A federal appellate court in immigration appeals need not accept a noncitizen’s testimony as “true” in the absence of an explicit adverse credibility determination by the immigration judge or Board of Immigration Appeals, the U.S. Supreme Court ruled June 1 in Garland v. Ming Dai.  
Ming Dai was a Chinese national who entered the U.S. on a tourist visa.  He then sought asylum, which required him to prove he could not return to China because of a well-founded fear of persecution.
The government claimed Dai wished to stay in the U.S. for employment reasons.
The immigration judge (IJ) denied relief.  The Board of Immigration Appeals (BIA) affirmed.
But the Ninth Circuit reversed.  It held that in the absence of an explicit adverse credibility finding the by IJ or BIA, Dai’s testimony about persecution had to be “deemed credible and true.”
The Supreme Court reversed, in a unanimous opinion by Justice Gorsuch.
The Ninth Circuit’s “deemed-true-or-credible rule” cannot be “squared” with the Immigration and Nationality Act, the Court said.
“Congress has carefully circumscribed judicial review of BIA decisions,” the Court said.  “When it comes to questions of fact … the INA provides that a reviewing court must accept ‘administrative findings’ as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’”
“This does not mean that the BIA may ‘arbitrarily’ reject an alien’s evidence,” the Court said.  “But it does mean that, so long as the record contains ‘contrary evidence’ of a ‘kind and quality’ that a reasonable factfinder could find sufficient, a reviewing court may not overturn the agency’s factual determination.”
The Court acknowledged that “[e]lsewhere, the INA does provide a presumption of credibility.”  The statute provides that absent an explicit “adverse credibility determination,” “the applicant or witness shall have a rebuttable presumption of credibility on appeal.”
But this “appeal” is from the IJ to the BIA, the Court said.  Under the statute, “subsequent judicial review takes place by means of a ‘petition for review.’”
Thus, a “presumption of credibility may arise in some appeals before the BIA,” the Court said.  But no such presumption applies in earlier proceedings before the IJ, or in later review by a federal court.  
“The only question for judges reviewing the BIA’s factual determinations is whether any reasonable adjudicator could have found as the agency did,” the Court said.
“[I]mmigration appeals like these should proceed as follows,” the Court explained.
“First, the fact-finder – here the IJ – makes findings of fact, including determinations as to the credibility of particular witness testimony.”
“The BIA then reviews those findings, applying a presumption of credibility if the IJ did not make an explicit adverse credibility determination.”
“Finally, the court of appeals must accept the agency’s findings of fact as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’”