On June 1, 2021, the U.S. Supreme Court issued a decision, Garland v. Dai, -- U.S. --, No. 19-1155, 2021 WL 2194837 (U.S. June 1, 2021), that addresses the scope of review of credibility determinations by federal courts of appeals. In a unanimous decision authored by Justice Gorsuch, the Court found that the Ninth Circuit’s requirement that a federal court of appeals must deem an asylum-seekers’ testimony credible unless the Board of Immigration Appeals (BIA) explicitly finds that it is not credible, does not comport with the Immigration and Nationality Act (INA). As a result, federal appeals may be harder for asylum-seekers to win, at least in the Ninth Circuit.

The Supreme Court considered two consolidated Ninth Circuit decisions in which credibility was at issue. One case, that of Mr. Dai, involved an asylum applicant from China who claimed to fear return based on his wife’s refusal to abort their second child, and the subsequent harm Mr. Dai suffered at the hands of the Chinese police. However, Mr. Dai also initially omitted information about his family’s whereabouts. When pressed in court he testified, inconsistently with his application, that his wife and daughter had voluntarily returned to China and that he remained in the United States to get a job. While the immigration judge (IJ) denied asylum, the IJ did not make an explicit adverse credibility finding and the BIA adopted and affirmed the IJ’s decision.

Similarly, in the consolidated case of Mr. Alcaraz-Enriquez, the issue was whether he had committed a particularly serious crime. While Mr. Alcaraz-Enriquez’s testimony minimized his conduct towards his girlfriend, the probation report in the record “indicated that Mr. Alcaraz-Enriquez locked his 17-year-old girlfriend in his bedroom one evening, caught her trying to escape, dragged her back into the room, threatened to stab her and dump her body in a dumpster, and forced her to have sex with him.” Garland v. Dai, 2021 WL 2194837, at *3. The IJ in that case also denied relief, relying on the probation report but not making an explicit adverse credibility finding and the BIA adopted and affirmed the IJ’s decision.

In both cases the Ninth Circuit granted the petitions for review, finding that it was obligated to assume that the noncitizen’s factual contentions were true because the BIA did not make an explicit adverse credibility finding. The Supreme Court rejected the Ninth Circuit’s approach finding that “[n]othing in the INA contemplates anything like the embellishment the Ninth Circuit has adopted.” Looking to the text of the INA, which states “the applicant or witness shall have a rebuttable pre¬sumption of credibility on appeal,” the Court determined that that presumption attaches on appeal before the BIA, not before federal courts of appeals. The Court went on to reason that the noncitizen’s appeal before the BIA is the only appeal contemplated by the INA and that review by federal courts through a petition for review is “collateral,” that is examining the correctness of the agency’s decision-making rather than directly adjudicating the appeal.

In reaching its holding, Justice Gorsuch spelled out the procedure the Supreme Court expects the IJ and BIA to employ:

[I]mmigration cases like these should proceed as follows. First, the factfinder—here the IJ—makes findings of fact, including determinations as to the credibility of particular witness testimony. The BIA then reviews those findings, applying a presumption of credibility if the IJ did not make an explicit adverse credibility determination. Finally, the court of appeals must accept the agency’s findings of fact as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’

Garland v. Dai, 2021 WL 2194837, at *9.

The Dai decision does not fundamentally change appellate review in asylum cases other than within the Ninth Circuit. It remains to be seen whether this interpretation will affect any other areas of judicial review beyond the limited credibility determination analysis in this case.

The decision should push IJs to be more careful to make explicit credibility findings. In cases where the IJ does not explicitly find a witness to be not credible, practitioners should argue that the presumption of credibility applies before the BIA. If the BIA makes an adverse credibility finding when the IJ did not, it will need to clearly state how the government has overcome the respondent’s presumption of credibility. Unfortunately, the Supreme Court did introduce some wiggle room for the BIA to find that the IJ made an adverse credibility decision even where the IJ does not explicitly use that phrase. The Court writes, “we leave for another day the ques¬tion what the factfinder must say or do to furnish an “‘ex¬plici[t] adverse credibility determination.’” Likewise, the Court highlights language from the INA “that any initial adverse credibility determina¬tion must be ‘explicitly made,’ [finding however] the INA contains no parallel requirement of explicitness when it comes to rebutting the presumption on appeal.” Thus, while there are strong arguments under Dai that the IJ must use explicit “adverse credibility” language to avoid a presumption of credibility by the BIA, in determining whether DHS has rebutted that presumption on appeal, the Court appears to leave the BIA room to find evidence incredible without explicitly stating so.

Once the BIA issues its decision, federal courts will employ highly deferential review, upholding the BIA’s finding regarding credibility unless “any reasonable adjudicator” should have reached the opposite conclusion. Practitioners should be mindful of these standards at each stage of review and craft their arguments accordingly. Where the record contains conflicting evidence, practitioners should explain why the inconsistencies should not lead to a finding of adverse credibility.