’s travels and situation.”).D AI V

. S E S S I O N S 29

the applicant ’ s own testim ony—unless they affirm atively

make an adverse credibility finding. The p anel’s two

- fo l d holding thus transform s the lac k of an express adverse credibility ruling into an affirm ative conclusion that the applicant’s proffered reason for seeking asylumis true

.

The resuscitation of our old “dee me d 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 t o conduct the factfinding and that our court m ay disturb th e ag en cy ’ s decision only where “any reasonable adju dicato r would be com

pelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “[T]he law is th at ‘[t]o reverse the B IA finding we m

ust find that the evidence not only supports that conclusion, b ut compels it.’” Aden
, 5 89 F.3d at 1046 ( qu o ting INS v. Elias-Zacarias
, 5 02 U.S. 478, 481 n.1 (1992)). The m ajority’s holding cannot be squared with the lim ited nature of our review of the agency’s decision.

Second, the m ajority’s revival of the “deem ed true” rule nullifies the statutory provision that, “[i]n determ ining

6 T he majority turns som ersaults to dodge Congress’s explicit attem pt to rein us in. The statute provides: “There is no presum p tion o f credibility, however, if no adverse cre d i bility determination is explicitly

m ade, the applicant or witness shall have a re b uttable presum p tion o f credibility o n appeal.” 8 U.S.C. § 1158(b)(1)(B )(i i i ). The m ajority, ignoring the phrase “[t]here i s n o presum ption of credibility,” apparently
presum ed it to apply only in im migration court proceedings. The m ajority reasoned that the “re b uttable presum ption of credibility on appeal” does
not apply in our court because t his case is a petition for review n ot an appeal

. Dai
, 8 84 F.3d at 869 (“A provision that applies ‘on appeal’ therefore does not apply to our review, but solely to the BIA’s review o n appeal from the IJ’s decision.”). According to the m ajority’s logic, t h is gives us carte blanche to adopt whatever rule we want on the evidence an IJ m ust (and m

ust not) credit.D AI V

. S E S S I O N S 30

whether the applicant has m et the applicant’s burden, the trier of fact m ay weigh the credible testim o ny a l o n g with other evidence of record.” 8 U.S.C. § 1 158(b)(1)(B)(ii). W e have held that this provision m eans that an “IJ need n ot ac c ept [credible] testim ony as true.” Aden
, 589 F .3d 1 0 44. If credible testim ony m

u st b e accepted as true, there would be nothing for the trier of fact t o “ we i g h .” See Doe v. H older
, 651 F.3d 824, 830 (8th Cir. 2011) (“Congress thus rejected a rule that ‘credible’ testim ony n ecessarily m eans that the facts asserted in that testim o ny m ust be accepted as tru e .” (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 p r ecedent and every other circuit to address the issue.

The panel’s decision is contrary to Aden ’s clear acknowledgem ent that the REAL ID Act abrogated our “deem ed 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 p etitioner’s credible evidence that the police were looking for him
, when weighed against country reports that stated that the police no

7 To b e cl e ar, the panel m ajority held that absent an adverse credibility ruling, the trier of fact m ust disregard any evidence that would call into qu e s t io n the applicant’s credibility. See Dai
, 884 F.3d at 8 7 2 (“Credibility concerns that do not j ustify an adverse cre d i b i l i ty finding
cannot be sm

uggled into the persuasiveness i nquiry so as to undermine the finding of credibility we are required to afford Dai’s testim ony.”). There is no m eaningful difference betwee n this holding and a suggestion t hat credible testim ony m

ust be accepted as true.D AI V

. S E S S I O N S 31

longer targete d Sikh activists like the petitioner. Singh
, 753 F.3d at 8 3 6. W e recognized that “there is a difference between an adverse credibility d etermi nation, on the o ne hand, and a decision concerning h ow to weigh conflicting evidence, on the other hand.” Id. W e em phasized that, even in the absence of a credibility ruling, the i mm igration judge

was required to weigh the p ersuasiveness of the tes ti mony against the record as a whole. Id.

In Doe
, the Eig hth Circuit held that an applicant’s i n a b i l i t y t o p r o v i d e i m p o r t a n t d e t a i l s a n d k e y dates—inform ation the imm igration judge identified as “dam aging to [Doe’s] credibility,” but wi th o ut m aking an “explicit” adverse credibility finding—was suffi cient to support the BIA’s conclusion that h is testi mo ny was

unp er suasive. Doe
, 651 F.3d at 829–30 (alteration in original). T he court relied in part on our decision in Aden for the proposition that testim ony m ay be “credible” without being persuasive, and thus n eed not be “accepted as true.” Id. at 830.

