Submitted October 13, 2017 [*] San Francisco, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A205-555-836
Z. Su, Law Offices of David Z. Su, West Covina, California,
J. Carmichael, Trial Attorney; Mary Jane Candaux, Assistant
Director; Office of Immigration, Civil Division, United
States Department of Justice, Washington, D.C.; for
Before: Sidney R. Thomas, Chief Circuit Judge, and Stephen
Reinhardt and Stephen S. Trott, Circuit Judges.
panel granted a petition for review of the Board of
Immigration Appeals' denial of asylum and withholding
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.
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
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 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.
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.
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
REINHARDT, CIRCUIT JUDGE:
Dai is a citizen of China. He testified that he was beaten,
arrested, jailed, and denied food, water, sleep, and medical
care because he tried to stop the police from forcing his
wife to have an abortion. The Board of Immigration Appeals
(BIA) nevertheless found that Dai was not eligible for asylum
or withholding of removal.
is one clear and simple issue in this case: neither the
Immigration Judge (IJ) nor the BIA made a finding that
Dai's testimony was not credible. Under our
well-established precedent, we are required to treat a
petitioner's testimony as credible in the absence of such
a finding. We adopted this rule before the REAL ID Act and
reaffirmed it after its passage. The dissent clearly
disapproves of our rule. We are, however, bound to follow it.
We might add, though it does not affect our holding in this
case, that we approve of it. We think it not too much to ask
of IJs and the BIA that they make an explicit adverse
credibility finding before deporting someone on that basis.
In any event, under our well-established rule, Dai is
unquestionably entitled to relief.
Dai's Persecution in China
been married for twenty years to Li Ping Qin. Dai and Qin
have a daughter, who was born in 2000. In April 2009, Qin
discovered that she was pregnant again. Dai and Qin were
"very happy" about the pregnancy and believed they
would be able to keep the child if they paid a fine, despite
China's One Child policy.
the month after Qin found out she was pregnant, she was
visited at work by a "family planning officer" who
told Qin that she was required to have an abortion. Qin told
the officer that she would need to think about it. Two months
later, five family planning officers came to Dai and
Qin's house early in the morning from "the local
family planning office and also the police station." The
officers were there to take Qin to the hospital for a forced
abortion. Qin told the officers that she didn't want to
go and Dai attempted to stop the officers from taking Qin
against her will. Dai and the officers began arguing, with
the officers telling Dai that Qin had to have the forced
abortion as a matter of "Chinese policy" and Dai
saying "you can't take my wife away."
Dai continued resisting the officers' efforts to take Qin
for the forced abortion, two of them pushed him to the
ground. Dai got up and tried again to stop the officers, so
they pushed him to the ground again. This time, the officers
handcuffed Dai and repeatedly beat him, causing substantial
injuries. While Dai was handcuffed and being beaten, the
other officers dragged Qin out of the house.
police took Dai to the Zha Bei detention center. There, they
ordered Dai to confess to resisting arrest. Dai initially
refused to confess and insisted that he had the right to
protect his family. The officers continued to interrogate him
over the next number of days. At times he was deprived of
sleep because he was interrogated in the middle of the night.
During the ten days he spent in detention, Dai was
interrogated approximately seven times. He was fed one meal a
day and often denied water. Dai characterized his treatment
as "mental torture." Dai ultimately confessed to
resisting arrest and fighting with the officers. He was
released about two days after his confession.
injuries occurred when the officers beat him at his home.
Despite telling the police about his injuries, he received no
medical attention while in custody. When he was released he
went to the hospital for x-rays, which showed that his right
arm was dislocated and the ribs on his right side were
broken. The doctor put Dai's arm back in place and
wrapped it to keep it still for six weeks. Dai did not
receive any treatment for his broken ribs.
Dai returned home he found Qin crying. Qin told him that she
had been taken to the Guang Hua hospital in the Chang Ning
district, where a doctor made her get undressed and then
sedated her. When she woke up, she learned that her pregnancy
had been terminated and that an IUD had been implanted, all
without her consent.
addition to Qin's forced abortion and Dai's arrest,
detention, and physical and mental abuse, Qin, Dai, and their
daughter each suffered other repercussions arising out of
Qin's unauthorized pregnancy and Dai's resistance to
her forced abortion. Dai was fired from his job, while Qin
was demoted and her salary was reduced by thirty percent.
