Supreme Court Decides Garland v. Ming Dai

On June 1, 2021, the U.S. Supreme Court decided Garland v. Ming Dai, overruling the Ninth Circuit’s longstanding “deemed-true-or-credible” rule that required reviewing courts to treat noncitizens’ testimony as credible and true absent an explicit adverse credibility determination by the Board of Immigration Appeals (“BIA”). Instead, reviewing courts must accept the BIA’s findings of fact as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”

The case involves two foreign nationals, Cesar Alcaraz-Enriquez and Ming Dai, who appealed immigration judge (“IJ”) determinations regarding their eligibility for various forms of immigration relief. Alcaraz-Enriquez is a Mexican national who was detained by immigration authorities when he attempted to enter the United States illegally. He sought relief from removal proceedings on the ground that his life or freedom would be threatened in Mexico. The IJ held that he was ineligible for relief under 8 U.S.C. § 1231(b)(3)(B)(ii), excluding from relief noncitizens who have “been convicted by a final judgment of a particularly serious crime.” The IJ weighed Alcaraz-Enriquez’s own testimony against conflicting evidence in a probation report to find that a California conviction for domestic violence was a “particularly serious crime.”

Ming Dai is a Chinese national who sought asylum in the United States after entering the country on a tourist visa. Ming Dai sought relief as a “refugee” under 8 U.S.C. §§ 1158(b)(1), 1101(a)(42), as someone “unable or unwilling” to return to China “because of persecution or a well-founded fear of persecution … for failure or refusal to undergo [involuntary sterilization] or for other resistance to a coercive population control program.” The IJ weighed Ming Dai’s own testimony against conflicting evidence about his wife and daughter’s voluntary travel between the United States and China to hold that he was not a “refugee” within the meaning of the statute.

In both cases, the BIA adopted and affirmed the IJs’ decisions. The Ninth Circuit, applying a longstanding “deemed-true-or-credible” rule, reversed, holding that the BIA was required to assume that Alcaraz-Enriquez and Dai’s “factual contentions are true” absent explicit adverse credibility findings.

The Supreme Court reversed, rejecting the Ninth Circuit’s “deemed-true-or-credible” rule as an “outlier” that is irreconcilable with the Immigration and Nationality Act (“INA”). The Court stressed that 8 U.S.C. § 1252(b)(4)(B) already provides a deferential standard of review for reviewing courts, requiring them to “accept ‘administrative findings’ as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Although other provisions of the INA provide that noncitizens are entitled to “a rebuttable presumption of credibility on appeal” absent an “explici[t]” “adverse credibility determination,” 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C), that presumption applies only during an “appeal” from the IJ to the BIA. It does not apply when an Article III court “reviews” the BIA’s decision on appeal.

The Court also considered Alcaraz-Enriquez and Ming Dai’s alternative argument that they were entitled to a presumption of credibility before the BIA that the BIA failed to overcome with explicit adverse credibility determinations. It left for the Ninth Circuit to “consider whether the BIA in fact found the presumption of credibility overcome” in these cases, but cautioned that “[s]o long as the BIA’s reasons for rejecting an alien’s credibility are reasonably discernible, the agency must be understood as having rebutted the presumption of credibility,” and it “need not use any particular words to do so.” The Court also noted that the INA “distinguishes between credibility, persuasiveness, and the burden of proof,” so the BIA would be entitled to find a noncitizen credible and “not find his evidence persuasive or sufficient to meet the burden of proof.”

Justice Gorsuch authored the opinion for a unanimous Court.