Sim ilarly, the First Circuit h as rejected the notion that a reviewing court is bound “to accept a petitioner’s statem ents

as fact whenever an IJ sim ply has not made an express adverse credibility determ ination.” Kho v. Keisler
, 505 F.3d 50, 56 (1 s t Cir. 2007). T h e Tenth Circuit likewise held that the agency was free to “discount” the ap p licant’s testim ony bas e d on “gaps” in his story, even though there was no adverse credibility ruling. Gutierrez-Orozco v. Lynch
, 810 F.3d 1 243, 1246 (10th Cir. 2016) (citing Aden
, 589 F.3d at 1044–45).D AI V

. S E S S I O N S 32

The panel’s h olding splits w ith Aden and places us again
at a table of one when it com es to interpreting the standards
app licab l e to th e ag en cy ’s d etermination of asylum eligibility

.

C.

The p anel m ajority’s rule also ignores the comm on sense reality that triers o f fact m ay—and frequently do—decide factual issue s a gainst a party without affirm atively finding that party not credib l e

. O pposing p arties who present conflicting factual accounts might both be credible even if only one party’s versi o n is true. 8 And even if a w itness’s testim ony is treated as “honest or ‘credible,’” the “inability to provide im

portant details and key dates” m ay re n der “the testim ony unpersuasive in establishin g a likelihood o f torture.” Doe
, 651 F.3d at 830.

Indeed, we regular l y require that juries decide between

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

one perspective can b e d i s c o unt ed only if the witness is not believable (i.e., not credible). The REAL ID Act recognizes this reality when it comm ands the trier of fact to “weigh the credible testim ony along with other evidence of record.” 8 U.S.C. § 1 1 58(b)(1)(B)(ii). A rule that bars an IJ from questioning the persuasiveness of a witness’s testim ony unless the witness is a ffi rm atively found to be n ot credible ignores the realities of factfinding.

8As we stated in Aden , “[a]pparently honest people may not always be telling the truth, apparently dishonest people m ay be te l ling the absolute t ruth, and truthful p eople may be honestly mistaken or relying o n unreliable evidence or inference them selves.” Aden , 589 F.3d at 1045.D AI V

. S E S S I O N S 33

The panel’s holding here defies c o mmo n sense for another r e a so n

. The evidence that the IJ and the BIA f ound
to weigh against asylum eligibility was Dai’s own testim ony. As Judge Trott pointed out, the agency thus credi ted Da i ’s adm issions that tended to undercut his claim

. I t mak e s no

sense to say that the IJ is powerless to cr e di t unfavorable testim ony g iven by an applicant unless the IJ expressly finds the applicant not

credible.

This case is an instance of our court “prom ulgat[ing] rules that tend to obscure [the proper] standard and to flumm ox imm igration judges.” Jibril
, 4 23 F.3d at 1138. By essentially forcing IJs to m ake an express adv e r se 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 clai m fo r asylum that lacks an expl i c i t adverse credibility finding. Cf. Morgan v. Holder
, 634 F.3d 53, 5 7 (1st Cir. 2011) (declining to require

a “gratuitous credibility determ ination ” when the IJ’s decision was prem ised on the petitioner’s “failure to carry his burden of p roof”). W i th a l l o f the cases we see that are adjudicat e d at the asylum eligibility stage, the im pact of the panel’s holding will be far-reaching.

D

.

The panel’s revival of the “deem ed true” rule effectively strips the agency of its fa c t fi n ding 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 i dentified by the IJ and the BIA as problem atic,” see Da i
, 916 F .3d at 7 48 (Trott, J., dissenting), the m a j ority stepped into the void created by its new rule and weighed for itself the persuasiveness of Dai’s testim ony. “[T]aking i nt o accountD AI V

. S E S S I O N S 34

the record as a whole,” th e ma jority concluded, “nothing underm ines the persuasiveness of Dai’s credible testim o ny.” 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 com p ounded its err o r b y failing to

rem and to allow the agency the first shot at applyi n g the

m ajority’s new rule against “sm uggl[ing]” credibility

concerns “into the persuasiveness inquiry,” see Dai
, 884 F3d.
at 872. T he Suprem e Court has summ arily reversed us on

m ultiple occasions for m aking this v e ry error. See, e.g. , Thomas , 547 U.S. at 187; Ventura , 537 U.S. at 18.

In Ventura
, a panel o f our court to o k i t upon itself to consider (and reject) the governm ent’s factual argum ent that had been accepted by the IJ but not ruled on by the BIA. Ventura , 537 U.S. at 13–14. The Suprem e Court concluded that “well-established principles of adm inistrative law” required a rem and to the agency:

W ithin broad lim its the law entru s t s the
agency to m ake the basic asylum eligi b i lity d e c i s i o n h e r e i n q u e s t i o n

. I n s u c h circum stances a ‘judicial judgm ent cannot be

m ade to do service for an adm inis tr ative judgm ent.’ Nor can an ‘appe ll at e court

. . . intrude upon the d om ain which Congress has

exc lusively entrusted to an adm inistrative agency.’”

