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SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–1155 and 19–1156
_________________
MERRICK B. GARLAND, ATTORNEY GENERAL,
PETITIONER
19–1155
v.
MING DAI
MERRICK B. GARLAND, ATTORNEY GENERAL,
PETITIONER
19–1156
v.
CESAR ALCARAZ-ENRIQUEZ
on writs of certiorari to the united states
court of appeals for the ninth circuit
[June 1, 2021]
Justice Gorsuch delivered the opinion of the
Court.
The Ninth Circuit has long applied a special
rule in immigration disputes. The rule provides that, in the
absence of an explicit adverse credibility determination by an
immigration judge or the Board of Immigration Appeals, a reviewing
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), 66Stat. 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 immigration
judge (IJ), Mr. Alcaraz-Enriquez sought to avoid being returned to
Mexico on the ground that his life 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 final 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 “inflict[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
answer 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 testified
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, 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 flee his residence. At that time, Mr.
Alcaraz-Enriquez admitted to the officers 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
testified that he was upset with his girlfriend because “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 altercation, “she looked completely fine.” App. 256.
Ultimately, the IJ held Mr. Alcaraz-Enriquez
ineligible for relief, relying in part on the version of events in
the probation report. Among other things, the IJ found it
significant that there was “no mention” in the contemporaneous
probation report of the girlfriend hitting Mr. Alcaraz- Enriquez’s
daughter. App. to Pet. for Cert. in No. 19–1156, at 14a. On appeal,
the Bureau of Immigration Appeals (BIA) “adopt[ed] and affirm[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] testimony at the hearing and the
probation officer’s report.”
Id., 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 court]
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 denying
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 [involuntary
sterilization] or for other resistance to a coercive 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]
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 officials
abducted her and forced her to have an abortion. Mr. Dai further
testified 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 admission 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
observed that Mr. Dai “hesitated at some length” when confronted
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,
at 169a. The record showed that Mr. Dai failed “to disclose” 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 find that [Mr. Dai’s] explanations 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 return to China to pursue school and
economic opportunities undermined his claims of past and future
persecution, particularly given that his wife was “the primary
object of the persecution in China.”
Ibid. On appeal, the
BIA “adopt[ed] and affirm[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 finding 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 find Mr. Dai eligible for asylum. Later, the court of appeals
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 explicit adverse credibility finding [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 statements as fact whenever the agency is
less than explicit about credibility.
Wan Chien Kho v.
Keisler, 505 F.3d 50, 56 (2007).
In both of the cases before us, the Ninth
Circuit rested its decisions 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
favorable testimony credible and true and prohibited the
unfavorable testimony about his “real” reasons for remaining
in the country from being “smuggled” into the removal analysis. 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 testimony 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 reviewing court’s analysis. Congress has carefully circumscribed
judicial review of BIA decisions. When it comes to questions of
fact—such as the circumstances surrounding Mr. Alcaraz-Enriquez’s
prior conviction or Mr. Dai’s alleged persecution—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.” 8 U. S. C.
§ 1252(b)(4)(B). This is a “highly deferential” standard.
Nasrallah v.
Barr, 590 U. S. ___, ___ (2020)
(slip op., at 9); cf.
INS v.
Elias-Zacarias,
502 U.S.
478, 483–484 (1992). Nothing in the INA contemplates any- thing
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 Constitution 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’ ” reject an alien’s evidence.
Director, Office of Workers’ Compensation 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 factfinder could find sufficient,
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 factfinder, is
free to “credit part of [a] witness’ testimony without” necessarily
“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
findings 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
determination,” “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
presumption 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 review 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 file 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.
Historical understandings confirm the point.
Article III courts do not traditionally hear direct appeals from
Article 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
challenge 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 action 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 appeal” to the BIA makes sense as a matter of basic
administrative law principles too. Reviewing courts have no need
for a presumption of credibility one way or the other because 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 assess the applicant’s credibility in the first
instance. The credibility presumption encourages the IJ to make
specific findings 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 factfindings—is well
positioned to apply the credibility presumption if the IJ has not
made an explicit finding.
All of which returns us to where we began. 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 collateral review before 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 Ninth Circuit’s rule mistakenly
flips this standard on its head. Rather than ask whether the
agency’s finding qualifies as one of potentially many reasonable
possibilities, it gives conclusive weight to any piece of testimony
that cuts against the agency’s finding. That was error.
B
Perhaps recognizing the problems with the
Ninth Circuit’s rule, Mr. Alcaraz-Enriquez and Mr. Dai ask us to
affirm 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 acknowledge 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 first instance,
we reject this alternative argument for affirmance too. In
explaining why, we leave for another day the question what the
factfinder must say or do to furnish an “explici[t] adverse
credibility determination.” Even assuming (without deciding) there
was no such determination here, the Ninth Circuit’s reasoning was
flawed. One can think about the reason why in either of two
ways.
1
Start with the fact that the INA’s
“presumption” of credibility on appeal is “rebuttable.”
Necessarily, that means the presumption is not conclusive. Notably,
too, unlike the requirement that any initial adverse credibility
determination must be “explicitly made,” the INA contains no
parallel requirement of explicitness when it comes to rebutting the
presumption on appeal. 8 U. S. C. §§1158(b)(1)(B)(iii),
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 discerned.”
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 credibility. It
need not use any particular words to do so. And, once more, a
reviewing court must uphold that decision unless 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 that the
IJ properly “weigh[ed] and compar[ed]” the probation 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 specifically identifies as relevant to credibility. See
§§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). The IJ further
concluded that Mr. Alcaraz-Enriquez’s testimony sought to minimize
his actions and condone violence against his girlfriend, suggesting
the IJ rejected his claim that he intervened 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
adjudicator could have reached.
The same might be said of Mr. Dai’s case. The
BIA specifically 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 discussed
specific 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 contradictions 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 finding.” The INA provides instructions about the
appropriate considerations for making a credibility determination,
including the witness’s demeanor, candor, and internal
inconsistency in his testimony. 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 decisional 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 reasonable adjudicator
could have reached.
2
There is, however, another problem with the
Ninth Circuit’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, persuasiveness,
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 testimony 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 specific facts sufficient to demonstrate
that the applicant is a refugee.”
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
find his evidence persuasive or sufficient to meet the burden 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 aren’t entirely
unfamiliar either. Take an example. Suppose a plaintiff is doing
her best to recount a car accident to prove her case for damages.
She testifies earnestly that she thought the traffic light was
green when she entered an intersection. 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 factfinder might not
describe the plaintiff as lacking credibility—in the sense that she
was lying or not “worthy of belief,” Black’s Law Dictionary 448
(10th ed. 2014) (defining “credibility”)—yet find that her
testimony on a key fact was outweighed by other evidence and thus
unpersuasive or insufficient to prove the defendant’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 dispositive of both persuasiveness and legal sufficiency in
these cases. Even setting aside the
credibility of Mr.
Alcaraz-Enriquez or Mr. Dai, perhaps the BIA did not find their
evidence
persuasive or sufficient to meet their burden on
essential questions. In Mr. Alcaraz-Enriquez’s case, the probation
report may have outweighed his testimony. Similarly, 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 conflicting evidence, it seems likely that
a reasonable adjudicator could find 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 cases like these should proceed as follows. First, the
factfinder—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.”
Nor can we affirm the Ninth Circuit’s judgments
on alternative 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 possibility that even
credible testimony may be outweighed by other more persuasive
evidence or be insufficient 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.