Their supervisors specifically informed them that they were
fired and demoted because of the above events. Their daughter
was also denied admission to more desirable schools despite
good academic performance. Her teacher told Qin that this was
likewise because of the events resulting from the illegal
about January 27, 2012, Dai, Qin, and their daughter arrived
in the United States on tourist visas, with authorization to
remain until July 26, 2012. Qin and their daughter returned
to China in February while Dai remained in the United States.
In the time since Qin and their daughter have returned to
China, the Chinese police have come looking for Dai multiple
times. Dai is afraid that if he returns to China he will be
eight months after arriving in the United States, Dai filed
an affirmative asylum application. The next month, he was
interviewed by an asylum officer. The asylum officer took
notes during the interview, but did not prepare a verbatim
the interview, Dai was not asked whether his wife and
daughter had accompanied him to the United States. Rather,
the asylum officer inquired whether they ever traveled
anywhere outside of China. He told the asylum officer that
both his wife and his daughter had been to Taiwan and Hong
Kong and that his wife had been to Australia. When asked if
they had traveled anywhere else, he said they had not.
However, when told that government records showed that his
wife and daughter had traveled to the United States with him,
he agreed that they had done so. When asked why he did not
initially disclose this, Dai said (through an interpreter and
according to the non-verbatim notes of the interview),
"I'm afraid you ask why my wife and daughter go
back." Dai explained that his wife and daughter went
back to China "[s]o that my daughter can go to school
and in the U.S. you have to pay a lot of money."
Finally, Dai was asked, "Can you tell me the real story
about you and your family's travel to the US?" Dai
responded, "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."
asylum officer denied Dai's asylum application.
Department of Homeland Security (DHS) then issued Dai a
Notice to Appear. Dai conceded that he was removable and
sought asylum, withholding of removal, and CAT protection. At
a hearing before the IJ, Dai testified about the events in
China we have described. When asked why he came to the United
States, he said, "[b]ecause I was persecuted in China
and my wife, my wife was forced to have an abortion and I
lost my baby. I was arrested. I was beaten. I lost my job.
America [ ] is a free country and it's [ ] a democratic
country. I want to come here [ ] and have my very basic human
rights. I really, really hate Chinese dictatorship."
cross-examination, the government asked Dai about his initial
failure to disclose his wife and daughter's travel to the
United States. Dai testified that "I was very
nervous" and "because I was already in the U.S. and
they [ ] came with me to the U.S. . . . I thought that you
were asking me anywhere other than the U.S." In response
to further questioning by the government, Dai testified that
his wife and daughter returned to China so that his wife
could care for his father-in-law and his daughter could
attend school. When asked why he didn't keep them in the
U.S. to protect them from forced IUDs or abortions, Dai
reminded the government that his wife's IUD was already
inserted before she left China and that his daughter was only
the government asked Dai if there were any other reasons he
was afraid to return to China, Dai said, "if I return to
China, it's impossible for me to get another job. . . .
Just the sterilization and that." Finally, when asked
why he remained in the U.S. when his wife returned to China
he responded, "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." At
the time in question (when Qin returned to China in February
2012), Dai did not know about asylum. He first learned about
the existence of that process in March of that year.
did not make an adverse credibility finding. Instead, the IJ
found that Dai failed to meet his burden of proof for asylum,
withholding of removal, and CAT protection.
affirmed the IJ's denial of relief. The BIA first found
that Dai "failed to disclose both to the [DHS] asylum
officer and the [IJ] that his wife and daughter had traveled
with him to the United States and voluntarily returned to
China shortly after" and that Dai's reason for
concealing this information was that "he believed that
the true reasons for their return . . . would be perceived as
inconsistent with his claims of past and feared
acknowledged that the IJ did not make an adverse credibility
finding and also did not make one itself. Instead, the BIA
held that "the [IJ] 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 BIA found that Dai's family returning to
China and "his not being truthful about it" were
"detrimental to his claim and [ ] significant to his
burden of proof." The BIA concluded that Dai failed to
establish eligibility for asylum, withholding of removal, or
CAT protection. Dai filed a timely petition for review
challenging the BIA's denial of relief.
