Order; Statement Respecting Denial by Judge Trott ; Dissent by Judge Callahan ; Statement Respecting Denial by Judges O’Scannlain and Trott ; Dissent by Judge Collins ORDER
The full court has been advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed R. App. P. 35. Judge Miller was recused and did not participate in the vote.
The petition for rehearing en banc is denied. Attached are dissents from and statements respecting the denial of rehearing en banc.
TROTT, Circuit Judge,** with whom R. NELSON, Circuit Judge, joins, respecting the denial of rehearing en banc:
Instead of following the REAL ID Act ("Act"), our court has perpetuated a contrived rule that in the absence of an adverse credibility finding, a petitioner must be deemed credible. We then use that conclusion to override an Immigration Judge’s ("IJ") and the Board of Immigration Appeals’ ("Board") well-supported determination that this petitioner’s case was not "persuasive." In so doing, we have rewritten the Act. We have a long history of ignoring Congress and the Supreme Court, and here we have done it again. See Dai v. Sessions , 884 F.3d 858, 875–93 (9th Cir. 2018) (Trott, J., dissenting). Moreover, the panel majority opinion creates an intercircuit conflict. I will address that problem later in Part IV.
As explained in his thorough and convincing decision, Immigration Judge Stephen Griswold, determined that Dai had not met his statutory burden of persuasion on the central issue of whether he was eligible as a refugee for asylum. The documented fatal flaws in Dai’s case were (1) his glaring attempt to deceive the asylum officer by concealing highly probative damaging facts that go to the very core of his case, facts that Dai also omitted from his Form I-589 application for asylum, (2) his admission when pressed that his deceit was intentional, driven by his understanding that the concealed evidence would damage his probability of success, (3) his inadequate explanations for the contradictions in his presentation, (4) his telling demeanor on cross examination, and (5) the "real story" behind his departure from China and his decision not to return with his wife and daughter. The IJ regarded these flaws as demonstrating a "lack of forthrightness." Accordingly, the IJ concluded pursuant to the language of the Act that Dai’s case was not "persuasive."
Reviewing de novo whether Dai had adequately met his burden of persuasion that he was eligible for asylum, the Board of Immigration Appeals agreed that he had not. To support its conclusion, the Board referenced the same material flaws the IJ found as facts. Their reasoned decision should end this case, but with all respect, the panel majority and now our court have converted this straightforward matter into a textbook example of elevating form over substance, taking a blue pencil to the Act’s requirement that an applicant’s case must be "persuasive" and inappropriately substituting our judgment for the Board’s.
Here is Judge Griswold’s compelling decision. Reading it illustrates how wrong our court’s analysis is.
I have carefully considered the respondent’s testimony and evidence and for the following reasons, I find that the respondent has failed to meet his burden of proving eligibility for asylum.
The principal area of concern with regard to the respondent’s testimony arose during the course of his cross-examination. On cross-examination, the respondent was asked about various aspects of his interview with an Asylum Officer. The Department of Homeland Security also submitted the notes of that interview as Exhibit 5. The respondent was asked specific questions regarding several aspects of his testimony before the Asylum Officer. In the course of cross-examination, the respondent was asked regarding his questions and answers as to whether his wife and daughter travelled with him to the United States. The respondent’s responses included the question of whether the asylum officer had asked him if his wife and daughter travelled anywhere other than to Taiwan and Hong Kong. The respondent conceded that he was asked this question and that he replied yes, they had travelled to Taiwan and Hong Kong. The respondent was asked whether the Asylum Officer inquired whether his wife and daughter had travelled elsewhere. The respondent then testified before the Court that he was asked this question, "but I was nervous." In this regard, I note that the respondent did not directly answer the question; instead leapt directly to an explanation for what his answer may have been, namely that he was nervous. The respondent was then asked specifically whether the Asylum Officer asked him if his wife had travelled to Australia in 2007. The respondent confirmed that he had been asked this question, and he confirmed that the answer was in the affirmative. The respondent also confirmed that the Asylum Officer had asked him whether she had travelled anywhere else. He confirmed that he had been so asked. The respondent was then asked whether he answered "no," that she had not travelled anywhere else. The respondent answered that he believed so, that he had so answered. The respondent was then asked, during the course of cross-examination, why he had not said to the Asylum Officer that yes, she had travelled to the United States. The respondent replied that he had not thought of it. He stated that they did come with him (meaning his wife and daughter) and that he thought the Asylum Officer was asking him if they had travelled anywhere other than the United States. He explained that he did so because he assumed the U.S. Government had the records of their travel to the United States. On further questioning, the respondent eventually hesitated at some length when asked to further explain why he did not disclose spontaneously to the Asylum Officer that his wife and daughter had come with him. The respondent paused at some length and I observed that the respondent appeared nervous and at a loss for words. However, after a fairly lengthy pause, the respondent testified that he is afraid to say that his wife and daughter came here and why they went back. The respondent was asked whether he told the Asylum Officer that he was afraid to answer directly. The respondent initially testified that he forgot and did not remember whether he said that. He again reiterated that he was very nervous. He was then asked the question again as to whether he told the Asylum Officer that he was afraid to answer why his wife and daughter had gone back. He then conceded that maybe, yes, he had answered in that fashion. The respondent was asked whether the Asylum Officer inquired why his wife and daughter went back, and the respondent conceded that he had been so asked, and he further conceded that he replied because school in the United States costs a lot of money (referring to the schooling for his daughter). The respondent was then asked to confirm that the Asylum Officer eventually asked him to tell him the real story as to whyhis family travelled to the United States and returned to China . The respondent confirmed that he was asked this question and when asked, whether he replied that it was because he wanted a good environment for his child and because his wife had a job and he did not and that that is why he stayed here. He confirmed that he did, in fact, say that. The respondent was further asked, during the course of testimony in court, why his wife and daughter returned to China. In this regard, the respondent testified that they came with him, but returned to China several weeks after arrival. He testified that they did so because his father-in-law was elderly and needed attention, and because his daughter needed to graduate school in China.
The respondent further claimed that his wife had, in fact, suffered past persecution in the form of a forced abortion and the respondent confirmed that he feared his wife and daughter would suffer future persecution. In this regard, the respondent qualified his answer by saying that his wife was now on an IUD, apparently thereby suggesting that the risk of persecution is reduced. However, the respondent did concede that the risk of future persecution also pertains to his daughter. Indeed, in this regard, the respondent testified that this is, at least in part, why he applied for asylum.
As to the contents of Exhibit 5, I give the notes full weight, insofar as the respondent has confirmed the contents of the questions and answers given during the course of that interview. Furthermore, I note that in the sections in which the respondent equivocated, stating that he was nervous and not sure that he gave those precise answers, I nevertheless give the Asylum Officer’s notes some substantial weight, in that they are consistent with the respondent’s testimony in court. Specifically, I note that the Asylum Officer’s notes state that the respondent ultimately indicated that he was afraid of giving straight answers regarding his daughter and wife’s trip to the United States and return to China. And while the
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