Wilkinson, Acting Att’y Gen. v. Dai

LII note: the oral arguments in Wilkinson, Acting Att’y Gen. v. Dai are now available from Oyez. The U.S. Supreme Court has now decided Wilkinson, Acting Att’y Gen. v. Dai .


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?

Oral argument: 
February 23, 2021

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. Id. When Dai attempted to stop the officers from taking Qin against her will, the officers arrested, beat, interrogated, and deprived Dai of adequate sleep, food, water, and medical care for several days until Dai confessed to resisting arrest. Id. While Dai was in police custody, officers transported Qin to a hospital where a doctor, without Qin’s consent, sedated Qin, aborted her pregnancy, and implanted a contraception device in her. Id. at 864. Because of the aforementioned events, Dai was fired from his job, Qin was demoted and lost significant wages, and their daughter was denied entry to better schools. Id.

In January 2012, Dai and Qin came to the United States with their daughter on tourist visas that expired July of that year. Id. While Qin and their daughter eventually returned to China, Dai remained in the United States out of fear that he would be forcibly sterilized if he returned to China. Id. Shortly after his visa expired, Dai applied for asylum in the United States. Id. During an interview with an asylum officer, Dai did not relay that his wife and daughter had traveled with him to the United States when the officer asked where, if anywhere, Dai’s wife and daughter had traveled outside of China. Id. When the officer told Dai that records showed his wife and daughter traveled to the United States with him, Dai explained that he was afraid to explain that they returned to China because education was too expensive in the United States for his daughter and his wife had a job in China. Id. The officer denied Dai’s asylum application. Id. The Department of Homeland Security (“DHS”) then asked Dai to appear before an immigration judge (“IJ”) where Dai requested asylum, withholding of removal, and Convention Against Torture (“CAT”) protection. Id. at 864–65. At this hearing, Dai clarified during cross-examination that he did not initially disclose to the asylum officer that his wife and daughter came to the United States with him because Dai was nervous and because Dai mistakenly believed that the officer was concerned about his family’s travel outside of both China and the United States. Id. The IJ found that Dai failed to meet his burden of proof to obtain any protection from removal, without declaring a finding on whether Dai’s testimony was credible. Id.

The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision, without ruling on Dai’s credibility, based on Dai’s lack of initial disclosure regarding his wife and daughter’s travel to the United States. Id. at 865–66. Dai filed a petition for review with the United States Court of Appeals for the Ninth Circuit to challenge the BIA’s decision. Id. at 866. The Ninth Circuit found that without an explicit adverse ruling on the credibility of Dai’s testimony, the testimony must be presumed as credible, and therefore, there was no ground to deny Dai relief. Id. at 874. The Ninth Circuit remanded the case back to the BIA to grant Dai withholding of removal and to determine whether to grant Dai asylum. Id. at 873–75. The Ninth Circuit later denied the government’s request for rehearing en banc. Dai v. Barr at 1144.

The United States Supreme Court granted the government’s petition for a writ of certiorari on October 2, 2020. Brief for Petitioner, William P. Barr, Attorney General at 2. This case was consolidated for briefing and oral argument with Wilkinson v. Alcaraz-Enriquez (19-1156).



Petitioner United States Attorney General William Barr argues that Immigration and Nationality Act (“INA”) does not establish a presumption of credibility applicable in the courts of appeals. Brief for Petitioner, William P. Barr, Attorney General at 26. The Attorney General maintains that creating a categorical rule that a testimony must be accepted as credible in its entirety if the IJ and BIA do not explicitly state that the testimony is unreliable would disregard case-specific facts and the REAL ID Act, which states that there is no presumption of credibility when determining an applicant’s eligibility for protection from removal. Id. at 28–29, 31. Therefore, according to the Attorney General, the INA establishes a general rule that there is no presumption of credibility. Id. at 29. The Attorney General claims that the exception to the general rule that permits a presumption of credibility “on appeal” only applies to appeals in front of the BIA, not on review in a court of appeals. Id. This follows, according to the Attorney General, from the fact that the BIA hears appeals from the IJ while the court of appeals hears matters on a petition for review from the BIA. Id.

