Ming Dai v. WILLIAM BARR, Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MING DAI,
Petitioner,
v.
WILLIAM BARR, Attorney General,
Respondent.
No. 15-70776
Agency No.
A205-555-836
ORDER AND
AMENDED
DISSENT
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 13, 2017*
San Francisco, California
Filed March 8, 2018
Amended February 22, 2019
Before: Sidney R. Thomas, Chief Judge, and Stephen S.
Trott and Mary H. Murguia**, Circuit Judges.
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
** Prior to his death, Judge Reinhardt fully participated in this case
and authored the majority opinion. Following Judge Reinhardt’s death,
Judge Murguia was drawn by lot to replace him. Ninth Circuit General
Order 3.2h. Judge Murguia has reviewed all case materials.

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DAI V. BARR 2
Order;
Dissent to Opinion by Judge Trott
SUMMARY***
Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ denial of asylum and withholding
relief.
The panel held that because neither the immigration
judge nor the Board made an explicit adverse credibility
determination, this court must accept Dai’s testimony as true.
The panel explained that the REAL ID Act added a provision
creating a rebuttable presumption of credibility where the IJ
fails to make an explicit adverse credibility determination, but
that presumption is rebuttable only before the Board, and is
not rebuttable on petition for review before this court.
The panel held that Dai’s evidence was sufficiently
persuasive, and compelled the conclusion that the harm he
suffered from the government due to his resistance to his
wife’s forced abortion rose to the level of past persecution.
The panel held that because Dai and his wife were not
similarly situated, the Board erred in concluding that Dai’s
wife’s voluntary return to China undermined his own fear of
future persecution. The panel further held that in the absence
*** 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. BARR 3
of an adverse credibility determination, the Board erred in
relying on Dai’s untruthfulness about his wife’s voluntary
return to China in concluding that he failed to meet his
burden of proof. The panel also noted Dai’s valid asylum
claim was not undermined by the fact that he may have had
additional reasons (beyond escaping persecution) for coming
to or remaining in the United States, including seeking
economic opportunity.
The panel held that because Dai established past
persecution, he was entitled to a rebuttable presumption of
future persecution, which the government did not attempt to
rebut with evidence of changed country conditions. The
panel stated that giving the government the opportunity to
present such evidence at this point would be exceptionally
unfair, and thus, Dai established that he was eligible for
asylum. The panel remanded for an exercise of discretion of
whether to grant Dai asylum relief, and to grant Dai
withholding relief.
In his amended dissent, Judge Trott wrote that the serious
legal consequences of the majority opinion as a circuit
precedent are that it (1) demolishes both the purpose and the
substance of the REAL ID Act (2) disregards the appropriate
standard of review, and (3) perpetuates this court’s
idiosyncratic approach to an IJ’s determination that the
testimony of an asylum seeker lacks sufficient credibility or
persuasiveness to prove his case.

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DAI V. BARR 4
COUNSEL
David Z. Su, Law Offices of David Z. Su, West Covina,
California, for Petitioner.
Aimee J. Carmichael, Senior Litigation Counsel; Mary Jane
Candaux, Assistant Director; Office of Immigration, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
ORDER
The dissent filed March 8, 2018, is amended, with the
following amended dissent to be substituted in lieu of the
original. The petitions for rehearing and rehearing en banc
remain pending, and no further action is required of the
parties until further order of the court.
TROTT, Circuit Judge, dissenting:
The serious legal consequences of my colleagues’ opinion
are that it (1) disregards both the purpose and the substance
of the REAL ID Act of 2005 (“Act”)1, (2) ignores the
appropriate standard of review, and (3) perpetuates our
idiosyncratic approach to an Immigration Judge’s (“IJ”)
determination that the testimony of an asylum seeker lacks
sufficient credibility or persuasiveness to prove his case.
The majority’s opinion accomplishes these results by
contaminating the issue before us with irrelevancies, the most
1 Pub. L. No. 109-13, 119 Stat. 231.

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DAI V. BARR 5
troublesome of which is a meritless irrebuttable presumption
of credibility. The sole issue should be whether Dai’s
unedited presentation compels the conclusion that he carried
his burden of proving he is a refugee and thus eligible for a
discretionary grant of asylum. Only if we can conclude that
no reasonable factfinder could fail to find his evidence
conclusive can we grant his petition.
The IJ’s decision not to make an explicit adverse
credibility finding is a red herring that throws our analysis off
the scent and preordains a result that is incompatible with the
evidentiary record. By omitting from their opinion the IJ’s
fact-based explanation of his decision, the majority elides
eight material findings of fact the IJ did make, each of which
is entitled to substantial deference. The majority’s assertion
that “there is no finding to which we can defer” is false. For
this reason, I quote in full the IJ’s findings and conclusions
about the persuasiveness of Dai’s presentation in Part IV of
my dissent. The eight findings are as follows.
First, the IJ specifically found that the information
reported by the asylum officer about his conversation with
Dai was accurate. The IJ said,
As to the contents of [the asylum officer’s
notes], I give the notes full weight, insofar as
the respondent has confirmed the contents of
the questions and answers given during the
course of that interview. Furthermore, I note
that in the sections in which the respondent
equivocated, stating that he was nervous and
not sure that he gave those precise answers, I
nevertheless give the Asylum Officer’s notes
some substantial weight, in that they are

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DAI V. BARR 6
consistent with the respondent’s testimony in
court.
Accordingly, the IJ accepted as a fact that Dai admitted
that he did not disclose the consequential truth about his
wife’s and daughter’s travels because he was nervous about
how this would be perceived by the asylum officer in
connection with his claim.
Second, the IJ accepted Dai’s admission as a fact that he
concealed the truth because he was afraid of giving straight
answers regarding his wife’s and daughter’s trip to the United
States.
Third, the IJ determined that Dai had deliberately omitted
highly relevant information from his Form I-589 application
for asylum, information that he also tried to conceal from the
asylum officer.
Fourth, the IJ found that Dai’s omission of his
information “is consistent with his lack of forthrightness
before the asylum office[r] as to his wife and daughter’s
travel with him. . . .”
Fifth, the IJ credited Dai’s admission that when asked by
the asylum officer to “tell the real story” about his family’s
travels, Dai said he “wanted a good environment for his child,
and his wife had a job, but he did not, and that is why he
stayed here [after his wife and daughter went back to China].
Sixth, the IJ found that Dai admitted he stayed here after
they returned “because he was in a bad mood and he wanted
to get a job and ‘a friend of mine is here.’”

