Garland v. Ming Dai

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 2
Pages 357–373
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 1, 2021
REBECCA A. WOMELDORF
reporter of decisions
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357
Syllabus
GARLAND, ATTORNEY GENERAL v. MING DAI
certiorari
to the united states court of appeals for
the ninth circuit
No. 19–1155. Argued February 23, 2021—Decided June 1, 2021*
In each of these cases, a foreign national appeared before an immigration
judge (IJ) and requested that he not be returned to his country of origin.
For Cesar Alcaraz-Enriquez, the IJ frst had to determine whether
Mr. Alcaraz-Enriquez had committed a disqualifying “particularly seri-
ous crime” based on his prior California conviction for “inficting corpo-
ral injury on a spouse or cohabitant.” See 8 U. S. C. § 1231(b)(3)(B)(ii).
The IJ considered both the probation report issued at the time of the
conviction (which detailed a serious domestic violence incident) and
Mr. Alcaraz-Enriquez's own testimony at the removal proceeding (which
included an admission that he hit his girlfriend but allegedly did so in
defense of his daughter). Relying in part on the version of events in
the probation report, the IJ held Mr. Alcaraz-Enriquez ineligible for
relief. On appeal, the Board of Immigration Appeals (BIA) affrmed.
In Ming Dai's case, he testifed that he and his family had suffered past
persecution by Chinese offcials and expected future persecution upon
return. But Mr. Dai initially failed to disclose that his wife and daugh-
ter had both returned voluntarily to China since accompanying him to
the United States. When confronted, Mr. Dai told the “real story” of
why he remained in the United States. The IJ found that Mr. Dai's
testimony undermined his claims and denied relief. On appeal, the BIA
affrmed. Mr. Alcaraz-Enriquez and Mr. Dai each sought judicial re-
view, and in each case, the Ninth Circuit noted that neither the IJ nor
the BIA made an explicit “adverse credibility determination” under the
Immigration Nationality Act (INA). §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C),
1229a(c)(4)(C). Applying its own judge-made rule that a reviewing
court must treat the noncitizen's testimony as credible and true ab-
sent an explicit adverse credibility determination, the Ninth Circuit
granted relief.
Held: The Ninth Circuit's deemed-true-or-credible rule cannot be recon-
ciled with the INA's terms. Pp. 364–373.
(a) The Ninth Circuit's rule has no proper place in a reviewing court's
analysis. The INA provides that a reviewing court must accept “ad-
*Together with No. 19–1156, Garland v. Alcaraz-Enriquez, also on cer-
tiorari to the same court.

358 GARLAND
v. MING DAI
Syllabus
ministrative fndings” as “conclusive unless any reasonable adjudicator
wou
ld be compelled to conclude to the contrary.” § 1252(b)(4)(B). And
a reviewing court is “generally not free to impose” additional judge-
made procedural requirements on agencies. Vermont Yankee Nuclear
Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S.
519, 524.
Judicial proceedings in cases like these do not constitute “appeals” in
which the “rebuttable presumption of credibility on appeal” applies
absent an explicit credibility determination. §§ 1158( b)(1)(B)( i ii),
1231(b)(3)(C), 1229a(c)(4)(C). Here, there is only one appeal—from the
IJ to the BIA. See §§ 1158(d)(5)(iii)–(iv). Subsequent judicial review
takes place not by appeal, but by means of a “petition for review,” which
the INA describes as “the sole and exclusive means for judicial review
of an order of removal.” § 1252(a)(5). A presumption of credibility
may arise in some appeals before the BIA, but no such presumption
applies in antecedent proceedings before an IJ or in subsequent collat-
eral review before a federal court. This makes sense because review-
ing courts do not make credibility determinations, but instead ask only
whether any reasonable adjudicator could have found as the agency did.
The Ninth Circuit's rule gets the standard backwards by giving conclu-
sive weight to any testimony that cuts against the agency's fnding.
Pp. 364–368.
(b) Mr. Alcaraz-Enriquez and Mr. Dai offer an alternative theory for
affrming the Ninth Circuit. Because, they say, they were entitled to a
presumption of credibility in their BIA appeals, they are entitled to
relief in court because no reasonable adjudicator obliged to presume
their credibility could have found against them. Even assuming that
there was no explicit adverse credibility determination here, the Ninth
Circuit's reasoning is fawed for at least two reasons. Pp. 368–373.
