ROBERT M. WILKINSON, ACTING ATTORNEY GENERAL, Petitioner, v. MING DAI, Respondent
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Colleen E. Roh Sinzdak, Neal Kumar Katyal, David J. Zimmer

John G. Roberts, Jr.: We will hear argument this morning in Case 19-1155, Wilkinson versus Dai, and the consolidated case. Ms. Sinzdak.

Colleen E. Roh Sinzdak: Mr. Chief Justice, and may it please the Court: Under the plain text of the INA, an alien has the burden of establishing eligibility for asylum and withholding of removal.

An alien may sometimes meet that burden through his credible testimony but only when, among other things, the testimony is persuasive and outweighs other evidence of record. Accordingly, it is now common ground that the absence of an adverse credibility determination does not entitle an alien to a presumption of truth.

Rather, a reviewing court should consider whether the agency's noncredibility-related reasoning is supported by substantial evidence. These now undisputed principles demonstrate that the Ninth Circuit erred.

In Dai, the agency pointed to ample evidence undermining the persuasiveness of Dai's testimony regarding his family's persecution, including undisputed evidence of his wife's voluntary return to China. The Ninth Circuit rejected the agency's reasoning because it concluded that the absence of an adverse credibility determination entitled a reviewing court to disregard some record evidence and to treat the alien's allegations of persecution as fact. Similarly, in Alcaraz, the court of appeals expressly relied on the erroneous principle that the absence of an adverse credibility determination permits a presumption of truth, and it applied that presumption to justify ignoring the ample evidence underlying the agency's determination that Alcaraz committed a particularly serious crime when he willfully inflicted corporal injury on the 17-year-old mother of his child. The Ninth Circuit therefore subverted the statutory scheme that Congress created. Rather than placing the burden on the alien, the court presumed the truth of the alien's testimony, and rather than deferring to the agency's reasonable fact-finding, it supplanted the agency's judgment with its own. Accordingly, the court of appeals' decisions cannot stand.

John G. Roberts, Jr.: Counsel, the -- the -- the BIA has to apply the rebuttable presumption of credibility, right?

Colleen E. Roh Sinzdak: That's correct.

John G. Roberts, Jr.: Okay.

So then the court of appeals, in conducting the substantial evidence review, should, it seems to me, do that through the lens of that presumption or take that presumption into account in concluding whether the evidence is substantial. Why -- why isn't that true?

Colleen E. Roh Sinzdak: If the agency did not address credibility at all, either explicitly or the Board can implicitly address it, then the reviewing court shouldn't address credibility either, so it doesn't need to concern itself with the presumption that the Board would have had to apply because it should just be evaluating whether the noncredibility-related reasoning is supported by substantial evidence. So the presumption doesn't enter the picture at all.

John G. Roberts, Jr.: Well, then you said explicitly or implicitly.

If it's implicitly, I think that raises the Chenery objection that your friends on the other side have stressed quite a bit, and I'd like you to talk about it because, you know, there was one stray cite to Chenery in your opening brief, and then you had I would say the bulk of the argument on the other side in both of the briefs or at least a big chunk of it, and it wasn't cited at all in your reply belief. So I'd like to give you a chance to respond to their Chenery argument, which is that you rely on saying there can be an implicit finding, and yet, under Chenery, we'd like to make sure that that's something the agency relied on, and I don't think we can be sure of that if they didn't say anything about it.

Colleen E. Roh Sinzdak: Well, absolutely.

We -- we completely embrace Chenery, and as I believe we stated in our reply belief, we agree that the agency's path needs to be clearly discerned. That's what Chenery requires. But, if the agency's path -- if the Board's path can be clearly discerned, and it's clear that the Board was relying on credibility for denying eligibility, then the Board -- the Court is entitled to take that into consideration.

It doesn't have to look for magic words. But we think that's largely irrelevant here because we aren't arguing that the Board -- the Board or the IJ relied on credibility. We're arguing that the Board relied -- the Board and the IJ relied on noncredibility-related reasoning, that reasoning, that the IJ didn't find the -- Dai's testimony sufficiently persuasive, that the IJ pointed to a number of pieces of evidence in Alcaraz's case that demonstrated that he had committed a particularly serious crime, even if perhaps his cred -- his -- his -- his testimony could have been deemed credible. So, again, we just think that -- that this -- this argument about Chenery, we don't disagree with Chenery, we don't disagree that the -- the Court, of course, has to review the grounds that the agency decided the case on, but we think that in this case, that means that the Court should have reviewed noncredibility-related grounds.

John G. Roberts, Jr.: Well, how much of an -- an explanation is required for you to conclude that this was an implicit determination that the alien was not credible? It's --

Colleen E. Roh Sinzdak: As this Court --

John G. Roberts, Jr.: -- it's not enough, I take it, that they just have, oh, here's some credible evidence on the other side and we're going to follow that.

Is that enough?

Colleen E. Roh Sinzdak: To determine that the agency based it -- its rejection of asylum on credibility, no.

We think that, as this Court said in Encino Motorcar -- Motorcars, the pathway has to be clearly discerned.

John G. Roberts, Jr.: Thank -- thank you.

Colleen E. Roh Sinzdak: But, again, we don't think the alien -- that the agency relied on credibility here, so we don't think that you have to read the Board decision to rely on credibility, that you have to consider whether it's implicit or explicit.

We just don't think they were looking -- that the -- the agency was looking at credibility at all.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas.

Clarence Thomas: Thank you, Mr. Chief Justice. Counsel, would you take a few minutes to walk through the evidence or the findings that you thought in these two cases was either persuasive or undermined the credibility of the Respondents?

Colleen E. Roh Sinzdak: Sure.

And just to be clear, it's our position that the -- the Board did not rely on credibility, that it would, in fact, be acceptable to say, even assuming that this, for the purposes of analysis, that the testimony in both cases was credible, there were other noncredibility-related reasoning -- reasons that were sufficient to deny eligibility. And so, in Dai, we think that the agency pointed out that even though Dai said that his wife had been persecuted along with him in China, there was evidence demonstrating that his wife had voluntarily returned to China just about two weeks after they -- they -- his family came.

So that evidence that his wife voluntarily returned undermines the persuasiveness of his testimony about his family's persecution. And then Dai was not forthcoming about the fact that his wife and child had returned, and he admitted before the IJ that he wasn't forthcoming because he was worried about admitting that his wife and child had voluntarily returned, demonstrating that he was aware that there was something not quite right about saying, oh, we're fleeing persecution, I want to bring my wife and child to safety, when his wife and child had voluntarily returned. And then, third, when the asylum officer asked Dai for the real story behind his travel to the United States, he said to make a better life for his child and to -- because he didn't have a job. He did not reference the persecution. And I think the fact that he said the real story, he recounted the real story without referencing persecution at all, that too undermines the persuasiveness of his testimony that he wanted to stay -- he needed to stay in the United States because of persecution. So I think, in Dai, there are three pieces of very strong evidence that undermines the persuasiveness of the alien's testimony, even if you assume for the purposes of analysis, for the limited purposes of analysis, that Dai testified credibly. In Alcaraz --

Clarence Thomas: Judge Trott seems to think that there isn't much difference, it's not worth even making a distinction between credibility and persuasiveness. What do you think of that?

Colleen E. Roh Sinzdak: I -- I don't think that's quite right because I think that credibility is a baseline.

So credible testimony must be just capable of being believed. And I think that persuasiveness is a higher bar.

To be persuasive, you have to have the power to persuade.

I think we can all imagine scenarios where someone might be credible but not persuasive.

A lawyer might be credible in his arguments but not persuasive. My six-year-old son might be credible when he tells me he didn't eat the cookies, but I may not ultimately find that persuasive if I find crumbs all over his room. So I think there is a distinction between the two terms.

Clarence Thomas: Well, it -- it would seem to me that if you saw the crumbs, it would undermine credibility.

Colleen E. Roh Sinzdak: Well, I think that if you think of credible as just capable of being believed, I can imagine explanations for the crumbs.

I can imagine perhaps that the crumbs are there because his sister was framing him, but I don't ultimately find his account persuasive.

So maybe it's capable of being believed, but it doesn't have the power to persuade.

Clarence Thomas: Well, it would seem as though, if the crumbs were on his -- around his mouth, you would think that that wasn't quite credible, so it seems that the existence of the crumbs could be both, go to credibility and to persuasiveness.

Colleen E. Roh Sinzdak: Absolutely.

And we think that evidence often will go to both things and that Congress acknowledged as much because it said that the same considerations go into the credibility analysis that then -- and then -- so, like, consistency with outside evidence is something you can consider in the credibility analysis under 1158(b)(1)(B)(iii), but then 1158(b)(1)(B)(ii) says you should weigh credible evidence against evidence of record. So things like consistency can go into both -- both -- both categories.

Clarence Thomas: Thank you.

John G. Roberts, Jr.: Justice Breyer.

Stephen G. Breyer: Well, I -- I -- my question here is -- reflects my concern with the legal mind.

The legal mind loves to make distinctions, but sometimes that should be resisted. So we have a simple rule that treats pretty much all agency cases roughly alike -- sometimes there are exceptions -- that what a court of appeals does with a factual matter or some matter like this really is look for substantial evidence, end of matter. So, if, in fact, there's a finding he's credible, then you take that finding and you say is there, with that finding, substantial evidence.

And if it's the opposite, you say the opposite, is there substantial evidence.

And if the judge doesn't say, Congress tells us what to do. Presume that he's telling the truth, but the presumption is rebuttable, so if nobody says anything, you look at it and you simply say, assuming it was rebutted, we assume that the judge found it was rebutted, and is there substantial evidence? Period.

With the assumption that it was rebutted. And that could include, there isn't enough evidence to show it was rebutted.

That will just be part of the matter.

But what we tell the court of appeals is review substantial evidence, follow the statute as I said, end of -- end of case.

Colleen E. Roh Sinzdak: Absolutely.

But the statute does not say to presume that the alien is telling the truth.

It doesn't even tell the Board to presume that the alien is telling the truth.

Stephen G. Breyer: Doesn't it say, though -- doesn't it say presumption of credibility?

Colleen E. Roh Sinzdak: Absolutely it says credibility, but it's now common ground among all of the parties that credible is not the same as truth.