Respondent Ming Dai counters that under the INA, it is within the power of the IJ, not the BIA, to determine credibility and any adverse credibility finding must be explicitly stated. Brief for Respondent, Ming Dai at 29. Dai maintains that if no explicit finding is made, then there is a “rebuttable” presumption of credibility on appeal. Id. However, argues Dai, if that presumption is not overcome on appeal with the BIA, then the court of appeals should take the presumption of credibility “as given” on review. Id. According to Dai, this rule is sensible because the credibility determination focuses on factors that cannot be examined from the record, such as demeanor. Id. at 31. Because there was no adverse ruling on the credibility of the testimony, argues Dai, the court of appeals was required to presume the applicant’s testimony was credible. Id. Dai asserts that the government’s argument that the statutory rule states that there is no assumption of credibility for the applicant only applies to the decisions of the IJ. Id. at 34.


The Attorney General argues that the INA set forth by Congress requires the court of appeals to give deference to the findings of the IJ and the BIA unless no reasonable adjudicator could have reached the same result. Brief for Petitioner at 20. The Attorney General states that this standard embodies the common administrative law standard known as the “substantial evidence standard,” which means that deference should be given to administrative agency decisions, like those that come from IJs and the BIA, so long as substantial evidence plausibly supports the decision. Id. at 21. Therefore, argues the Attorney General, even if the applicant’s testimony was presumed credible—which means “capable of being believed” rather than “true” or “must be believed”—sufficient evidence, such as Dai’s wife and daughter’s return to China mere months after they allegedly faced persecution there, plausibly supported the agency’s decision that Dai did not meet his burden of proof to avoid removal. Id. at 22–23, 27–28. Therefore, according to the Attorney General, the mere possibility that a separate factfinder could come to a different conclusion regarding an individual’s eligibility for asylum is not enough to reject the IJ’s and BIA’s discretionary findings when the conclusion they reached was within the scope of reasonable determinations and was supported by specific inconsistencies in Dai’s testimony. Id. at 22–24.

Dai counters under the substantial evidence standard, in reviewing a decision, the court of appeals may only rely on “the administrative record” and “administrative findings of fact.” Brief for Respondent at 32. Thus, according to Dai, absent a specific factual finding by the agency—including an explicit adverse credibility finding—the court of appeals cannot reject a petition for review on that ground. Id. at 32. Dai asserts that he never argued that the court of appeals should presume his testimony as true; rather, Dai contends that absent an adverse credibility finding, no reasonable factfinder could find him ineligible for removal protection. Id. at 37. Therefore, argues Dai, the only “problem here is that the agency’s decision is not one that a ‘reasonable adjudicator’ could have reached” after weighing all the evidence according to the substantial evidence standard. Id. at 38. Dai asserts that the reasons the agency denied his application do not support their finding: 1) despite his wife and his daughter’s return to China, Dai faced immediate persecution, including forced sterilization; 2) although Dai had failed to initially disclose his wife and daughter’s return to China, it is not settled that this was intentional and the agency never explained its relevancy; and 3) Dai may have suggested an economic reason for remaining in the United States, but the law states an applicant can have reasons in addition to fleeing persecution for seeking asylum. Id. at 42–45.


The Attorney General argues that the court of appeals wrongly invalidated the BIA’s decision and should have followed the standard remand rule to refer the case back to the BIA for review, without vacating the BIA’s decision. Brief for Petitioner at 35. The Attorney General maintains that the Supreme Court has addressed this error made by the Ninth Circuit before and stated that the Ninth Circuit should have remanded the case back to the agency to conduct further investigation or explanation, given that the BIA and IJ are those entrusted with these determinations by Congress. Id. at 35–36. In awarding relief to Dai, the Attorney General asserts, the Ninth Circuit prevented the IJ and BIA from reevaluating the record and making their own credibility determination. Id. at 36. The Attorney General further contends that during the time that Dai’s case was pending, China likely changed its policy regarding the limit on children, but the court of appeal’s decision prevented the IJ and BIA from examining these changes which would be critical to take into consideration when evaluating Dai’s claim. Id. at 37–38.