(1) The presumption of credibility on appeal under the INA is “re-
buttable.” And the INA contains no parallel requirement of explicit-
ness when it comes to rebutting the presumption on appeal. Reviewing
courts, bound by traditional administrative law principles, must “up-
hold” even “a decision of less than ideal clarity if the agency's path may
reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best
Freight System, Inc., 419 U. S. 281, 286. In neither case did the Ninth
Circuit consider the possibility that the BIA implicitly found the pre-
sumption of credibility rebutted. The BIA expressly adopted the IJ's
decision in Mr. Alcaraz-Enriquez's case, which, in turn, noted that
Mr. Alcaraz-Enriquez's story changed from the time of the probation
report to the time of the hearing—a factor the statute specifcally identi-
fes as relevant to credibility, see §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C),
1229a(c)(4)(C). And in Mr. Dai's case, the BIA also adopted the IJ's
decision, which discussed specifc problems with Mr. Dai's demeanor,
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Opinion of the Court
candor, and internal inconsistency—an analysis that certainly goes to
the
presumption of credibility even if the agency didn't use particular
words. See ibid. In each case, the Ninth Circuit should consider
whether the BIA in fact found the presumption of credibility overcome.
If so, it seems unlikely that the conclusion in either case is one no rea-
sonable adjudicator could have reached. Pp. 368–371.
(2) The presumption of credibility applies with respect to credi-
bility but the INA expressly requires the noncitizen to satisfy the trier
of fac t on credibi lity, persuasiveness, and the burden of proof.
§§ 1158(b)(1)(B)(ii), 1231(b)(3)(C), 1229a(a)(4)(B). Even if the BIA treats
a noncitizen's testimony as credible, the agency need not fnd such evi-
dence persuasive or suffcient to meet the burden of proof. Here, the
Ninth Circuit erred by treating credibility as dispositive of both persua-
siveness and legal suffciency. Pp 371–373.
884 F. 3d 858 and 727 Fed. Appx. 260, vacated and remanded.
Gorsuch, J., delivered the opinion for a unanimous Court.
Colleen E. Roh Sinzdak argued the cause for petitioner in
both cases. With her on the briefs were Acting Solicitors
General Wall and Prelogar, Acting Assistant Attorneys
General Clark and Boynton, Deputy Solicitor General
Kneedler, Benjamin W. Snyder, Donald E. Keener, John W.
Blakeley, and Dawn S. Conrad.
Neal Kumar Katyal argued the cause for respondent in
No. 19–1156. With him on the brief were Mitchell P. Reich
and Robert Jobe. David J. Zimmer argued the cause and
fled a brief for respondent in No. 19–1155.†
Justice Gorsuch delivered the opinion of the Court.
The Ninth Circuit has long applied a special rule in immi-
gration disputes. The rule provides that, in the absence of
an explicit adverse credibility determination by an immigra-
tion judge or the Board of Immigration Appeals, a reviewing
†Briefs of amici curiae urging affrmance in both cases were fled for
the American Immigration Lawyers Association et al. by Ilana H. Eisen-
stein, Paul D. Schmitt, and Jean Galbraith; for Refugee Advocacy Organi-
zations by Zachary C. Schauf; and for Thirty-Five Former Immigration
Judges et al. by Richard W. Mark and Amer S. Ahmed.
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360 GARLAND
v. MING DAI
Opinion of the Court
court must treat a petitioning alien's testimony as credible
and
true. At least 12 members of the Ninth Circuit have
objected to this judge-made rule, and we granted certiorari
to decide whether it can be squared with the terms of the
Immigration and Nationality Act (INA), 66 Stat. 163, as
amended, 8 U. S. C. § 1101 et seq.
I
A
The question comes to us in cases involving Cesar Alcaraz-
Enriquez and Ming Dai. Mr. Alcaraz-Enriquez is a Mexican
national. Authorities detained him when he attempted to
enter this country illegally. In proceedings before an immi-
gration judge (IJ), Mr. Alcaraz-Enriquez sought to avoid
bei ng retur ned to Mexico on the ground that h is l i fe
or freedom would be threatened there. See 8 U. S. C.