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DAI V. BARR 7
Seventh, the IJ said “I do not find that [Dai’s]
explanations for [his wife’s] return to China while he
remained here are adequate.” (Emphasis added).
Finally, the IJ also credited Dai’s concessions that his
wife and daughter returned to China because “his daughter’s
education would be cheaper in China,” and that “his wife
wanted to go to take care of her father.”
When Dai’s subterfuge got to the BIA, the BIA said in its
decision that “the record reflects that [Dai] failed to disclose
to both the asylum officer and the IJ” the true facts about his
family’s travels. The BIA noted that Dai had conceded he
was not forthcoming about this material information because
he believed that the truth about their travels “would be
perceived as inconsistent with his claims of past and feared
persecution.”
The IJ’s specific factual findings in connection with Dai’s
failure to satisfy his burden of proof were not the product of
inferences drawn from circumstantial evidence. These
findings were directly based upon revealing answers Dai
admitted he gave to the asylum officer during his interview.
These facts are beyond debate, and they undercut Dai’s case.
To quote the BIA, these facts were “detrimental to his claim”
and “significant to his burden of proof.” Nevertheless, the
majority brushes them aside, claiming that an immaterial
presumption of credibility overrides all of them.
In this connection, I note a peculiarity in the majority’s
approach to Dai’s case: Nowhere does Dai assert that he is
entitled to a conclusive presumption of credibility. His brief
does not contain any mention of the presumption argument
the majority conjures up on his behalf. The closest Dai

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DAI V. BARR 8
comes to invoking the majority’s inapt postulate is with a
statement that we “should” treat as credible his testimony
regarding persecution in China. He does not take issue with
the IJ’s foundational adverse factual findings, choosing
instead to argue that they were not sufficient in the light of
the record as a whole to support the IJ’s ultimate
determination.
For example, Dai acknowledges in his brief that the “IJ’s
or BIA’s factual findings are reviewed for substantial
evidence” and that the “REAL ID Act’s new standards
governing adverse credibility determinations applies to
applications for asylum, withholding of removal, and CAT
relief made on or after May 11, 2005.” Blue Br. 10
(emphasis added) (quotation marks omitted). Next, he notes
that “an IJ cannot selectively examine evidence in
determining credibility, but rather must present a reasoned
analysis of the evidence as a whole and cite specific instances
in the record that form the basis of the adverse credibility
finding.” Id. (emphasis added) (quotation marks omitted).
Moreover, Dai notes that “[t]o support an adverse credibility
determination, inconsistencies must be considered in light of
the totality of the circumstances, and all relevant factors”
adding that “trivial inconsistencies . . . should not form the
basis of an adverse credibility determination.” Id. at 10–11
(emphasis added) (quotation marks omitted). He contends
that he “has provided adequate explanation” for his
inconsistencies, i.e., the failure to disclose his family’s
travels. Id. at 14. Finally, after attempting to pick apart the
IJ’s adverse findings, Dai’s bottom line is that “his wife’s
departure from the United States does not adversely affect his
credibility at all,” an assertion that ignores his failed coverup
of it. See id. at 16.

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DAI V. BARR 9
In summary, the majority blue pencils a material part of
the evidentiary record even though Dai implores us to
“examine it as a whole,” as he did in his brief to the BIA. Dai
accepts that the viability of his entire presentation is on the
line, but the majority ignores his concession. In this
connection, the Attorney General has responded only to the
claims and arguments Dai included in his brief. The Attorney
General has not been given an opportunity to respond to the
majority’s inventive analysis, nor to the theory concocted by
the majority on Dai’s behalf. Both sides will be surprised by
my colleagues’ artful opinion—Dai pleasantly, the Attorney
General not so much.
I will have more to say in Part V about our Circuit’s
treatment of the role, responsibility, and product of an asylum
officer.
For these reasons, I respectfully dissent.
I
Backdrop
Over the years, our Circuit has manufactured misguided
rules regarding the credibility of political asylum seekers. I
begin with this issue because the majority’s mishandling of
it infects the remainder of their opinion with error. These
result-oriented ad hoc hurdles for the government stem from
humanitarian intentions, but our court has pursued these
intentions with methods that violate the institutional
differences between a reviewing appellate court, on one hand,
and a trial court on the other, usurping the role of the
Department of Homeland Security (“DHS”) and the BIA in
the process. Referring to our approach to witness credibility

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DAI V. BARR 10
as an “idiosyncratic analytical framework,” a previous panel
of our court described this inappropriate situation as follows:
The Supreme Court has repeatedly instructed
us on the proper standard to apply when
reviewing an immigration judge’s adverse
credibility determination. Time and again,
however, we have promulgated rules that tend
to obscure that clear standard and to flummox
immigration judges, who must contort what
should be a simple factual finding to satisfy
our often irreconcilable precedents. The
result of this sly insubordination is that a
panel that takes Congress at its word and
accepts that findings of fact are “conclusive
unless any reasonable adjudicator would be
compelled to conclude the contrary,” . . . or
follows the Supreme Court’s admonition that
“[t]o reverse the BIA finding we must find
that the evidence not only supports that
conclusion, but compels it,” . . . runs a serious
risk of flouting one of our eclectic, and
sometimes contradictory, opinions.
Jibril v. Gonzales, 423 F.3d 1129, 1138 (9th Cir. 2005)
(alteration in original) (citations omitted).
Many of our Circuit’s rules on this subject and my
colleagues’ decision are irreconcilable with the structural
principle set forth in Federal Rule of Civil Procedure 52(a)(6)
that “[f]indings of fact, whether based on oral or other
evidence, must not be set aside unless clearly erroneous, and
the reviewing court must give due regard to the trial court’s
opportunity to judge the witnesses’ credibility.” Accordingly,

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DAI V. BARR 11
we are expected to apply a highly deferential standard to a
trial court’s determination regarding the credibility of a
witness. Anderson v. City of Bessemer City, 470 U.S. 564,
573–76 (1985). In discussing this rule, the Supreme Court
said that “[w]hen findings are based on determinations
regarding the credibility of witnesses, Rule 52(a) demands
even greater deference to the trial court’s findings; for only
the trial judge can be aware of the variations in demeanor and
tone of voice that bear so heavily on the listener’s
understanding of and belief in what is said.” Id. at 575. The
Court added that the applicable “clearly erroneous” standard
of review “plainly does not entitle a reviewing court to
reverse the finding of a trier of fact simply because it is
convinced that it would have decided the case differently.
The reviewing court oversteps the bounds of its duty under
Rule 52(a) if it undertakes to duplicate the role of the lower
court.” Id. at 573 (emphasis added).
The Supreme Court sharpened this point about our limited
role in Gonzales v. Thomas, 547 U.S. 183 (2006) (per
curiam), vacating 409 F.3d 1177 (9th Cir. 2005) (en banc).
In summarily vacating our en banc opinion, the Court held
that we had exceeded our authority and made a determination
that belonged to the BIA. 547 U.S. at 185–86. The Court
agreed with the Solicitor General that “a court’s role in an
immigration case is typically one of review, not of first view.”
Id. at 185 (emphasis added) (quotation marks omitted). To
support its conclusion, the Court cited INS v. Orlando
Ventura, 537 U.S. 12 (2002): a “‘judicial judgment cannot be
made to do service for an administrative judgment.’” 547
U.S. at 186 (quoting Ventura, 537 U.S. at 16). More about
Ventura later.

