April 21, 2024


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Supreme Court Rules Asylum Applicants Bear Burden of Proof, Reversing 9th Circuit

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Unanimously ruling against a Chinese asylum claimant, the Supreme Court reversed the 9th Circuit Court of Appeals, finding that immigration judges don’t have to explicitly state that an asylum seeker’s story isn’t credible when finding against him.

The court’s opinion in the case, Garland v. Dai, court file 19-1155, was written by Justice Neil Gorsuch.

“The Ninth Circuit has long applied a special rule in immigration disputes,” Gorsuch wrote.

“The rule provides that, in the absence of an explicit adverse credibility determination by an immigration judge or the Board of Immigration Appeals, a reviewing court must treat a petitioning alien’s testimony as credible and true.”

The accepted standard for reviewing credibility is “highly deferential” to immigration judges, who work for the U.S. Department of Justice, he wrote.

“The Ninth Circuit’s rule mistakenly flips this standard on its head,” Gorsuch wrote, describing the appeals court’s invented criteria an “outlier.”

In the case, Chinese national Ming Dai claimed he was beaten and arrested in 2009 for trying to prevent Chinese authorities from aborting his second child under that country’s now-rescinded one-child policy. He testified that when he tried to stop his wife’s abduction, police broke his ribs, dislocated his shoulder, and jailed him for 10 days. Dai said he lost his job, his wife was demoted, and his daughter was denied admission to good schools.

Dai came to the United States on a tourist visa and sought asylum shortly after arriving.

Citing federal law, Gorsuch wrote that the burden rested on Dai to prove that he was a “refugee,” that is, 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.”

But Dai failed to disclose the fact that his wife and daughter had already traveled to the United States and voluntarily returned to China, undercutting the claim of a fear of persecution at home.

Dai “hesitated at some length” when confronted with these facts, according to the immigration judge, and then admitted that his daughter returned to China to go to school, his wife returned to her job and her elderly father, and that Dai didn’t have a job in China to which he could return.

Dai admitted to the immigration judge that “at that time, I was in a bad mood and I couldn’t get a job, so I want to stay here for a bit longer and another friend of mine is also here.”

The immigration judge denied Dai’s claim, stating, “I do not find that [Dai’s] explanations for [his wife’s] return to China while he remained here are adequate.”

But the 9th Circuit saw things differently, Gorsuch wrote.

A divided panel held that “in the absence of an explicit adverse credibility finding by the [immigration judge] or the [Board of Immigration Appeals],” Dai’s testimony had to be “deemed” credible and true and he was therefore eligible for asylum, Gorsuch noted.

“The Ninth Circuit’s rule has no proper place in a reviewing court’s analysis. … Nothing in the [Immigration and Nationality Act] contemplates anything like the embellishment the Ninth Circuit has adopted.”

Gorsuch noted that the Board of Immigration Appeals “specifically highlighted Mr. Dai’s family “voluntarily returning and his not being truthful about it” as “detrimental to his claim.”

The board adopted the judge’s decision, “which discussed specific problems with Mr. Dai’s assertions about his past persecution and fear of future persecution—including Mr. Dai’s intentional failure to disclose highly probative and damaging facts, his inadequate explanations for contradictions in his presentation, and his ultimate concessions about the ‘real story.’ Such a detailed analysis certainly goes to the presumption of credibility, even if the agency did not utter the words ‘adverse credibility finding.’”

Dai’s attorney, David Zimmer of Goodwin Procter, in Boston, told The Epoch Times he saw a silver lining for his client in the ruling.

“We are pleased that the Supreme Court agreed with our 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,” Zimmer said in a statement.

“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.

“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.”

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