§ 1231(b)(3)(A). But Congress has said this form of relief
from removal is unavailable if, among other things, “the
Attorney General decides that . . . the alien, having been
convicted by a fnal judgment of a particularly serious
crime[,] is a danger to the community of the United States.”
§ 1231(b)(3)(B)(ii). This proviso posed a problem for Mr.
Alcaraz-Enriquez because, during a previous illegal entry, he
pleaded nolo contendere to “infict[ing] corporal injury [on a]
spouse [or] cohabitant” under California law and received
a 2-year sentence. Cal. Penal Code Ann. § 273.5(A) (West
2014).
The key question thus became whether Mr. Alcaraz-
Enriquez's California conviction amounted to “a particularly
serious crime.” The parties appear to agree that the an-
swer to that question turns on which version of events one
accepts: The version found in a probation report issued at
the time of Mr. Alcaraz-Enriquez's conviction, or the version
he testifed to years later as part of his removal proceeding.
The IJ received and considered both.
The probation report indicated that Mr. Alcaraz-Enriquez
locked his 17-year-old girlfriend in his bedroom one evening,
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caught her trying to escape, dragged her back into the room,
threatened
to stab her and dump her body in a dumpster,
and forced her to have sex with him. The next morning, he
beat the young woman, leaving bruises on her back, neck,
arms, and legs—stopping only when she begged for her life.
Later that evening, when she asked to leave, he dragged her
out, threw her against the stairs, and kicked her as she rolled
down. Her ordeal lasted nearly 24 hours. Police arrested
Mr. Alcaraz-Enriquez days later as he tried to fee his resi-
dence. At that time, Mr. Alcaraz-Enriquez admitted to the
offcers that he chased, grabbed, and punched his girlfriend
in the face. He also admitted that he prevented her from
leaving the house. But he claimed that he didn't hit her
“that hard.” App. to Pet. for Cert. in No. 19–1156, p. 14a.
Against this evidence, the IJ considered Mr. Alcaraz-
Enriquez's testimony during his immigration proceeding.
There, he “admitted hitting his girlfriend, but not in the
manner as described in the report.” Ibid. Mr. Alcaraz-
Enriquez testifed that he was upset with his girlfriend be-
cause “he believed that [she] was hitting his daughter.”
Ibid. In Mr. Alcaraz-Enriquez's view, he was coming to his
daughter's defense. Mr. Alcaraz-Enriquez denied dragging
or kicking the young woman, or forcing her to have sex with
him. He also submitted a letter from his mother, who stated
that when she saw the girlfriend immediately after the alter-
cation, “she looked completely fne.” App. 256.
Ultimately, the IJ held Mr. Alcaraz-Enriquez ineligible for
relief, relying in part on the version of events in the proba-
tion report. Among other things, the IJ found it signifcant
that there was “no mention” in the contemporaneous proba-
tion report of the girlfriend hitting Mr. Alcaraz-Enriquez's
daughter. App. to Pet. for Cert. in No. 19–1156, at 14a. On
appeal, the Board of Immigration Appeals (BIA) “adopt[ed]
and affrm[ed]” the IJ's decision. Id., at 7a. The BIA held
that the IJ had “properly considered all evidence of record,”
“weighing and comparing [Mr. Alcaraz-Enriquez's] testi-
mony at the hearing and the probation offcer's report.” Id.,
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362 GARLAND
v. MING DAI
Opinion of the Court
at 8a. The BIA also stressed its view that the IJ was not
required
to credit Mr. Alcaraz-Enriquez's “version of events
over other plausible alternatives.” Ibid.
The Ninth Circuit saw the matter differently. Applying
circuit precedent, it held that “ `[w]here the BIA does not
make an explicit adverse credibility finding, [the cour t]
must assume that [the alien's] factual contentions are true.' ”
Alcaraz-Enriquez v. Sessions, 727 Fed. Appx. 260, 261
(2018). And because this rule required taking Mr. Alcaraz-
Enriquez's testimony as true—even in the face of competing
evidence—the Ninth Circuit held that the BIA erred in de-
nying relief and granted the petition for review.