AND STANDARD OF REVIEW
cannot deny a petition for review on a ground [upon which]
the BIA itself did not base its decision."
Hernandez-Cruz v. Holder, 651 F.3d 1094, 1110 (9th
Cir. 2011). We review the agency's factual findings for
substantial evidence. Hamazaspyan v. Holder, 590
F.3d 744, 747 (9th Cir. 2009).
scope of review in this case is unclear. While the BIA stated
that it "adopt[ed] and affirm[ed] the Immigration
Judge's decision, " it then went on to discuss and
agree with most of the IJ's specific reasons while
omitting any discussion of one of them.
one hand, we have held that when "the BIA adopts the
decision of the IJ and affirms without opinion, we review the
decision of the IJ as the final agency determination."
Smolniakova v. Gonzales, 422 F.3d 1037, 1044 (9th
Cir. 2005); see also Matter of Burbano, 20 I. &
N. Dec. 872, 874 (BIA 1994). In this case, however, the BIA
did not affirm "without opinion."
other hand, we have also held that when "the BIA
relie[s] upon the IJ's opinion as a statement of
reasons" but "state[s] with sufficient
particularity and clarity the reasons for denial of asylum
and d[oes] not merely provide a boilerplate opinion, "
we "look to the IJ's oral decision [only] as a guide
to what lay behind the BIA's conclusion." Tekle
v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008)
(quotation marks and alterations omitted). "In so doing,
we review here the reasons explicitly identified by the BIA,
and then examine the reasoning articulated in the IJ's
oral decision in support of those reasons. . . . Stated
differently, we do not review those parts of the IJ's . .
. finding that the BIA did not identify as 'most
significant' and did not otherwise mention."
Id.; see also Lai v. Holder, 773 F.3d 966,
970 (9th Cir. 2014). However, in those cases the BIA did not
say that it was adopting the decision of the IJ.
this is not a case in which "the BIA adopt[ed] the
immigration judge's decision and also add[ed] its own
reasons." Nuru v. Gonzales, 404 F.3d 1207, 1215
(9th Cir. 2005). The BIA did not "add its own
reasons;" rather, it identified and expressly agreed
with some (but not all) of the IJ's reasons.
not, however, resolve the precise scope of review in this
case because none of the reasons advanced by the IJ,
including the one omitted by the BIA, provides a sufficient
basis for the BIA's decision.
is available to refugees-that is, anyone who is
"'unable or unwilling to avail himself or herself of
the protection of [his or her native] country because of
persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular
social group, or political opinion.'"
Baghdasaryan v. Holder, 592 F.3d 1018, 1022-23 (9th
Cir. 2010) (quoting 8 U.S.C. §
noncitizen establishes past persecution, "a rebuttable
presumption of a well-founded fear arises, and the burden
shifts to the government to demonstrate that there has been a
fundamental change in circumstances such that the applicant
no longer has a well-founded fear." Tawadrus v.
Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (quotation
marks and citations omitted). "An applicant alleging
past persecution has the burden of establishing that (1) his
treatment rises to the level of persecution; (2) the
persecution was on account of one or more protected grounds;
and (3) the persecution was committed by the government, or
by forces that the government was unable or unwilling to
control." Baghdasaryan, 592 F.3d at 1023.
case is governed by the REAL ID Act of 2005, Pub. L. No.
