[Editor's note: This story originally was published by Real Clear Policy.]
By John Hirschauer
Real Clear Policy
The Supreme Court has delivered two unanimous rulings in June that could impact the Biden administration’s handling of the ongoing migrant surge. Immigration advocates say Garland v. Ming Dai and Sanchez v. Mayorkas, while narrow in scope, will shape the way courts process asylum claims and other attempts by foreign nationals to secure legal status.
In Dai, the Court considered the cases of two men who were found ineligible to remain in the United States by an immigration judge. Both men appealed the rulings to the Board of Immigration Appeals (BIA), an administrative appellate body in the Department of Justice, and were denied.
One of the men, Ming Dai, is a Chinese national who came to the United States on a tourist visa. He filed for asylum after arriving and asked officials to “grant me asylum so that I can bring my wife and daughter to safety in the USA.” After immigration officials discovered that Dai’s wife and daughter had already come to the United States and voluntarily returned to China, they confronted Dai with the information. He “hesitated for some length,” according to an immigration judge, and proceeded to tell what he described as the “real story” — that he wished to remain in the United States because he did not have a job in China. An immigration judge denied Dai’s asylum claim and the BIA upheld the judge’s ruling upon appeal.
Dai sought judicial review of the BIA decision. The Ninth Circuit reviewed the ruling and held that since neither the BIA nor the original immigration judge made an explicit “adverse credibility ruling,” Dai should be granted relief pursuant to a judge-made rule that a noncitizen’s testimony is presumed credible and true absent an immigration judge’s explicit finding to the contrary.
Experts say the Ninth Circuit’s judge-made rule was a misapplication of the Immigration and Nationality Act (INA), which dictates how courts adjudicate asylum claims.
“Circuit courts are bound by the factual determinations of the immigration judge and the Board of Immigration Appeals unless no reasonable adjudicator could find that way,” Andrew R. Arthur, a former immigration judge and current fellow at the Center for Immigration Studies, told RealClearPolitics.
The Supreme Court agreed with Arthur’s analysis. Writing for the Court, Justice Neil Gorsuch described how the Ninth Circuit’s rule distorted the INA statute.
“Nothing in the INA contemplates anything like the embellishment the Ninth Circuit has adopted. And it is long since settled that a reviewing court is ‘generally not free to impose’ additional judge-made procedural requirements on agencies that Congress has not prescribed and the Constitution does not compel,” Gorsuch wrote.
Citing a Ninth Circuit dissent, Gorsuch described how the judge-made rule led the Ninth Circuit to reject the “real story” that Dai revealed to investigators to preserve the court’s presumption of an applicant’s credibility.
“[T]he Ninth Circuit’s rule leads to ‘the extraordinary position’ that a court ‘must take as true an asylum applicant’s testimony that supports a claim for asylum, even in the face of other testimony from the [same] applicant that would undermine an asylum claim,” he wrote.
Muzaffar Chisti, an attorney and a senior fellow at the Migration Policy Institute, told RealClearPolitics the Court’s decision in Dai will affect “a large number of people” but is ultimately a technical and therefore narrow ruling.
“The Court here said that, look, [the Ninth Circuit’s review of an asylum claim] is not an appeal. This is a review. All the courts of appeals can do is review a decision of the underlying administrative body, which in this case is the IJ (immigration judge) and the BIA. The BIA and the IJ were looking at various pieces of evidence, not just the testimony of the applicant, and they reached a conclusion. Unless that conclusion was patently false, in the review process you cannot overrule that,” Chisti said.
Arthur suggested that Dai will have a significant impact on the asylum process given how many asylum-seekers apply under the jurisdiction of the Ninth Circuit, which had previously assumed that all asylum seekers were credible unless an immigration judge explicitly ruled otherwise.
“The problem in Ming Dai and other Ninth Circuit cases was that [immigration] judges don’t [always] make explicit credibility determinations. I was an immigration judge for about eight years. I always made a credibility determination one way or the other — and an explicit one, on the record, because I understood the problem,” he said. “But some judges . . . don’t want to have to tell [an asylum applicant] that [they think he is] not telling the truth, particularly if [he has] told you a harrowing story of the sort that would qualify [him] for asylum.”
While the Dai case will change the asylum process in the nation’s largest circuit court, the Supreme Court’s June 7 ruling in Sanchez will likely have a more limited impact.
In Sanchez, the Court considered whether José Santos Sanchez, a citizen of El Salvador who received Temporary Protected Status (TPS) after illegally entering the United States in 1997, is eligible for an adjustment of status under federal immigration law. The statute, 8 USC 1255, allows aliens who were “admitted or paroled into the United States” to become a permanent resident subject to certain conditions. Sanchez’s attorneys argued that while he entered the country illegally, his TPS designation qualified as “admission” to the United States and therefore rendered him eligible for a change of status under §1255. Similar cases have been decided in circuit courts around the country with different results, prompting the Supreme Court’s intervention.
In a unanimous decision authored by Justice Elena Kagan, the Court held that a foreign national who receives TPS after entering the United States illegally has not been “admitted” into the country as required by §1255 and is therefore ineligible for a change in status as specified.
“Lawful status and admission, as the court below recognized, are distinct concepts in immigration law: Establishing one does not necessarily establish the other,” Kagan wrote.
Muzaffar Chisti told RealClearPolitics that while the ruling is defensible as a legal matter, it signals that Congress needs to clarify the law to better protect immigrants.
“Non-lawyers will find it odd to comprehend that someone who is supposed to be here has lawful status, but his admission was considered illegal,” he said. “Under the statute, it is a completely valid interpretation. But whether that consequence should flow in a [society concerned about the] just treatment of immigrants is something that Congress should look at.”
John Hirschauer is a staff writer for RealClearFoundation.
[Editor's note: This story originally was published by Real Clear Policy.]
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