WASHINGTON (CN) — Attorneys for the U.S. government appeared to strike out Tuesday while challenging the Ninth Circuit’s practice of assuming an asylum seeker’s testimony is credible, absent a specific determination to the contrary.
The Supreme Court consolidated the appeals of two immigrants, Ming Dai and Cesar Alcaraz-Enriquez, for the hearing held as a teleconference this morning because of pandemic protocols.
Both applied for asylum but were turned down after their testimony left a poor impression on immigration judges. Because the judges declined to make explicit adverse-credibility findings when denying these immigrants’ applications, however, the Ninth Circuit found both eligible for asylum based on the presumption that their testimonies were credible.
Colleen Sinzdak, assistant to the U.S. solicitor general, argued before the high court Tuesday that the absence of an adverse-credibility determination does not “entitle an alien to a presumption of truth.”
“An alien has the burden of establishing eligibility for asylum and withholding of removal,” Sinzdak said. “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.”
The government faced stiff questioning, however, from several members of the bench.
“Credible means, capable of being believed worthy of belief,” Justice Samuel Alito told Sinzdak this morning. “It doesn't mean that the testimony is accurate. It may turn out that it's inaccurate, but this distinction that you are drawing between credibility and persuasiveness is extraordinarily confusing and invalid.”
Justice Amy Coney Barrett also rebuked Sinzdak’s argument. “This fine distinction between believable and believed just seems, you know, nitpicking to me,” she said.
And Justice Clarence Thomas said the argument “seems like a false dichotomy.”
In his petition to the court, Dai claimed that he had fled China after authorities there forced his wife to get an abortion when she was four months pregnant with what would have been their second child. Dai said police broke several of his ribs when he tried to fight them, and also implanted an intrauterine device in his wife’s body without her consent.
For the immigration judge who heard his case here, however, Dai had credibility issues because initially withheld that his wife and daughter had come to the U.S. and then gone back to China without him.
Sinzdak argued Tuesday that Dai’s testimony regarding his family's persecution was undermined by “undisputed evidence of his wife's voluntary return to China.”
As told by Dai’s attorney, however, the court had the ability to denote Dai’s testimony as not credible if it wanted.
“The government's argument depends almost entirely on the idea that Dai could somehow be credible and yet have been lying,” said David Zimmer, attorney at Goodwin Law. “And that just makes no sense.”
Zimmer asked the court to uphold the Ninth Circuit’s finding.
“Dai gave extremely detailed testimony about the abuse of 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 but undermines that, and the agency never found that that testimony was non credible,” Zimmer said.
Neal Katyal, partner at Hogan Lovells, represented the Mexico-born Alcaraz-Enriquez at Tuesday’s hearing. Diagnosed with schizophrenia, Alcaraz-Enriquez came to the U.S. in either 1986 or 1987 when he was 8 years old. Both his parents and siblings are all U.S. citizens or lawful permanent residents and have said they would care for him if granted asylum.
An immigration judge determined Alcaraz-Enriquez ineligible for asylum, however, based on a 1999 conviction for beating up the mother of his child and locking her up in his house against her will.
Downplaying what happened in his removal proceedings, Alcaraz-Enriquez admitted that he struck the woman but said the assault had been prompted by the belief that she was hitting his daughter.
As with Dai, the judge who denied Alcaraz-Enriquez asylum did not make an adverse credibility finding but accepted the probation report over the asylum seeker’s own testimony.
The Ninth Circuit remanded the case — an outcome the government now seeks to reverse.
Katyal told the high court Tuesday, however, that the judge should have explained why it believed one account over that of his client.
“The agency had one job, and it fell down on it,” Katyal said, adding that the judge “wrote a detailed opinion except in the one place where it mattered, its reasoning.”
Justice Elena Kagan reasoned Tuesday, however, that the Board of Immigration Appeals might have been thinking, “you know, generally, we believe probation reports rather than convicted criminals with incentives to lie.”
Katyal said because this reasoning could not be inferred since it was not explicitly mentioned.
“As it stands, we have to guess whether those are the rationales or something else that the government has offered are the rationales and that's the problem,” he said.
Justice Brett Kavanaugh also pointed out that in Dai’s case, the review board did say that the immigrant’s family voluntarily returning to China and his not being truthful about it is detrimental to his claim. “What do you say to that sentence?” Kavanaugh asked.
Zimmer said that his client’s omission didn’t alter the fundamental facts on which he was basing his asylum claim.
“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,” Zimmer said.
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