109-13, Div. B, 119 Stat. 231, 302-23. Under the standards
established by that Act, an applicant's testimony alone
is sufficient to establish eligibility for asylum if it
satisfies three requirements: the "testimony is
credible, is persuasive, and refers to specific facts
sufficient to demonstrate that the applicant is a
refugee." 8 U.S.C. § 1158(b)(1)(B)(ii). In
determining whether the testimony is persuasive, "the
trier of fact may weigh the credible testimony along with
other evidence of record." Id. If the
applicant's testimony satisfies all three requirements,
then it "alone meets the applicant's burden of
proof." Ren v. Holder, 648 F.3d 1079, 1093 (9th
Cir. 2011). If, however, the applicant's credible
testimony alone is not sufficiently persuasive, "the IJ
must give the applicant notice of the corroboration that is
required and an opportunity either to produce the requisite
corroborative evidence or to explain why that evidence is not
reasonably available." Id. No notice
regarding corroboration was given to Dai. We will next
examine the three requirements under the Act for meeting the
burden of proof, though not in the order listed in the
testified at his removal hearing and the IJ made no adverse
credibility finding. When this was called to the BIA's
attention, it also made no adverse credibility finding.
Although the BIA identified one time that Dai allegedly
failed to disclose a fact and indicated that it did not
believe Dai's explanation for not doing so, "this
sort of passing statement does not constitute an adverse
credibility finding." Kaur v. Holder, 561 F.3d
957, 962-63 (9th Cir. 2009). The BIA may find that an
applicant lied about one particular fact without making a
general adverse credibility finding. Even a "statement
that a petitioner is 'not entirely credible' is not
enough" to constitute an adverse credibility finding,
Aguilera-Cota v. I.N.S., 914 F.2d 1375, 1383 (9th
Cir. 1990), and the BIA's finding that Dai "failed
to disclose" a single fact does not even rise to the
level of a finding that a petitioner is "not entirely
credible." In short, the adverse credibility finding
must be explicit.
portions of the dissent are devoted to elaborating on the
deference that we owe to credibility findings by the IJ and
the BIA. We agree that such findings are entitled to
deference, but we cannot defer to a finding that does not
exist. The bulk of our dissenting colleague's concerns
can therefore be reduced to his objection to the rule that
adverse credibility findings must be explicit. It is
difficult to identify, however, a more well-established rule
in the review of immigration cases. The dissent offers no reason
to overturn our longstanding requirement that adverse
credibility findings be explicit and, in fact, the REAL ID
Act codifies the principle that such findings must be
"explicitly made." 8 U.S.C. §
1158(b)(1)(B)(iii). Therefore, "[t]he IJ's decision
not to make an explicit adverse credibility finding, "
Dissent at 30, means that there is no finding to which we can
that there is no adverse credibility finding from the agency,
the next question is whether we can nostra sponte
decide that Dai's testimony is not credible. Prior to the
REAL ID Act, we held that in the absence of an explicit
adverse credibility finding by the IJ or the BIA we are
required to treat the petitioner's testimony as credible.
Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.
2004); Navas v. I.N.S., 217 F.3d 646, 652 n.3 (9th
Cir. 2000). The REAL ID Act enacted a variety of changes to
the standards governing credibility determinations,
including-as noted by the dissent-a provision that "if
no adverse credibility determination is explicitly made, the
applicant or witness shall have a rebuttable presumption of
credibility on appeal." 8 U.S.C. §
this provision nor anything else in the REAL ID Act
explicitly or implicitly repeals the rule that in the absence
of an adverse credibility finding by the IJ or the BIA, the
petitioner is deemed credible. To the contrary, in a
post-REAL ID opinion we stated and applied that rule. See
Zhiqiang Hu v. Holder, 652 F.3d 1011, 1013 n.1 (9th Cir.
2011); see also Kazemzadeh v. U.S. Attorney Gen.,
577 F.3d 1341, 1354 (11th Cir. 2009) (W. Pryor, J.)
(post-REAL ID application) ("Where an [Immigration
Judge] fails to explicitly find an applicant's testimony
incredible and cogently explain his or her reasons for doing
so, we accept the applicant's testimony as
credible.") (quotation marks omitted). Hu
controls here, a fact the dissent entirely fails to
acknowledge. However, in Hu we did not explain why
our rule was unaffected by the new language in the REAL ID
Act. We take this opportunity to do so now.
