Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dai v. Sessions

United States Court of Appeals, Ninth Circuit

March 8, 2018

Ming Dai, Petitioner,
Jefferson B. Sessions III, Attorney General, Respondent.

          Submitted October 13, 2017 [*] San Francisco, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-555-836

          David Z. Su, Law Offices of David Z. Su, West Covina, California, for Petitioner.

          Aimee J. Carmichael, Trial Attorney; Mary Jane Candaux, Assistant Director; Office of Immigration, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Sidney R. Thomas, Chief Circuit Judge, and Stephen Reinhardt and Stephen S. Trott, Circuit Judges.

         SUMMARY [**]


         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 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.

         Dissenting, 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.



         Ming 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.

         There 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.


         I. Dai's Persecution in China[1]

         Dai has 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.

         However, 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."

         When 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.

         The 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.

         Dai's 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.

         When 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.

         In 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 pregnancy.

         On or 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 forcibly sterilized.

         II. Asylum Application

         Approximately 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 transcript.

         During 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."

         The asylum officer denied Dai's asylum application.

         III. Removal Proceedings

         The 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."

         During 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 13.

         When 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.

         The IJ 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.

         IV. BIA Decision

         The BIA 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"[2] 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 persecution."[3]

         The BIA 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.


         "[W]e 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).

         The 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.

         On the 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."

         On the 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.

         Finally, 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.

         We need 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.


         I. Asylum

         Asylum 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. § 1101(a)(42)(A)).[4]

         If a 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.

         This 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.[5] 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 statute.

         A. Credibility

         Dai 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.

         Large 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.[6] 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 defer.[7]

         Given 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. § 1158(b)(1)(B)(iii).

         Neither 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.

         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.[8] 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.[9]

         The 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).

         The 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 the BIA.

         The 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, [10] 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.

         B. Sufficiency

         Because 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.

         Dai 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 ribs.

         In 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).

         For 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 persecution.

         C. Persuasiveness

         The BIA 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.

         In 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.

         We have 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 daughter did.

         We have 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. 2009).

         The IJ 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.

         It is 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.[11]

         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 for it.

         Dai, 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.

         Moreover, 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 the record.

         The 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 proof."

         The 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.[12]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.

         Neither 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 unpersuasive.

         Finally, 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.

         The BIA 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).

         Because 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).

         II. Withholding of Removal

         Withholding 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).

         The 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.[13]


         The 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.