Stephen G. Breyer: Well, it may be common ground on all of the parties, but it isn't common ground with me, because I would be quite worried about introducing into administrative law, with thousands of agency decisions, some kind of distinction between credible and truthful.

I haven't seen that in administrative law cases, but even were it there, I would be afraid of getting everybody mixed up.

Colleen E. Roh Sinzdak: I think that Congress introduced a distinction in the text of the REAL ID Act because the REAL ID Act says the testimony must be not merely credible but also persuasive.

The REAL ID Act also says that a judge is entitled to weigh credible evidence alongside other evidence.

And it says that a judge may ask for --

Stephen G. Breyer: No, that's not --

Colleen E. Roh Sinzdak: -- corroboration of otherwise credible evidence.

That doesn't make sense if "credible" means true --

Stephen G. Breyer: Why?

Colleen E. Roh Sinzdak: -- because -- well, because, if the testimony is true -- if the testimony -- if credible testimony has to be accepted as true, it's not clear why you would ever need corroboration.

If credible evidence has to be accepted as true, then --

Stephen G. Breyer: Well, it depends on what it is.

What he says is, my wife told me that she wanted to see her dying mother in China.

And now it's credible or not?

Colleen E. Roh Sinzdak: I -- I -- I'm -- I'm -- I'm not --

Stephen G. Breyer: The judge says it's credible.

Now what?

Colleen E. Roh Sinzdak: If the judge says that it's credible, he then has to determine whether that's persuasive.

So is there other -- other evidence that suggests --

Stephen G. Breyer: Oh, yeah, persuasive, that's true.

That's true.

Colleen E. Roh Sinzdak: So, if there's other evidence that suggests --

Stephen G. Breyer: But I don't get the between distinguish -- my point I don't get right now is the distinction between credible and true.

Colleen E. Roh Sinzdak: Well, I --

Stephen G. Breyer: See, my wife told me her mother was dying in China and that's why she went back, she said.

Okay? That's the testimony.

And you say it's credible. Now how could it not be true if it's credible?

Colleen E. Roh Sinzdak: Well, I think the -- the easiest way to understand this for me is to think about a scenario where a credible witness says that the light was red and three credible witnesses say that the light was green.

You may decide that, in fact, the light was green.

That doesn't mean the first witness didn't credibly testify that the light was red.

Stephen G. Breyer: That's true because what I have --

Colleen E. Roh Sinzdak: It does mean that it wasn't true.

Stephen G. Breyer: -- that testimony means I think the light was red.

I saw it as red.

And some other people could see it as blue.

That depends on the issue in the case. Let's start working this through the court of -- there are millions of issues that can come up with substantial evidence.

Colleen E. Roh Sinzdak: I -- I think that --

Stephen G. Breyer: Do you see what's worrying me? I'm worrying about this Court writing some kind of opinion and saying "credible" is different than "true," and before you know it, who knows what will happen.

Colleen E. Roh Sinzdak: I -- I --

Stephen G. Breyer: So I think we stay to substantial evidence, period, and we get as close to that as we can, reading into it the part -- well, it may be too long to explain in a question, but I've made -- I've made my point.

Colleen E. Roh Sinzdak: Yes, I think that the Court could say that with -- by the -- according to the plain text of the INA, Congress did not consider "credible" to be synonymous with "true." And I think that --

John G. Roberts, Jr.: Thank you, counsel. Justice Alito.

Samuel A. Alito, Jr.: Well, I think you have an argument.

The Ninth Circuit said in both cases, as I read their opinions, that the -- the BIA must explicitly say that the alien's testimony is not credible or else there is a presumption of credibility.

I think that's incorrect as to the BIA as a matter of law. But, beyond that, I will be truthful. I -- I found the way that you have briefed this case to be extraordinarily baffling.

"Credible" means capable of being believed, worthy of belief.

It doesn't mean that the testimony is accurate.

A person -- it may turn out that it's inaccurate.

But this distinction that you are drawing between "credibility" and "persuasiveness" is -- I -- I -- I think it's extraordinarily confusing and invalid. If at the end of the day you conclude that your son really did eat the cookies, he was not credible, what he said was not worthy of belief.

To -- to say, well, he was worthy of belief, but in the end, I don't believe him, that escapes me.

But maybe you can explain it to me.

Colleen E. Roh Sinzdak: I think that a problem here is that we often, in common parlance, use the term "credible" to -- to mean that -- that we believe it.

I think it -- it is often to -- it is common to just say, you know, yes, I found him credible, I believed what he said. It's just that we know from the very particular text of the INA -- of the INA that that isn't what Congress had in mind, that in the INA what Congress meant was credibility is a baseline, it is just capable of being believed, not that the judge actually thinks that it's true, not that the judge actually believes it, but just that the judge can believe -- can -- can recognize that someone could -- that it's capable of being true.

That's the baseline. And -- and the -- the -- the INA itself makes it clear that "credibility" and "persuasiveness" are different because it uses both terms.

So, first, it says the -- the testimony definitely has to be credible, and then it has to be more than just credible.

It also has to be persuasive.

It has to have the power to persuade. So I think that if you look at the text of the INA, it draws the very distinction that we are relying on.

Samuel A. Alito, Jr.: Well, if I don't agree with you about that distinction, does that mean you lose these cases?

Colleen E. Roh Sinzdak: No, it does not, because, again, we think that what these cases ultimately come down to is that you -- that you have to analyze whether there is substantial evidence underlying the reasoning that the Board put forward. And, here, we think that -- just setting aside the entire debate about what "credibility" means and -- and -- and -- and -- and whether something should be deemed -- whether evidence should be deemed responsive to credibility or persuasiveness, what is very clear here is that the agency pointed to multiple pieces of evidence in both cases that demonstrated that the alien could not meet his burden of proof.

And that's --

Samuel A. Alito, Jr.: What should we make of --

Colleen E. Roh Sinzdak: -- all that we can --

Samuel A. Alito, Jr.: -- before my time expires, one last question, what should we make of the hospital records? Are they something that we should not consider at all?

Colleen E. Roh Sinzdak: You should not consider it.

The alien did not raise the -- the hospital records in his briefing before the Board, and, under 1252, administrative exhaustion is required.

It's a prerequisite for judicial review.

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor.

Sonia Sotomayor: Could you clarify that last point? The medical records were before the IJ, correct?

Colleen E. Roh Sinzdak: They were before the IJ, and before the IJ, the government elicited testimony from Dai to the extent that he had not done anything to authenticate the letter -- the -- the medical records and that when the government asked how -- what would prevent someone from just writing in information into the records themselves, he said that he didn't know, but he hadn't done that. So I think the government was clearly suggesting that -- that there were some authenticity problems with -- with the evidence. And then, when the IJ rejected the asylum request --

Sonia Sotomayor: Counsel, can I -- I'm going to stop you there because I don't want you eating up my time, okay? I -- I am very confused, and if I'm confused, I -- I think the rest of the world is confused and so are my colleagues to some extent. Evidence can be credible but not adequate to meet a burden.

People can say certain things and you can still say, yes, I believe he encountered the police.

Yes, I believe they did something to him.

But, no, I don't think it rises to the level of persecution. That's a form of a lack of persuasiveness.

There are situations in which people can be credible about one aspect of something but not another.

This is a perfect case. Dai may have been credible about the persecution of his wife and the fact that they were forced to abort a child but incredible as to why he left China and whether it was based on the fear of persecution or not.

That his wife went back, all the things you mentioned could be viewed that way.

There are any dozen reasons. Are we responsible for figuring out what the BIA meant? If it doesn't make an adverse credibility finding, which wasn't made here, and it's not clear what the basis of their decision was, aren't simple administrative law principles at play, and shouldn't we just remand to say what is it that you found incredible?

Colleen E. Roh Sinzdak: No.

First of all, the -- the -- the INA -- the text of the INA says -- and I'm not going to talk about persuasiveness because I -- I think that, you know, that's a little bit of a red herring.

It says that the judge -- the IJ has to weigh credible evidence along with other evidence of record. So, here, I -- I think that it is a very familiar situation in which, even assuming the IJ found the testimony of Dai credible and found the testimony of Alcaraz credible, he then had to weigh that against the other evidence in the record.

And if other evidence in the record suggested that, in fact, Dai had not been persecuted, then it was -- then Dai had not met his burden. And, here, the IJ pointed to three pieces of evidence that suggested that Dai just hadn't met his burden, even assuming that the testimony was credible. And in Alcaraz, the IJ said --

Sonia Sotomayor: Counsel, before you go on with Alcaraz, there, the BIA did remand, and the issue was whether or not the -- and the -- and the Ninth Circuit found that they couldn't rely on the probation report, presumably, because the BIA will have to decide whether or not that witness was available for cross-examination or not. But I'm not sure why we granted cert in Alcaraz because the Ninth Circuit did what you're asking, it remanded there.

Colleen E. Roh Sinzdak: No, we aren't asking for a remand.

What we're saying is that the Court should apply the substantial evidence standard, and because there was substantial evidence in Alcaraz, even if you ignore the credible -- the probation report, the IJ pointed to the fact that it was a domestic violence offense.

She pointed to the fact that the elements involved the willful infliction of corporal injury resulting in trauma and the fact that he had been sentenced to two years, which indicated that the sentencer thought that he had committed a very -- a particularly serious crime. So I think you could just look at that and say that obviously meets these very, very generous substantial evidence standards set out in Section 1252.

John G. Roberts, Jr.: Justice Kagan.

Elena Kagan: Ms. Sinzdak, you said that the Board had not relied on credibility reasoning in these cases.

That's -- that's your principal submission.

And you said instead there were these three pieces of evidence in Dai, there was the probation report on Alcaraz. But, as you listed those pieces of evidence, they all seemed to me to go to credibility.

So let's just take the Dai case, and one of the pieces of evidence that you cited was, you know, he started stammering when he talked about his wife's return and he was very hesitant to tell the truth and he looked uncomfortable and like that is classic demeanor evidence going to somebody's credibility. And similarly, the other pieces of evidence, I mean, they all go to whether or not he's telling the truth, which, you know, honestly, join me up to Justice Alito, that -- that if the evidence is related to whether he's being honest in his testimony, then it goes to credibility. So how are all of those pieces of evidence not essentially related to credibility?