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. This is demonstrated by the fact that
the statute says there is "a rebuttable presumption of
credibility on appeal." 8 U.S.C. §§
1158(b)(1)(B)(iii), 1229a(c)(4)(C) (emphasis added). In
immigration cases, we do not exercise appellate jurisdiction.
Rather, decisions by the finder of fact, the IJ, may be
appealed to the BIA. See 8 C.F.R. § 1003.1(b).
We generally cannot review an order of removal unless the
non-citizen has exhausted his appeal to the BIA. 8 U.S.C.
§ 1252(d)(1); see Ren, 648 F.3d at 1083-84. The
"sole and exclusive means for judicial review
of an order of removal" is by "a petition for
review, " not a further appeal. 8 U.S.C. §
1252(a)(5) (emphasis added). Moreover, unlike an appeal,
which shifts an existing action to a new court, a petition
for review commences a new action against the United States.
28 U.S.C. § 2344; see also 8 U.S.C. §
1252(a)(1). Thus, Dai is the petitioner, not the appellant,
and the Attorney General is the respondent, not the appellee.
A provision that applies "on appeal" therefore does
not apply to our review, but solely to the BIA's review
on appeal from the IJ's decision.
inapplicability of the rebuttable presumption provision to
review in this court is further confirmed by a fundamental
distinction between appellate review and review of
administrative decisions that the dissent ignores. When we
review a decision of a district court, we may "affirm on
any ground supported by the record even if the district court
did not consider the issue." Perfect 10, Inc. v.
Visa Int'l Serv. Ass'n, 494 F.3d 788, 794 (9th
Cir. 2007). When we review an administrative decision,
however, "we cannot deny a petition for review on a
ground [on which] the BIA itself did not base its
decision." Hernandez-Cruz, 651 F.3d at 1110;
see also Nw. Envtl. Def. Ctr. v. Bonneville Power
Admin., 477 F.3d 668, 688 (9th Cir. 2007).
dissent is therefore incorrect to say that "[w]hen 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 [ ] there is no material
difference between an appeal and a petition for review."
Dissent at 38. In an appeal we may, in appropriate
circumstances and after affording appropriate deference,
reject a district court's credibility finding (whether
favorable or adverse) in order to affirm the district court
on an alternative ground. However, when the BIA has on appeal
neither affirmed an adverse credibility finding made by the
IJ nor made its own finding after deeming the presumption of
credibility rebutted, we may not deny the petition for review
based on lack of credibility, not only because under our
well-established case law we must deem the petitioner's
testimony credible but also because a denial on that ground
would require us to adopt a justification not relied on by
plain text and context of the statute dictate the conclusion
that the REAL ID Act's rebuttable presumption of
credibility applies only on appeal to the BIA. In the absence
of any other provision in the Act affecting the procedures
governing credibility findings,  our rule that we are
required to treat a petitioner's testimony as credible
when the agency does not make an adverse credibility finding
remains applicable. Because neither the IJ nor the BIA made
an adverse credibility determination in Dai's case, we
must treat his testimony as credible.
Dai's testimony must be deemed credible, we must next
consider whether he testified to facts sufficient to
establish eligibility for asylum. By statute, "a person
. . . who has been persecuted for failure or refusal to
[abort a pregnancy or to undergo involuntary sterilization]
or for other resistance to a coercive population control
program, shall be deemed to have been persecuted on account
of political opinion." 8 U.S.C. § 1101(a)(42). The
harm Dai suffered was on account of his resistance to
China's coercive population control program and thus was
on the basis of a protected ground. In addition,
"[p]olice officers are the prototypical state actor for
asylum purposes." Boer-Sedano v. Gonzales, 418
F.3d 1082, 1088 (9th Cir. 2005). Therefore, the only question
as to the sufficiency of Dai's testimony is whether the
harm rose to the level of persecution.
testified that he was beaten, arrested, detained, and
deprived of food and sleep because of his attempt to oppose
his wife's involuntary abortion. "It is well
established that physical violence is persecution."
Li v. Holder, 559 F.3d 1096, 1107 (9th Cir. 2009).
