2018—In his majority opinion in Dai v. Sessions, Ninth Circuit judge Stephen Reinhardt holds that the court is required to treat an asylum applicant’s testimony as credible in the absence of an explicit finding to the contrary by the immigration courts. Never mind, as Judge Stephen Trott points out in dissent, that the immigration judge “expose[d] the glaring factual deficiencies in Dai’s presentation” and “explain[ed] in specific detail and at length why Dai had not persuasively carried his burden of proving his case.” Over Trott’s objection, Reinhardt also holds that a 2005 federal law, the REAL ID Act, that affords an asylum applicant only a rebuttable presumption of credibility on appeal applies only to the Board of Immigration Appeals, not to petitions for review in the federal courts.
More than eighteen months later, in October 2019, ten judges will dissent from the Ninth Circuit’s failure to rehear the case en banc. Judge Consuelo Callahan condemns the panel’s “artful evasion of the REAL ID Act [as] nothing short of an outright arrogation of the agency’s statutory duty as trier of fact.” Judge Daniel P. Collins similarly laments that the panel’s “Simon says” rule means that “even where (as here) the record overwhelmingly confirms that the agency actually disbelieved critical portions of the applicant’s testimony, [the Ninth Circuit] will nonetheless conclusively treat that testimony as credible if the agency did not make an explicit adverse credibility determination.” Collins also explains that the “panel majority’s sharp distinction between a ‘petition for review’ and an ‘appeal’ is refuted by the very statutory provision on which the majority relies.”
2019—“I dissent!,” exclaims Sixth Circuit judge Bernice Donald in Fowler v. Benson. The panel majority rejects a challenge to a Michigan law that requires that a person’s driver’s license be suspended when that person has failed to pay fines. But Donald opines that enforcement of that law against indigent drivers “without regard to their ability to pay and without affording them reasonable payment alternatives” violates their due process rights.