Ming Dai v. MERRICK B. GARLAND , Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M ING DAI ,
Petitioner,
v.
M ERRICK B. GARLAND , Attorney
General,
Respondent.
No. 15-70776
Agency No.
A205-555-836
OPINION
On Remand from the United States Supreme Court
Filed August 20, 2021
Before: Sidney R. Thomas, Chief Judge, and Stephen S.
Trott and Mary H. Murguia, Circuit Judges.
Per Curiam Opinion

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SUMMARY*
Immigration
On remand from the United States Supreme Court,
which vacated the divided panel’s prior opinion and
remanded with instructions and for further proceedings, the
panel denied Ming Dai’s petition for review of a decision by
the Board of Immigration Appeals denying his application
for asylum and withholding of removal.
The Board adopted and affirmed the immigration judge’s
determination that Dai failed to meet his burden of proof for
asylum and withholding relief, adding that the voluntary
return of Dai’s wife and daughter to China, and his not being
truthful about it, was detrimental to his claim and was
significant to his burden of proof. The IJ and the Board
based their determinations on: (1) Dai’s intentional
concealment of “highly probative and damaging facts;”
(2) his lack of forthrightness; (3) his inadequate explanation
for his wife’s voluntary return to China, given that she was
the primary object of alleged persecution in China;
(4) admitted germane inconsistencies between his testimony
and the story he told an asylum officer; and (5) his
equivocating answers and unconvincing demeanor while
testifying.
In the prior opinion, the panel majority granted Dai’s
petition, applying what the Supreme Court referred to as the
judge-made “deemed-true-or-credible rule,” which required
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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DAI V . GARLAND 3
the court, in the absence of an explicit adverse credibility
finding by the agency, to assume the credibility and truth of
an alien’s factual contentions. The Supreme Court held that
the “deemed-true-or-credible rule” was irreconcilable with
the Immigration and Nationality Act (INA), emphasizing
that 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,
and explaining that the only question for judges reviewing
the Board’s factual determinations is whether any reasonable
adjudicator could have found as the agency did.
The Supreme Court further held that the INA’s
rebuttable presumption of credibility on appeal (where the IJ
has not rendered an explicit finding on this issue) is limited
to an appeal to the Board. Moreover, so long as the Board’s
reasons for rejecting an alien’s credibility are reasonably
discernible, the agency must be understood as having
rebutted the presumption of credibility, and a reviewing
court must uphold that decision unless a reasonable
adjudicator would have been compelled to reach a different
conclusion. Applying this guidance, the panel concluded
that the Board implicitly considered Dai’s statutory
rebuttable presumption of credibility on appeal to have been
conclusively rebutted by the factual record.
The panel concluded that any fair reading of the agency’s
decisions in this case indicates that it did not find Dai’s case
to be persuasive. The panel explained that the Supreme
Court pointed out that simple credibility is not the only
component of an applicant’s burden of proof. By statute, an
alien must also satisfy the trier of fact that his factual claim
is not only credible, but also persuasive. Thus, even if the
Board treats an individual’s testimony as credible, the
agency need not find his evidence persuasive or sufficient to

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meet the burden of proof. The panel wrote that in this
respect, the agency’s findings of fact and conclusions drawn
therefrom are demonstrably reasonable, and no reasonable
adjudicator would be compelled to conclude to the contrary.
COUNSEL
David Z. Su, Law Offices of David Z. Su, West Covina,
California; David J. Zimmer and Edwina B. Clarke,
Goodwin Procter LLP, Boston, Massachusetts; for
Petitioner.
Brian M. Boynton, Acting Assistant Attorney General; John
W. Blakeley, Assistant Director; Aimee J. Carmichael,
Senior Litigation Counsel; Office of Immigration, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
PER CURIAM:
Ming Dai petitions for review of a decision by the Board
of Immigration Appeals (BIA) denying his application for
asylum and withholding of removal. On his first trip to our
court, a divided panel granted his petition and remanded his
case to the BIA for the exercise of its statutory discretion and
to grant withholding of removal. Dai v. Sessions, 884 F.3d
858, dissent amended by, 916 F.3d 731 (9th Cir. 2018)
(Trott, J., dissenting).
Pursuant to a writ of certiorari, the government took the
case to the U.S. Supreme Court. The Court vacated our

