Ming Dai v. Jefferson Sessions

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MING DAI, No. 15-70776 Petitioner, Agency No. v. A205-555-836 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 13, 2017* San Francisco, California Filed March 8, 2018 Before: Sidney R. Thomas, Chief Circuit Judge, and Stephen Reinhardt and Stephen S. Trott, Circuit Judges. Opinion by Judge Reinhardt; Dissent by Judge Trott * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 DAI V. SESSIONS SUMMARY** Immigration 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 ** 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 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 ...

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