Alam v. Garland

• Decision Date: 08 September 2021
• Docket Number: No. 19-72744,19-72744
• Parties: Morshed ALAM, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

11 F.4th 1133

Morshed ALAM, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-72744

United States Court of Appeals, Ninth Circuit.

Submitted En Banc July 12, 2021^* Pasadena, California

Filed September 8, 2021

Mate Jurkovic and Chelsey Noelle Kelso, Goldstein & Associates LLC, Pittsburgh, Pennsylvania, for Petitioner.

Brian M. Boynton, Acting Assistant Attorney General; John W. Blakeley, Assistant Director; Greg D. Mack, Senior Litigation Counsel; Elizabeth K. Fitzgerald-Sambou, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Sidney R. Thomas, Chief Judge, and Johnnie B. Rawlinson, Consuelo M. Callahan, Milan D. Smith, Jr., Mary H. Murguia, Morgan Christen, Paul J. Watford, Andrew D. Hurwitz, Michelle T. Friedland, Mark J. Bennett, and Daniel A. Bress, Circuit Judges.

Concurrence by Judge Bennett

OPINION

THOMAS, Chief Judge:

We voted to rehear this case en banc to reconsider our "single factor rule," which we have applied in considering petitions for review from decisions by the Board of Immigration Appeals ("BIA"). The single factor rule, as we have applied it, requires us to sustain an adverse credibility finding if "one of the [agency's] identified grounds is supported by substantial evidence." Wang v. INS , 352 F.3d 1250, 1259 (9th Cir. 2003).

On rehearing en banc, we hold that the single factor rule conflicts with the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), and we overrule our prior precedent establishing and applying it. We remand this case to the three-judge panel to re-examine the petition for review in light of our clarification of the standard for reviewing the BIA's adverse credibility determinations.

I

Morshed Alam, a Bangladeshi citizen, petitions for review of the BIA decision denying his applications for asylum and withholding of removal. Alam sought relief based on his father's membership in one of the country's opposition political parties. The immigration judge ("IJ") denied his application, making an express adverse credibility determination. The IJ identified seven reasons supporting the adverse credibility finding. However, the IJ also held that, absent that finding, Alam would be entitled to a grant of asylum. On appeal, the BIA adopted and affirmed the IJ's decision pursuant to Matter of Burbano , 20 I. & N. Dec. 872 (BIA 1994).

Alam filed a petition for review arguing, inter alia , that the IJ's adverse credibility determination was not supported by substantial evidence. Alam did not challenge the single factor rule. In response, the United States argued that the BIA's adverse credibility determination was supported by just two of the seven grounds that the IJ had cited, and that application of the single factor rule required sustaining the adverse credibility finding.

A divided three-judge panel denied the petition for review in a non-precedential memorandum disposition. Alam v. Barr , 837 F. App'x 424 (9th Cir. 2020). It concluded that the IJ's adverse credibility determination was supported by substantial evidence, relying on only one of the seven grounds. Id. at 425–26. Judge Collins dissented, disagreeing that substantial evidence supported the IJ's adverse credibility determination and criticizing our Circuit's single factor rule. Id. at 427–29 (Collins, J., dissenting).

In considering the petition for rehearing en banc, we requested that the parties provide supplemental briefing as to whether there is a conflict between a single factor rule and the REAL ID Act. Both parties agreed that our single factor rule could not be reconciled with the REAL ID Act. We subsequently voted to rehear the case en banc. Because the BIA affirmed on the basis of Matter of Burbano , we review the IJ's decision as if it were the BIA's decision. See Kwong v. Holder , 671 F.3d 872, 876 (9th Cir. 2011).

II

The single factor rule is rooted in our pre-REAL ID Act requirement that an adverse credibility finding had to rest on at least one ground that went "to the heart of the claim" to be sustained on review. Prior to enactment of the REAL ID Act, we concluded that "minor discrepancies, inconsistencies, or omissions that d[id] not go to the heart of an applicant's asylum claim [could not] constitute substantial evidence" in support of an adverse credibility finding. Chen v. INS , 266 F.3d 1094, 1098 (9th Cir. 2001), judgment vacated on other grounds sub nom. INS v. Chen , 537 U.S. 1016, 123 S.Ct. 549, 154 L.Ed.2d 423 (2002) ; see also Ceballos-Castillo v. INS , 904 F.2d 519, 520 (9th Cir. 1990) (distinguishing incidental misstatements from misstatements that went to the heart of the petitioner's claim).