9 Wh en the pan e l m a

j o rity quoted the statute’s requirem ent o f persuasiveness, it left out the p art that an asylum applicant m ust “satisf[y] the trier of

fact that t he applicant’s testim ony is

. . . persuasive,” 8 U.S.C. § 1158(b)(1)(B)(ii) (em

phasis added). See Dai , 884 F.3d at 867.D AI V

. S E S S I O N S 35

Id. at 16 (citations om itted) (quoting Chenery Corp.
, 318 U.S.
at 8 8 ). In summ arily r e versing u s, the Court stated that we “committed clear error,” “seriously disregarded the agency’s legally m andated role,” and “created potentially far-reaching legal precedent

. . . without giving the BIA the opportunity to address the m atter in the first instance in light of its o wn expertise.” Id. at 17.

The clear
, un anim ous 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., dis senting). Just two years late r, we repeated our error in Thomas
, only this tim e we

were sitting en banc when we adopted a new rule and applied it to the case without allowi n g th e agency to consider the question. Thomas
, 547 U.S. at 1 84. The Suprem e Court agreed with the Solicitor G eneral that n ot only was our failure
to rem an d erroneous, our error was “obvious in light o f Ventura .” Id. at 185.

Sett i ng a side for the m om ent the problem s with the

m ajority’s new rule, the panel should have rem anded to allow the a g ency an opportunity to determ ine Dai’s eligibility for asylum within the new constraints im posed by th e panel’s decision.

III.

The p ane l ’s insistence that an IJ m ust accept an applicant’s favorable testim ony as the whole truth, unless the IJ m akes an explicit adverse credibility finding, is contrary to

our lim ited scope of review un der 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 rem o val and treat Dai as eligible forD AI V

. S E S S I O N S 36

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

new rule, the panel disregarded the Suprem e Court’s repeated adm onishm ent against o ur seizing the role statutorily given to the agency.

I respectfully dissent from the denial of rehearing en banc.

O’SCANNLAIN and TROTT, Senior Cir c ui t Judges, respecting the denial of rehearing en banc:

W e agree with the v iews expressed by Judge Callahan in her dissent fromthe denial of rehearing en banc.

COLLINS, Circ u i t Judge, with whom BYBEE, BEA, IKUTA, BENNETT, R. N ELSON, and BADE, Circuit Judges, join, dissenting f

rom the denial of rehearing en banc:

I agree wi th Judge Callahan that the p anel m ajority’s opinion effectively revives, for a p otentially wide s wath o f
cases, this court’s discredited prior rule that when an alien seeking a sylum is either f ound or d eem ed to have testified credibly to certain facts, those facts wil l b e conclusively deem ed to be true. As Judge Callahan persuasively explains, the panel m ajority’s effective revival o f this previously disavowed “deem ed-true” rule contravenes controlling statutory language, the p recedent of this court, the d ecisions of other circuits, and comm on s e n se. I therefore join in full her dissent fromthe order denying rehearing en banc.D AI V

. S E S S I O N S 37

In my view, however, the problem s wi th the panel

m ajority’s opinion run even deeper, thereby greatly
augm enting the potential dam age th at m ay flow f rom its flawed decision. Specifically, the panel m ajority comm its a further seriou s legal error, and reinforces a circuit split, in holding th at the REAL ID Act does not abrogate a second rule that we have applied in asylum cases—nam ely, the rule that unless the agency h a s m ade an explicit finding that the applicant’s testim ony is not credible, this court will

con c l u s i v e ly presum e that testim o ny to be credible. As this

case well illustrates, we h ave infl exibly applied this conclusive presum

ption as, in effe c t , a “Sim o n says” rule:

even where (as here) th e r e cord overwhelm ingly confirm s that the agency actually disbelieved critical portions o f the applicant’s testim ony, we will nonetheless conclusively treat that testim ony as credible if the agency did not m ake an explicit adv erse credibility d eterm ination. The panel

m ajority’s reaffirm ation of this unwarranted “deem edcredible” rule thus p e r

p e tuates a regim e in which—unlike other circuits—this court misreads the evidentiary record in

a s y l um cases through the truth

- d i s t o rt i n g l e n s of counterfactual conclusiv e p r e sum ptions. In d oing so, the panel m ajority defies Congress’s elim ination of the deem edcredible ru l e i n the REAL ID A ct, which expressly replaces that ru l e’s conclusive presum ption of credibility with (at

m ost) a “ re buttable presum ption of credibility.” 8 U.S.C. § 1158(b)(1)(B)(iii) (em phasis added). But the panel

m ajority here slips the A ct’s bonds, and we have abetted that
escape by failing to take this case en banc. I respe c tfu ll y dissent.D AI V

. S E S S I O N S 38

I.