Dai counters that remand was unnecessary in his case because there was no new issue for the agency to address and no novel determination to make. Brief for Respondent at 45. Dai contends that his case is distinct from Supreme Court precedent where the Court required remand because the appellate courts in those cases reviewed matters that had not been presented to the agencies, therefore incorrectly acting as the initial decision-making bodies. Id. at 46. In this case, argues Dai, the court of appeals only reviewed matters that the IJ and BIA had specifically decided. Id. Dai argues that giving the IJ and BIA the opportunity to re-examine his credibility would conflict with the INA’s requirements for assessing credibility because the INA indicates that an applicant’s credibility should be evaluated once; therefore a second evaluation, especially one that would occur eight years after the agency’s initial determination, would be inconsistent with the statute. Id. at 48. Additionally, the government’s argument regarding China’s changed conditions, Dai claims, is not relevant because the determination and possible relief is not based on current conditions, but the conditions at the time of Dai’s initial proceeding. Id. at 49–50.



The Attorney General argues that it was, in fact, the IJ and BIA who reasonably determined that the applicant had failed to meet his burden of proof, rendering them ineligible for asylum and withholding of removal. Brief for Petitioner, William P. Barr, Attorney General at 20–22. The Attorney General further elaborates that allowing courts of appeals to presume that an asylum applicant’s testimony is credible, where the IJ or BIA has reasonably suggested otherwise, is impermissible and is akin to circuit courts making a credibility assessment. Id. at 26–27. Because they have evaluated more cases than other courts, the Attorney General maintains, the BIA and IJs are the best positioned to assess the evidentiary claims frequently raised in removal proceedings. Id. at 21.

The Refugee Advocacy Organizations (“RAO”), in support of Dai, argue that allowing appellate court judges to make credibility determinations, especially where an IJ and the BIA declined to make such determination, would damage the asylum process because IJs and the BIA are much better suited to analyze the behavior and testimony of asylum applicants. Brief of Amici Curiae The Refugee Advocacy Organizations, in Support of Respondents at 6–7. RAO further notes that asylum applicants have often experienced horrific violence, leading to a trauma response that may include being hesitant or nervous when recounting their experiences. Id. RAO cautions that federal judges are often untrained in trauma and unable to observe the applicant. Id. at 14. Therefore, continues RAO, judges can mistake these normal trauma responses for the asylum applicant being dishonest or uncredible, undermining the role of the credibility assessment in the asylum process. Id.


The Attorney General argues that presuming asylum seekers are credible in absence of adverse credibility determination impermissibly allows the courts to make presumption-based credibility assessments, resulting in the courts failing to respect the limited scope of their judicial review under the INA, as Congress intended. Reply Brief for Petitioner, William P. Barr, Attorney General at 7. The Attorney General elaborates that courts are overstepping their limited role in the judicial review process if they make a credibility assessment—including a credibility assessment that is presumption-based—in absence of evidence that no reasonable adjudicator could have come to the BIA’s or IJ’s conclusion. Id. The Attorney General further asserts that it would be illogical to require courts to presume an applicant’s testimony is credible, arguing that because Congress’s exception to the general rule that credibility is presumed in absence of an adverse credibility assessment only applies to the BIA, the court of appeals is subject to the INA’s rule that there is generally no presumption of credibility. Brief for Petitioner at 29.

The American Immigration Lawyers Association and the National Immigrant Justice Center (“Immigration Lawyers and NIJC”), in support of Dai, counter that not permitting circuit courts to presume credibility in absence of an explicit adverse credibility assessment would completely change how courts approach judicial review of administrative action, undermining the review process and congressional intent. Brief for Amici Curiae American Immigration Lawyers Association and the National Immigrant Justice Center, in Support of Respondents at 24. Immigration Lawyers and NIJC further assert that the government’s approach undermines appellate courts’ ability to use congressionally established bright-line rules, stating that circuit court judges, unable to presume credibility, would be forced to conduct a review as the trier of fact without a framework for that review. Id. at 25. Immigration Lawyers and NIJC further caution that the government’s interpretation incentivizes administrative agencies to avoid making explicit credibility determinations, noting that a presumption of credibility encourages IJs to clearly make adverse credibility determinations when they find an applicant uncredible. Id. at 25–26.

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