On June 1, the U.S. Supreme Court unanimously ruled to overturn a Ninth Circuit credibility test which benefited asylum seekers seeking judicial review of their denied asylum claims. The credibility test required that an asylum seeker’s testimony be treated as truthful by the reviewing court, as long as the BIA or immigration judge did not make an explicit adverse credibility determination when denying the claim at the earlier stage.

In its decision, the U.S. Supreme Court found that this rule was improper, as it imposed additional procedural requirements on the immigration agencies which were not prescribed by Congress. The Immigration and Nationality Act (INA) requires that reviewing courts accept reasonable findings from the Board of Immigration Appeals (BIA). However, under the Ninth Circuit “credibility test” rule, the BIA would need to make an explicit adverse credibility determination, or the reviewing court would not be required to accept their findings. In the U.S. Supreme Court’s decision, Justice Gorsuch found that imposing these additional judge-made procedural requirements on the BIA was inconsistent with both the INA and Congress’ intent.

In making its decision, the U.S. Supreme Court considered two asylum claims which were denied based on adverse information in the record, although neither the immigration judge or BIA in those cases made an explicit “adverse credibility determination” under the INA. In one of the cases, the asylum seeker failed to disclose that his wife and child had traveled to the U.S. with him before voluntarily returning to their home country to work and attend school. Since part of the asylum seeker’s claim was that he wanted asylum to bring his family to the U.S. to avoid persecution, the immigration judge found this omission to affect the overall credibility of his claim. In the second case, an asylum seeker was denied asylum by the BIA after his probation report revealed inconsistent information from his testimony during removal proceedings.

During the earlier proceedings, the Ninth Circuit applied its own judge-made rule and decided the asylum seekers’ testimonies must be treated as credible in the absence of an explicit adverse credibility determination, despite the inconsistencies and omissions in the record. On this basis, at the U.S. Supreme Court, both asylum seekers argued that their testimonies must be considered credible, even if an immigration judge or the BIA had found otherwise. The Court, however, disagreed and found that the BIA’s decision-making must ultimately be given deference under the INA, as long as it is reasonable. Justice Gorsuch concluded that as long as the BIA’s findings for denying an asylum seeker’s credible fear claim is “reasonably discernable,” the BIA does not need to explicitly outline why the testimony is not credible. In other words, even without an explicit adverse credibility determination in the record, a reviewing court must uphold a reasonable decision from the BIA.

This decision has some impact on asylum seekers, as it means a judicial review of a denied claim could be more complicated than under the Ninth Circuit rule, which offered some amount of leniency. ILBSG reminds its clients that the asylum process is very complex and best navigated with a skilled attorney, to ensure a positive outcome. If you have any asylum-related questions or believe this decision may affect your own case, please reach out to an ILBSG attorney today. We are here to help.

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