Colleen E. Roh Sinzdak: First of all, I -- I -- I think that, just to be clear, it was also -- it wasn't just demeanor evidence.

And, in fact, I'm not sure I did refer to demeanor evidence with respect to Dai not being forthright.

Elena Kagan: If -- if you would just answer the main -- main question, Ms. Sinzdak.

Colleen E. Roh Sinzdak: Absolutely.

So there is an overlap certainly between credibility and persuasiveness.

Obviously, testimony isn't going to be persuasive if it is not credible, if it isn't even capable of being believed. But a -- it is -- it is within the IJ's power to say, look, I think there were inconsistencies in his testimony, but I still think that he is capable of being believed, so I'm not going to say you get an adverse credibility determination.

Elena Kagan: In -- in the end, Ms. Sinzdak, did the Board believe that Mr. Dai was lying?

Colleen E. Roh Sinzdak: I don't think the Board said that he was lying.

What it said is there's other evidence that suggests ultimately that the facts haven't been established here.

Elena Kagan: Well, how would the facts not be established if he was telling the truth?

Colleen E. Roh Sinzdak: He could believe that he was telling the truth.

He could very much believe that -- that -- that all of these things happened as they were, as -- as -- as he says, but, you know, just as somebody could believe that the light was red, but, ultimately, there are facts that strongly suggest that isn't -- that isn't what happened.

The light was green.

Elena Kagan: Well, the --

Colleen E. Roh Sinzdak: You're --

Elena Kagan: -- the -- the question in the Dai case is all about whether he got beat up because of his opposition to the, you know, so-called family planning policies of China, and, if he did get beat up for that reason, then he has a well-founded fear of persecution under the regulations.

And are you saying that the Board said that he was mistaken as to whether he got beat up?

Colleen E. Roh Sinzdak: I am saying that the Board did not think he had submitted sufficient evidence to meet his burden of proof.

Elena Kagan: I know, but how did the Board reach that determination unless the Board decided that he was lying?

Colleen E. Roh Sinzdak: It looked at other testimony of his, and, remember, there's no adverse credibility determination, so it's looking at all of his testimony.

And it said that he had also credibly testified that the real story behind his travel to the United States was that he wanted a better life for his daughter, and --

Elena Kagan: Well, then that suggests that his other testimony was a lie, was false, and that is inconsistent with a presumption of credibility. There's no extraneous evidence in this case at all.

It all relies on whether Dai is telling the truth or not.

And there's a presumption that kicks in, and you're saying, well, we -- you're -- you're not grounding your argument on whether that presumption was overturned by the Board.

Instead, you're saying that the Board presumed he was credible and then did something else.

But there's nothing else to be done in the Dai case.

Colleen E. Roh Sinzdak: If the --

Elena Kagan: He told a story.

It's an honest, true story, or it's not.

Colleen E. Roh Sinzdak: If the Court thinks that all of the evidence that the agency pointed to is only relevant to credibility, then I think it would -- and -- and has to meet -- would -- would necessarily dictate that the Board didn't and the agency and the IJ didn't think he was telling the truth, then I think the only mistake that was made here was that they didn't use the word "credibility."

Elena Kagan: Thank you --

Colleen E. Roh Sinzdak: And --

Elena Kagan: -- Ms. Sinzdak.

John G. Roberts, Jr.: Justice Gorsuch.

Neil Gorsuch: Good morning, Ms. Sinzdak.

I'd like to explore a slightly different point, and -- and that is where does this presumption apply.

In the government's opening brief, it took the position that it applies only in appeals to the BIA and not in court. The reply brief didn't appear to me to press that point with the vigor of the opening brief, and I'm just curious what -- what -- what the government's position is now.

Colleen E. Roh Sinzdak: The government's position remains that the presumption applies before the Board and not before the court. As we explained in our reply brief, we don't think that we need to get bogged down in that because, here, we just don't think that credibility is the issue.

But we continue to -- to believe that the -- the -- the clear language of the statute makes the presumption applicable before the Board.

Neil Gorsuch: Okay.

Let's suppose you're right about that just for the moment. What -- what difference does that make if a court of -- of -- you know, the court of appeals has to review for substantial evidence and reasonableness.

Doesn't it have to also inquire as to whether the Board reasonably treated the presumption?

Colleen E. Roh Sinzdak: Yes, and if -- if credibility became an issue, which, again, we think that the court should have reviewed the noncredibility-related grounds that the -- that the -- the Board relied on, but, if credibility became an issue, yes, it would have to say, we think the Board implicitly found that the -- that Dai was not credible, and we think there was sufficient evidence that the presumption of credibility was overcome. And, here, I -- I think, frankly, there is because --

Neil Gorsuch: I -- I -- I -- let me just stop you there.

I'm sorry, but you say implicitly, and I -- I guess I'm wondering how a court could decide that the Board acted reasonably based on an implicit credibility determination when the statute seems to require the Board to make an explicit one.

Colleen E. Roh Sinzdak: I don't think the statute requires the Board to make an explicit credibility determination.

The only thing the statute says in that regard is that, if the fact-finder or if -- if it had not made an explicit adverse credibility determination, the Board should apply the presumption.

It doesn't then say --

Neil Gorsuch: Right.

Colleen E. Roh Sinzdak: -- and the Board must --

Neil Gorsuch: Okay.

So -- so we don't have an explicit finding from the IJ.

Why wouldn't it be unreasonable, therefore, for the Board to -- let's just assume for the moment it did -- implicitly reject the credibility of the -- of -- of the witness?

Colleen E. Roh Sinzdak: I think you have to look at this against the backdrop of what the circuits have considered an explicit adverse credibility finding in -- insofar as -- as the Ninth Circuit in the majority opinion explained, you know, they haven't even credited things where the Board -- the -- the Board has said that, you know, he didn't seem quite credible.

Neil Gorsuch: Okay.

But let -- let -- let -- just -- just let's -- let's -- let's assume it's implicit, as -- as your answer -- first answer seemed to suggest. Could -- could the Board reasonably affirm an IJ based on implicit credibility determinations, or would that be something a court of appeals would have to reverse in light of the statute?

Colleen E. Roh Sinzdak: If it found the presumption overcome, it could certainly affirm an IJ based on an implicit credibility determination because, again, the statute doesn't apply an irrebuttable presumption.

It applies a rebuttable presumption. So, if the Board looked at the IJ and said, you cited three major pieces of evidence that show that Dai was not credible, you seem to have forgotten to say -- to make an adverse credibility determination, that would, of course, be acceptable.

Neil Gorsuch: How about -- I -- I certainly understand the reluctance of immigration judges and trial judges everywhere to make adverse credibility determinations expressly.

It's -- it's an uncomfortable task. But what -- what -- on the other hand, what's so difficult about requiring the government to do just that? I mean, if you point to, as Judge Collins did, you know, eight different problems with Dai's testimony, for example, the probation report in the other case, it surely wouldn't require much more than a few words to -- to -- to make express what -- what's implicit.

Colleen E. Roh Sinzdak: Well, I think it would be going beyond what Congress stated because Congress in 1252 said that the courts have to uphold agency determinations unless the -- any reasonable fact-finder would be compelled to reach the opposite conclusion. So I think it would be flouting Congress's plain text to -- to require something that Congress did not.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh.

Brett M. Kavanaugh: Thank you, Chief Justice. Good morning, Ms. Sinzdak.

On the statutory language, if I could start there and pick up on Justice Gorsuch's questioning, it says if no adverse credibility determination is explicitly made -- and you said that's by the IJ -- the applicant or witness shall have a rebuttable presumption of credibility on appeal. And I just want to know what work the presumption does and -- on -- on appeal.

In other words, I would think the presumption does work when there's no other evidence at all, other than the testimony of the applicant, and there hasn't been an adverse credibility determination.

Then there's -- then you have that presumption of credibility on appeal, and, presumably, that will sustain the burden.

But you can tell me if that's wrong. If there's any other evidence, however, then the presumption, I guess, drops out or the case becomes like any other case.

Is that right? Is that your argument, or how do you think about that?

Colleen E. Roh Sinzdak: I mean, I'm -- I'm -- I'm certainly willing to go with that, but I think -- I think you're absolutely --

Brett M. Kavanaugh: But why is that wrong? You don't think that's right.

What's -- what's wrong with what I said there?

Colleen E. Roh Sinzdak: Well, I -- I think that if the IJ has not made an explicit adverse credibility determination, then the -- the court needs to -- sorry, then the Board needs to determine whether the presumption has been overcome.

And I think that could occur in cases where there is other evidence. And the way I think about it is if, for example, the IJ said, I'm not going to address credibility, I'm going to -- but I think that, you know, the -- the -- the testimony is not persuasive or I think other evidence demonstrates this isn't correct, it could say any number of those things, and the -- the Board could evaluate it and say, well, we don't accept the grounds that the IJ relied on, but we think he -- you know, but we -- we think he's probably not particularly credible.

And I think, there, the presumption would kick in and say no, you can't make that finding.

You actually need to either determine whether the presumption has been overcome or remand to the IJ to make an -- a credibility determination.

Brett M. Kavanaugh: What -- what's the point of this provision, do you think?

Colleen E. Roh Sinzdak: I think exactly what I just said.

I think it prevents the Board from just assuming that the alien was not credible. I think that if you look at the concurrence in S-M-J-, which is the Board decision referred to in the -- the legislative history of the REAL ID Act, one of -- there was a concurrence there that was very concerned that adjudicators might just assume aliens are lying because -- because they're seeking asylum, because it's to their benefit.

And I think the presumption ensures that the Board doesn't make that -- that -- that -- that -- that negative inference, that it actually has to point to some evidence to rebut the presumption of credibility.

Brett M. Kavanaugh: Then, on the terminology, there's a lot of confusion obviously inherent in these terms, but I -- I would think the way you would approach it when -- with a witness's testimony is you would ask, is the witness lying, first, about whether the light was red or green, for example.

The witness knows it was red but testifies it was green.

So the witness is lying.

That's the first inquiry, is the witness lying? Then the second inquiry would be, even if the witness is not lying, is the witness mistaken or wrong? You know, they truly believe the light was red, but, in fact, the light was green, the other evidence shows. Now that's how I usually think about it, and I'm curious how you think that fits into the term "credibility." In other words, is the witness lying? Even if not, is the witness mistaken?