In Guo v. Ashcroft, 361 F.3d 1194 (9th Cir. 2004),
this court held that facts similar to-but less serious
than-the facts in this case compelled a finding of
persecution. The applicant in Guo was arrested,
detained for a day and a half, punched in the face, and
kicked in the stomach. Id. at 1202-03. In contrast,
Dai was forcibly pushed to the ground twice, repeatedly
punched in the stomach while handcuffed, jailed for ten days,
fed very little food and water, deprived of sleep through
interrogation, and denied medical care. An applicant may
establish persecution through physical abuse even if he does
not seek medical treatment, see Lopez v. Ashcroft,
366 F.3d 799, 803 (9th Cir. 2004), but Dai did seek and
receive such treatment for an injured shoulder and broken
addition to the physical harm he suffered, Dai lost his job
as a result of this occurrence. Such economic harm can
contribute to a finding of persecution. See Vitug v.
Holder, 723 F.3d 1056, 1065 (9th Cir. 2013).
these reasons, the harm Dai suffered rose to-and indeed, well
surpassed-the established level of persecution. The record
therefore compels the conclusion that Dai's testimony
sets forth sufficient specific facts to constitute past
did not make an adverse credibility finding, but instead
found that Dai had failed to "meet his burden of
proving his asylum claim." As we have explained,
see pages 13-14, supra, an applicant's
testimony carries the burden of proof if it is credible,
persuasive, and sufficient. Two of those requirements have
been satisfied: we must treat Dai's testimony as credible
and his testimony clearly set out sufficient facts to
establish past persecution. We therefore treat the BIA's
general statement about Dai's burden of proof as relating
to the only remaining requirement for testimony to carry that
burden: persuasiveness. However, taking into account the
record as a whole, nothing undermines the persuasiveness of
Dai's credible testimony-that is, the BIA's
determination that Dai's testimony was unpersuasive is
not supported by substantial evidence.
evaluating persuasiveness the BIA is required to "weigh
the credible testimony along with other evidence of
record." 8 U.S.C. § 1158(b)(1)(B)(ii). The BIA
found that Dai's testimony was not persuasive for two
reasons. First, the record revealed that Dai's wife Qin
and their daughter had traveled to the United States with
Dai, and then voluntarily returned to China. Second, Dai
initially tried to conceal this fact from the asylum
interviewer until he was confronted with it. According to the
BIA, "[t]he 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."
The IJ identified a third reason for not finding Dai's
testimony persuasive: the fact that when asked for "the
real story about you and your family's travel to the
U.S., " Dai responded, "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."
However, none of these reasons supports the BIA's
conclusion that Dai's testimony was not persuasive in
light of the record as a whole.
held that a noncitizen's "history of willingly
returning to his or her home country militates against a
finding of past persecution or a well-founded fear of future
persecution." Loho v. Mukasey, 531 F.3d 1016,
1017-18 (9th Cir. 2008). The BIA relied heavily on
Loho to justify its decision. However, unlike in
Loho, Dai never returned to China-only his wife and
also recognized that a family member's voluntary
return-or demonstrated ability to remain in the country
without further injury-can be relevant in certain narrow
circumstances: when the applicant's "fear of future
persecution rests solely upon threats received by
his family, " Tamang v. Holder, 598 F.3d 1083,
1094 (9th Cir. 2010) (emphasis added), or when the family
member and the applicant are "similarly situated, "
Sinha v. Holder, 564 F.3d 1015, 1022 (9th Cir.
found that "the fundamental thrust of [Dai's] claim
is that his wife was forced to have an abortion, " and
Qin "therefore clearly has an equal, or stronger, claim
to asylum than [Dai] himself." The IJ also found that
Qin was "the primary object of the persecution in
China." The BIA adopted this reasoning. However, the
findings are contrary to the reasoning of our case law.
true that Dai and Qin's persecution arose out of the same
general event, but that is not the test that Tamang
and Sinha establish. Dai's fear of persecution
does not "rest solely" on Qin's treatment, and
Dai and Qin are not "similarly situated." As the
harms suffered by Dai and Qin in the past are qualitatively
different and give rise to different fears about future
persecution, we need not decide who has the
"stronger" claim. Neither the statutes nor our case
law endorses the IJ and BIA's approach of ranking
distinct harms. To the contrary, Dai's claim is
independently established by statute and is not dependent on
any comparison with Qin's.
hypothetical asylum claim arises out of the invasive medical
procedure imposed on her against her will-she was
"forced to abort a pregnancy [and] to undergo
involuntary sterilization." 8 U.S.C. § 1101(a)(42).