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DAI V . GARLAND 5
opinion and remanded the matter to us with instructions and
for further proceedings. Garland v. Dai, 141 S. Ct. 1669,
1681 (2021). After considering the litigants’ new briefs, we
deny Dai’s petition.
I
Because the facts of this case are exhaustively arrayed in
previous opinions, including the Immigration Judge’s (IJ)
and the BIA’s decisions, we repeat them here only as
necessary to illuminate our analysis and conclusions.
The IJ hearing Dai’s case denied his application because
the IJ concluded that Dai had failed to meet his burden of
proving eligibility for asylum under Section 208(a) of the
Immigration and Naturalization Act (INA). The BIA
“adopt[ed] and affirm[ed]” the IJ’s decision, adding that the
voluntary return of Dai’s wife and daughter to China “and
his not being truthful about it is detrimental to his claim and
is significant to his burden of proof.” 884 F.3d at 890 (Trott,
J., dissenting). The IJ and the Board based their
determinations on (1) Dai’s intentional concealment of
“highly probative and damaging facts,” 141 S. Ct. at 1680;
(2) his lack of forthrightness; (3) his inadequate explanation
for his wife’s voluntary return to China, given that she was
the primary object of alleged persecution in China;
(4) admitted germane inconsistencies between his testimony
and the story he told an asylum officer; and (5) his
equivocating answers and unconvincing demeanor while
testifying.
II
Our panel majority arrived at its decision by applying a
non-statutory “special rule” we had long employed in
immigration disputes. 141 S. Ct. at 1674. This rule required

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us in the absence of an explicit adverse credibility finding by
the agency to assume the credibility and truth of an alien’s
factual contentions. See, e.g., Kataria v. INS, 232 F.3d 1107,
1114 (9th Cir. 2000); Zhiqiang Hu v. Holder, 652 F.3d 1011,
1016 (9th Cir. 2011). The Court referred to this judge-made
formulation as our “deemed-true-or-credible rule.” 141 S.
Ct. at 1677.
III
The Court disapproved our rule as irreconcilable with the
INA, 66 Stat. 163, as amended, 8 U.S.C. §1101 et seq. Id.
The Court emphasized that “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.’” Id. (citing 8 U.S.C.
§ 1252(b)(4)(B)). Thus, “[t]he only question for judges
reviewing the BIA’s factual determinations is whether any
reasonable adjudicator could have found as the agency did.”
Id. at 1678 (emphasis in original). The Court called this
standard “highly deferential,” adding that “reasonable
findings may not be disturbed.” Id. at 1677. The Court
reiterated that we are only a reviewing court in this context,
not one to which litigants come on appeal. See id. at 1677–
78.
As for the INA’s statutory rebuttable presumption of
credibility on appeal where the IJ has not rendered an
explicit finding on this issue, see 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C), the
Court limited its applicability to an appeal to the BIA. Id.
The Court said that our “deemed-true-or-credible rule”
therefore has no proper place in a reviewing court’s analysis.
Id. at 1678. The Justices enjoined us to assess the lawfulness
of the BIA’s action “in light of the explanations the agency
offered for it,” not “any ex post rationales” we might devise.

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DAI V . GARLAND 7
Id. at 1679. “So 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. It need not use any particular words to do so.
And, once more, a reviewing court must uphold that decision
unless a reasonable adjudicator would have been compelled
to reach a different conclusion.” Id. (citing 8 U.S.C.
§ 1252(b)(4)(B)). Accordingly, the Court left it to us on
remand to apply this test.
IV
Complete with detailed supporting findings of material
fact, the IJ’s adverse decision is a careful, extensive, and
thorough explanation of Dai’s failure to sustain his burden
of proof, which required him to prove that his claim was not
only credible, but also persuasive. The BIA added to the IJ’s
convincing reasoning its own assessment of the effect of
Dai’s intentional lack of truthfulness on a crucial point,
stating that it was “significant to his burden of proof.”
884 F.3d at 876 (Trott, J., dissenting).
Following the Court’s guidance, which eschews looking
for formulaic words, we conclude that the BIA implicitly
considered Dai’s statutory rebuttable presumption of
credibility on appeal to have been conclusively rebutted by
the factual record. There is no other rational way to read its
decision. To conclude otherwise would require us to turn a
blind eye to the Board’s statement that Dai had “not [been]
truthful” about highly probative and damaging facts
detrimental to his case. 884 F.3d at 890 (Trott, J.,
dissenting).
In addition, the Court pointed out that simple credibility
is not the only component of an applicant’s burden of proof.
By statute, an alien must also satisfy the trier of fact that his

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factual claim is not only credible, but also persuasive. 141 S.
Ct. at 1680. The Court explained that testimony which is
credible might nonetheless not be persuasive. Id. at 1681.
“Accordingly, even if the BIA treats an alien’s testimony as
credible, the agency need not find his evidence persuasive or
sufficient to meet the burden of proof.” Id. at 1680.
Any fair reading of the agency’s decisions in this case
indicates that it did not find Dai’s case to be persuasive. In
this respect, the agency’s findings of fact and conclusions
drawn therefrom are demonstrably reasonable. No
reasonable adjudicator would be compelled to conclude to
the contrary.
Because the standard for withholding of removal is a
more demanding version of the same test, 141 S. Ct. at 1675
n.2, Dai is not entitled to that relief either.
Petition DENIED.

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