Blistering Dissent Underscores Ninth Circuit's Failure to Follow Statute
'Simon says' on credibility
By Andrew R. Arthur on October 26, 2019
A panel of the Court of Appeals for the Ninth Circuit this week denied a motion for rehearing en banc in Dai v. Barr, a decision in which the court reversed a decision of the Board of Immigration Appeals (BIA) denying the alien-appellant's applications for asylum and withholding of removal. Given the fact that this was the Ninth Circuit, the decision itself was not exceptional, but the dissent from the denial was. In particular, the judges in that dissent persuasively argued that the circuit court had failed to follow Congress's express directions in the REAL ID Act having to do with the credibility of asylum applicants, and just plain misread the statute.
There are numerous points that the dissent (which essentially issued two different opinions and two different statements in 52 pages of text) made, but two stick out: one having to do with the presumption of credibility on appeal; the other having to do with "Simon says" — the magic words that an immigration judge (IJ) or BIA member is expected to use in the Ninth Circuit to express the fact that a witness's testimony is not credible.
Some background: The appellant is a Chinese national who asserted both past persecution and a well-founded fear of future persecution based upon his opposition to the Chinese government's family-planning policies:
https://cis.org/Arthur/Blistering-Dissent-Underscores-Ninth-Circuits-Failure-Follow-Statute