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DAI V. BARR 12
The majority’s opinion’s use of an incongruous
irrebuttable presumption of credibility to erase the IJ’s
findings of fact and the BIA’s decision and thus to make us
a court of “first view” is another example of our
intransigence. If, as they say, we are bound by precedent to
do it their way, then its time to change our precedent.
II
A False Premise
The majority opinion’s assertion that “we must treat
[Dai’s] testimony as credible” rests on a fallacious premise.
Judge Reinhardt writes, “Properly understood, the rebuttable
presumption provision of the REAL ID Act applies only to
appeals to the BIA, not to petitions for review in our court.”
From this inapt premise, he concludes that we must ignore the
IJ’s detailed analysis and findings of fact about Dai’s
presentation. When it comes to our task of reviewing the
credibility of witnesses in a trial court or whether a witness’
testimony suffices to carry his burden of proof, however,
there is no material difference between an appeal and a
petition for review, none. Federal Rule of Civil Procedure
52(a) makes no such distinction. As Anderson said, Rule
52(a) applies to a “reviewing court,” which is what we are in
this capacity. 470 U.S. at 573–74 (emphasis added); see
Thomas, 547 U.S. at 185. Neither the Court nor Rule 52(a)
differentiate between appeals and petitions for review. Nor
would such a distinction make any sense. As Anderson and
Thomas illustrate, the issue is one of function, not of form or
labels. The Act’s use of the word “appeal” does not dictate
how we must go about our process of review. Using the
standards provided by Congress, we are not in a position to
weigh a witness’s credibility or persuasiveness.

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DAI V. BARR 13
Federal Rule of Appellate Procedure 20, “Applicability of
Rules to the Review or Enforcement of an Agency Order,”
illustrates the soundness of treating appeals and petitions for
review with a uniform approach. Rule 20 reads, “All
provisions of these rules . . . apply to the review or
enforcement of an agency order. In these rules, ‘appellant’
includes a petitioner or applicant, and ‘appellee’ includes a
respondent.”
Moreover, and directly to the point, the Act itself does not
require an IJ to make a specific credibility finding in those
precise terms. As the BIA correctly said with respect to the
Act, “[c]ontrary to the respondent’s argument on appeal, the
Immigration Judge need not have made an explicit adverse
credibility finding to nevertheless determine that the
respondent did not meet his burden of proving his asylum
claim.” See discussion infra Section VI. If the IJ does not
make such an explicit finding, all the respondent is entitled
to is a “rebuttable presumption of credibility on appeal.”
8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). By
attempting to restrict this language to an appeal to the BIA,
the majority opinion frees itself to apply derelict Ninth
Circuit precedent to Dai’s testimony and automatically to
deem it credible.2
My colleagues claim that in the absence of a formal
adverse credibility finding, “we are required to treat the
petitioner’s testimony as credible.” The practical effect of the
majority’s rule is breathtaking: The lack of a formal adverse
2 The majority cites She v. Holder, 629 F.3d 958, 964 & n.5 (9th Cir.
2010) in support of this ipse dixit claim. However, She’s footnote 5 says
that because the “rebuttable presumption” provision does not apply
retroactively, it had no applicability in She’s case.

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DAI V. BARR 14
credibility finding becomes a selective positive credibility
finding and dooms a fact-based determination by an IJ and
the BIA that an applicant’s case is not sufficiently persuasive
to carry his burden of proof. The majority’s approach
violates all the rules that control our review of a witness’s
testimony before a factfinder.
A conclusive presumption of credibility has no valid place
in our task of reviewing the persuasiveness of a witness’s
testimony. Such an artifice eliminates relevant factual
evidence from consideration and violates Rule 52(a)(6). The
deployment of a conclusive presumption becomes a
misguided way not only of putting a heavy thumb on one tray
of the traditional scales of justice, but also of removing
relevant evidence from the other. This approach allows us to
evade our responsibilities to examine and to evaluate the
entire record before an IJ, permitting us instead to disregard
facts that would otherwise discredit our final determination.
The evidentiary record in this case devours any such
presumption. Judge Reinhardt’s opinion writes the REAL ID
Act and its reference to a rebuttable presumption of
credibility out of existence, even though Congress
specifically intended the Act to govern us, the Ninth Circuit
Court of Appeals.
Although the case focuses on corroboration of an
applicant’s testimony, our opinion in Aden v. Holder,
589 F.3d 1040 (9th Cir. 2009) correctly explained the effect
of the REAL ID Act on our pre-Act jurisprudence.
We have a line of circuit authority for the
proposition that corroboration cannot be
required from an applicant who testifies
credibly. In Ladha v. INS, [215 F.3d 889, 901

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DAI V. BARR 15
(9th Cir. 2000)] we ‘reaffirmed that an alien’s
testimony, if unrefuted and credible, direct
and specific, is sufficient to establish the facts
testified without the need for any
corroboration.’ Kataria v. INS [232 F.3d
1107, 1113 (9th Cir. 2000)] relied on Ladha in
stating that ‘the BIA may not require
independent corroborative evidence from an
asylum applicant who testifies credibly in
support of his application.’ Kataria stated
that ‘we must accept an applicant’s testimony
as true in the absence of an explicit adverse
credibility finding.’. . .
Congress abrogated these holdings in the
REAL ID Act of 2005. . . .
The statute additionally restricts the effect of
apparently credible testimony by specifying
that the IJ need not accept such testimony as
true. . . .
Congress has thus swept away our doctrine
that ‘when an alien credibly testifies to certain
facts, those facts are deemed true.’
Aden, 589 F.3d at 1044-45. More on the Act in the next
section.

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DAI V. BARR 16
III
The REAL ID Act
Congress enacted the REAL ID Act of 2005 because of
our Circuit’s outlier precedents on this issue and our refusal
to follow the rules. The House Conference Committee
Report (“House Report”)3 explained that “the creation of a
uniform standard for credibility is needed to address a
conflict . . . between the Ninth Circuit on one hand and other
circuits and the BIA.” H.R. Rep. No. 109-72 at 167. The
House Report also said that the Act “resolves conflicts
between administrative and judicial tribunals with respect to
standards to be followed in assessing asylum claims.” Id. at
162. Nevertheless, my colleagues hold that a key part of the
Act does not apply to us, only to the BIA.
As the Act pertains to this case, it established a number of
key principles, all of which the majority fails to follow,
perpetuating the conflicts Congress attempted to resolve.
First, “[t]he burden of proof is on the applicant to
establish that the applicant is a refugee . . . .”4
Second, “[t]he testimony of the applicant may be
sufficient to sustain the applicant’s burden without
corroboration, but only if the applicant satisfies the trier of
fact that the applicant’s testimony is credible, is persuasive,
3 H.R. Rep. No. 109-72 (2005) (Conf. Rep.), reprinted in 2005
U.S.C.C.A.N. 240.
4 8 U.S.C. § 1158(b)(1)(B)(i).

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DAI V. BARR 17
and refers to specific facts sufficient to demonstrate that the
applicant is a refugee.”5
Third,
Considering the totality of the circumstances,
and all relevant factors, a trier of fact may
base a credibility determination on the
demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility
of the applicant’s or witness’s account, the
consistency between the applicant’s or
witness’s written and oral statements
(whenever made and whether or not under
oath, and considering the circumstances under
which the statements were made), the internal
consistency of each such statement, the
consistency of such statements with other
evidence of record (including the reports of
the Department of State on country
conditions), and any inaccuracies or
falsehoods in such statements, without regard
to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s
claim, or any other relevant factor. There is
no presumption of credibility, however, if no
adverse credibility determination is explicitly
made, the applicant or witness shall have a
rebuttable presumption of credibility on
appeal.6
5 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added).
6 8 U.S.C. § 1158(b)(1)(B)(iii).

