Background - Ming Dai, a Chinese citizen, testified he was beaten, arrested, detained (10 days), deprived of food, water, sleep, and medical care after resisting family‑planning officers who forced his wife to have an abortion; he lost his job and his family suffered reprisals. - Dai arrived in the U.S. on a tourist visa in Jan 2012; his wife and daughter returned to China shortly after; Dai stayed and later applied for asylum, withholding, and CAT protection. - At the asylum officer interview Dai initially did not disclose that his wife and daughter accompanied him to the U.S.; he later explained he was nervous and feared how the explanation would be perceived. - The IJ denied relief, finding Dai failed to meet his burden (but did not make an explicit adverse credibility finding phrased in those words); the BIA affirmed, reasoning the family’s voluntary return and Dai’s lack of candor undercut his claim and holding that an explicit adverse credibility finding was not required. - The Ninth Circuit majority granted Dai’s petition: because neither the IJ nor the BIA made an explicit adverse credibility finding, the court treated Dai’s testimony as credible, found the testimony sufficiently specific and persuasive to establish past persecution on account of resistance to China’s coercive population‑control program, and remanded to grant withholding of removal and for the BIA to exercise discretion on asylum. - Judge Trott dissented, arguing the majority improperly disregarded detailed IJ and BIA factual findings, undervalued agency credibility determinations under the REAL ID Act, and misapplied standards of review. ### Issues | Issue | Plaintiff's Argument | Defendant's Argument | Held | |---|---:|---:|---:| | Whether agency made an adverse credibility finding | Dai: No explicit adverse credibility finding was made; thus his testimony must be treated as credible on review | Gov/BIA: Dai was not truthful about material facts; explicit wording not required to deny relief | Held for Dai: Because neither IJ nor BIA made an explicit adverse credibility determination, the court treated his testimony as credible | | Whether credible testimony met REAL ID Act’s three‑part test (credible, persuasive, specific) to establish asylum | Dai: Credible testimony showed past persecution (beatings, detention, deprivation, loss of job) and political‑opinion nexus (resistance to forced abortion) | BIA: Family’s voluntary return and Dai’s omissions made testimony unpersuasive | Held for Dai: Testimony deemed credible and sufficiently specific; persuasiveness not undermined by family’s return or ancillary omissions | | Whether family’s voluntary return to China defeats Dai’s claim | Dai: Wife’s return was for work/child’s schooling; different harms to Dai and wife mean returns don’t negate his fear | Gov/BIA: Wife’s voluntary return undermines fear and shows ability to remain safely in China | Held for Dai: Wife and daughter’s returns are not dispositive because harms and future risks to Dai differ; agency’s reliance on returns unsupported by substantial evidence | | Proper standard of review and application of REAL ID Act rebuttable‑presumption language | Dai: Rebuttable presumption provision applies to appeals to BIA; on petition for review Ninth Circuit precedent treats testimony as credible absent explicit adverse credibility finding | Gov/BIA/Dissent: REAL ID Act requires deference to IJ/BIA credibility findings and the rebuttable presumption applies; court should defer to agency factfinding | Held: Majority applies circuit precedent: absent explicit adverse credibility finding by IJ or BIA, court treats testimony as credible; dissent disagrees and criticizes the majority for overstepping review role | ### Key Cases Cited Zhiqiang Hu v. Holder, 652 F.3d 1011 (9th Cir. 2011) (post‑REAL ID panel decision treating testimony as credible where no explicit adverse credibility finding was made) Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) (testimony alone meets applicant’s burden if credible, persuasive, and specific) Loho v. Mukasey, 531 F.3d 1016 (9th Cir. 2008) (voluntary return to country can weigh against fear of future persecution) Guo v. Ashcroft, 361 F.3d 1194 (9th Cir. 2004) (physical abuse and detention may constitute persecution) Li v. Holder, 559 F.3d 1096 (9th Cir. 2009) (physical violence can qualify as persecution; economic motives do not necessarily negate asylum claim) Ndom v. Ashcroft, 384 F.3d 743 (9th Cir. 2004) (where government failed to present changed‑country‑conditions evidence, remand unnecessary and grant appropriate) Huang v. Holder, 744 F.3d 1149 (9th Cir. 2014) (post‑REAL ID emphasis on deference to IJ demeanor‑based credibility findings) Elias‑Zacarias v. INS, 502 U.S. 478 (U.S. 1992) (reviewing court may overturn agency only if evidence compels contrary conclusion) * INS v. Orlando Ventura, 537 U.S. 12 (U.S. 2002) (courts must respect agency’s primary role and not substitute their judgment for remandable agency determinations)