Tuesday, June 1, 2021
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Eunice Lee for SCOTUSBlog summarizes the Supreme Court's latest immigration decision, issued this morning, as follows:
"The Supreme Court [today] sided with the federal government in a dispute over when federal courts can treat asylum seekers’ testimony as credible. In a unanimous opinion in the consolidated cases of Garland v. Dai and Garland v. Alcaraz-Enriquez, the court rejected the approach of the U.S. Court of Appeals for the 9th Circuit, which had previously taken asylum seekers’ testimony as credible when reviewing cases where immigration courts were silent on applicants’ credibility." Justice Neil Gorsuch wrote the unanimous opinion for the court.
The syllabus to the decision in the consolidated cases describes the holding below:
"Held: The Ninth Circuit’s deemed-true-or-credible rule cannot be reconciled with the INA’s terms. Pp. 6–15.
(a) The Ninth Circuit’s rule has no proper place in a reviewing court’s analysis. The INA provides that a reviewing court must accept “administrative findings” as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” §1252(b)(4)(B). And a reviewing court is “generally not free to impose” additional judge-made procedural requirements on agencies. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 524. Judicial proceedings in cases like these do not constitute “appeals”in which the “rebuttable presumption of credibility on appeal” applies absent an explicit credibility determination. §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). Here, there is only one appeal—from the IJ to the BIA. See §§1158(d)(5)(iii)–(iv). Subsequent judicial review takes place not by appeal, but by means of a “petition for review,” which the INA describes as “the sole and exclusive means for judicial review of an order of removal.” §1252(a)(5). A presumption of credibility may arise in some appeals before the BIA, but no such presumption applies in antecedent proceedings before an IJ or in subsequent collateral review before a federal court. This makes sense because re-viewing courts do not make credibility determinations, but instead ask only whether any reasonable adjudicator could have found as the agency did. The Ninth Circuit’s rule gets the standard backwards by giving conclusive weight to any testimony that cuts against the agency’s finding. Pp. 6–9.
(b) Mr. Alcaraz-Enriquez and Mr. Dai offer an alternative theory for affirming the Ninth Circuit. Because, they say, they were entitled to a presumption of credibility in their BIA appeals, they are entitled to relief in court because no reasonable adjudicator obliged to presume their credibility could have found against them. Even assuming that there was no explicit adverse credibility determination here, the Ninth Circuit’s reasoning is flawed for at least two reasons. Pp. 10–15.
(1) The presumption of credibility on appeal under the INA is “rebuttable.” And the INA contains no parallel requirement of explicitness when it comes to rebutting the presumption on appeal. Reviewing courts, bound by traditional administrative law principles, must “up-hold” even “a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286. In neither case did the Ninth Circuit consider the possibility that the BIA implicitly found the presumption of credibility rebutted. The BIA expressly adopted the IJ’s decision in Mr. Alcaraz-Enriquez’s case, which, in turn, noted that Mr. Alcaraz-Enriquez’s story changed from the time of the probation report to the time of the hearing—a factor the statute specifically identifies as relevant to credibility, see §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). And in Mr. Dai’s case, the BIA also adopted the IJ’s decision, which discussed specific problems with Mr. Dai’s demeanor, candor, and internal inconsistency—an analysis that certainly goes to the presumption of credibility even if the agency didn’t use particular words. See ibid. In each case, the Ninth Circuit should consider whether the BIA in fact found the presumption of credibility overcome. If so, it seems unlikely that the conclusion in either case is one no reasonable adjudicator could have reached. Pp. 10–13.
(2) The presumption of credibility applies with respect to credibility but the INA expressly requires the noncitizen to satisfy the trier of fact on credibility, persuasiveness, and the burden of proof.§§1158(b)(1)(B)(ii), 1231(b)(3)(C), 1229a(a)(4)(B). Even if the BIA treats a noncitizen’s testimony as credible, the agency need not find such evidence persuasive or sufficient to meet the burden of proof. Here, the Ninth Circuit erred by treating credibility as dispositive of both persuasiveness and legal sufficiency. Pp 13–15.
884 F. 3d 858 and 727 Fed. Appx. 260, vacated and remanded.
An opinion recap will be posted as soon as available in the updates below.