Fourth Circuit Must Grant Rehearing in <i>Arevalo-Quintero</i>

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Last week I highlighted a Fourth Circuit panel’s adventuresome frolic in Arevalo-Quintero v. Garland, in which it extrapolated from a simple statutory provision (an immigration judge “shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses”) an elaborate duty on the part of immigration judges to “fully develop the record” in all sorts of ways. The immigration judge in that case had found Arevalo-Quintero’s testimony that he had left the gang MS-13 to be not credible. But the panel blew past that massive defect in Arevalo-Quintero’s claim on the ground that circuit precedent required it instead to “assume that [Arevalo-Quintero] testified credibly” because the Board of Immigration Appeals did not “expressly affirm” the immigration judge’s credibility ruling.

Yesterday’s unanimous Supreme Court ruling in Garland v. Dai (which I discussed here) rejects the rule of circuit precedent on which the Fourth Circuit panel relied. In those instances in which the immigration judge has not made an explicit adverse credibility determination, federal immigration law affords the alien a rebuttable presumptions of credibility on his appeal to the BIA. But, the Court explains, federal immigration law does not contain a “requirement of explicitness when it comes to rebutting the presumption on appeal” to the BIA, and the BIA is not required to “follow a particular formula or incant ‘magic words’ like ‘incredible’ or ‘rebutted’ to overcome” that presumption:

To the contrary, a reviewing court must “uphold” even “a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” So long as the BIA’s reasons for rejecting an alien’s credibility are reasonably discernible, the agency must be understood as having rebutted the presumption of credibility. It need not use any particular words to do so. And, once more, a reviewing court must uphold that decision unless a reasonable adjudicator would have been compelled to reach a different conclusion. [Citations omitted.]

The Court faults the Ninth Circuit in Dai for failing to “consider the possibility that the BIA implicitly found the presumption of credibility rebutted.”

Likewise in Arevalo-Quintero, the Fourth Circuit failed to consider the possibility that the BIA implicitly affirmed the immigration judge’s adverse credibility ruling. The panel should therefore grant rehearing in the case to address that threshold question. (I haven’t located the BIA’s unpublished decision, and the panel decision does not meaningfully discuss it, so I offer no view on how that question should be resolved.)

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