In reviewing whether substantia l evidence supports the agency’s f

actual findings in asylum cases, this court has long

e mp l o y ed a variety of “rules that tend to obscure” wh at should be a clear and deferential standard of review. Jibril v. Gonzales
, 4 23 F.3d 1129, 1138 (9th Cir. 2005). Am ong those rules are a pair of presum ptions about how to read the record in asylum cases—nam ely, o ur deem ed-credible rule and our deem ed-true rule. Unde r o ur traditional deem ed-credible rule, both this court and the Board o f Imm igration Appeals (“BIA”) were required to apply a conclusive presum ption that

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

m ade an explicit adverse credibility finding. See
, e.g. , Dai v. Sessions
, 884 F.3d 858, 868 (9 th 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 testim ony as credible.”); S he

v. Holder
, 629 F.3d 9 58
, 964 (9th Cir. 2010) (“Absent an adverse credibility fin d i ng, the BIA is required to ‘presum e the petitioner’s testi mo ny to b e credible.’”). Under our further d eem ed-true rule, the facts recited in testim ony f ound
to be credi b l e—or presum ed to b e credible by virtue of our deem ed-credible rule—would th e n i n turn be taken as true. See
, e.g. , Kataria v. INS
, 2 32 F.3d 1107, 1114 (9th Cir. 2 000) (“In the absence of an explicit adverse credibility finding, we

m ust assum e that Kataria’s factual co ntentions are true.”); Yaz i tchian v. INS
, 207 F.3d 1164, 1168 (9th C ir. 2 000) (“Because the imm i gr ation judge found the Yazitchians’ testim ony credible, and the BI A d i d not m ake a contrary finding, we m

ust accept as undisputed the facts as petitioners testified to them .”).D AI V

. S E S S I O N S 39

By requiring the application of potentially counterfactual conclusive presum

ptions, these rules create an obvious risk o f seriously distorti n g appellate review of the factual record. Thus, under o ur deem ed-credible rule, no m atter how clear it

m ight be from the overall record that the IJ in fact disbelieved portions of the petitioner’s testim ony, that obvious disbelief

m ust b e ignored if the IJ did not ex plicitly state that the IJ disbelieved that testim ony. In turn , under our deem ed-true rule, the facts recited in that now-deem ed-credible testim ony then have to be taken as true

.

This case we ll illustrates the truth-distorting effect o f applying these conclusive presum ptions. As bo th th e B IA and the IJ explained, Dai’s claim that his wife’s f o r c e d abortion in China caused him to have a well-founded fear o f persecution (thereby rendering h im eligible for asylum ) was

s ev e r ely undercut by the fact that his wife and daughter h a d
not stayed with him in the United States but had v o l untarily returned to C hina—a critic a l fa ct that Dai had initially
attem p ted to conceal. Da i v

. Barr
, 9 16 F.3d 731, 738–42, 746–47 (9th Cir. 2 0 1 8) (Trott, J., dissenting) (reproducing relevant portions of the IJ’s and B IA’s decisions). 1 As Judge Trott’s panel dissent explains in detail, the IJ m ade eight
sp ecif ic f in din g s co ncerning Dai’s statem ents ab o ut h is w if e’s and daughter ’s voluntary return from the United States and about Dai’s m o tivations f or staying in this country, and those detailed findings are flatly incom patible with the view that the IJ credited all of Dai’s s t ate m ents. Id

. at 732. Because the record am

ply confirm s that the IJ obviously (even if not

1 A t the tim e Judge Trott filed his am ended panel dissent, t he case caption had changed to reflect t he corresponding change in Attorney General since the earlier f iling o f the panel opinion. See Fed. R. App. P. 43(c)(2).D AI V

. S E S S I O N S 40

explicitly) disbelieved certain of Dai’s statem ents about his fam ily’s return, the BIA properly construed the IJ’s findings

as establishing that Dai had “‘ not b e[en] truthful ’” about his “‘fam ily voluntarily returning.’” Id

. at 747 (quoting B IA decision) (em

phasis added by Judge T rott). Put another way,

a review of the record confirm s that any presum ption that the IJ found Dai’s core statem ents to be c r edible has been overwhelm ingly rebutted

. N o n eth e less, b ecau se the IJ did not explicit l y find Dai’s testim ony not to be credible, the panel

m ajority invokes a counterfactual conclusive presum ption o f credibility—and in d o i ng so, it “expunge[s] from the record the blatant flaws in Dai’s perform ance inv o lving dem eanor, candor, and responsiveness” and “disregard[s] inaccuracies, i n consistencies, and im

plausibilities in his story, and his barefaced attem

pt t o c o v e r up the truth about his w ife’s and daughter’s travels and situation.” Id

. Moreover, by holding that “[c]redibility concerns that d o not j u s t i fy an adverse

c r e d i b i l i ty f

i n d i n g c a n n o t b e s mu g g l e d i n t o t h e persuasiveness inquiry so as t o underm ine the finding o f cred i b i l ity” required by the deem ed-credible rule, see 884 F.3d at 872, the p an e l ma jority effectively requires that this deem ed-credible testim ony m ust also b e deem ed true. See Judge Callahan’s Dissent at 30.

Th e REAL ID Act sought to elim inate o ur use of such truth-dist o rt ing conclusive presum ptions. Indeed, we have
pre v i ou s ly recognized that the REAL ID Act indisputably “swept away” o ur deem ed-true rule, Aden v. Holder
, 5 89 F.3d 1040, 1045 (9th Cir. 2009), and the panel m ajority’s opinion does not expressly dispute that point. Inste a d
, as Judge Callahan explains, the panel m ajority effectively revives the deem ed-tru e rule, as a practical m atter, by im properly “limi t [i n g] the evidence an IJ can consider” in determ ining whether an a lien’s credible testim o ny is sufficientlyD AI V

. S E S S I O N S 41

persuasive
, in ligh t 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 testim ony m ay be sufficient to carry burden of proof if it “is credible, is persuasive , and refers to specific facts sufficient
to dem onstrate that the applicant is a refugee”) (e mphasis added).