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DAI V. BARR 18
We have attempted in a number of panel opinions after
the Act to adjust our approach to applicant credibility and
persuasiveness issues, but as the majority opinion illustrates,
“old ways die hard.” Huang v. Holder, 744 F.3d 1149 (9th
Cir. 2014) captures where we should be on this issue:
[W]e have concluded that “the REAL ID Act
requires a healthy measure of deference to
agency credibility determinations.” This
deference “makes sense because IJs are in the
best position to assess demeanor and other
credibility cues that we cannot readily access
on review.” “[A]n immigration judge alone is
in a position to observe an alien’s tone and
demeanor, to explore inconsistencies in
testimony, and to apply workable and
consistent standards in the evaluation of
testimonial evidence.” By virtue of their
expertise, IJs are “uniquely qualified to decide
whether an alien’s testimony has about it the
ring of truth.”
The need for deference is particularly strong
in the context of demeanor assessments. Such
determinations will often be based on non-
verbal cues, and “[f]ew, if any, of these
ephemeral indicia of credibility can be
conveyed by a paper record of the
proceedings and it would be extraordinary for
a reviewing court to substitute its second-hand
impression of the petitioner’s demeanor,
candor, or responsiveness for that of the IJ.”
Indeed, even before the enactment of the
REAL ID Act, we recognized the need to give

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DAI V. BARR 19
“special deference to a credibility
determination that is based on demeanor,”
because the important elements of a witness’s
demeanor that “may convince the observing
trial judge that the witness is testifying
truthfully or falsely” are “entirely unavailable
to a reader of the transcript, such as the Board
or the Court of Appeals.” The same
principles underlie the deference we accord to
the credibility determinations of juries and
trial judges.
Id. at 1153–54 (alterations in original) (citations omitted).
This “healthy measure of deference” should also apply to the
agency’s determination with respect to whether an applicant
has satisfied the agency’s “trier of fact”—not us—that his
evidence is persuasive, an issue that is in the wheelhouse of
a jury or a judge or an IJ hearing a case as a factfinder.
In Kho v. Keisler, 505 F.3d 50 (1st Cir. 2007), the First
Circuit understood the Act’s effect on the issue of an
applicant’s credibility. Not only did our sister circuit
correctly comprehend the Act’s impact, but it considered and
rejected our approach to this important subject.
Kho supplements his ‘disfavored group’
approach with an argument that because the IJ
did not make an explicit finding concerning
Kho’s credibility, his testimony ‘must be
accepted as true’ by this court. Kho bases this
proposed rule as well on a series of Ninth
Circuit cases. . . .

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DAI V. BARR 20
We have already rejected the proposition that
aliens are entitled to a presumption of
credibility on review in this court if there is no
express credibility determination made by an
IJ. . . .
The REAL ID Act also provides no support
for Kho's argument. . . .
Kho, 505 F.3d at 56-57.
The court further explained that the Act’s reference to a
“rebuttable presumption” applies only to an applicant’s
appeal to the BIA, not to “reviewing courts of appeal.” Id. at
56.
Thus, not only does my colleagues’ opinion violate the
directions of the Act, but it creates an intercircuit conflict
with Kho, and an intra-circuit conflict with Aden.
IV
The IJ’s Decision
The IJ in this case concluded that Ming Dai had not
satisfied his statutory burden of establishing that he is a
refugee pursuant to § 1158(b)(1)(B)(i). The IJ gave as his
“principle area of concern” Dai’s implausible unpersuasive
testimony, another way of saying it wasn’t credible. As Dai’s
brief correctly demonstrates, there is barely a dime’s worth of
substantive difference between “credible” and “persuasive.”
Here is how the IJ explained his decision in terms of
§ 1158(b)(1)(B)(i) and (ii):

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DAI V. BARR 21
I have carefully considered the respondent’s
testimony and evidence and for the following
reasons, I find that the respondent has failed
to meet his burden of proving eligibility for
asylum.
The principal area of concern with regard to
the respondent’s testimony arose during the
course of his cross-examination. On cross-
examination, the respondent was asked about
various aspects of his interview with an
Asylum Officer. The Department of
Homeland Security also submitted the notes
of that interview as Exhibit 5. The respondent
was asked specific questions regarding several
aspects of his testimony before the Asylum
Officer. In the course of cross-examination,
the respondent was asked regarding his
questions and answers as to whether his wife
and daughter travelled with him to the United
States. The respondent’s responses included
the question of whether the asylum officer had
asked him if his wife and daughter travelled
anywhere other than to Taiwan and Hong
Kong. The respondent conceded that he was
asked this question and that he replied yes,
they had travelled to Taiwan and Hong Kong.
The respondent was asked whether the
Asylum Officer inquired whether his wife and
daughter had travelled elsewhere. The
respondent then testified before the Court that
he was asked this question, “but I was
nervous.” In this regard, I note that the
respondent did not directly answer the

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DAI V. BARR 22
question; instead leapt directly to an
explanation for what his answer may have
been, namely that he was nervous. The
respondent was then asked specifically
whether the Asylum Officer asked him if his
wife had travelled to Australia in 2007. The
respondent confirmed that he had been asked
this question, and he confirmed that the
answer was in the affirmative. The
respondent also confirmed that the Asylum
Officer had asked him whether she had
travelled anywhere else. He confirmed that he
had been so asked. The respondent was then
asked whether he answered “no,” that she had
not travelled anywhere else. The respondent
answered that he believed so, that he had so
answered. The respondent was then asked,
during the course of cross-examination, why
he had not said to the Asylum Officer that yes,
she had travelled to the United States. The
respondent replied that he had not thought of
it. He stated that they did come with him
(meaning his wife and daughter) and that he
thought the Asylum Officer was asking him if
they had travelled anywhere other than the
United States. He explained that he did so
because he assumed the U.S. Government had
the records of their travel to the United States.
On further questioning, the respondent
eventually hesitated at some length when
asked to further explain why he did not
disclose spontaneously to the Asylum Officer
that his wife and daughter had come with him.
The respondent paused at some length and I

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DAI V. BARR 23
observed that the respondent appeared
nervous and at a loss for words. However,
after a fairly lengthy pause, the respondent
testified that he is afraid to say that his wife
and daughter came here and why they went
back. The respondent was asked whether he
told the Asylum Officer that he was afraid to
answer directly. The respondent initially
testified that he forgot and did not remember
whether he said that. He again reiterated that
he was very nervous. He was then asked the
question again as to whether he told the
Asylum Officer that he was afraid to answer
why his wife and daughter had gone back. He
then conceded that maybe, yes, he had
answered in that fashion. The respondent was
asked whether the Asylum Officer inquired
why his wife and daughter went back, and the
respondent conceded that he had been so
asked, and he further conceded that he replied
because school in the United States cost a lot
of money (referring to the schooling for his
daughter). The respondent was then asked to
confirm that the Asylum Officer eventually
asked him to tell him the real story as to why
his family travelled to the United States and
returned to China. The respondent confirmed
that he was asked this question and when
asked, whether he replied that it was because
he wanted a good environment for his child
and because his wife had a job and he did not
and that that is why he stayed here. He
confirmed that he did, in fact, say that. The
respondent was further asked, during the