1
B
Ming Dai is a Chinese national who came to the United
States on a tourist visa. Shortly after arriving, he sought
asylum. To win relief, Mr. Dai bore the burden of proving
that he was a “refugee”—someone “unable or unwilling ” to
return to China “because of persecution or a well-founded
fear of persecution . . . for failure or refusal to undergo [in-
voluntary sterilization] or for other resistance to a coer-
cive population control program.” 8 U. S. C. §§ 1158(b)(1),
1101(a)(42). As in Mr. Alcaraz-Enriquez's case, the parties
have proceeded on the assumption that everything here
turns on questions of fact—whether Mr. Dai was persecuted
in the past or fears persecution in the future—and we do
the same.
2
1
Separately, the Ninth Circuit held that the BIA erred by failing to
give Mr. Alcaraz-Enriquez the opportunity to cross-examine the witnesses
whose testimony was embodied in the probation report. In their briefng
before us, the parties largely proceed on the assumption that the report
was properly received, and so do we. Remaining disputes over the merits
and potential forfeiture of this issue can be addressed on remand.
2
Mr. Dai also sought withholding of removal, for which he needed to
show that his “life or freedom would be threatened” in China “because of
[his] race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U. S. C. § 1231(b)(3)(A). Both the BIA and the
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Once more, the evidence before the IJ cut both ways. On
the
one hand, Mr. Dai claimed that, after his wife became
pregnant with their second child in 2009, family-planning of-
fcials abducted her and forced her to have an abortion.
Mr. Dai further testifed that, when he tried to stop his wife's
abduction, police broke his ribs, dislocated his shoulder, and
jailed him for 10 days. According to Mr. Dai, he lost his job,
his wife was demoted, and his daughter was denied admis-
sion to superior schools. In applying for asylum, Mr. Dai
stated, “I eventually found a way to reach the USA,” and
asked the government to “[p]lease grant me asylum so that
I can bring my wife and daughter to safety in the USA.”
App. 155.
On the other hand, Mr. Dai failed to disclose the fact that
his wife and daughter had already traveled to the United
States—and voluntarily returned to China. The IJ ob-
served that Mr. Dai “hesitated at some length” when con-
fronted with these facts. App. to Pet. for Cert. in No. 19–
1155, p. 170a. After being asked to tell the “real story,”
Mr. Dai proceeded to admit that his daughter returned to
China to go to school; that his wife chose to return to her
job and her elderly father; that Mr. Dai did not have a job in
China; and this was “why he stayed” in the United States.
Id., at 171a. Asked directly why he did not return to China
with his family, Mr. Dai responded, “[b]ecause 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.” App. 103.
The IJ denied relief. In the IJ's view, the “principal area
of concern” arose when Mr. Dai was confronted with his wife
and daughter's trip to the United States and their voluntary
return to China. App. to Pet. for Cert. in No. 19–1155,
Ninth Circuit treated this standard as a more-demanding version of the
showing needed for asylum. See App. to Pet. for Cert. in No. 19–1155,
p. 164a; Ming Dai v. Sessions, 884 F. 3d 858, 874 (2018). None of the
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v. MING DAI
Opinion of the Court
at 169a. The record showed that Mr. Dai failed “to dis-
close”
these facts in his own statements, and that he “paused
at length” when confronted with them. Id., at 163a, 173a.
The IJ concluded that “I do not fnd that [Mr. Dai's] explana-
tions for [his wife's] return to China while he remained here
are adequate.” Id., at 175a. In the IJ's view, Mr. Dai's
eventual admissions regarding his wife and daughter's re-
turn to China to pursue school and economic opportunities
undermined his claims of past and future persecution, par-
ticularly given that his wife was “the primary object of
the persecuti on in Ch ina. ” Ib i d. On appea l, the BIA
“adopt[ed] and affrm[ed]” the IJ's decision. Id., at 163a.
Again, the Ninth Circuit saw things differently. Much as
it had in Alcaraz-Enriquez, a divided panel held that “in the
absence of an explicit adverse credibility fnding by the IJ
or the BIA,” Mr. Dai's testimony had to be “deemed” credible
and true. Ming Dai v. Sessions, 884 F. 3d 858, 868 (2018).
On the strength of that testimony, the court then proceeded
to fnd Mr. Dai eligible for asylum. Later, the court of ap-
peals denied the government's petition for rehearing en banc
over the objections of 12 judges.
