FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MING DAI, No. 15-70776 Petitioner, Agency No. v. A205-555-836 WILLIAM P. BARR, Attorney General, ORDER Respondent. Filed October 22, 2019 Before: Sidney R. Thomas, Chief Circuit Judge, and Stephen S. Trott and Mary H. Murguia, Circuit Judges. Order; Statement Respecting Denial by Judge Trott; Dissent by Judge Callahan; Statement Respecting Denial by Judges O’Scannlain and Trott; Dissent by Judge Collins 2 DAI V. SESSIONS SUMMARY* Immigration The panel denied a petition for rehearing en banc on behalf of the court. Dissenting from the denial of rehearing en banc, Judge Callahan, joined by Judges Bybee, Bea, M. Smith, Ikuta, Bennett, R. Nelson, Bade, Collins, and Lee, wrote that in denying en banc review, the court has condoned a decision by a three-judge panel that takes the extraordinary position of holding that, absent an explicit adverse credibility ruling, an immigration judge 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, thereby restoring this circuit’s prior errant “deemed true” rule that Congress abrogated when it enacted the REAL ID Act. Judge Callahan explained that the panel’s decision ties the hands of IJs who are presented with conflicting evidence, effectively forcing them to accept an applicant’s favorable testimony as the whole truth and to disregard unfavorable evidence—even when it is the applicant’s own testimony—unless they affirmatively make an adverse credibility finding, thus transforming the lack of an express adverse credibility ruling into an affirmative conclusion that the applicant’s proffered reason for seeking asylum is true. Judge Callahan wrote that the panel’s decision is contrary to the statute, this court’s precedent, and the rulings of sister circuits, and that in addition to * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. DAI V. SESSIONS 3 overstepping the court’s limited role in reviewing the agency’s decision, is also bad policy. Judge Callahan also wrote that by directing the agency to grant withholding relief and treat petitioner as eligible to asylum, the panel compounded its error by failing to follow the ordinary remand rule, and allowing the agency the first shot at applying the majority’s new rule. Dissenting from the denial of rehearing en banc, Judge Collins, joined by Judges Bybee, Bea, Ikuta, Bennett, R. Nelson, and Bade, agreed with Judge Callahan that the panel majority’s opinion effectively revives this court’s discredited prior “deemed-true” rule in contravention of controlling statutory language, precedent of this court and other circuits, and common sense. In Judge Collins’s view, the problems with the panel majority’s opinion run even deeper by committing a further serious legal error, and reinforcing a circuit split, in holding that the REAL ID Act did not abrogate a second “deemed-credible” rule, whereby this court conclusively presumes an applicant’s testimony to be credible unless the agency has made an explicit ...
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals