Morshed Alam v. Merrick Garland, 11 F.4th 1133

Background

Petitioner Morshed Alam, a Bangladeshi national, applied for asylum and withholding of removal based on persecution tied to his father’s opposition-party membership.
The immigration judge (IJ) made an explicit adverse credibility finding and listed seven reasons supporting it; the IJ also said that absent the finding Alam would qualify for asylum.
The Board of Immigration Appeals (BIA) adopted and affirmed the IJ’s decision.
A three-judge Ninth Circuit panel affirmed in a non‑precedential decision relying on a single one of the IJ’s seven grounds (applying the Circuit’s “single factor rule”); a dissent criticized that rule.
On en banc rehearing the court considered whether the Ninth Circuit’s single factor rule conflicts with the REAL ID Act’s mandate to assess credibility based on the “totality of the circumstances and all relevant factors.”
The en banc court held the single factor rule conflicts with the REAL ID Act, overruled Ninth Circuit precedent to that effect, and remanded for reconsideration under the totality standard.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Ninth Circuit’s “single factor rule” (sustain an adverse credibility finding if any one cited ground is supported by substantial evidence) remains valid after the REAL ID Act	Wang-based single-factor approach is improper but Alam did not challenge the rule below; argued IJ’s credibility finding lacked substantial evidence overall	Government defended affirmance by showing at least one of the IJ’s grounds was supported, invoking the single factor rule	The en banc court held the single factor rule conflicts with the REAL ID Act, overruled it, and remanded for review under the totality-of-the-circumstances standard
Proper standard for reviewing agency credibility findings post-REAL ID Act	Credibility must be assessed based on all relevant factors and totality; one corroborating ground cannot automatically sustain adverse finding	Same statutory text conceded; relied on prior single-factor authority in the panel stage	Court held review must consider the totality of the circumstances and all relevant factors per 8 U.S.C. § 1158(b)(1)(B)(iii)
Whether the IJ’s adverse credibility determination in this case was supported by substantial evidence	Argued the aggregate record did not justify an adverse credibility ruling and the single supported ground was insufficient	Argued at least one of the IJ’s identified grounds was supported and so the finding should be sustained	Court did not decide on the merits of the credibility finding; remanded the case to the panel to reassess under the totality standard
Broader question: whether other Ninth Circuit judge‑made rules should be revisited (raised in concurrence)	Alam’s brief did not press these, but concurrence urged reconsideration of other non‑statutory doctrines (e.g., exceptions to exhaustion; categorical treatment of lies; Mamigonian & the jurisdiction-stripping interpretation; less-than-six-month presumption)	Government defended established precedents	Concurrence recommended en banc reconsideration of several judge‑made rules in light of Supreme Court decisions (Palomar‑Santiago, Ming Dai); the court did not rule on those here but signaled they may warrant review

Key Cases Cited

Wang v. INS, 352 F.3d 1250 (9th Cir. 2003) (origin of Ninth Circuit’s single factor rule)
Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (recognizing REAL ID Act changed the “heart of the claim” requirement)
Akinmade v. INS, 196 F.3d 951 (9th Cir. 1999) (narrow exception where an asylum‑seeker’s lie may be excused when used to enter to escape persecution)
Singh v. Holder, 643 F.3d 1178 (9th Cir. 2011) (pre‑REAL ID rule treating deliberate deception as substantial evidence, discussed for reconsideration)
Mamigonian v. Biggs, 710 F.3d 936 (9th Cir. 2013) (interpreting §1252(a)(2)(B)(i) to permit review of nondiscretionary determinations)
United States v. Palomar‑Santiago, 141 S. Ct. 1615 (2021) (Supreme Court holding statutory requirements in §1326(d) are mandatory; prompted reexamination of certain Ninth Circuit exceptions)
Garland v. Ming Dai, 141 S. Ct. 1669 (2021) (Supreme Court decision highlighting limits on judge‑made embellishments of the INA)
Chen v. INS, 266 F.3d 1094 (9th Cir. 2001) (pre‑REAL ID case distinguishing trivial inconsistencies from those going to the heart of the claim)