We certainly agree with the BIA and the government that
interference with a person's reproductive freedom is a
severe form of persecution and in no way do we suggest that
Qin would not have a strong case for asylum had she applied
however, was "persecuted . . . for [ ] resistance to a
coercive population control program." Id. He
was subjected to beatings, prolonged detention, and
deprivation of food and sleep-none of which was experienced
by Qin. After the incident, Dai was fired from his job while
Qin was only demoted. In addition, Qin had already been
subjected to the involuntary insertion of an IUD, whereas Dai
fears future involuntary sterilization. Since Qin returned to
China she has apparently not faced further persecution, but
the police have come looking for Dai several times. Dai and
Qin's past experiences, as well as their fears about the
future, are therefore not so similar as to support the
BIA's finding that Qin's voluntary return to China
undermines Dai's claim for asylum.
Dai's and Qin's respective decisions make sense in
context. Qin still had a job in China, and their daughter had
a place in school-albeit not in as good a school as she
deserved. In this context, it was entirely reasonable to
think that the family would be best off if Qin returned to
China to keep her job while Dai attempted to establish
himself in the United States-hoping that, once he did so, his
family would be able to join him. The BIA improperly
substituted its own view of what the members of the family
should have done for Dai and Qin's own reasoned judgment
in a manner that is not supported by substantial evidence in
BIA's second reason for finding Dai's testimony
unpersuasive fares no better. The BIA held that even in the
absence of an adverse credibility finding, Dai "not
being truthful" about his family's travel to the
United States and voluntary return to China "is
detrimental to his claim and is significant to his burden of
BIA's framing of the issue suggests that it is relevant
because it casts doubt on Dai's credibility. However, the
exercise in which we engage when evaluating persuasiveness
requires that in this case we treat Dai's testimony
before the IJ as credible. Other evidence is relevant only to
the extent that it affects the persuasiveness of the
applicant's testimony for reasons other than
challenging his credibility. Otherwise, the statutory command
to "weigh the credible testimony along with
other evidence of record, " 8 U.S.C. §
1158(b)(1)(B)(ii) (emphasis added), would not make sense.
Once credibility is decided-here, as we have explained, by
the failure of the IJ or the BIA to make an adverse
credibility finding-the issue is settled. Credibility
concerns that do not justify an adverse credibility finding
cannot be smuggled into the persuasiveness inquiry so as to
undermine the finding of credibility we are required to
afford Dai's testimony.Indeed, despite pointing out
that Dai was "not [ ] truthful" about a tangential
point, the BIA never questioned the facts regarding Dai's
persecution in China.
the IJ nor the BIA explained how Dai's concealment of his
family's travel to the United States and return to China
was relevant in any way other than to undermine Dai's
credibility. The government likewise offered no such
explanation before this court, and in any event we
independently discern no relevance beyond Dai's
credibility. Therefore, neither the family's return nor
Dai's alleged concealment of that fact can support the
BIA's finding that Dai's credible testimony was
contrary to the portion of the IJ's opinion not mentioned
by the BIA, Dai's statement that "My wife had a job
and I didn't, and that is why I stayed here, " does
not render his testimony about his past persecution
unpersuasive. A valid asylum claim is not undermined by the
fact that the applicant had additional reasons (beyond
escaping persecution) for coming to or remaining in the
United States, including seeking economic opportunity.
See Li, 559 F.3d at 1105 (reversing an adverse
credibility determination that was based on an
applicant's testimony that economic opportunity was an
additional reason for coming to the United States). That is
especially true when, as in this case, the loss of economic
opportunity in the home country is part of the overall
persecution. Dai testified about his reasons for coming to
the United States: "I was persecuted in China . . . . I
was arrested. I was beaten. I lost my job. . . . I want to
come here [ ] and have my very basic human rights."