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DAI V. BARR 24
course of testimony in court, why his wife and
daughter returned to China. In this regard, the
respondent testified that they came with him,
but returned to China several weeks after
arrival. He testified that they did so because
his father-in-law was elderly and needed
attention, and because his daughter needed to
graduate school in China.
The respondent further claimed that his wife
had, in fact, suffered past persecution in the
form of a forced abortion and the respondent
confirmed that he feared his wife and
daughter would suffer future persecution. In
this regard, the respondent qualified his
answer by saying that his wife was now on an
IUD, apparently thereby suggesting that the
risk of persecution is reduced. However, the
respondent did concede that the risk of future
persecution also pertains to his daughter.
Indeed, in this regard, the respondent testified
that this is, at least in part, why he applied for
asylum.
As to the contents of Exhibit 5, I give the notes
full weight, insofar as the respondent has
confirmed the contents of the questions and
answers given during the course of that
interview. Furthermore, I note that in the
sections in which the respondent equivocated,
stating that he was nervous and not sure that
he gave those precise answers, I nevertheless
give the Asylum Officer’s notes some
substantial weight, in that they are consistent

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DAI V. BARR 25
with the respondent’s testimony in court.
Specifically, I note that the Asylum Officer’s
notes state that the respondent ultimately
indicated that he was afraid of giving straight
answers regarding his daughter and wife’s trip
to the United States and return to China. And
while the respondent did not confirm this in
court, he did give a similar answer as to why
he was testifying in this regard. In other
words, the respondent appears to have stated,
both before the Asylum Officer and in court
that he did not spontaneously disclose the
travel of his wife and daughter with him to the
United States and their return because he was
nervous about how this would be perceived by
the Asylum Officer in connection with his
claim. I further note that the Asylum
Officer’s notes are internally consistent with
regard to references to earlier questions, such
as whether the respondent had stated that he
applied for a visa with anyone else. At page 2
of the notes contained in Exhibit 5, the
respondent was asked whether he applied for
his visa with anyone else and the notes
indicated that he stated that, “no, I applied by
myself.” Similarly, I note that the testimony
before the Asylum Officer and the Court is
consistent with the omission in the
respondent’s Form I-589 application for
asylum, of an answer to the question of the
date of the previous arrival of his wife, if she
had previously been in the United States. See
Exhibit 2, page 2, part A.II, question 23.
When asked about this omission, the

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DAI V. BARR 26
respondent expressed surprise, stating that he
told the preparer about their trip and indicated
that he thought it had been filled out.
Notwithstanding the respondent’s statement in
this regard, I do observe that the omission is
consistent with his lack of forthrightness
before the asylum office as to his wife and
daughter’s travel with him to the United
States and their subsequent return to China
shortly thereafter.
In sum, the respondent’s testimony before the
Court and his testimony regarding the Asylum
Officer notes, as well as the notes themselves,
clearly indicate that the respondent failed to
spontaneously disclose that his wife and
daughter came with him and then returned to
China. His testimony and the notes also
consistently demonstrate that the respondent
paused at length, both before the Court and
before the Asylum Officer, when asked about
this topic. His testimony and the Asylum
Officer notes are also consistent in indicating
that he ultimately testified that he was afraid
to say that his wife came here and was afraid
of being asked about why she went back.
Furthermore, the respondent has conceded
that he was asked to “tell the real story”
about his family’s travel to the United States
by the Asylum Officer, and that he replied that
he wanted a good environment for his child
and his wife had a job, but he did not, and
that is why he stayed here.

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DAI V. BARR 27
In Loho v. Mukasey, 531 F.3d 1016, 1018–19
(9th Cir. 2008), the Ninth Circuit addressed
the situation in which an asylum applicant has
found safety in the United States and then
returns to the country claimed of persecution
before eventually finding asylum in the
United States. The Ninth Circuit held that the
applicant’s voluntary return to the country of
claimed persecution may be considered in
assessing both credibility and whether the
respondent has a well-founded fear of
persecution in that country. Here, while the
respondent himself has not returned to China,
his wife and daughter did. Indeed they did so
shortly after arriving in the United States, and
the respondent confirmed that they did so
because the schooling is cheaper for his
daughter in China, as well as because his
father-in-law is elderly and needed to be cared
for. The respondent also told the Asylum
Officer that the “real story” about whey [sic]
his family returned was that his wife had a job
and he did not, and that is why he stayed here.
This is consistent with respondent’s testimony
before the Court that he did not have a job at
the time he came to the United States.
Furthermore, I note that the respondent’s
claim of persecution is founded on the alleged
forced abortion inflicted upon his wife. That
is the central element of his claim. The
respondent claims that he himself was
persecuted through his resistance to that
abortion. Nevertheless, the fact remains that
the fundamental thrust of the respondent’s

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DAI V. BARR 28
claim is that his wife was forced to have an
abortion. In this regard, the respondent’s wife
therefore clearly has an equal, or stronger,
claim to asylum than the respondent himself,
assuming the facts which he claims are true.
The respondent was asked why his wife did
not stay and apply for asylum and he replied
that he did not know they could apply for
asylum at the time they departed. The
respondent was then asked why he stayed here
after they returned; he said because he was in
a bad mood and he wanted to get a job and a
friend of mine is here.
While Loho v. Mukasey applies to the
applicant himself returning to China, I find
that the reasoning of the Ninth Circuit in that
case is fully applicable to the respondent’s
situation in that his wife, who is the primary
object of the persecution in China, freely
chose to return to China. I do not find that the
respondent’s explanations for her return to
China while he remained here are adequate.
The respondent has stated that he was in a bad
mood and that he had found a job and had a
friend here. The respondent has also indicated
that his daughter’s education would be
cheaper in China than here, and he has also
indicated that his wife wanted to go to take
care of her father. I do not find that these
reasons are sufficiently substantial so as to
outweigh the concerns raised by his wife and
daughter’s free choice to return to China after

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DAI V. BARR 29
having allegedly fled that country following
his wife’s and his own persecution.
In view of the for[e]going, I find that the
respondent has failed to meet his burden of
proving eligibility for asylum under Section
208(a) of the Act.
(Emphasis added).
To erase any doubts about Dai’s problematic testimony,
the following is an excerpt from it.
MS. HANNETT TO MR. DAI
Q. And isn’t it also true that the
[asylum] officer asked why did
they go back and you replied, so
that my daughter can go to school
and in the U.S., you have to pay a
lot of money?
A. Yes, that’s what I said.
Q. Okay. And isn’t it also true that
the officer asked you, can you tell
me the real story about you and
your family’s travel to the U.S.,
and you replied I wanted a good
environment for my child. My
wife had a job and I didn’t, and
that is why I stayed here. My wife
and child go home first.