Colleen E. Roh Sinzdak: Yes, I think that that's a good way.

I would just give you the terms of the statute.

So I think the first question is, is the witness credible? Is he even capable of being believed, or is it just obvious that he's lying? And the next question is, well, is the witness persuasive? Is there a possibility that, for whatever reason, he's mistaken? Even if he's capable of being believed, the testimony just hasn't -- doesn't have the power to persuade me that the light actually was, you know, green.

Brett M. Kavanaugh: And won't a finder of fact often say, I'm not quite sure if they're lying, but I still don't think they're correct? They're -- they're mistaken about the -- the light being red or green.

I'm not quite sure they're lying, but they are mistaken given the other evidence in the record.

Colleen E. Roh Sinzdak: Absolutely, and, again, you know, you just have to think about the scenario where you have two credible witnesses that are testifying to conflicting facts.

You can say both those witnesses are credible, but I think only one of what they're saying -- only one of the witnesses is -- is telling the truth. And I think that's --

John G. Roberts, Jr.: Justice Barrett.

Colleen E. Roh Sinzdak: -- a familiar exercise.

Amy Coney Barrett: Good morning, Ms. Sinzdak.

I -- I have to say join me up with Justices Alito and Kagan.

I'm baffled by the distinction that you're drawing between "credibility" and "persuasiveness." And it's not actually consistent with the way that I've seen cases come up for review in the court of appeals from IJs who make adverse credibility determinations. The ones I've seen, you know, they've essentially been equivalent to saying that the witness is lying.

This -- this fine distinction between "believable" and "believed" just seems, you know, nitpicking to me.

As Justice Kavanaugh was saying, it seems to me more like "credibility" refers to are they lying, and then "persuasiveness," as Justice Kavanaugh was suggesting, points to other reasons why you might not believe them. So I could -- you know, thinking about your example with the child and the crumbs, I was thinking as you talked about an example about my child.

I come home and find the child hysterically crying, and she said someone was beating at the door, I think somebody was trying to break into her house -- our house.

And I can believe her.

I don't think she's lying.

But then my neighbor says, yeah, you know, I -- I saw it was the UPS man. So it's -- I would not find her story persuasive, not because of credibility but because there was other evidence that showed she was not, in fact, in danger.

It was the UPS deliveryman.

So I don't think that -- you -- you seem to be leaning heavily on the fact that the statute uses both the words "credibility" and "persuasiveness," and I just don't see it. So I want to ask you what's wrong with seeing it this way: that the IJ makes a determination about credibility, and that has to be express, and when it gets up to the Board, there are two ways in which the Board might have to confront this presumption.

Either the IJ actually found the alien incredible and the Board disagrees, in which case it has to confront the presumption and explain why it thinks the evidence rebuts that presumption of credibility, or the IJ might not have done a good enough job in making an adverse credibility determination explicit, as the statute requires, and then, still, the Board has to presume credibility and then explain why it thinks the presumption is rebutted. If the Board offers such an explanation, once it gets up to the court of appeals, the court of appeals isn't applying any kind of presumption.

The court of appeals is just reviewing it for substantial evidence and seeing if the Board's explanation -- and the Board has to show that it understood what presumption should be there -- whether the Board's explanation was rational and substantial evidence supported its determination that the alien was not telling the truth. Is that an okay way to think about it, and how is that different from your way?

Colleen E. Roh Sinzdak: I -- I -- I don't think it's -- it's obviously a little bit different from the way that we think about it because we think it is coherent and, in fact, what the statute dictates, that an alien's testimony can be credible but not ultimately persuasive.

But I also don't want to resist it too much because I think we may just come out the same way. The key thing here is that under 1252, the -- a court -- a reviewing court should not overturn an agency's findings that are supported by substantial evidence.

And what 1252 does not say is: And they have to have appropriately labeled that evidence as going to credibility or persuasiveness or sufficiency or something else. It just says you have to look and, as long as any reasonable fact-finder could say that there is evidence in the record that supports the agency's determination, it has to be affirmed. So, if you think that what happened here is the agency -- the IJ and the Board should have said the word "credible" and didn't, then I still think that leads to upholding the agency's determination.

I mean, this Court has said that judicial review is not a ping-pong game.

We don't just bat back and forth --

Amy Coney Barrett: Counsel, let me --

Colleen E. Roh Sinzdak: -- so that the agency --

Amy Coney Barrett: -- let me just interrupt a bit --

Colleen E. Roh Sinzdak: -- can use it for --

Amy Coney Barrett: -- sneak in one more question.

Is it your position that IJs actually, on the ground, proceed in the way that you're suggesting, drawing this distinction between someone could believe you, but I don't, and just using "credibility" in the way that Justices Alito and Kagan and I have been using it, just as it means truth?

Colleen E. Roh Sinzdak: I think there's a basic problem because the REAL ID Act only came into existence in 2005.

And before that, there was a focus on credibility alone.

And the REAL ID Act introduced the fact that the -- the IJ has to be satisfied that it's not just credible testimony but also persuasive. I'm not sure on the ground that IJs have fully accounted for that change in the law, but that doesn't mean that it's not the law.

Amy Coney Barrett: Thank you.

John G. Roberts, Jr.: A minute to wrap up, Ms. Sinzdak.

Colleen E. Roh Sinzdak: Sure.

I mean, in the end, I think that what we're seeing here is there's general agreement that there was plenty of evidence in both cases -- indeed, one might say substantial evidence in both cases -- demonstrating that the I -- that -- that the alien was not eligible for asylum or withholding of removal.

And the only question here is whether the evidence should have been labeled as to persuade -- as persuasive or credible or some other way. I think the statute makes very clear that it is within the IJ's right to say that testimony is credible but not persuasive.

The IJ, after all, has to be satisfied that the testimony is persuasive. But even if you doubt that, under 1252, the agency's determination has to be upheld so long as any reasonable fact-finder would not be compelled to reach the contrary conclusion. Thank you.

John G. Roberts, Jr.: Thank you, counsel. Mr. Katyal.

Neal Kumar Katyal: Thank you, Mr. Chief Justice, and may it please the Court: The government petition for certiorari claiming courts should not enforce the presumption of credibility when reviewing Board decisions, but now, as they said to Justice Gorsuch, they accept that this presumption does apply in federal court. So all we are left with is a purely fact-bound issue of whether, in this specific case, once the presumption is applied, the Board had substantial evidence that a particularly serious crime was committed. I'm not sure that this question alone would be cert-worthy, but, in any event, the answer to that is easy because the Board provided no reasoned explanation for rejecting Alcaraz's testimony, which the government admits had to be presumed credible. The government made a remarkable concession that for the legal standard that Encino Motorcars requires that "the pathway must be clearly discerned," to use Ms. Sinzdak's words. Here, that's impossible to discern. As the court of appeals found, the Board's decision was based on "a probation report which directly contradicts Alcaraz's testimony." If that court were to ask why did the Board believe one account and not the other, it would have to guess, was it based on a reason at odds with the record, arbitrary, or something else? Did the immigration judge overlook the only eyewitness account from the mom, which is curiously never mentioned by the -- by the IJ or by the Board? Did he misunderstand Alcaraz's no contest plea? Did he think Alcaraz agreed with the probation office report even though that report was written months after the plea? If this Court is to endorse the application of the government's rule today, it set a new basement level standard for the quantum of reasoning an agency must offer to support its factual findings, one that would radiate far beyond immigration throughout the administrative state. This Court should decline that invitation and affirm.

John G. Roberts, Jr.: Mr. Katyal, just to be -- be clear sort of starting out here, the question presented is whether a court of appeals may conclusively presume that an asylant -- asylum applicant's testimony is credible and true if there's no explicit adversary -- adverse credibility determination. And -- and your answer to that is no, the court of appeals cannot conclusively presume that the applicant's testimony is credible and true.

Is that right?

Neal Kumar Katyal: Yes, to a point, Your Honor.

As our brief in opposition said, it is to presume the testimony is credible, but there is sometimes a distinction with truth, and, you know, I think Justices Alito and Kagan are getting at the fact that there's a massive overlap here, and we don't push that point too much. But to the -- there is at least some distinction, and so those words, true, are the part in which we would disagree with -- that we -- that we find a problem.

John G. Roberts, Jr.: And I also understand your position to be that there are no magic words here.

The -- the BIA does not specifically have to find that we think -- doesn't have to have an explicit adverse credibility determination.

Is that right?

Neal Kumar Katyal: There are no magic words to create that express adverse credibility determination.

There is to be one in order to have a rebuttable presumption.

And once there is that rebuttable presumption, Mr. Chief Justice, we do think it makes the persuasiveness inquiry very hard because of cases -- cases like Greenwich Collieries which say that an agency can't "stand mute and disbelieve credible evidence."

John G. Roberts, Jr.: Right.

So -- so what it comes down to in -- in your view is simply how much of an explanation BIA is required to provide before the court of appeals can say that it implicitly made an adverse credibility determination?

Neal Kumar Katyal: I -- I think that's largely right.

So our point is, as the case comes to the Board, there was a rebuttable presumption of credibility.

The Board then had two options. One -- and I think they were laid out by Justice Barrett.

One is to say, I rebut that, it's actually not credible.

The other is to make a persuasiveness finding and to say, you know, I believe it -- you know, it's capable of being believed, but the evidence is overweighed -- outweighed.

There is --

John G. Roberts, Jr.: Thank --

Neal Kumar Katyal: -- no magic words.

John G. Roberts, Jr.: -- thank you, counsel. Justice Thomas.

Clarence Thomas: Yes, Mr. Katyal, the -- I'm a bit confused.

The -- you say that there's no magic word requirement.

But what if there is just the -- the -- the Board makes a choice or the IJ makes a choice between two sets of evidence? Isn't it implicit that it found one more credible than the other?

Neal Kumar Katyal: Justice Thomas, we don't think that you can just implicitly rely on a persuasiveness calculation, particularly when the evidence is presumed credible.

I think that's what I'm getting at with Greenwich Collieries, which is cited at page 39 of our brief. And, indeed, Congress has this whole thing in the REAL ID Act about credibility, about the need to make express adverse credibility findings.