Although Dai acknowledged that he had additional
reasons for coming to the United States, he never recanted or
contradicted his assertion that he feared persecution if he
returned to China, which is the only subjective requirement
for an asylum claim.
did not enter an adverse credibility finding, so we are
required to treat Dai's testimony as credible. The record
compels the conclusion that he testified to sufficient facts
to demonstrate his eligibility for asylum: he was subjected
to harm rising to the level of persecution, that persecution
was on account of a protected ground, and the persecution was
committed by the government. Nothing in the BIA's burden
of proof analysis raises questions about whether Dai
established either of those elements. Treating that analysis
instead as going to the question of persuasiveness, the
BIA's concerns are either unsupported by our case law or
serve only as attempts to impermissibly undermine the
credibility determination. The record therefore compels the
conclusion that Dai's testimony satisfies his burden of
proof because it meets the three requirements of the statute:
it is credible, persuasive, and sets forth sufficient facts.
8 U.S.C. § 1158(b)(1)(B)(ii).
Dai has established that he suffered past persecution, he is
entitled to a presumption of a well-founded fear of future
persecution. During the administrative proceedings, DHS
made no arguments concerning changed country conditions to
the IJ or the BIA, and presented no documentary evidence for
that purpose. "In these circumstances, to provide [DHS]
with another opportunity to present evidence of changed
country conditions, when it twice had the chance but failed
to do so, would be exceptionally unfair."
Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir. 2004)
(quoting Baballah v. Ashcroft, 367 F.3d 1067, 1078
n.11 (9th Cir. 2004)); see also Quan v. Gonzales,
428 F.3d 883, 889 (9th Cir. 2005). "In this situation,
we are not required to remand for a determination of whether
[Dai] is eligible for asylum. We hold that he is eligible for
asylum. Because the decision to grant asylum is
discretionary, however, we remand for a determination of
whether [Dai] should be granted asylum." Ndom,
384 F.3d at 756 (citations omitted).
Withholding of Removal
of removal is governed by the same standards as asylum for
demonstrating credibility, sufficiency, and persuasiveness.
Compare 8 U.S.C. § 1158(b)(1)(B)(ii), (iii),
with § 1229a(c)(4)(B), (C). The primary
difference is that, in order to be eligible for withholding,
Dai must demonstrate that "it is more likely than not
that he would be subjected to persecution" based on a
protected ground if removed to China, a higher standard than
the well-founded fear required for asylum. Zhang v.
Ashcroft, 388 F.3d 713, 718 (9th Cir. 2004) (quotation
marks omitted). However, as with asylum, past persecution
gives rise to a presumption of a sufficient likelihood of
future persecution. Mutuku v. Holder, 600 F.3d 1210,
1213 (9th Cir. 2010); Tamang, 598 F.3d at 1091;
Mousa v. Mukasey, 530 F.3d 1025, 1030 (9th Cir.
2008); Hanna v. Keisler, 506 F.3d 933, 940 (9th Cir.
2007); 8 C.F.R. § 1208.16(b)(1)(i).
record compels the conclusion that Dai has established past
persecution for his withholding claim for the same reasons as
for his asylum claim. The government presented no evidence of
changed country conditions, nor did it argue that the
resulting presumption has been rebutted or that Dai is barred
from withholding of removal for any reason. We therefore
remand with instructions to grant Dai withholding of removal.
See Ndom, 384 F.3d at 756.
dissent is correct that our "role in an immigration case
is typically one of review, not of first view."
Gonzales v. Thomas, 547 U.S. 183, 185 (2006)
(quotation marks omitted). It is the dissent, however, that
violates this cardinal rule. We do not doubt that our
dissenting colleague could have written a more persuasive
opinion on behalf of the BIA denying relief to Dai, but that
is not the role of this court. We are limited to reviewing
the reasoning actually advanced by the agency and we cannot
substitute our own rationales for those it ...