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DAI V. BARR 30
A. I believe I said that.
* * *
Q. So, once you got to the United
States, why didn’t your wife apply
for asylum?
A. My wife just returned to China.
Q. Right, and my question is why
didn’t she stay here and apply for
asylum?
A. At that time, we didn’t know the
apply, we didn’t know that we can
apply for asylum.
Q. Well, if you didn’t know that you
could apply for asylum, why did
you stay here after they returned?
A. Because 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 asylum officer’s interview notes discussed by the IJ
(and found to be consistent with Dai’s testimony before the
IJ) read as follows:
Earlier you said your wife has only traveled to
Australia, Taiwan and HK. You also said that

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DAI V. BARR 31
you traveled to the US alone. Government
records indicate that your wife traveled with
you to the United States. Can you explain?
[long pause] the reason is I’m afraid to
say that my wife came here, then why
did she go back.
Your wife went back? Yes
When did she go back to China? February
Why did she go back? Because my child
go to school
Earlier you said you applied for your visa
alone. Our records indicate that your child
also obtained a visa to the US with you. Can
you explain?
[long pause]
Daughter came with wife and you in January?
Yes
Can you explain? I’m afraid
Please tell me what you are afraid of. That is
what your interview today is for. To
understand your fears?
I’m afraid you ask why my wife and
daughter go back

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DAI V. BARR 32
Why did they go back?
So that my daughter can go to school
and in the US you have to pay a lot of
money.
Can you tell me the real story about you and
your family’s travel to the US?
I wanted a good environment for my
child. My wife had a job and I didn’t
and that is why I stayed here. My
wife and child go home first.
(bracketed notations in original).
V
The Role of an Asylum Officer
The majority’s opinion perpetuates another acute error
our Circuit has made in its effort to control the DHS’s
administrative process. In footnote 2, the majority say that if
Dai concealed relevant information “it was only from the
asylum officer.” Only from the asylum officer? So Dai’s
admitted concealment under oath of germane information
during a critical part of the evaluation process is of no
moment?
The majority’s misunderstanding of the role of an asylum
officer represents a sub silentio application of another faulty
proposition on the books in our circuit: Singh v. Gonzales,
403 F.3d 1081 (9th Cir. 2005).

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DAI V. BARR 33
Certain features of an asylum interview make
it a potentially unreliable point of comparison
to a petitioner’s testimony for purposes of a
credibility determination. Barahona-Gomez v.
Reno, 236 F.3d 1115 (9th Cir. 2001),
explained the significant procedural
distinctions between the initial quasi-
prosecutorial “informal conferences
conducted by asylum officers” after the filing
of an asylum application, and the “quasi-
judicial functions” exercised by IJs . . . .
Id. at 1087 (emphasis added).
First of all, we may not have in this case a verbatim
transcript of Dai’s testimony, but we have the asylum
officer’s notes, which the IJ explicitly found to be accurate.
Moreover, when appropriately confronted under oath with the
notes, Dai admitted they correctly captured what he said.
Under these circumstances, any concern that the asylum
interview might be a “potentially unreliable point of
comparison” to Dai’s testimony is irrelevant. The record
(thanks to Dai himself) eliminates any potential for
unreliability.
Second, the pronouncement in Singh v. Gonzales that an
asylum officer’s interview in an affirmative asylum case is
“quasi-prosecutorial” in nature is flat wrong and reveals our
fundamental misunderstanding of the process.7 An asylum
7 An affirmative asylum case differs from a defensive asylum case
involving someone already in removal proceedings. See Obtaining
Asylum in the United States, DEP’T OF HOMELAND SEC.,

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DAI V. BARR 34
officer in an affirmative asylum case does not “prosecute”
anyone during the exercise of his responsibilities, and the
process is not “quasi-prosecutorial” in nature. In fact, unlike
a prosecutor, an asylum officer has the primary authority and
discretion to grant asylum to an applicant should the applicant
present a convincing case. The asylum officer’s role is
essentially judicial, not prosecutorial. We miss the mark here
because we see only those cases where an affirmative asylum
applicant did not present a sufficiently credible persuasive
case to an asylum officer to prevail, and we mistakenly
conclude from that unrepresentative sample that asylum
officers tend to decide against such applicants.
The true facts emerge from DHS’s June 20, 2016 report
to Congress, Affirmative Asylum Application Statistics and
Decisions Annual Report, covering “FY 2015 adjudications
of affirmative asylum applications by USCIS [U.S.
Citizenship & Immigration Services] asylum officers for the
stated period.”8 By way of background, the Report points out
that asylum officers have a central determinative role in the
process. Asylum determinations “are made by an asylum
officer after an applicant files an affirmative asylum
application, is interviewed, and clears required security and
background checks.” Id. at 2.
https://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining
-asylum-united-states (last updated Oct. 19, 2015).
8 2016 DHS Congressional Appropriations Reports,
DEP’T OF HOMELAND SEC., https://www.dhs.gov/publication/2016-dhs-
congressional-appropriations-reports (last published Feb. 12, 2018)
(follow “United States Citizenship and Immigration Services (USCIS) -
Affirmative Asylum Application Statistics & Decisions FY16 Report”
hyperlink).

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DAI V. BARR 35
The Report contains statistics about the activity of asylum
officers. According to the FY2015 statistics, asylum officers
completed 40,062 affirmative asylum cases. They approved
15,999 applications for an approval rate of 47% for
interviewed cases. Id. at 3.
USCIS has a Policy Manual. Chapter 1 of Volume 1
establishes its “Guiding Principles.”9 A “Core Principal”
reads as follows:
The performance of agency duties inevitably
means that some customers will be
disappointed if their cases are denied. Good
customer service means that everyone USCIS
affects will be treated with dignity and
courtesy regardless of the outcome of the
decision.
* * *
USCIS will approach each case objectively
and adjudicate each case in a thorough and
fair manner. USCIS will carefully administer
every aspect of its immigration mission so
that its customers can hold in high regard the
privileges and advantages of U.S.
immigration.
Id.
9 Policy Manual, U.S. CITIZENSHIP & IMMIGRATION SERVS.,
https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume1-
PartA-Chapter1.html (Aug. 23, 2017).

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DAI V. BARR 36
Finally, we look at the training given to asylum officers
in connection with their interviews of affirmative asylum
applicants. In USCIS’s Adjudicator’s Field Manual, we find
in Appendix 15-2, “Non-Adversarial Interview Techniques,”
the following guidance.10
I. OVERVIEW
An immigration officer will conduct an
interview for each applicant, petitioner or
beneficiary where required by law or
regulation, or if it is determined that such
interviewed [sic] is appropriate. The interview
will be conducted in a non-adversarial
manner, separate and apart from the general
public. The officer must always keep in mind
his or her responsibility to uphold the integrity
of the adjudication process. As representatives
of the United States Government, officers
must conduct the interview in a professional
manner.
* * *
Due to the potential consequences of incorrect
determinations, it is incumbent upon officers
10 Adjudicator’s Field Manual - Redacted Public Version,
U . S . C I T I Z E N S H I P & I M M I G R A T I O N S E R V S . ,
https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1.html
(follow “Appendices” hyperlink; then follow “15-2 Non-Adversarial
Interview Techniques” hyperlink) (last visited Feb. 15, 2018) (emphasis
added).