It would make hash of the statute, make hash of Congress's work to accept, I think, what the government is saying here, which is, hey, as long as you've got something that might implicitly be read one way, that's enough. I mean, that's not what this Court ever expect -- accepts in the administrative law context.

You wouldn't accept it for the SEC or the EPA, and I certainly don't think you should accept it here.

Clarence Thomas: But is -- is your argument the argument that the Ninth Circuit used?

Neal Kumar Katyal: Our argument -- we read the Ninth Circuit differently than the government.

We read it to basically be saying there was a presumption of credibility that came into the Board and the Board then had to explain why it accepted one contrary view as opposed to another.

They're diametrically opposed. And the IJ's opinion is like a bad lawsuit exam, Justice -- Justice Thomas.

It lays out the facts on both sides, but it never applies them to explain how it resolved this case.

And that would be bad in general, but particularly when there's a presumption of credibility coming in, and Greenwich Collieries says you can't as an agency just disbelieve that credible evidence.

That's where the agency fell down.

Clarence Thomas: Thank you.

John G. Roberts, Jr.: Justice Breyer.

Stephen G. Breyer: Good morning.

I -- I think you and every -- everyone seems to agree with this: The Ninth Circuit's wrong when they say that you, even though where there's no finding, you assume that the person is credible. That isn't what the statute said. It says where there's no -- no -- no finding, you presume, not assume.

And so the question is, did the -- did -- did -- is that what the agency did? Did it presume it? No. Well, maybe, because they might have assumed that the presumption was rebutted. So we have a question on appeal.

They didn't write whether it was rebutted or not. But that's true of district court judges: When they make a lot of findings that are appealed, they don't always have to write.

It could be the situation.

It could be implicit from the record that they assumed that it was rebutted. Lower courts or the agency thought the presumption was rebutted.

Now you don't have to write about everything on -- an agency doesn't have to and a district judge doesn't have to. So how do we deal with that?

Neal Kumar Katyal: I think, Justice Breyer, we deal with it by recognizing first that Congress in Section 1252 expressly enabled judicial review of agencies and used the substantial evidence standard.

Stephen G. Breyer: Yeah.

Neal Kumar Katyal: The government even admits that that's the standard.

Stephen G. Breyer: Right.

Neal Kumar Katyal: And then, as part of that standard, as T-Mobile says, you know, "courts cannot exercise their duty of substantial evidence review unless they're advised of the considerations underlying the action under review." And the problem is, in this case, and this is, you know, a representative case, as our brief in opposition says, you know, they haven't actually told you how they resolved the problem.

Stephen G. Breyer: They haven't --

Neal Kumar Katyal: And --

Stephen G. Breyer: -- but do you think they have to write an opinion where district judges all the time are making rulings where they don't write opinions, and suddenly an administrative law judge has to write an opinion on this matter, on every matter?

Neal Kumar Katyal: I think --

Stephen G. Breyer: Is this different from any other matter?

Neal Kumar Katyal: I think, in all agency review contexts, as opposed to district court circumstances, yes, there has to be a reasoned explanation.

Stephen G. Breyer: Of everything?

Neal Kumar Katyal: But that's not --

Stephen G. Breyer: Why should that be?

Neal Kumar Katyal: -- detailed in --

Stephen G. Breyer: Why should that be? I haven't -- I mean, why should a -- why could you not infer from the situation what the IJ thinks, whereas we do infer from the situation what a district judge thinks?

Neal Kumar Katyal: Because, Justice Breyer, for seven decades, the Chenery rule has required more and said it's not rational basis, that there's a worry about agency decisionmaking, and all -- it's not -- it's not some extreme -- extreme standard, as, you know, Judge -- then Judge Gorsuch's opinion in Lin Yan said.

You know, it's pretty easy to meet the standard, you've just got to say something, or Judge Colloton's opinion in Singh.

So this is not --

John G. Roberts, Jr.: Justice Alito.

Samuel A. Alito, Jr.: I don't know that I have very much to add here.

The -- the Ninth Circuit said, and I'm quoting from the opinion in your case, "We have repeatedly held that where the BIA does not make an explicit adverse credibility finding, the court must assume that the petitioner's factual contentions are true." I understand you now to acknowledge that that was an inaccurate statement of the law.

Isn't that right?

Neal Kumar Katyal: That's correct, as our brief in opposition says.

Yes, Justice Alito. We --

Samuel A. Alito, Jr.: Okay.

So the -- the BIA can implicitly find that the presumption was rebutted.

And then the question does seem to come down to whether it is permissible to read the BIA's opinion as sufficiently stating that they -- that the -- that the Board found that -- that the -- the requirements for asylum were not met, whether they provided a sufficient explanation.

They don't have to do it explicitly, but they have to provide an explanation. That's -- that's the question, right?

Neal Kumar Katyal: So -- so, Justice Alito, that question is different than the first one you asked me because you're saying could it be done implicitly.

And I think seven decades of administrative law provide a reasoned -- require a reasoned explanation.

I could imagine it could be done implicitly.

They don't have to say and -- come out and say, you know, exactly all of their handiwork, but they have to show enough to explain what they did. And as I said in my opening, here, you just don't know that.

Like, for example, there's only one eyewitness to this whole account.

It's nowhere mentioned in the IJ report or in the Board's decision.

Samuel A. Alito, Jr.: Well, the -- the Board could say -- could do this, could it not? The alien testified to this, there were other witnesses that testified to this, another witness testified to this.

Without going through each witness and saying we believe A, we -- we disbelieve B, we believe C, they simply say these are the facts that we -- that we -- that we find.

That would be sufficient, wouldn't it?

Neal Kumar Katyal: Well, Justice Alito, I'm not sure that that is the reasoned explanation that is required.

I mean, you don't even have that here, but I think that isn't that -- I think just to lay out the facts and then just say we decide on one. I mean, Congress created judicial review in 1252 for a reason.

It's got to be meaningful.

And it's not meaningful if a litigant like Alcaraz can't even, you know, make heads or tails of what the decision actually said.

And, you know, we've heard many different versions of what we think the IJ and the Board did or the government thinks it did.

That makes it impossible to appeal.

And, remember, these are --

John G. Roberts, Jr.: Justice Sotomayor.

Neal Kumar Katyal: -- associated with counsel.

Sonia Sotomayor: Mr. Katyal, I have a basic problem in this case starting from where Justice -- Justice Alito did, which is you've admitted the Ninth Circuit applied a wrong presumption.

It seems to me that then the only thing that happens is a remand to see exactly what they intended or didn't intend. I do have a problem in this case believing that this ruling was on anything other than credibility, i.e., they -- that the IJ and the BI -- and the BIA didn't believe your client with respect to the nature of the assault.

Am I correct in that assumption?

Neal Kumar Katyal: I don't think so.

So, first of all, Justice -- Justice Sotomayor, we don't think that the Ninth Circuit actually held what the government says.

Our point is, if you read it that way, then, yes, it's got some stray extraneous language.

But, remember, here, the Ninth Circuit remanded this case to the agency because of hearsay.

And if Alcaraz's test --

Sonia Sotomayor: Well, answer -- answer, please, the question I asked most directly, which is, can the BIA's decision be upheld if it found this person credible as to his explanation as to -- as to what happened?

Neal Kumar Katyal: If -- if it found Alcaraz's testimony credible and -- then I don't think it's possible because the story he -- that -- Alcaraz's version of events, which is diametrically opposed to the probation office report, is he did it to protect his daughter, and there's only one incident of violence, one punch to the face, and that alone wouldn't be the "particularly serious crime" necessary to make someone ineligible for relief from -- from removal.

Sonia Sotomayor: So I think that goes to the basic question.

Without a adverse credibility finding or a statement that he is -- they did not believe or didn't credit his explanation, then, without that finding, you can't uphold their judgment.

Is that your argument?

Neal Kumar Katyal: Our -- well, I think you could either do it on credibility or on persuasiveness.

Again, it wouldn't, as Justice -- as Justice Gorsuch said, require any sort of magic words or an onerous burden, but you'd have to, in substance, either rebut the presumption of credibility or show that the evidence wasn't persuasive.

It's got two options.

The agency's gotten --

Sonia Sotomayor: All right.

Thank you, counsel.

Neal Kumar Katyal: -- it done in two stages.

John G. Roberts, Jr.: Justice Kagan.

Elena Kagan: Mr. Katyal, this seems like a -- this -- this is a pretty simple case, right? There's -- there's basically two pieces of evidence in it.

Mr. Alcaraz says this was nothing, I -- I -- I just -- I didn't really seriously beat my -- my girlfriend, and I was trying to protect my daughter.

And then, on the other hand, you have a probation report. So it comes up to the Board, and because there was no finding, it comes with a presumption of credibility, but the Board is now looking at the probation report and saying, you know, generally, we believe probation reports rather than convicted criminals with incentives to lie, and that's exactly what we're doing here.

We're going to believe the probation report that this was an extremely serious crime. So isn't the surrounding circumstances, and then you look at this case, and, basically, it just comes back -- down to do you believe Mr. Alcaraz or do you believe the probation report, doesn't it -- isn't it just clear that the Board believed the probation report rather than Mr. Alcaraz? And, if that's so, isn't it clear that, essentially, the Board decided to rebut the presumption?

Neal Kumar Katyal: Justice Kagan, the government doesn't even make that argument, and I think as your hypothetical demonstrates why, because there is no language anywhere in there that we don't believe criminals or anything like that, or we tend to believe probation officers or the like. Indeed, had that language been in there, that would enable precisely the kind of meaningful judicial review Congress put in 1252. As it stands, we have to guess whether those are the rationales, something else that the government has offered are the rationales, and the like.

That's the problem.

And, again --

Elena Kagan: But aren't you just asking, like -- I mean, it seems as though you're just asking for one more sentence, which is -- or even half of a sentence: We believe the probation report rather than Mr. Alcaraz because ....

And what would that "because" look like and -- and -- and why is it necessary?

Neal Kumar Katyal: The "because" could be any of the reasons that Judges Colloton and Gorsuch did in Singh and Lin Yan.

So they could say, you know, we didn't find that person credible on the stand.

There was an agitated demeanor.

There were inconsistencies in the testimony.