As t o th e deem ed-credible rule, the panel m ajority itself acknowledges that the REAL ID Act fr e es the BIA from having to follow that rule’s conclusive presum ption, “so that the B IA [now] m

ust only afford ‘a rebuttable presum p tion o f credibility’ when the IJ does not m ake an adverse credibility finding.” Dai
, 884 F.3d at 868 n.8 (citation om itted); see also 8 U.S.C. § 1158 (b )(1)(B)(iii) (“if no adverse credibility determ ination is explicitly m a d e, the applicant or witness shall h av e a reb uttable presum ption of credibility on appeal”). Nonetheless, the panel m ajority insists that the REAL ID A ct preserves the deem ed-credible rule’s conclusive presum ption in this court

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

m ajority reasoned th at if the IJ d oes not m ake an explicit adverse credibility determ inatio n and the BIA does not explicitly d eterm ine that the resulting presum ption o f credibility on appeal has been rebutted, th e n this court m ust conclusi v ely presum e the petitioner’s testim o ny to be credible. Id . at 869–70. Concluding that “neither the IJ nor the B IA ma de an adverse credibility determ ination in Dai’s case,” th e p anel m ajority h eld that the deem ed-credible rule applies and that this court therefore “m ust treat h is testim ony as credible.” Id . at 870.

In m y view, the panel m ajority’s invocation o f the deem ed-credible rule rests on two critical legal errors, and weD AI V

. S E S S I O N S 42

should have taken this case en banc to correct and clarify the governing principles in this vital area of the law.

II.

First, even i f the panel m ajority were correct in concluding that “neither the IJ nor the BIA m ade an adverse credibility determ ination,” Dai
, 884 F.3d at 870; but see infra
at 48–51, the REAL ID Act expressly prohibits this court from then applying a con c lusive presum ption of credibility. Instead, in reviewing the record, we wou l d at m o st apply a rebuttable presum

ption of credibility—and here the facts found b y th e I J o verwhelm ingly rebut any presum p tion that the IJ believed Dai’s statem ents concerning his fam i l y ’s
return to China. See Dai
, 916 F.3d at 747 ( Tr o tt , J., dissenting) (“Sim

ply because the IJ did not say ‘I find Dai not credible’ but opted i n stead to expose the glaring factual defi c i encies in Dai’s presentation and to explain in specific detail and at length why Dai had not persuasively carried his b ur den,” the m ajority wrongly holds that “we m u s t selectively embrace [his testim ony] as persuasive....”).

A

.

Section 208(b)(1)(B) of the Immigration and Nationality Act (“INA”), as added b y section 101(a)(3) of the REAL ID Act o f 2 0 0 5
, Pub. L. 109-13, Div. B, 119 Stat. 302, 303 (2005), directly addresses the questions of whether and when

a presum ption of credibility should be applied in reviewing

an appli cat i on for asylum

. S pecifically, subsection 208(b)(1)(B)(iii) provides, in relevant part, as follows:

There is n o presum

ption of credibility, h o w e v e r , i f n o a d v e r s e c r e d i b i l i t yD AI V

. S E S S I O N S 43

d eterm ination is explicitly m ad e, th e app lican t

or witness shall have a rebuttable presum ption of credibility on appeal.

8 U.S.C. § 1 158(b)(1)(B)(iii). There is an obvious scrivener’s

error in this run-on sentence (the first comm a sho u l d have been a sem i-colon), but the effect o f its “however” clause is nonetheless clear: it abrogates our deem ed-cre dible rule’s conclusive presum

ption of credibility and re p l aces it with only a “ rebuttable presum p tion of credibility.” Id

. (em phasis added). As n oted earlier, see supra at 3 8
, un d er o ur preREAL ID Act case law, “in the absence of an explicit adverse credib ility finding” by the IJ, both the BIA and this court

were “required to treat the p etitioner’s testim ony as credible.” Dai
, 884 F. 3 d at 868. But after the REAL ID Act’s

am endm ent s , the IJ’s failure to m ake an explicit adverse credibility determ i n ation gives rise only to a rebuttable
presum ption that the IJ found the applicant’s testim ony to be credible. Thus, if a re v ie w of the record otherwise m akes clear that (despite the lack of an express credibility determ ination) the IJ did not believe certain aspects of the applicant’s stateme nts, the “presum ption of credibility on appeal” is rebutted, and the BIA and this court no longer need
to close their eyes to that f act and no l o n ger need to pretend that the IJ found the testim ony credible.