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DAI V. BARR 37
to conduct organized, focused, and well-
planned, non-adversarial interviews . . . .
* * *
III. NON-ADVERSARIAL NATURE OF
THE INTERVIEW
A. Concept of the Non-adversarial
Interview
A non-adversarial proceeding is one in which
the parties are not in opposition to each other.
This is in contrast to adversarial proceedings,
such as civil and criminal court proceedings,
where two sides oppose each other by
advocating their mutually exclusive positions
before a neutral arbiter until one side prevails
and the other side loses. A removal
proceeding before an immigration judge is an
example of an adversarial proceeding, where
the Service trial attorney is seeking to remove
a person from the United States, while the
alien is seeking to remain.
The interview is part of a non-adversarial
proceeding. The principal intent of the Service
is not to oppose the interviewee’s goal of
obtaining a benefit, but to determine whether
he or she qualifies for such benefit. If the
interviewee qualifies for the benefit, it is in
the Service’s interest to accommodate that
goal.

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DAI V. BARR 38
* * *
B. Points to Keep in Mind When
Conducting a Non-adversarial Interview
The officer’s role in the non-adversarial
interview is to ask questions formulated to
elicit and clarify the information needed to
make a determination on the petitioner or
applicant’s request. This questioning must be
done in a professional manner that is non-
threatening and non-accusatory.
1. The officer must:
a. Treat the interviewee with respect. Even
if someone is not eligible for the benefit
sought based on the facts of the claim, the
officer must treat him or her with respect. The
officer may hear similar claims from many
interviewees, but must not show impatience
towards any individual. Even the most non-
confrontational officer may begin to feel
annoyance or frustration if he or she believes
that the interviewee is lying; however, it is
important that the officer keep these emotions
from being expressed during the interview.
b. Be non-judgmental and non-moralistic.
Interviewees may have reacted to situations
differently than the officer might have
reacted. The interviewee may have left family
members behind to fend for themselves, or
may be a member of a group or organization

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DAI V. BARR 39
for which the officer has little respect.
Although officers may feel personally
offended by some interviewee’s actions or
beliefs, officers must set their personal
feelings aside in their work, and avoid passing
moral judgments in order to make neutral
determinations.
c. Create an atmosphere in which the
interviewee can freely express his or her
claim. The officer must make an attempt to
put the interviewee at ease at the beginning of
the interview and continue to do so
throughout the interview. If the interviewee is
a survivor of severe trauma (such as a battered
spouse), he or she may feel especially
threatened during the interview. As it is not
always easy to determine who is a survivor,
officers should be sensitive to the fact that
every interviewee is potentially a survivor of
trauma.
Treating the interviewee with respect and
being non-judgmental and non-moralistic can
help put him or her at ease. There are a
number of other ways an officer can help put
an interviewee at ease, such as:
• Greet him or her (and others)
pleasantly;
• Introduce himself or herself by
name and explain the officer’s role;

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DAI V. BARR 40
• Explain the process of the
interview to the interviewee so he or
she will know what to expect during
the interview;
• Avoid speech that appears to be
evaluative or that indicates that the
officer thinks he or she knows the
answer to the question;
• Be patient with the interviewee;
and
• Keep language as simple as
possible.
d. Treat each interviewee as an individual.
Although many claims may be similar, each
claim must be treated on a case-by-case basis
and each interviewee must be treated as an
individual. Officers must be open to each
interviewee as a potential approval.
e. Set aside personal biases. Everyone has
individual preferences, biases, and prejudices
formed during life experiences that may cause
them to view others either positively or
negatively. Officers should be aware of their
personal biases and recognize that they can
potentially interfere with the interview
process. Officers must strive to prevent such
biases from interfering with their ability to
conduct interviews in a non-adversarial and
neutral manner.

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DAI V. BARR 41
f. Probe into all material elements of the
interviewee’s claim. The officer must elicit all
relevant and useful information bearing on the
applicant or beneficiary’s eligibility. The
officer must ask questions to expand upon and
clarify the interviewee’s statements and
information contained on the form. The
response to one question may lead to
additional questions about a particular topic or
event that is material to the claim.
g. Provide the interviewee an opportunity to
clarify inconsistencies. The officer must
provide the interviewee with an opportunity
during the interview to explain any
discrepancy or inconsistency that is material
to the determination of eligibility. He or she
may have a legitimate reason for having
related testimony that outwardly appears to
contain an inconsistency, or there may have
been a misunderstanding between the officer
and the interviewee. Similarly, there may be
a legitimate explanation for a discrepancy or
inconsistency between information on the
form and the interviewee’s testimony.
On the other hand, the interviewee may be
fabricating a claim. If the officer believes that
an interviewee is fabricating a claim, he or she
must be able to clearly articulate why he or
she believes that the interviewee is not
credible.

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DAI V. BARR 42
h. Maintain a neutral tone throughout the
interview. Interviews can be frustrating at
times for the officer. The interviewee may be
long-winded, may discuss issues that are not
relevant to the claim, may be confused by the
questioning, may appear to be or may be
fabricating a claim, etc. It is important that the
officer maintain a neutral tone even when
frustrated.
2. The officer must not:
• Argue in opposition to the applicant or
petitioner’s claim (if the officer engages in
argument, he or she has lost control of the
interview);
• Question the applicant in a hostile or
abusive manner;
• Take sides in the applicant or petitioner’s
claim;
• Attempt to be overly friendly with the
interviewee; or
• Allow personal biases to influence him or
her during the interview, either in favor of or
against the interviewee.
I hope that by exposing the particulars of the affirmative
application process we will correct our understanding of the
applicant interview process, and that we will drop our
uninformed characterization of it as “quasi-prosecutorial.”

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DAI V. BARR 43
While under oath, Dai intentionally concealed material
information from the asylum officer during a critical aspect
of the process. To diminish the import of this potential
crime11 because the government official was “only” an
asylum officer is a serious mistake.
VI
The BIA’s Decision
Dai unsuccessfully appealed the IJ’s decision denying his
application for asylum, withholding of removal, and
protection under the Convention Against Torture. The BIA’s
decision follows.
We review for clear error the findings of fact,
including determinations of credibility, made
by the Immigration Judge. We review de
novo all other issues, including whether the
parties have met the relevant burden of proof,
and issues of discretion. The respondent filed
his application for asylum after May 11, 2005,
and thus review is governed by the REAL ID
Act of 2005.
We adopt and affirm the Immigration Judge’s
decision in this case. The Immigration Judge
correctly denied the respondent’s applications
for failure to meet his burden of proof. The
record reflects that the respondent failed to
11 18 U.S.C. § 1001 makes it a crime knowingly and willfully to make
a material false statement in any matter within the jurisdiction of the
executive branch of Government.

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DAI V. BARR 44
disclose to both the [DHS] asylum officer and
the Immigration Judge that his wife and
daughter had traveled with him to the United
States and voluntarily returned to China
shortly after. The respondent further
conceded that he was not forthcoming about
this information because he believed that the
true reasons for their return—that his wife
had a job in China and needed to care for her
elderly father, and that their daughter could
attend school in China for less money than in
the United States—would be perceived as
inconsistent with his claims of past and feared
future persecution.
The Immigration Judge correctly decided that
the voluntary return of the respondent’s wife
and daughter to China, after allegedly fleeing
following the persecution of the respondent
and his wife, prevents the respondent from
meeting his burden of proving his asylum
claim. Contrary to the respondent’s argument
on appeal, the Immigration Judge need not
have made an explicit adverse credibility
finding to nevertheless determine that the
respondent did not meet his burden of proving
his asylum claim. The respondent’s family
voluntarily returning and his not being
truthful about it is detrimental to his claim
and is significant to his burden of proof.
(Emphasis added) (footnote and citations omitted).