II
A
For many years, and over many dissents, the Ninth Circuit
has proceeded on the view that, “[i]n the absence of an ex-
plicit adverse credibility fnding [by the agency], we must
assume that [the alien's] factual contentions are true” or at
least credible. E. g., Kataria v. INS, 232 F. 3d 1107, 1114
(2000); Zhiqiang Hu v. Holder, 652 F. 3d 1011 (2011); 884
F. 3d, at 868; 727 Fed. Appx., at 261. This view appears to
be an outlier. The First Circuit, for example, has held that
a reviewing court is not bound to accept a witness's state-
ments as fact whenever the agency is less than explicit about
credibility. Wan Chien Kho v. Keisler, 505 F. 3d 50, 56
(2007).

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In both of the cases before us, the Ninth Circuit rested its
decisi
ons on its deemed-true-or-credible rule. In Alcaraz-
Enriquez, the Ninth Circuit applied the rule to disregard
entirely the evidence contained in the probation report and
credit only Mr. Alcaraz-Enriquez's version of events. 727
Fed. Appx., at 261. In Dai, the court deemed Mr. Dai's fa-
vorable testimony credible and true and prohibited the unfa-
vorable testimony about his “real” reasons for remaining in
the country from being “smuggled” into the removal analy-
sis. 884 F. 3d, at 872. As one of the dissents in Dai put it,
the Ninth Circuit's rule leads to “the extraordinary position”
that a court “must take as true an asylum applicant's testi-
mony that supports a claim for asylum, even in the face of
other testimony from the applicant that would undermine an
asylum claim.” Ming Dai v. Barr, 940 F. 3d 1143, 1149
(2019) (opinion of Callahan, J.).
The Ninth Circuit's rule has no proper place in a review-
ing court's analysis. Congress has carefully circumscribed
judicial review of BIA decisions. When it comes to ques-
ti ons of fac t —such as the circumst ances surroundi ng
Mr. Alcaraz-Enriquez's prior conviction or Mr. Dai's alleged
persecution—the INA provides that a reviewing court must
accept “administrative fndings” as “conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U. S. C. § 1252(b)(4)(B). This is a “highly def-
erential” standard. Nasrallah v. Barr, 590 U. S. –––, –––
(2020); cf. INS v. Elias-Zacarias, 502 U. S. 478, 483–484
(1992). Nothing in the INA contemplates anything like the
embellishment the Ninth Circuit has adopted. And it is long
since settled that a reviewing court is “generally not free to
impose” additional judge-made procedural requirements on
agencies that Congress has not prescribed and the Consti-
tution does not compel. Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc., 435 U. S.
519, 524 (1978).
This does not mean that the BIA may “ `arbitrarily' ” re-
ject an alien's evidence. Director, Offce of Workers' Com-
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366 GARLAND
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pensation Programs v. Greenwich Collieries, 512 U. S. 267,
279
(1994). But it does mean that, so long as the record
contains “ `contrary evidence' ” of a “ `kind and quality' ” that
a reasonable factfnder could fnd suffcient, a reviewing
court may not overturn the agency's factual determination.
Ibid. In this process, a reviewing court must be mindful
too that the agency, like any reasonable factfnder, is free
to “credit part of [a] witness' testimony without” necessar-
ily “accepting it all.” Banks v. Chicago Grain Trimmers
Assn., Inc., 390 U. S. 459, 467 (1968). It does not matter
whether the agency accepts all, none, or some of the alien's
testimony; its reasonable fndings may not be disturbed.
Admittedly, there is a wrinkle. Elsewhere, the INA does
discuss a presumption of credibility. The statute provides
that absent an “explici[t]” “adverse credibility determina-
tion,” “the applicant or witness shall have a rebuttable
presumption of credibility on appeal.” §§ 1158(b)(1)(B)(iii),
1231(b)(3)(C), 1229a(c)(4)(C). At the same time, the statute
cautions that outside the “appeal” there is “no presumption
of credibility.” Ibid. (emphasis added).
It's easy to see how one might assume judicial proceedings
in cases like ours constitute “appeals” subject to this pre-
sumption of credibility. But such an assumption would be
mistaken. As the Ninth Circuit itself has recognized, in
immigration cases like those before us, there is only one
“appeal”—from the IJ to the BIA. 884 F. 3d, at 869; see
also Kho, 505 F. 3d, at 56; §§ 1158(d)(5)(A)(iii)–(iv); 8 CFR
§ 1003.38 (2020). Under the INA, subsequent judicial re-
view takes place by means of a “petition for review.” 8
U. S. C. §§ 1252(a)(5), (b); cf. 5 U. S. C. §§ 702–703. It is true
that, at one point, the INA refers to dismissing “the appeal”
if an alien fails to fle a timely brief in support of his petition
for review, 8 U. S. C. § 1252(b)(3)(C), but that stray reference
does not convert the statutorily described petition for review
proceeding into an appeal for purposes of the presumption
of credibility.
