Wilkinson, Acting Att’y Gen. v. Dai
Issues
When an immigration judge and the Board of Immigration Appeals fail to directly state that an asylum applicant’s testimony lacks credibility, is a federal court of appeals allowed to presume that the applicant’s testimony is credible and determine that the applicant qualifies for refuge in the United States?
This case asks the United States Supreme Court to determine whether a federal court of appeals should presume that an asylum applicant's testimony is credible when the Board of Immigration Appeals (“BIA”) and an immigration judge (“IJ”) failed to make an explicit adverse credibility determination about the testimony. Ming Dai, an asylum applicant alleging persecution in China for violating the one-child family-planning policy, argues that his testimony must be deemed credible because (1) a federal court of appeals cannot evaluate credibility on its own and (2) the IJ and BIA failed to explicitly state that his testimony lacked credibility as required by the Immigration and Nationality Act in order to make an adverse credibility finding. The government counters that presumed credibility in absence of an explicit adverse credibility determination circumvents the statutory limitation that federal appellate courts are only permitted to reject the IJ or BIA’s determination that an applicant’s testimony is insufficient to meet his burden of proof if no reasonable adjudicator could have reached the same determination. The outcome of this case has important implications for the asylum process, immigration rights for asylum seekers, and the differing roles and responsibilities of administrative agencies and appellate courts.
Questions as Framed for the Court by the Parties
(1) Whether a court of appeals may conclusively presume that an asylum applicant’s testimony is credible and true whenever an immigration judge or the Board of Immigration Appeals adjudicates an application without making an explicit adverse credibility determination; and (2) whether the court of appeals violated the remand rule as set forth in INS v. Ventura when it determined in the first instance that the respondent, Ming Dai, was eligible for asylum and entitled to withholding of removal.
In April 2009, Ming Dai and his wife, Li Qin, citizens of China, discovered that Qin was pregnant with their second child. Ming Dai v. Sessions at 863. After Chinese officials learned of the pregnancy, “family planning officers” visited Dai and Qin at their home in China to take Qin to a hospital for a forced abortion for violating China’s one-child policy.
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Additional Resources
- Kate Carsella, First Federal Vacancy Count Released for the Biden Administration, Ballotpedia’s Bold Justice (Feb. 8, 2021).
- Jennifer Doherty, Biden Continues Trump's Fight On 9th Circ. Asylum Revivals, Law360 (Feb. 4, 2021).
- Adam Garnick, Requiring Courts to Believe Noncitizens, Regulatory Review (Dec. 22, 2020).
- Chantal De Silva, Supreme Court to Weight Whether Court Can Deem Asylum Seekers’ Testimonies ‘Credible’, Forbes (Oct. 2, 2020).