The panel m ajority conceded that this statutory language abrogates our deem ed-credible rule and replaces it w ith a “‘rebuttable p resum

ption of credibility on appeal,’” Dai
, 884 F.3d at 8 68 (quoting 8 U .S.C. § 1158(b)(1)(B) ( ii i ))
, but the m ajority holds that this p rovision “applies only to appeals
to th e BIA
, n ot to petitions f or review in our court ,” i d

. (em phasis added); see also id

. at 868 n. 8

. That is true, the panel m ajo rity co n clu d e s , b ecau se the rebuttable presum ptionD AI V

. S E S S I O N S 44

applies by its term s only “on appeal,” 8 U. S. C. § 1158(b)(1)(B)(iii), and (unlike the B IA) we exercise review in imm igration cases b y way of a “petition for review” under section 2 4 2(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 fo rm al differences between a “petition for review” and an “appeal”). Because, according to the panel m ajority, the BIA here failed
to invoke the REAL I D Act’s rebuttable presum ption to determ ine that any aspect o f Dai’s testim ony was not credible, but see infra at 4 8

– 51, this court is required to adhere to our deem ed-credible rule and t o c onclusively
presum e that Dai’s testim ony is credible.

This argum ent fails, because the panel ma jority’s sharp distinction b etween a “petition for review” and an “appeal” is r efuted by the very statutory provision on which the

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

our review of rem oval orders is by me an s of a “petition for review,” 8 U.S.C. § 1252 ( a ) (5 )
, but elsewhere in that very

sam e section, the resulting p roceeding in th i s co urt is

e xp r e ssly referred to as an “appeal.” S ee 8 U.S.C. § 1252(b)(3)(C) (stating that, if the alien fails to file a brief in

s up p ort o f the “petition for judicial review,” then “the c o urt shall dism iss the appeal”) (em phasis added). Given that the judicial-review provision on which the panel m ajority relies itself expressly refers to a “petition for review” as giving rise
to an “appeal,” there is no textual basis for the panel

m ajority’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. C t. 2105, 211 5 ( 2 018) (reaffirm ing, an d applying to the INA, the “‘norm al rule o f statutory construction that identical words used in different parts o f the sam e act are intended to have the sam e

m eaning’”) (citation om itted). Moreover, applying s ec t i onD AI V

. S E S S I O N S 45

208(b)(1)(B)(iii)’s “rebuttable presum ption of credibility on appeal” to both th e BIA and the courts of appeals is consistent with the o rdinary m eaning o f th e phrase “on appeal,” which refers to the process of appellate r e v i e w, without regard to whether such review is form ally denom inated as an “appeal.” See D ai
, 916 F.3d at 735 (Trott, J., dissenting) (“[T]he issue is one of function
, not of f

orm o r l ab e l s.”). Congress’s explicit abrogation of the deem edcredible rule thus extends to this court.

Contrary to the panel m ajority’s vi e w, th e abrogation o f the deem ed-credible rule in this court, and its replacem ent with a rebuttable presum ption of credibility, would not intrude on the agency’s fact fi n di ng role. See Dai
, 884 F.3d

at 8 7 4 & n.14. As applied o n appeal, the REAL ID Ac t ’s rebuttable presum

ption provides a rule about how to read the record o fthe IJ’s factfinding : if no express adverse credibility determ ination was m a d e by the IJ, we should p resum e that the IJ found the applicant’s statem ents credible unless (as here) the findings as a whole nonetheless confirm that certain
statem ents w ere di s b e lieved by the IJ. The rebuttable
presum ption is thus not a license f o r the BIA or this court to engage in factfind i n g. Cf

. 8 C.F.R. § 1003.1(d)(3)(iv) (“Except f

o r taking adm inistrative notice of comm only known facts such as current events or the contents of official docum ents, 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 deeme d-credible rule. In fact, it is the panel m ajority’s adherenc e to the d eem ed-credible rule’s irrebuttable
presum ption 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 statem ents thatD AI V

. S E S S I O N S 46

the IJ plainly disbelieved. See 916 F. 3 d at 7 47 (Trott, J., dissenting).

B.

But even if the panel m ajority were correct that the REAL ID Act’s “rebuttable presum p tion” of credibility does no t apply to p etitions for review in this court, that would not have the consequence of preserving the deem ed-credible rule. On the contrary, it would have the opposite effect: it would m ean that no presum

ption of credibility applies in this court.

The panel m ajority overlooks the full language of the last
sentence o f section 208(b)(1)(B)(iii), which (1) establishes a general rule that “[t]here is n o presum ption 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 determ ination is explicitly m ade.” 8 U.S.C. § 1158(b)(1)(B)(iii). Indeed
, this sentence of the REAL ID Act previously contained only the initial language elim inating entirely any presum ption o f c r edibility, see 151 Cong. Rec. H536– 3 7 (daily ed. Feb. 10, 2 005) (reproducing text of H .R. 418, as considered by the House); the exception to that general rule was later added b y a HouseSenate confe r e n ce comm ittee 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 m ajority is correct that the “rebuttable presum ption” exception does not apply in this court, then the result would be that the default ge n eral rule applies instead— i.e.
, that “[t]here is no presum

ption of credibility” in this court. That would abrogate the deem ed-credible rule com pletely, and it would m ean that this court w ould not u se any presum p tion o f credibility (rebuttable or irrebuttable) in conducti n g itsD AI V

. S E S S I O N S 47

otherwise deferenti a l review of the agency’s decision. See Huang v. Holder , 744 F.3d 1149, 1153 (9th Cir. 2014).

