Can Criminal Aliens be Presumed Credible?  

IRLI asks Supreme Court to overturn Ninth Circuit rule  

WASHINGTON – Yesterday the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the U.S. Supreme Court in support of the government’s petition for review of a decision by the Ninth Circuit Court of Appeals. At issue is the Ninth Circuit’s rule that, when an alien petitions that court for review of an immigration court’s denial of immigration relief, the Ninth Circuit will conclusively presume that the alien’s testimony in his removal proceedings was credible and true, unless the court below had explicitly found that it was not. 

IRLI shows in its brief that this rule flatly conflicts with a federal statute that provides that no presumption of credibility shall be given to an alien’s testimony, except a rebuttable – not conclusive – presumption on appeal if no explicit finding that the alien’s testimony was not credible was made below. The Ninth Circuit had argued that it escaped this contradiction with the statute because a petition for review is not an “appeal.” IRLI shows that this technical dodge is unavailing; if a petition for review is not an appeal, then the Ninth Circuit’s conclusive presumption is not deployed on appeal, and is barred by the statute’s bar on any presumption of credibility, whether rebuttable or conclusive, except on appeal. 

IRLI also shows that the Ninth Circuit’s rule has disastrous real-world consequences. In another Ninth Circuit case, a thrice-deported criminal alien who had been convicted of severely beating his girlfriend was deemed a danger to the community of the United States by the immigration judge at his removal proceedings, and so denied withholding of removal, despite his claim that he would be abused by police in Mexico if he returned there. But because the immigration judge did not explicitly find that the criminal alien’s testimony, which included his testimony downplaying his conviction, was not credible, the Ninth Circuit conclusively presumed that his testimony was credible, and sent the case back down with instructions likely to result in the blocking of the criminal alien’s deportation. 

“The Ninth Circuit’s presumption of credibility is yet another example of how some courts have weakened immigration law by rigging it in favor of aliens, including criminal aliens,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Because Americans end up getting hurt by these judge-made rules, it is vital that we point out how they conflict with statutes passed by Congress, and get them struck down. We hope the Supreme Court reviews this presumption and does just that to it.” 

The case is Barr v. Ming Dai, No. 19-1155 (Supreme Court).