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DAI V. BARR 45
VII
The IJ Becomes a Potted Plant
My colleagues’ opinion boils down to this faulty
proposition: Simply because the IJ did not say “I find Dai not
credible” but opted instead to expose the glaring factual
deficiencies in Dai’s presentation and to explain in specific
detail and at length why Dai had not persuasively carried his
burden of proving his case, we must selectively embrace as
persuasive Dai’s problematic presentation regarding the core
of his claim.12 I invite the reader to review once again the IJ’s
decision and to decide on the merits whether Dai’s case is
persuasive. It is anything but.
My colleagues expunge from the record the blatant flaws
in Dai’s performance involving demeanor, candor, and
responsiveness, claiming that “taking into account the record
as a whole, nothing undermines the persuasiveness of Dai’s
credible testimony. . . .” Nothing? They disregard
inaccuracies, inconsistencies, and implausibilities in his story,
and his barefaced attempt to cover up the truth about his
wife’s and daughter’s travels and situation. They even sweep
aside Dai’s admission to the asylum officer that the “real
story” is that (1) he wanted a good environment for his child,
(2) his wife left him behind because she had a job in China
and he did not, and (3) he was in a “bad mood,” couldn’t get
a job, and wanted to stay here “for a bit longer.” In their
opinion, there is not a single word regarding the factors cited
by the IJ to explain his observations, findings, and decision,
including the fact that Dai’s wife, allegedly the initial subject
12 And if an IJ does make an adverse credibility finding, we have
manufactured a multitude of ways to disregard it.

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DAI V. BARR 46
of persecution in China, made a free choice to return. The
effect of the presumption is to wipe the record clean of
everything identified by the IJ and the BIA as problematic.
The irony in my colleagues’ analysis is that once they
proclaim that Dai’s testimony is credible, they pick and
choose only those parts of his favorable testimony that
support his case—not the parts that undercut it. If we must
accept Dai’s presentation as credible, then why not also his
“real story” when confronted with the facts that he came to
the United States because he wanted a good environment for
his daughter, and that he did not return to China with his wife
because she had a job and he did not? What becomes of his
attempted cover up of the travels of his wife and daughter?
Furthermore, my colleagues’ treatment of the IJ’s opinion
is irreconcilable with the BIA’s wholesale acceptance of it.
In words as clear as the English language can be, the BIA
said, “We adopt and affirm the Immigration Judge’s
decision.” To compound their error, the majority then seizes
upon and pick apart the BIA’s summary explanation of why
it concluded on de novo review that the IJ’s decision was
correct. What the BIA did say was that Dai’s failure to be
truthful about his family’s voluntary return to China was
“detrimental to his claim” and “significant to his burden of
proof.”
VIII
Analysis
And so we come at last to the statutory requirement of
persuasiveness, an issue uniquely suited to be determined by
the “trier of fact,” as the Act and 8 U.S.C. § 1158(b)(1)(B)(ii)

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DAI V. BARR 47
dictate. The majority opinion freights this inquiry with an
incomplete record. The opinion sweeps demeanor, candor,
and plausibility considerations—as well as the IJ’s extensive
findings of fact—off the board. Once again, the opinion
ignores Huang, a post-Act case.
The need for deference is particularly strong
in the context of demeanor assessments. Such
determinations will often be based on non-
verbal cues, and “[f]ew, if any, of these
ephemeral indicia of credibility can be
conveyed by a paper record of the
proceedings and it would be extraordinary for
a reviewing court to substitute its second-hand
impression of the petitioner’s demeanor,
candor, or responsiveness for that of the IJ.”
744 F.3d at 1153 (alteration in original) (quoting Jibril,
423 F.3d at 1137).
Here, the IJ determined that Dai’s testimony was not
persuasive based on demeanor, non-verbal cues, and other
germane material factors that went to the heart of his case.
The IJ explained his decision in exquisite detail, and our
approach and analysis should be simple. In order to reverse
the BIA’s conclusion that Dai did not carry his burden of
proof, “we must determine ‘that the evidence not only
supports [a contrary] conclusion, but compels it—and also
compels the further conclusion’ that the petitioner meets the
requisite standard for obtaining relief.” Garcia-Milian v.
Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (alteration in
original) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
n.1 (1992)). If anything, this record compels the conclusion
that the IJ and the BIA were correct, not mistaken. Are my

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DAI V. BARR 48
colleagues seriously going to hold that an IJ cannot take
universally accepted demeanor, candor, responsiveness,
plausibility, and forthrightness factors into consideration in
assessing persuasiveness, as the IJ did here? And that this
detailed record, which is full of Dai’s admissions of an
attempted coverup, compels the conclusion that Dai was so
persuasive as to carry his burden? Dai accurately understood
the damaging implications of his wife’s return to China. So
did the IJ and the BIA. As the BIA stated, the truth is
“inconsistent with his claims of past and feared future
persecution.”
IX
The More Things Change, The More They Stay The
Same
In Elias-Zacarias, 921 F.2d 844 (9th Cir. 1990), rev’d,
502 U.S. 478 (1992), our court substituted the panel’s
interpretation of the evidence for the BIA’s. The Supreme
Court reversed our decision, calling the first of the panel’s
two-part reasoning “untrue,” and the second “irrelevant.”
502 U.S. at 481. The Court warned us that we could not
reverse the BIA unless the asylum applicant demonstrates that
“the evidence he presented was so compelling that no
reasonable factfinder could fail to find the requisite fear of
persecution.” Id. at 483–84 (emphasis added). In our case,
we again fail to follow this instruction.
In INS v. Orlando Ventura, 537 U.S. 12, 13 (2002) (per
curiam), the Court noted that both sides, petitioner and
respondent, had asked us to remand the case to the BIA so
that it might determine in the first instance whether changed
conditions in Guatemala eliminated any realistic threat of

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persecution of the petitioner. Our panel did not remand the
case, evaluating instead the government’s claim of changed
conditions by itself and deciding the issue in favor of the
petitioner. Id. at 13–14. The Supreme Court summarily
reversed our decision, saying “[T]he Court of Appeals
committed clear error here. It seriously disregarded the
agency’s legally mandated role.” Id. at 17.
A mere two years after Ventura’s per curiam opinion, we
knowingly made the same mistake in Thomas v. Gonzales,
409 F.3d 1177 (9th Cir. 2005) (en banc), vacated, 547 U.S.
183 (2006). We disregarded four dissenters to that flawed
opinion, who argued in vain that our court’s decision was
irreconcilable with Ventura. In short order, the Supreme
Court vacated our en banc opinion, saying that our “error is
obvious in light of Ventura, itself a summary reversal” and
that the same remedy was once again appropriate. 547 U.S.
at 185.
With all respect, the majority opinion follows in our
tradition of seizing authority that does not belong to us,
disregarding DHS’s statutorily mandated role. Even the
REAL ID Act has failed to correct our errors.
Thus, I dissent.

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