They admitted, you know, filing false documents.

Those are all the kinds of rationales that are given in case after case. The problem here is there's nothing, and if you accept nothing here, it's going to be the rule not just in immigration cases but in other cases, I mean, and we --

Elena Kagan: Thank you, Mr. Katyal.

John G. Roberts, Jr.: Justice Gorsuch.

Neil Gorsuch: Good morning, Mr. Katyal.

I'd like to pick up where Justice Kagan left off.

I'm -- I'm struggling to identify any other ground on which the BIA could possibly have acted other than it -- it believed the probation report rather than your client. And if that's the case and no magic words are required, what's -- what's left?

Neal Kumar Katyal: So, Justice Gorsuch, it's not rational basis review; it's substantial evidence review, so we're to look to what the agency actually said.

And let me give you two possibilities that would answer this.

One is, did the IJ and the Board just overlook the only eyewitness account, which is from the mom? It's just nowhere by the I -- in the IJ or in the Board's report. And, remember, this is an IJ judge who's a bit worrisome.

I mean, he blew off the entire statute requiring cross-examination. It's an express statute by Congress.

So, you know, if he could ignore that, he could ignore, you know, the fact that there was the mom's testimony. And then the other way of thinking about it, just a second example is, you know, Alcaraz's no contest plea was made three months before the probation office report was written, and there's a lot of reliance on what that report said.

Indeed, we just heard Justice Kagan talking about that.

But Alcaraz never agreed to any of that because his plea preceded that by three months.

We have no idea whether the IJ understood that or the Board understood that. And, indeed, before the Board, we actually gave them a chance to correct their mistakes and to say, you know, provide that specific cogent reasoned explanation that, Judge -- Justice Gorsuch, you called for in Lin Yan. The Board filed -- excuse me, ICE filed a one-page answer before the Board, and the Board, of course, did nothing.

Zero plus zero is still zero.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh.

Brett M. Kavanaugh: Thank you, Chief Justice. Good morning, Mr. Katyal.

On the statutory language, I'll repeat a question I asked your colleague.

It says, the applicant or witness shall have a rebuttable presumption of credibility on appeal if no adverse credibility determination is explicitly made. I think the purpose of that was that if the only real testimony in the record is from the applicant that -- and the IJ did not say, I think the applicant is lying or make an adverse credibility determination, it would not be open to the BIA to -- to do that. But, by -- and this is what I want you to focus on -- by using the phrase "rebuttable presumption" -- I think Justice Kagan was talking about this and Justice Gorsuch -- if other evidence comes in, it's not just the applicant's testimony and you have nothing else, other testimony comes in, then that you just do normal substantial evidence review as the reviewing court. And if the BIA has explained, we think the other evidence is inconsistent with the applicant's testimony and -- and the other evidence is more persuasive or we choose to believe that other evidence, then that rebuts the presumption.

Neal Kumar Katyal: Justice Kavanaugh, we, you know, agree that the Board absolutely could rebut the presumption.

The problem here is the Board expressly "adopted and affirmed the IJ's findings," which didn't have that credibility determination. And so the Board never discussed credibility or gave any reason to find Alcaraz noncredible.

You know, nothing like what Justice Kagan was getting at about how we don't believe criminals or we believe probation office reports or any of that.

Brett M. Kavanaugh: Just put aside this case, and I understand why you're focused on this case.

Is that how you think the statutory provision operates?

Neal Kumar Katyal: We do think that the Board absolutely can rebut the presumption. They've got to do so with some work.

And, you know, a circuit court sitting on 1252 review would look for a reasoned explanation, so it's got to explain what they're doing and have some reason behind it, just as in any administrative law context.

That's all.

It's not an onerous standard.

It's just one that the government can't meet here.

Brett M. Kavanaugh: That's helpful. Thank you, Mr. Katyal.

John G. Roberts, Jr.: Justice Barrett.

Amy Coney Barrett: Good morning, Mr. Katyal.

You said -- I -- I just want to be sure that I understand the ways in which your position is distinct from the government's. So it seems like you don't quite buy the government's argument that "credibility" simply means is this person capable of being believed rather than I believe them, but I did hear you earlier say something about something can be credible and not persuasive on the grounds that you don't believe the person. So can you just tell me what you mean by "credible," how you understand it?

Neal Kumar Katyal: So we read "credible" as capable of being believed and sometimes, and rarely, there will be a difference between "credibility" and "persuasiveness." You know, for example, if someone says, you know, I'm worried if I go to Mexico that I'm going to be beaten up, and the judge doesn't think he's lying, thinks it's genuine but, as a result of country testimony by the State Department and others, just thinks that's not right, you know, those are the types of circumstances. Here, as I was saying to the Chief Justice, when a case comes in with a presumption of credibility, Greenwich Collieries says, you know, that really heightens the burden on the agency --

Amy Coney Barrett: But -- but --

Neal Kumar Katyal: -- to explain the line.

Amy Coney Barrett: -- Mr. Katyal, in the example you gave, I think actually then you and I might be interpreting it the same way, because that's kind of like my child and the UPS man example.

On that example, it's not that the person was lying.

It's just that they're mistaken based on other outside evidence.

So, there, you're right, they may be credible but not be persuasive. But that's consistent with credibility referring to the truth or falsity of the testimony, is the person lying or not, right?

Neal Kumar Katyal: It is consistent.

The one point I'd make, though, Justice Barrett, is when you're answering that second question about whether other evidence outweighs or disproves it, it's got to be a reasoned explanation.

The agency just has to explain what it's doing clearly and provide some reason for it.

That's not --

Amy Coney Barrett: But the presumption --

Neal Kumar Katyal: -- that's what doesn't happen.

Amy Coney Barrett: -- wouldn't apply then before the Board, right, because, in that instance, it's not that the Board -- or I guess would it? Because it's not the Board is saying, you know, that there would be a presumption that the person wasn't lying, right?

Neal Kumar Katyal: So, Justice Barrett, this isn't a presumption in -- in the air.

It's a presumption about credibility.

And so, when Congress uses those words, it picks up preexisting cases like Greenwich Collieries, which say that you can't disbelieve credible evidence.

Now -- and so -- without -- without a reasoned explanation. So we don't doubt that the agency could provide that reasoned explanation, and, indeed, they almost always do.

As the amici briefs say, IJs are trained to do that.

They just didn't do it here, and it would be very dangerous for you to accept on this record this application of the government --

Amy Coney Barrett: Thank you, Mr. Katyal.

My time's up.

John G. Roberts, Jr.: A minute to wrap up, Mr. Katyal.

Neal Kumar Katyal: Thank you.

My central point, as I was saying to Justice Breyer, is that this is a standard agency case.

The agency had one job and it fell down on it. Justice Breyer was worried about this being too burdensome.

But this isn't hard to meet.

Indeed, it's how immigration judges have operated for decades, as I was just saying to Justice Barrett.

It requires no magic words, just a reasoned explanation, which this Court in Judulang has already unanimously said applies. And, Justice Alito, you had suggested that the record here was enough.

And if you were sitting as a rational basis court, I think you could find something to justify what the agency did, but that's not the test. Here, as the Ninth Circuit said, there were two contradictory accounts.

The agency just had to explain why it believed one of them. And the agency always has two bites to do so at the IJ and Board stages.

Here, the IJ wrote a detailed opinion except in the one place where it matters, its reasoning.

It tells us everything else but that.

And you wouldn't accept this reasoning or lack thereof if this were the SEC or EPA.

You shouldn't accept it here.

John G. Roberts, Jr.: Thank you, counsel. Mr. Zimmer.

David J. Zimmer: Thank you, Mr. Chief Justice. The parties have no real dispute, as this argument shows, as to the legal question on which this Court granted certiorari.

And at least in Mr. Dai's case, the court of appeals applied the precise legal framework that all parties accept. The court did not presume Dai's credible testimony to be true but held that the record compelled the conclusion that Dai's testimony, if credible, was persuasive. That case-specific conclusion was plainly correct.

Mr. Dai's eligibility for asylum and his entitlement to withholding turned entirely on whether he was, in fact, persecuted based on his resistance to the Chinese government's forced abortion of his child. Mr. Dai testified in great detail about that persecution and submitted significant evidence corroborating his testimony. The government agrees that the agency here made no adverse credibility finding; in other words, the agency did not conclude that Dai lied.

And there is simply no evidence in the record that would support a conclusion that Dai was not lying but was nevertheless somehow mistaken about the severe persecution inflicted on him.

This Court should therefore affirm.

John G. Roberts, Jr.: Counsel, first, did Mr. Katyal say anything with which you disagree?

David J. Zimmer: No, I -- I -- I -- I -- I don't think he said anything that I -- that I disagree with.

John G. Roberts, Jr.: Okay.

On -- on the remand question --

David J. Zimmer: Yes.

John G. Roberts, Jr.: -- it -- it seems to me that the bottom line is that, in that respect, you are insisting on magic words. In other words, the -- the -- the -- the court of appeals was all right not sending it back because there was an absence of those words in the BIA decision.

Is that -- is that wrong?

David J. Zimmer: I think it is wrong. I -- I -- I guess I'm not sure what magic words we would be requiring.

I think that -- that -- that, ultimately, the way that the -- the statutory presumption works is sort of as a gap filler as to credibility when the -- in the face of administrative silence. And so where, as here, the agency sort of accepts -- the agency accepts the testimony as credible and moves on to persuasiveness, then it's -- it is under the statute taking the testimony as credible and there's nothing left to do as to credibility. I don't -- does that -- I think that gets at the question you were -- you were asking, but I don't think that there's anything specific the agency would have to say.

It just has to follow what the government agrees is a -- a clearly discernible path as to finding the presumption rebutted.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas.

Clarence Thomas: Thank you, Mr. Chief Justice. Counsel, the -- like Judge Trott below, I have difficulty with the distinction between "persuasive" and "credible," and it just seems like a false dichotomy to me. But the -- can something be -- can you have two points of view, both of which seem credible, but yet one is not persuasive?

David J. Zimmer: Sure.

