Supreme Court Strikes Credibility Presumption for Asylum Seekers

The high court was unanimous Tuesday in rejecting a Ninth Circuit practice of assuming an immigrant gave honest testimony, absent any specific finding to the contrary.

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — Finding the practice out of step with federal law, the U.S. Supreme Court called it improper Tuesday for courts to assume that an asylum seeker’s testimony is credible absent a specific determination to the contrary.

“The Ninth Circuit’s deemed-true-or-credible rule cannot be reconciled with the INA’s terms,” Justice Neil Gorsuch wrote for the unanimous court, referring to the Immigration Nationality Act.

Compared with how other appeals courts deal with the same matters, Gorsuch found that the Ninth Circuit’s practice appeared to be an outlier.

“The First Circuit, for example, has held that a reviewing court is not bound to accept a witness’s statements as fact whenever the agency is less than explicit about credibility,” he explained.

But the Ninth Circuit took an alternative approach when looking at the rejected applications of Ming Dai and Cesar Alcaraz-Enriquez, immigrants from China and Mexico, respectively.

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. He said police broke several of his ribs when he tried to fight them as they hauled his wife off to abort her child and implant an intrauterine device in her body without consent.

For the immigration judge who heard his case here, however, Dai had credibility issues because he initially withheld that his wife and daughter had come to the U.S. and then gone back to China without him. 

David Zimmer, an attorney for Dai at Goodwin Law, found a silver lining in defeat Tuesday, saying he and his client are pleased that the Supreme Court agreed with their argument “that the courts of appeals must account for the statutory presumption of credibility that asylum seekers have on appeal to the Board of Immigration Appeals.” 

“We believe that, accounting for that presumption, the Supreme Court should have upheld the court of appeals’ decision that Mr. Dai is eligible for asylum instead of sending the case back to the court of appeals,” Zimmer continued. “But we look forward to continuing to fight for Mr. Dai’s right to asylum given the physical abuse and other persecution he faced based on his attempt to prevent the Chinese government from subjecting his wife to a forced abortion.”

Alcaraz-Enriquez came to the U.S. from Mexico meanwhile in either 1986 or 1987 when he was 8 years old. He has since been diagnosed with schizophrenia, but his parents and siblings — all of them U.S. citizens or lawful permanent residents — have said they would care for him.

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 concluded later, however, that the courts must presume their testimonies were credible since the immigration judges declined to make explicit adverse-credibility findings.

Gorsuch and the other justices had telegraphed defeat for Ming Dai and Cesar Alcaraz-Enriquez at oral arguments in February. In Tuesday’s ruling, Gorsuch noted that the Ninth Circuit had disregarded everything but the asylum seekers’ version of events when applying its presumption-credibility rule. 

“Nothing in the INA contemplates anything like the embellishment the Ninth Circuit has adopted,” Gorsuch wrote. “And it is long since settled that a reviewing court is ‘generally not free to impose’ additional judge-made procedural requirements on agencies that Congress has not prescribed and the Constitution does not compel.”

Gorsuch slammed the Ninth Circuit for not considering that the Board of Immigration Appeals may have implicitly rebutted the presumption of credibility. The 15-page opinion concludes with another objection, saying the Ninth Circuit “erroneously allowed credibility to operate as a trump card, foreclosing the possibility that even credible testimony may be outweighed by other more persuasive evidence or be insufficient to satisfy the burden of proof.”

As for how immigration cases like these should proceed, Gorsuch offered a template. After an immigration judge determines the findings of fact — including credibility determinations — the Board of Immigration Appeals should review the findings and offer a presumption of credibility if the judge failed to make an explicit adverse credibility determination. Then, the court of appeals can accept the agency’s findings unless it finds any reason not to.

The Department of Justice did not immediately return a request for comment Thursday. Neal Katyal, partner at Hogan Lovells, who represented Alcaraz-Enriquez also did not return a request for comment on the ruling.

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