N o tab ly
, su ch a readin g o f section 208(b)(1)(B)(iii) w o u ld bring our approach to review in line with that of the First Circuit, which has “rejected the proposition that a liens are entitled to a presum

p tion of credibility on review in this court if there is no express credibility d e t e rmi n ation m ade by an IJ.” Kho v. Keisler
, 505 F.3d 50, 5 6 (1st Cir. 2007); see also Zeru v. Gonzales , 503 F.3d 59, 73 (1st Cir. 2007) (“There is

no presum

ption that an alien seeking refu g e e status is credible. Nor is there an assum ption that if th e I J has not

m ade an express finding of non-credibility, the alien’s testim ony m

ust be taken as credible.”). Although Kho agrees with the panel m ajority’s conclusion that the REAL ID Act’s rebuttable presum

ption of credibility does not apply in the
courts of appeals, see 5 0 5 F.3d at 56—a conclusion I think is
wrong for the reasons stated above—the First C ircuit reached that conclusion only in the course of rejecting the p etitioner’s contention that the REAL ID Act required the First Circuit to replace its rule of no p resumption of c r e d i b ility with a rebuttable presum

ption. See id

. at 56–57. The resulting First Circuit position—that no presum ption of credibility applies—conflicts w ith our continued adhere n ce to the deem ed-credible rule, thereby confi rmi n g a circuit split. Moreo v er, un like o ur d eemed -credib le rule, the First Circuit’s
no-presum

ption rule is at least consistent with the default rule that would apply under the REAL ID Act if the First Circuit and the p anel m ajority we re correct in holding that the rebuttable-presumptio n ex cep tio n d o e s not apply in the courts of appeals. See 8 U.S.C. § 1158(b)(1) ( B)(iii) (“There is no presum ption of credibility....”).D AI V

. S E S S I O N S 48

III.

Second, the panel m ajority committed a wholly separate legal err o r 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 fam ily’s return to China.

While agreeing that the IJ had not m ade an “ e xp li c it adverse credibility finding,” the BIA h ere went on to note that the IJ’s d etailed 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 B IA decision). In thus correctly recognizing that the IJ’s findings precluded any suggestion that the IJ found these aspects o f Dai’s statem ents credible, the BIA did not engage in its o wn factfinding, but instead properl y read the record o f the IJ’s findings in accord with the applicable rebuttable presum ption of credibility. 8 U.S.C. § 1158(b)(1)(B)(iii); c f

. 8 C.F.R. § 1003.1(d)(3)(iv) (BIA does not engage in i n d e p endent factfinding). 2 A lthough the BIA did not expressly invoke that

2 Throughout its o pinion, the panel m ajority uses im precise language that could be misread t o su gg e s t that, under the REAL ID Act, the BIA has independent authority to m ake an adverse “finding” of credibility t hat the IJ did not m ake. See
, e.g. , Dai
, 884 F.3d at 863 (“W e think i t not too

m u c h to as k of IJs and the BIA that they m ake an explicit adverse credibility finding”) (em phasis added); id

. at 865 ( “The BIA acknowledged that the IJ did not m ake an adverse credibility f inding a n d also did not make one itself .”) ( em phasis added); id

. at 867 (noting that the BIA “also m ade no adverse credibility finding”) (e m p h a sis added); id

. at 869 (deem ed-credible rule applies “when the BIA has on appeal neither affirm ed an adverse credibili ty finding m ade by the IJ nor made its own finding after deeming the presumption o f credibility rebutted

”) ( em phasis added). Given that only the IJ engages in factual f inding, and not the BIA,

see 8 C.F.R. § 1003.1(d)(3)(iv), I c o n strue these comm ents by the panel

m ajority to instead be referring only to the BIA’s explicit authority underD AI V

. S E S S I O N S 49

rebuttable p resum

pt i o n , its analysis in construing the IJ’s findings reflects precisely what the REAL ID Act authorizes the BIA to do. In turn, the resulti n g e xpress adverse credibility determ ination that is p roperly recited in the BIA’s decision should have precluded the p anel m ajority from i nvoking the deem ed-credible rule even on that rule’s o wn term s. Cf

. Tijani v. Holder
, 628 F .3d 107 1
, 1 0 8 0 (9th Cir. 2010) (so long a s th e finding is “explicit,” an “adverse credibility finding do e s not require the recitation of a particular formula”).

The panel m ajority nonetheless refused t o give effect to the BIA’s explicit determ ination that th e record established
th at Dai had not been truthful, and it therefore proceeded t o ap pl y the deem ed-credible rule. The panel m ajority gave several reasons for doing so, but all of them are flawed.