I mean, I think this gets at -- at Justice Barrett's example of the -- of the UPS delivery person where you can have -- you can have two narratives that are both credible but one of which turns out to just be incorrect based on other evidence of record, that somebody can be credible and yet mistaken. And I -- and I think that's sort of where the distinction between "credibility" and "persuasiveness" comes up, that -- that, ultimately, somebody can be testifying honestly, in other words, not perjuring themselves, not lying, but ultimately just be wrong.

And I think that's really the key distinction that the statute is drawing in recognizing that you can have credible testimony but nevertheless sort of just be -- be wrong.

Clarence Thomas: Do you think that -- in this case, in your case, there's quite a bit of evidence that seems to undermine both Respondent's credibility and -- or at least go -- could go to credibility and to persuasiveness.

What magic -- what words are missing in -- in this opinion, the IJ opinion, to your way of thinking?

David J. Zimmer: Well, I -- I guess it's not so much magic words.

I mean, the IJ -- the IJ never -- it's very clear in this case that the IJ did not find Mr. Dai to be not credible. In other words, it never concluded that -- that he was lying.

And -- and if you look at page 164a of the Petition Appendix, the Board said this explicitly, that the -- that the IJ had not made any adverse credibility finding.

And the Board adopted and affirmed that decision. So I think that to the extent the evidence goes to credibility, and -- and we think that it very clearly does only go to credibility, well, the IJ never made neither -- the IJ or the Board never made an adverse credibility finding. As to persuasiveness, I -- I actually strongly disagree that any of the evidence that the -- that the government relies on and the agency relies on does, in fact, go to persuasiveness.

You know, the government primarily notes the fact that Qin, Dai's wife, and their daughter went back to China.

But they were in a completely different situation than Dai was in the sense that they faced very low risk of at least any sort of persecution in the short term and had very strong reasons to go back, whereas Dai faced very real risk of -- of persecution in the short term -- the police had, in fact, come looking for him in -- in the few months after Qin and his daughter returned to China -- and had very little reason to return immediately because he had been fired from his job after resisting the forced abortion of his child.

And so --

John G. Roberts, Jr.: Justice Breyer.

David J. Zimmer: -- Qin and their daughter were -- go ahead.

Sorry.

John G. Roberts, Jr.: Justice Breyer.

Stephen G. Breyer: Yes, can -- two things: One, as I read the Ninth Circuit, I thought there's language there that says something like the following: Where there's no adverse credibility determination in the agency, a reviewing court of appeals must assume that the statement was credible.

That couldn't be right because, after all, the agency is told that, if there is no adverse credibility requirement, there is a presumption, and so, agency, you can say the presumption is rebutted. Am I right about what the Ninth Circuit is saying or not?

David J. Zimmer: I -- I think you are right about what the Ninth Circuit is saying.

Stephen G. Breyer: Well, then that's not right.

That isn't right because you could -- it would be weird to have an agency which says we can write down the words, in this situation, we find the presumption of credibility rebutted because, with the most convincing reasons ever. And the -- they would have to accept that in a court of appeals, or you're going to get -- it's not going to make sense.

All right.

That's my first problem.

David J. Zimmer: Right.

Stephen G. Breyer: I think we have to say that.

But the more serious problem which I really don't understand thoroughly and I'm trying to work out is what happens.

No adverse credibility determination.

Now there is a presumption.

The IJ and the agency think it's a -- possibly think it was -- it -- it was rebutted, that presumption.

Now do they have to write those words, "we find it rebutted," or are they implicit? Can a reviewing court ever find them implicit? And, if so, when? What words would you write in an opinion? If you believe the latter, you don't want to give them too much power to disregard what an applicant for refugee status says, but you do not want them to have to write magic words in every case. So what -- what would you do? What words would you use for -- to tell the reviewing courts be careful about this, where they don't make an explicit finding that it was rebutted, that the presumption was rebutted, no explicit finding?

David J. Zimmer: Well, I think --

Stephen G. Breyer: You could say what? Go ahead.

David J. Zimmer: The agency has to give the reasons that it's denying the application. I don't think there's any dispute about that. And so, if the reason is that it's finding the presumption of credibility rebutted, well, then it does have to say that.

And I don't think it has to be -- you know, I'm not sure -- I -- I think the easiest way to do that is to just say it up front, but everyone agrees, the government agrees, that it has to be clearly discernible from the opinion in some way.

And -- and I think that if the agency finds -- if the Board finds the presumption rebutted, well, then, obviously, that's a finding that's entitled to deference --

Stephen G. Breyer: All right.

But now --

David J. Zimmer: -- by the court of appeals.

Stephen G. Breyer: -- you've used words -- you've used words that help --

John G. Roberts, Jr.: Justice -- Justice -- Justice Alito.

Stephen G. Breyer: All right.

Samuel A. Alito, Jr.: Well, I -- I thought I was agreeing with you, but now the last thing you said gives me pause.

The Ninth Circuit -- I -- I read its opinion as saying -- here as saying exactly what it said very succinctly in the other case, that unless the BIA makes an explicit finding that the applicant is not credible, it must be presumed that the applicant was credible.

That, I think, is a -- an incorrect statement of the law.

And do you disagree that that is -- that that's the -- the rule that the Ninth Circuit applied in this case?

David J. Zimmer: I do think it's correct, but I don't -- I disagree that it's not -- I mean, I do think that that is what the Ninth Circuit applied.

Again, I want to be clear that they did not presume that the testimony was necessarily true in the sense of being accurate, but I think that what they were saying was that if -- if the agency is silent as to credibility, then that is effectively a determination that the -- the testimony was credible.

And I think that's the work that the rebuttable presumption does.

Samuel A. Alito, Jr.: Yeah.

Well, there's -- there's a difference -- maybe there's a difference between silence and -- and -- and a requirement of -- as an explicit statement. Must they make an explicit statement? Are they under the same obligation as the IJ?

David J. Zimmer: Oh, no, not -- no, no.

I mean, there's -- because there's no similar statutory requirement.

I think they have to say something that makes it clear that that's what the basis for their decision -- for their decision is, but we're not -- you know, we're not arguing that the same explicitness requirement that is -- that is explicitly by the statute applied to the IJ applies to the Board.

Samuel A. Alito, Jr.: Can the BIA's decision be read in this way: Dai had the burden of showing that he was unwilling to return to -- to China because of fear of persecution, and we do not believe that he had that fear; he did not establish that he actually is unwilling to return to China based on the -- the fact that he was less than truthful in -- or less than forthright in his explanation of -- of his family's travels and his own plans?

David J. Zimmer: No, I don't -- I don't think so.

And -- and the reason is that what you described is very clearly an adverse credibility finding, and if you look at page 164a of the Petition Appendix, which is the BIA's decision, the Board made very clear that it was not resting its decision on an adverse credibility finding.

So I -- I don't think that that's a way that you could read the Board's decision.

John G. Roberts, Jr.: Justice Sotomayor.

Sonia Sotomayor: If that's not the way we can read the Board's decision, but it's a permissible conclusion, was the -- why wasn't the Ninth Circuit wrong in not remanding this case?

David J. Zimmer: Right.

So -- and I think that really comes down to the presumption in the statute because the way that the presumption works, where you have the IJ silent as to credibility and the case then goes up to the Board, where this presumption of credibility applies, and the Board is effectively also silent, doesn't find the presumption rebutted, then I think that's the end of the matter.

And I think that's treated under the statutory framework as accepting the testimony as credible.

And so then there's no -- no basis on which the court of appeals needs to basically remand to give the agency another shot to re-adjudicate credibility.

Sonia Sotomayor: Well, the IJ here did find explicitly that Dai's explanation for his wife's return to China are inadequate and to outweigh that they returned, not because of persecution, and then he says Dai failed to prove his burden.

The BIA affirmed that Dai had lied to the asylum officer because the truth "would be perceived as inconsistent with his claims of past and fear -- and feared future persecution." That, to me, suggests the conclusion that Justice Alito suggested.

So, if that is possible given what they did say, why isn't an automatic remand appropriate?

David J. Zimmer: Well, look, I think, to be clear, if -- if -- if -- I think if the agency was sort of keeping open the -- the remand -- you know, keeping open the credibility issue as something it wasn't addressing, then maybe a remand would be appropriate, but I think if you look at page 164a of the -- of the Petition Appendix --

Sonia Sotomayor: But, counsel, they said -- both the IJ and the BIA said he lied about something.

David J. Zimmer: Well, I guess just to be clear, he --

Sonia Sotomayor: So they didn't believe him about something.

So why shouldn't we figure out what that meant?

David J. Zimmer: Right.

I mean, so -- so, to be clear, Dai -- Dai never actually lied.

I mean -- and they never accused him of lying.

He was -- they -- he sort of was reluctant to disclose this information.

When he was sort of asked point-blank whether they had come to the United States, he was -- he was up-front about it.

There's no dispute that --

Sonia Sotomayor: All right.

Thank you, counsel.

John G. Roberts, Jr.: Justice Kagan.

Elena Kagan: Mr. Zimmer, I want to work off the understanding of law that you started with, which is the same as the one Justice Barrett was using, which is that this presumption of credibility, what it says is that in the absence of a finding we are going to take the -- the testimony of the applicant as -- as honest, as truthful.

The applicant didn't perjure himself. But then there are -- there is extraneous evidence that could come in to show that the applicant was wrong.

And -- and -- and that distinction actually makes all the sense in the world in a statute like this, which is about a well-grounded fear of persecution, that the applicant can testify as to his fear and all the things underlying it. But then there can be other evidence which shows that that fear is not well grounded, notwithstanding the truthfulness of what the applicant said. So let's take that as the sort of premise of what the statute does.

Dai, it seems to me, could have lost in two ways in -- in that world.

One is if we understand the Board to have rejected the -- the -- the -- the presumption of credibility, in other words, to have decided that, in fact, Dai was lying when he said that this was the reason that he wanted asylum. And the second is, no, they accepted that he was telling the truth, but there is extraneous evidence indicating that he's wrong as to his fear of going back to China. So if you could comment on either of those two ways of saying that Dai was wrong and why you think neither of those is supportable.

David J. Zimmer: Right.

So I certainly agree with -- with all of that.

And as to the -- the first one, sort of the idea that he was lying, I point the Court again to page 164a, where the Board made very clear that it was not resting its -- that the IJ had not rested its decision on and that it was not resting its decision on an adverse credibility finding. So the agency just didn't find that he was lying.