We elaborated on that rule in Wang , holding that we were required to sustain an adverse credibility finding in an asylum case, "[s]o long as one of the [agency's] identified grounds [wa]s supported by substantial evidence and [went] to the heart of [the] claim." Wang , 352 F.3d at 1259 ; see also Li v. Ashcroft , 378 F.3d 959, 964 (9th Cir. 2004) ("Although some of the factors the IJ relied upon are either unsupported or irrelevant, ‘[s]o long as one of the identified grounds is supported by substantial evidence and goes to the heart of [Li's] claim of persecution, we are bound to accept the IJ's adverse credibility finding.’ " (alterations in original) (quoting Wang , 352 F.3d at 1259 )). Before the REAL ID Act, the outcome of a petitioner's challenge to the agency's adverse credibility finding depended entirely on whether the agency had cited at least one valid, individual ground going to the heart of the claim. If such a ground was absent, we could not sustain the finding; if it was present, we were required to do so.

The REAL ID Act eliminated the "heart of the claim" requirement and required IJs to consider all factors under the totality of the circumstances in assessing credibility. Specifically, it provided that:

Considering the totality of the circumstances, and all relevant factors , a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness ..., the consistency between the applicant's or witness's written and oral statements ..., and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim , or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii) (emphases added).

In sum, under the REAL ID Act, credibility determinations are made—and must be reviewed—based on the "totality of the circumstances and all relevant factors," not a single factor. Thus, the REAL ID Act effectively abrogated Wang ’s contrary holding that an adverse credibility finding is supported by substantial evidence if it is supported by a single ground that goes to the heart of the claim. See Shrestha v. Holder , 590 F.3d 1034, 1043 (9th Cir. 2010) ("The REAL ID Act implemented an important substantive change concerning the kinds of inconsistencies that may give rise to an adverse credibility determination. Inconsistencies no longer need to ‘go to the heart’ of the petitioner's claim to form the basis of an adverse credibility determination." (quoting § 1158(b)(1)(B)(iii) )).

Although we recognized that the REAL ID Act eliminated Wang ’s "heart of the claim" requirement, we have continued to adhere to the second part of Wang ’s formulation, namely, that sustaining an adverse credibility finding is required if substantial evidence supports a single factor in the adverse credibility analysis. See, e.g ., Qiu v. Barr , 944 F.3d 837, 842 (9th Cir. 2019) ; Singh v. Lynch , 802 F.3d 972, 976 n.2 (9th Cir. 2015) ; Jiang v. Holder , 754 F.3d 733, 738–39 (9th Cir. 2014). We have also relied on the single factor rule in countless non-precedential decisions. By clinging to one half of an abrogated rule out of context, we have been affirming a conclusion that, in most cases, the IJ would not have made in the first place: that a single factor suffices on its own for an adverse credibility determination.

None of our sister circuits have applied the single factor rule post-REAL ID Act. Rather, they have applied the totality of the circumstances standard.¹

Given the REAL ID Act's explicit statutory language, we join our sister circuits and hold that, in assessing an adverse credibility finding under the Act, we must look to the "totality of the circumstances[ ] and all relevant factors." § 1158(b)(1)(B)(iii). There is no bright-line rule under which some number of inconsistencies requires sustaining or rejecting an adverse credibility determination—our review will always require assessing the totality of the circumstances. To the extent that our precedents employed the single factor rule or are otherwise inconsistent with this standard, we overrule those cases.

We remand this case to the three-judge panel for reconsideration in light of the newly articulated standard for reviewing adverse credibility determinations.

REMANDED to the three-judge panel.

BENNETT, Circuit Judge, concurring:

I concur in the court's opinion and judgment holding "that the single factor rule conflicts with the REAL ID Act of 2005." Opinion at 7. I write separately to highlight other judge-made rules that are a part of our jurisprudence, which, given our decision today and the Supreme Court's decisions in Garland v. Ming Dai , ––– U.S. ––––, 141 S. Ct. 1669, 210 L.Ed.2d 11 (2021), and United States v. Palomar-Santiago , ––– U.S. ––––, 141 S. Ct. 1615, 209 L.Ed.2d 703 (2021), we may want to revisit en banc.¹

1. In Palomar-Santiago , the Supreme Court reversed our rule that excused defendants from satisfying the first two requirements of 8 U.S.C. § 1326(d)² "if they were ‘not convicted of an offense that made [them] removable.’ " 141 S. Ct. at 1620 (alteration in original) (quoting United States v. Ochoa , 861 F.3d 1010, 1015 (9th Cir. 2017) ). In so doing, the Court held "that...