First, the panel m ajority wrongly dism iss e d the BIA’s determ ination as the “‘sort of passing s tatem ent [that] does
not constitute an adverse credibility finding.’” Dai
, 8 84 F.3d
at 8 67 (quoting Kaur v. Hold e r , 561 F.3d 957, 962–63 (9th Cir. 200 9 )) (em

phasis added). As Judge Trott’s dissent

makes clear, the BIA’s express adverse credibili ty determi n at i on on this point w as not a “passing” one—it related dire c t l y to the central issue of why D ai sought to

rem ain in the Un i t e d States, and it refuted h is claim that he had a well-founded fear of persecution if he returned to China. S ee Dai
, 916 F.3d at 747–48 (Trott, J., dissenting).

the REAL ID Act to determine that the record rebuts the presum ption t hat the IJ found the applicant credible. To avoid any suggestion that the BIA is itself engaging in independent f actfinding, I will refer in this dissent to the BIA’s “determination” concerning what the IJ’s findings show about the applicant’s credibility.D AI V

. S E S S I O N S 50

For the sam e reasons, the p anel m ajority is equally wrong in its assertion that Dai’s untruthfulness relate d o nly to a “tangential point.” D ai
, 884 F.3d at 873.

The panel m ajority’s citation of Kaur only highlights its

error on this score. In K

aur , we held that the BIA erred when it invoked the IJ’s vague and passing comm ent that “there are certain instances where this court does not find the Applicants’ testim ony to be credible” in order to overturn the IJ’s explicit “affirm ative 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 th at Kaur was “a convincing witness” with a “credible dem eanor” and whose

“ testim ony was detailed, consistent and plausible”). As we explained, the IJ’s “passing” an d “s elected reference” was “not even specific to Kaur” and could not properly be read to “underm ine or detract” from the specific and detailed “positive credibility finding” as to Kaur. Id

. at 963; see also id

. (“From this truncated reference, one wou ld 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 B IA did not overturn an express finding of credibility by the IJ; and (2) the B IA m ade a specific determ ination that the IJ’s findings established that D ai was not credible as to a particular

point.

Second, the panel ma

j ority alternatively stated that the BIA’s determ ination that Dai had “ l i ed about one particular fact” could be disregarded because it did not am ount to a

“general adverse credibility finding.” Dai
, 884 F.3d at 867 (em phasis a d d e d )

. That is plainly incorrect, and the im plications of such a rule would b e quite troubling. The

norma l rule in any adjudication is that a trier of fact m ay believe or disbelieve a witness’s testim ony in whole or inD AI V

. S E S S I O N S 51

part, see , e.g. , Li v. Holder
, 738 F .3 d 1 160, 1163 (9th Cir. 2013), and there is no basis for adopting, in the imm igration context, the distinctive (and illogical) rule that credibility
must be determ ined o n a “general” basis. C f

. Touf i gh i v. Mukasey
, 538 F.3d 988, 994–95 (9th Cir. 2008) (although, as the applicant n oted, “the IJ f o und him generally c redible,” this court concluded “that the IJ did m ake an express adverse credibility determ ination” as to the specific i s s u e of his

“ c l aim that he converted to Christianity”). In support of its position, the panel m ajority pointed to authority holding that

a vague and tentat i v e s t atem ent “‘that a petitioner is “not entirely credible” is n ot enough’ to c on s t itute an adverse credibility finding,” Dai
, 884 F.3d at 867 (quoting AguileraCota v. INS
, 914 F.2d 1375, 1383 (9th C ir. 1990)) (em phasis added), but here the BIA’s adverse credibility determ ination

was expl i c i t , direct, and specific. Accordingly, nothing in A gu ilera -C

o t a su p p o rts the p anel m ajority’s novel suggestio n that a partial f

inding 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 effe ct to the BIA’s explicit determ ination that the record revealed Dai’s p artial lack o f truthfu l n e ss, the panel m ajority effectively created yet another flawed “Sim on says” rule, in addition to our deem edcredible rule. Under the panel m ajority’s decision, the BIA’s failure to expressly state that it wa s invoking the REAL ID Act’s rebuttable presum

ption in this case m eans that this

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

m ajor i ty erred by yet again devising counterfactual
presum ptions that distort our reading o f the adm inistrative record on appeal.D AI V

. S E S S I O N S 52

* * *

Given that we have eschewed a m agic-words approach to explicit credibility determ inations, the BIA’s exp r e ss stat e m ent that Dai was not “truthful” was a perm issible application of the REAL ID Act’s rebuttable presum p tion o f credibility, and that statem ent is suffici ently explicit to preclude application of the d eem ed-c r e d ible rule o n its o wn term s. But m ore im

portantly, the REAL ID Ac t e xp ressly abrogates the deem ed-cre dible rule entirely and replaces it wi th, at m ost, a rebuttable p resum ption of credibility. An d here, any p r e sum

ption that the IJ actually believed Dai’s
statem ents about his f

am ily’ s v o luntary return h as been

am ply rebutted. Our persist e n c e in applying an irrebuttable
presum ption that is at odds with the statute and at odds with

a comm on-sense re a d i n g of this record is deeply troubling and warrants en banc review.

I respectfully dissent from the denial o f rehearing en banc.