And so I just -- I don't think that's a basis on which the -- the court of appeals could have affirmed and -- or could have -- could have denied a petition for review. As to whether or not he was somehow testifying truthfully but -- but mistaken, again, I don't think that there's anything in the record that would support that in the sense that everything pointed basically the same way. Dai gave very detailed testimony about the persecution he suffered.

He submitted corroborating evidence in the form of hospital records that showed his injuries and his wife's abortion, and he showed country conditions evidence that was extremely -- extremely probative.

Elena Kagan: Thank you, Mr. Zimmer.

John G. Roberts, Jr.: Justice Gorsuch.

Neil Gorsuch: Good morning, Mr. Zimmer.

The BIA, as I -- I read it, said that -- that your client failed to meet his burden because his wife and daughter returned to China. That -- that is the ground on which it rests. Why isn't that sufficient? I mean, maybe -- maybe you -- you'd argue that that's not sufficient evidence or something like that. But --

David J. Zimmer: Right.

Neil Gorsuch: -- for purposes of our discussion here, why -- why wouldn't that be enough to overcome credible testimony by Mr. Dai about his --

David J. Zimmer: Well --

Neil Gorsuch: -- well-founded fears?

David J. Zimmer: Sure.

And I think --

Neil Gorsuch: If you can find that testimony credible, it's like the light is green versus red.

Mr. Dai thinks it's green, but there's other evidence in the form of his wife and daughter's behavior that suggests it's red.

David J. Zimmer: Right.

So -- and I think the answer just goes to the -- as the court of appeals explains, the very, very significant differences in situations that he was in versus his wife and daughter.

And his -- his wife and daughter --

Neil Gorsuch: Perhaps.

Perhaps. And that would go to whether there's substantial evidence in the record, I suppose.

David J. Zimmer: Right.

Neil Gorsuch: But it wouldn't go to anything having to do with the credibility determination issue before us, would it?

David J. Zimmer: No, I -- I -- well, I mean, I -- I -- I think probably not.

I mean, I -- I don't think it -- there's certainly nothing about that that contradicts his story or suggests that he was lying.

Neil Gorsuch: Right.

Okay.

Thank you.

John G. Roberts, Jr.: Justice Kavanaugh.

Brett M. Kavanaugh: Thank you. Good morning, Mr. Zimmer.

Just to make sure, you -- you agree with the distinction between is the witness lying, and then the second question, regardless of whether the witness might be lying, is the witness, nonetheless, mistaken, and you agree that credibility in this statute only goes to the first of those two questions, is that correct?

David J. Zimmer: That's correct.

Brett M. Kavanaugh: Okay.

And then going to page 164a, the BIA does say that "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." What do you say to that sentence?

David J. Zimmer: Well, again, I -- I mean, so, first of all, I just disagree with it as a factual matter.

But sort of I think that if you look -- if you look at the --

Brett M. Kavanaugh: But just to interrupt, isn't that the Board saying I guess the first of Justice Kagan's two options in how she posited it?

David J. Zimmer: Well, I think it might -- it -- it -- it possibly could be read that way except that if you look at 164a, the Board goes on to say that the -- the immigration judge need not have made an explicit adverse credibility finding.

So I think that -- I -- I think that --

Brett M. Kavanaugh: But the very next --

David J. Zimmer: -- that the way that the Board --

Brett M. Kavanaugh: -- the very next sentence says that the Respondent "not being truthful" about it "is detrimental to his claim," which sounds like is the witness lying, or credibility as -- to use the statutory term.

David J. Zimmer: Well, truthful, but that was truthful not as to the fundamental facts on which he was basing his asylum claim.

This is -- this is based on his lack of forthrightness about telling -- telling the agency that his wife and daughter had come with him and gone back to China. But I don't think that that could be read as an adverse credibility finding as to the testimony about his, you know, being detained and beaten and deprived of food and water and sleep and --

Brett M. Kavanaugh: Last --

David J. Zimmer: -- you know, the police --

Brett M. Kavanaugh: -- last legal question: the rebuttable presumption, do you think the Board can find the presumption rebutted just on the face of the applicant's testimony without any external evidence? Do you understand the question?

David J. Zimmer: Yes, I -- I do.

I think it would probably be an unusual case, but I -- I don't think there's anything that statutorily precludes that.

Brett M. Kavanaugh: Thank you, Mr. Zimmer.

John G. Roberts, Jr.: Justice Barrett.

Amy Coney Barrett: Good morning, Mr. Zimmer.

So I have a question about Justice Kagan's two ways to understand what the Board has done: one, that Mr. Dai was lying, or the other, that he was telling the truth, but external circumstances show that he was mistaken. And my question is about the standard of review that the Board would apply in reviewing the IJ's explanation.

So, in the first scenario, the lying, we all agree that there would be a rebuttable presumption that he was actually telling the truth, right?

David J. Zimmer: Yes.

Amy Coney Barrett: If credibility -- if there's no express adverse credibility determination, the Board has to apply this presumption, right?

David J. Zimmer: Yes.

Amy Coney Barrett: So is that better or worse? In the second, let's assume that what the Board wants to conclude is that, in fact, it's reviewing what it thinks is the IJ's determination that he might be telling the truth, but he's wrong because of external reasons.

David J. Zimmer: Yeah.

Amy Coney Barrett: What's the standard of review there?

David J. Zimmer: I think that would be -- under the agency regulations, that would be clear error review.

If you look at what I think it's 8 CFR 1003.1(d), I believe that would be clear error review.

Amy Coney Barrett: Okay.

And my other question is a factual one.

Justice Sotomayor asked the government about the hospital records. Do you want to --

David J. Zimmer: Yeah.

Amy Coney Barrett: -- explain what significance they have here?

David J. Zimmer: Yeah, absolutely.

I think they have great significance.

I mean, these were introduced -- this was not a huge administrative record.

There were only a few exhibits.

This was one of the -- some of the key exhibits that Dai introduced. And -- and I think that if you look at page 101 of the Joint Appendix, I mean, the government tried to impeach Dai about the hospital records, but all it could get out of him was his testimony that you can only get them if you're admitted to the hospital and that he had never written in one of them in his life. And the idea that they would somehow be not evidence that -- that -- that is -- that is relevant or that could be considered by this Court makes little sense. And the same with this exhaustion argument.

I mean, there's no --

Amy Coney Barrett: Let me just ask you one other question about the hospital records.

David J. Zimmer: Yeah.

Amy Coney Barrett: Did the IJ say they were not going to be -- that he was not going to consider them because of the authenticity questions that the government posed?

David J. Zimmer: No, the agency said nothing about them.

And, in fact, the agency simply ignored them, which I think is actually quite mind-boggling given how probative they are to Dai's burden of proof.

Amy Coney Barrett: Thank you, Mr. Zimmer.

John G. Roberts, Jr.: A minute to wrap up, Mr. Zimmer.

David J. Zimmer: Thank you, Mr. Chief Justice.

I just want to emphasize in conclusion that -- that really the government's argument depends almost entirely on the idea that Dai could somehow be credible and yet have been lying. And that just makes no sense for many of the reasons that -- that we've already discussed in -- in -- in great detail.

The -- the ultimate distinction under the statute is that there's a preliminary inquiry into credibility, which is really just a question as to whether or not the -- the agency believes that the person was honest, whether they were submitting a fraudulent claim or whether they were testifying honestly. The way in which that differs from persuasiveness only comes into play if you could have external evidence that shows that you could have honest testimony that is somehow mistaken. And there is simply none of that here. Dai gave extremely detailed testimony about the abuse the Chinese government inflicted on him for his resistance to their forced abortion of his child.

He testified that the police are looking for him in China.

And he testified about the continuing threats he faces. There is simply nothing that undermines that, and the agency never found that that testimony was noncredible.

And we therefore would urge this Court to affirm.

John G. Roberts, Jr.: Thank you, counsel. Rebuttal, Ms. Sinzdak.

Colleen E. Roh Sinzdak: Thank you.

I think it's important to look at the history here.

Before the REAL ID Act, the Ninth Circuit would often reverse the Board by parsing its decision and trying to see if it had specifically said that the alien was not credible.

And even if the alien -- if the -- if the Board said things like the alien was not entirely credible, that wasn't enough.

The Board -- the -- the Ninth Circuit would say you didn't make an explicit adverse credibility determination and so we're going to presume that everything in the alien's testimony was fact. And so Congress passed the REAL ID Act, and in the REAL ID Act, it made clear that what the Ninth Circuit had been doing was not appropriate, and it did that in part by making clear that even credible testimony isn't sufficient to establish the facts.

A fact-finder that is not satisfied that testimony is credible, persuasive, and contains sufficiently detailed information to satisfy the requirements can reject the testimony. So the mere absence of an explicit adverse credibility determination is not enough to dictate that the testimony of the alien has to be accepted as fact. And the -- I think that at this point, everyone has acknowledged that the Ninth Circuit has continued to apply its pre-REAL ID Act rule. And for that reason, the decisions below have to be reversed.

And, in -- in fact, looking at 1252, the only question that the Ninth Circuit should have been asking is whether any reasonable fact-finder would have been compelled to reject the agency's conclusion. And I think a realistic examination of the evidence in both of these cases, even in light of the rebuttable presumption of the credibility before the Board, makes very clear that a reasonable fact-finder could deny relief in both cases. In Alcaraz, we had the testimony of the -- of the alien, and -- and -- and the IJ dutifully summarized the alien's account, and then it pointed to multiple pieces of evidence demonstrating that the alien had committed a particular -- a particularly serious crime, even setting aside the probation report.

It pointed out that he was convict -- convicted of a domestic violence offense, that the domestic violence offense involved as its elements the willful infliction of corporal injury resulting in trauma, and that he was sentenced to two years. If you look at Dai, the Board pointed to multiple pieces of evidence that demonstrated that what Dai was saying just wasn't true, however you want to categorize that.

And it wasn't true because his wife had returned to China voluntarily just two weeks later.

It wasn't true because he said the real story was that he had come to the United States for -- to get a better life for his daughter and to get a job. And I think, if you just look at that evidence and apply Section 1252, it's very clear that the agency decisions here have to be affirmed.

John G. Roberts, Jr.: Thank you, counsel.

The cases are submitted.