US Law Week

No Clear Path for Supreme Court Weighing Deportation Claims (1)

Feb. 23, 2021, 6:12 PM; Updated: Feb. 23, 2021, 8:40 PM

U.S. Supreme Court justices struggled with the question of how much authorities must say when turning away immigrants who fear for their safety if returned to their home country.

They heard argument on Tuesday in consolidated asylum cases centered on a federal law that requires immigration judges to explicitly say that they disbelieve applicants for asylum or “withholding of removal” in order to deport them. Without such clarity, there’s a presumption that the person is truthful.

The question before the court is what an appellate court should do when there’s no explicit adverse credibility determination—a finding applicants aren’t telling the truth—but other evidence suggests they aren’t truthful or are mistaken in their belief.

The case is expected to be decided by summer and the outcome has the potential to affect all immigrants seeking to avoid being returned to their home country out of fear of their safety.

Tough Questions

Justices on both sides of the ideological divide were particularly tough on the Justice Department at argument. The agency is challenging a lower court decision finding the government had to assume a Chinese national was truthful about his fears of returning home because immigration authorities hadn’t determined that his claim wasn’t credible.

Ming Dai has said that he was beaten and arrested in 2009 for trying to stop Chinese authorities from aborting his second child under the country’s now- defunct one-child policy. As such, he was entitled to asylum, the U.S. Court of Appeals for the Ninth Circuit said.

But Justice Department attorney Colleen Sinzdak said at argument that even if someone is credible, that doesn’t mean they are correct.

“My six-year-old son might be credible when he tells me he didn’t eat the cookies, but I may not ultimately find that persuasive if I find crumbs all over his room,” Sinzdak said.

Credibility isn’t the end of the inquiry for courts, Sinzdak said, adding they must instead consider whether the agency decision was supported by other evidence.

Several justices balked at Sinzdak’s distinction between credibility and truthfulness.

Samuel Alito said he found the distinction “extraordinarily baffling.” And Elena Kagan wondered what other evidence there could be for the earlier decision if Dai was telling the truth.

The question “is all about whether he got beat up because of his opposition to the so-called family planning policies of China and, if he did get beat up for that reason,” then he’s entitled to relief, Kagan said.

Kagan asked incredulously are “you saying that the Board said that he was mistaken as to whether he got beat up?”

Guessing a Sign

Hogan Lovells partner Neal Katyal said the fact that the justices were guessing at the reasoning supporting the earlier rulings goes to the heart of the problem. There"are no magic words,” but immigration officials must at least explain why they came to that decision, he said.

Katyal, who represents another immigrant seeking to avoid deportation, said the Board of Immigration Appeals’ decision “lays out the facts on both sides, but it never applies them to explain how it resolved this case.” He likened the ruling to a “bad law school exam.”

The result is that an appellate court is left to guess why immigration officials came out the way they did, he said.

Acknowledging that it wouldn’t be that difficult for authorities to give a more complete explanation, several justices wondered if that was really necessary.

Justice Neil Gorsuch said the reason for the lower court ruling was clear—the immigration judges didn’t believe the immigrants for one reason or another.

“I’m struggling to identify any other ground on which (immigration officials) could possibly have acted other than” they didn’t believe the immigrants, Gorsuch said.

So “what more do you need?” Justice Clarence Thomas asked.

The credibility dispute is one of several immigration cases on the court’s calendar this term. Some involve politically charged controversies like funding for former President Donald Trump’s border wall. Others, like the one argued Tuesday, are centered on less headline-grabbing issues but are consequential nonetheless.

The Biden administration has recently changed positions in the border wall case and Trump’s “remain in Mexico” policy. But the new administration has continued to press the Trump administration’s position in the credibility case—a result that’s likely to occur in immigration and criminal cases where the institutional concerns are the same across administrations.

Dai was represented by Goodwin’s David Zimmer.

The case is Wilkinson v. Dai, U.S., No. 19-1155, argued 2/23/21.

(Updates with quotes from the argument.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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