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Historical understandings confrm the point. Article III
cour
ts do not traditionally hear direct appeals from Arti-
cle II executive agencies. See, e. g., Ex parte Yerger, 8 Wall.
85 (1869); FCC v. Pottsville Broadcasting Co., 309 U. S. 134,
144 (1940). Instead, judicial intervention generally comes,
if at all, thanks to some collateral review process Congress
has prescribed, initiating a new action in the federal courts.
See, e. g., 5 U. S. C. §§ 702–703 (authorizing parties to chal-
lenge agency action not by an appeal, but by “[a]n action in
a court of the United States” in which the “United States
may be named as a defendant”). Of course, Congress may
sometimes refer to collateral judicial review of executive ac-
tion as “an appeal,” see, e. g., 35 U. S. C. § 141; Fed. Rule App.
Proc. 15, but that does not make it an “appeal” akin to that
taken from the district court to the court of appeals, or from
the IJ to the BIA. In any event, this is an easy case because
the INA provides that “a petition for review . . . shall be the
sole and exclusive means for judicial review of an order of
removal.” 8 U. S. C. § 1252(a)(5).
That the presumption of credibility applies only “on ap-
peal” to the BIA makes sense as a matter of basic adminis-
trative law principles too. Reviewing courts have no need
for a presumption of credibility one way or the other be-
cause they do not make credibility determinations. Instead,
courts deferentially review the agency's fact determinations.
See § 1252(b)(4)(B); see also 5 U. S. C. § 706(2)(E). The IJ—
who actually observes the witness—is best positioned to as-
sess the applicant's credibility in the frst instance. The
credibility presumption encourages the IJ to make specifc
fndings about credibility. And then the BIA—which has
experience with the sort of facts that recur in immigration
cases and the ability to directly override the IJ's factfnd-
ings—is well positioned to apply the credibility presumption
if the IJ has not made an explicit fnding.
All of which returns us to where we began. A presump-
tion of credibility may arise in some appeals before the BIA.
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But no such presumption applies in antecedent proceedings
before
an IJ, or in subsequent collateral review before a fed-
eral court. The only question for judges reviewing the
BIA's factual determinations is whether any reasonable ad-
judicator could have found as the agency did. The Ninth
Circuit's rule mistakenly fips this standard on its head.
Rather than ask whether the agency's fnding qualifes as one
of potentially many reasonable possibilities, it gives conclu-
sive weight to any piece of testimony that cuts against the
agency's fnding. That was error.
B
Perhaps recognizing the problems with the Ninth Circuit's
rule, Mr. Alcaraz-Enriquez and Mr. Dai ask us to affrm that
court's judgments primarily by means of a different, though
closely related, chain of reasoning. The argument goes like
this: Because neither the IJ nor the BIA made an explicit
adverse credibility determination about their testimony,
Mr. Alcaraz-Enriquez and Mr. Dai say they were statutorily
entitled to a presumption of credibility in their BIA appeals.
And given that, they insist they are entitled to relief in court
because no reasonable adjudicator obliged to presume their
credibility could have found against them. In this version
of the argument, Mr. Alcaraz-Enriquez and Mr. Dai acknowl-
edge the proper locus of the presumption of credibility in the
agency and the deferential standard of review in collateral
judicial proceedings. But, they insist, they are entitled to
relief all the same. In places, they also suggest that the
Ninth Circuit's decisions below can be read as endorsing
their alternative theory.
Although we leave the full application of the § 1252(b)(4)(B)
standard to the Ninth Circuit in the frst instance, we reject
this alternative argument for affrmance too. In explaining
why, we leave for another day the question what the fact-
fnder must say or do to furnish an “explici[t] adverse credi-
bility determination.” Even assuming (without deciding)
there was no such determination here, the Ninth Circuit's
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Opinion of the Court
reasoning was fawed. One can think about the reason why
i
n either of two ways.
1
Start with the fact that the INA's “presumption” of credi-
bility on appeal is “rebuttable.” Necessarily, that means the
presumption is not conclusive. Notably, too, unlike the re-
quirement that any initial adverse credibility determination
must be “explicitly made,” the INA contains no parallel re-
quirement of explicitness when it comes to rebutting the
presumpti on on appea l. 8 U. S. C. §§ 1158( b)(1)(B)( i i i),
1231(b)(3)(C), 1229a(c)(4)(C).
Of course, reviewing courts remain bound by traditional
administrative law principles, including the rule that judges
generally must assess the lawfulness of an agency's action in
light of the explanations the agency offered for it rather than
any ex post rationales a court can devise. See, e. g., SEC v.
Chenery Corp., 318 U. S. 80 (1943). But none of that means
the BIA must follow a particular formula or incant “magic
words” like “incredible” or “rebutted” to overcome the INA's
presumption of credibility on appeal. Cf. INS v. Aguirre-
Aguirre, 526 U. S. 415, 431–432 (1999). To the contrary, a
reviewing court must “uphold” even “a decision of less than
ideal clarity if the agency's path may reasonably be dis-
cerned.” Bowman Transp., Inc. v. Arkansas-Best Freight
System, Inc., 419 U. S. 281, 286 (1974); see also 5 U. S. C. § 701
et seq. 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 credibil-
ity. It need not use any particular words to do so. And,
once more, a reviewing court must uphold that decision un-
less a reasonable adjudicator would have been compelled to
reach a different conclusion. 8 U. S. C. § 1252(b)(4)(B).
In the cases before us, the Ninth Circuit did not consider
the possibility that the BIA implicitly found the presumption
of credibility rebutted. In Mr. Alcaraz-Enriquez's case, the
court ignored whether the agency's statements could be
fairly understood as rejecting his credibility. Concluding
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that the IJ properly “weigh[ed] and compar[ed]” the proba-
ti
on report and Mr. Alcaraz-Enriquez's hearing testimony,
the BIA cited precedent about how an IJ is “not required to
adopt” an applicant's denial of culpability. See App. to Pet.
for Cert. in No. 19–1156, at 8a; Matter of D–R–, 25 I. & N.
Dec. 445, 455 (BIA 2011) (“The [IJ] was not required to
credit the respondent's wholesale denial of any knowledge
or culpability”). The BIA also expressly adopted the IJ's
decision. The IJ decision, in turn, noted that Mr. Alcaraz-
Enriquez's story changed from the time of the probation
report to the time of the hearing, a factor the statute
speci fica l ly identi fies as relevant to credibi l ity. See
§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). The IJ fur-
ther concluded that Mr. Alcaraz-Enriquez's testimony sought
to minimize his actions and condone violence against his girl-
friend, suggesting the IJ rejected his claim that he inter-
vened only to defend his daughter. On remand, the Ninth
Circuit should consider whether the BIA in fact found the
presumption of credibility overcome in this case. If so, it
seems unlikely that conclusion is one no reasonable adjudica-
tor could have reached.
The same might be said of Mr. Dai's case. The BIA spe-
cifcally highlighted Mr. Dai's family “voluntarily returning
and his not being truthful about it” as “detrimental to his
claim.” App. to Pet. for Cert. in No. 19–1155, at 164a. And
here again the BIA adopted the IJ's decision, which dis-
cussed specifc problems with Mr. Dai's assertions about his
past persecution and fear of future persecution—including
Mr. Dai's intentional failure to disclose highly probative and
damaging facts, his inadequate explanations for contradic-
tions in his presentation, and his ultimate concessions about
the “real story.” Such a detailed analysis certainly goes to
the presumption of credibility, even if the agency did not
utter the words “adverse credibility fnding.” The INA pro-
vides instructions about the appropriate considerations for
making a credibility determination, including the witness's
demeanor, candor, and internal inconsistency in his testi-
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mony. See §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C).
It
is thus unsurprising—and in fact quite helpful for later
review—that the IJ addressed many of those questions at
length. By adopting that analysis as its own, the BIA's deci-
sional path here, too, includes that analysis. Once more, the
Ninth Circuit should consider whether the BIA found that
Mr. Dai's presumption of credibility had been overcome.
And, once more, it is hard to say that decision is one no rea-
sonable adjudicator could have reached.
2
There is, however, another problem with the Ninth Cir-
cuit's reasoning in these cases. Not only is the presumption
of credibility before the BIA rebuttable, it applies only with
respect to credibility. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C),
1229a(c)(4)(C). This matters because, when it comes to the
forms of relief Mr. Alcaraz-Enriquez and Mr. Dai sought,
the INA expressly distinguishes between credibility, persua-
siveness, and the burden of proof. See §§ 1158(b)(1)(B)(ii),
1231(b)(3)(C), 1229a(c)(4)(B). In order for an alien's testi-
mony to carry the day on its own, the statute requires the
alien to satisfy the trier of fact on all three counts—showing
his “testimony is credible, is persuasive, and refers to specifc
facts suffcient to demonstrate that the applicant is a refu-
gee.” Ibid. When determining whether an alien has met
his burden of proof, the INA further provides that the
agency may weigh “the credible testimony along with other
evidence of record.” Ibid. Accordingly, even if the BIA
treats an alien's evidence as credible, the agency need not
fnd his evidence persuasive or suffcient to meet the bur-
den of proof. See, e. g., Doe v. Holder, 651 F. 3d 824, 830
(CA8 2011); Gutierrez-Orcozo v. Lynch, 810 F. 3d 1243, 1246
(CA10 2016).
Admittedly, credibility and persuasiveness are closely
bound concepts, sometimes treated interchangeably, and the
line between them doesn't have to be drawn the same way
in every legal context. But the distinctions the INA draws
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aren't entirely unfamiliar either. Take an example. Sup-
pose
a plaintiff is doing her best to recount a car accident to
prove her case for damages. She testifes earnestly that she
thought the traffc light was green when she entered an in-
tersection. The plaintiff says she was then broadsided by
the defendant who was traveling on a cross street and ran a
red light. Later in the proceedings, however, the defendant
presents video footage and the testimony of other witnesses,
all of which show that it was really the plaintiff who drove
through a red light and the defendant who had the right of
way. It's easy enough to imagine that a factfnder might not
describe the plaintiff as lacking credibility—in the sense that
she was lying or not “worthy of belief,” Black's Law Diction-
ary 448 (10th ed. 2014) (defning “credibility”)—yet fnd that
her testimony on a key fact was outweighed by other evi-
dence and thus unpersuasive or insuffcient to prove the de-
fendant's liability. It's not always the case that credibility
equals factual accuracy, nor does it guarantee a legal victory.
The Ninth Circuit erred by treating credibility as disposi-
tive of both persuasiveness and legal suffciency in these
cases. Even setting aside the credibility of Mr. Alcaraz-
Enriquez or Mr. Dai, perhaps the BIA did not fnd their
evidence persuasive or suffcient to meet their burden on
essential questions. In Mr. Alcaraz-Enriquez's case, the
probation report may have outweighed his testimony. Simi-
larly, in Mr. Dai's case, his later admissions about his family's
voluntary return and his decision to stay in this country for
economic reasons may have outweighed his initial testimony
about his past and feared future persecution. Faced with
conficting evidence, it seems likely that a reasonable adjudi-
cator could fnd the unfavorable account more persuasive
than the favorable version in both cases.
*
The Ninth Circuit's deemed-true-or-credible rule cannot
be reconciled with the INA's terms. Instead, immigration
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Opinion of the Court
cases like these should proceed as follows. First, the fact-
f
nder—here the IJ—makes fndings of fact, including deter-
minations as to the credibility of particular witness testi-
mony. The BIA then reviews those fndings, applying a
presumption of credibility if the IJ did not make an explicit
adverse credibility determination. Finally, the court of ap-
peals must accept the agency's fndings of fact as “conclusive
unless any reasonable adjudicator would be compelled to con-
clude to the contrary.”
Nor can we affrm the Ninth Circuit's judgments on alter-
native grounds. The Ninth Circuit failed to consider that
the BIA may have implicitly rebutted the presumption of
credibility. The Ninth Circuit also erroneously allowed
credibility to operate as a trump card, foreclosing the possi-
bility that even credible testimony may be outweighed by
other more persuasive evidence or be insuffcient to satisfy
the burden of proof. Accordingly, the judgments of the
Court of Appeals are vacated, and these cases are remanded
for further proceedings consistent with this opinion.
It is so ordered.
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