A Chinese man’s wife was forced to have an abortion because she got pregnant with her second child in violation of her country’s one-child policy. A Central American man was denied legal refugee status after an Immigration Judge (IJ) relied solely on a probation report citing his ex-girlfriend’s 15-year-old account of domestic abuse. Both of their cases were the subject of arguments this week before the U.S. Supreme Court on the critical question of what criteria appellate courts must apply to determine the credibility of asylum seekers when their appeals for refugee status are denied.

Like the two respondents, those who come to the United States because of persecution in their home countries may apply for asylum once they are classified as legal refugees under the Immigration and Nationality Act (INA). An IJ is normally the trier-of-fact who makes this determination at an evidentiary hearing. This offered evidence must credibly demonstrate that the applicant’s persecution was due to race, religion, nationality, membership in a particular social group, or political opinion. If granted asylum, a person could be eligible to become a lawful permanent resident and can petition for citizenship after the number of years determined by Congress.

But what will determine the applicant’s credibility? As Congress begins to rule on immigration reform, the Supreme Court’s February 23 hearing on these two cases could redefine the criteria for classification as a legal refugee. The issue before the court is “whether a Court of Appeals may conclusively presume that an asylum applicant’s testimony is credible and true whenever an IJ or the Board of Immigration Appeals adjudicates an application without making an explicit adverse credibility determination.”

A key consideration is the difficulty of providing evidence that is often unavailable since witnesses and documentation remain in the applicants’ home countries. Therefore, IJs sometimes make rulings without explicitly determining adverse credibility.

The respondent in the first case granted certiorari is Ming Dai. He and his family fled from China and applied for asylum because they suffered persecution when they resisted a “coercive population control program.” When his wife’s pregnancy was discovered, it was terminated and he was sent to a detention center where he was starved and severely beaten for 10 days.

His wife and child came with him to the U.S., then returned to China. He failed to disclose their return to his asylum officer, and thus his legal refugee status was denied. Coleen R. Sinzkak, the attorney representing the Department of Justice, argued this omission was persuasive evidence of adverse credibility. Dai said he did not disclose this because he was afraid that information would negatively affect his case. The IJ’s denial did not include an adverse credibility finding.

The 9^th Circuit heard his case, and a divided court granted his petition for review, finding Dai’s testimony credible due to the lack of an express adverse credibility finding by the immigration court. Chief Justice Roberts asked Sinzkak whether the Bureau of Immigration Appeals, the court that normally hears the first denial appeal, has the right to apply a rebuttable presumption of credibility. If so, Roberts said, the issue can be resolved, even with the lack of an explicit finding of adverse credulity. Sinzkak said credibility did not need to be addressed if the issue was supported by substantial evidence.

The second respondent, Cesar Alcaraz-Enrique, had been convicted of domestic assault 15 years prior to his asylum application. This would be classified as a “particularly serious crime,” and would thus deny him legal refugee status. His account of the incident differed from the one in his probation report that only cited the testimony of his girlfriend. Nonetheless, the IJ accepted the probation count’s facts, but he did not make an explicit negative ruling about his credibility. The 9^th Circuit ruled that the Board of Immigration Appeals erred in accepting the probation report’s account without also making an adverse credibility finding.

Sinzkak argued that credibility was not an issue in this case because there were a number of pieces of evidence that “demonstrated that he had committed a particularly serious crime and those should have been determinative.” Justice Thomas asked her to outline the “non-credibility related evidence” that should have been adequate for findings of adverse credibility in both cases.

Several Justices, including Breyer and Kagan, expressed concern about the difficulty of distinguishing between credibility and persuasiveness and worried about how the distinction could cause confusion in many agencies in the future. Justice Breyer sought to simplify the issue by stating, “Presume that he is telling the truth, but the presumption is rebuttable, so if nobody says anything, you look at it and you simply say, assuming it was rebutted, we assume that the judge found it was rebutted, and is there substantial evidence? Period.” Justice Kagan also found that the determination could easily be made. “He (Dai) told a story. It’s an honest, true story, or it’s not,” she said.

Justice Barret posed the question this way. “So, I want to ask you what’s wrong with seeing it this way: that the IJ makes a determination about credibility, and that has to be express, and then it gets up to the Board, there are two ways in which the Board might have to confront this presumption. Either the IJ actually found the alien incredible and the Board disagrees, in which case it has to confront the presumption and explain why it thinks the evidence rebuts that presumption of credibility, or the IJ might have not done a good enough job in making an adverse credibility determination explicit, as the statute requires and then, still, the Board has to presume credibility and they explain why it thinks the presumption is rebutted.” Sinzkak argued that the statute does not say to presume that the alien is telling the truth.

Another sticking point raised by Justice Sotomayor and others was concern about why the case was not simply remanded for clarification of the reasoning behind the lack of explicit adverse credibility findings.

In 2005, Congress passed the REAL ID Act, which gave triers-of-fact, usually the IJ, the primary responsibility for determining the credibility of asylum seekers. The IJ has to make a determination based on “the totality of circumstances, and all relevant factors,” which could include candor, responsiveness, demeanor, consistency and other factors. Critically, the law states that there is no presumption of credibility in cases that lack explicit determinations of adverse credibility. This gives the applicant a rebuttable presumption of credibility during an appeal.

Neal Katyal argued on behalf of respondent Alcaraz-Enrique. He said the Court was left with a “purely fact-bound issue” of whether, once the presumption is applied, the Board had substantial evidence that a particularly serious crime was committed. He said previous cases noted “the pathway must be clearly discerned” and this standard was not met merely by a probation report that directly contradicted the respondent’s testimony.

The government disagrees, arguing that the 9^th Circuit opinion violates the “substantial evidence” rule and believes federal courts should have the final review. The 9^th Circuit opinion was written by Judge Stephen Reinhardt and is believed to be the last one he wrote before his death in March 2018.

Amicus briefs were filed by the American Immigration Lawyers Association and the National Immigrant Justice Center, by 35 former IJs and members of the Board of Immigration Appeals, and by 10 refugee advocacy organizations. All argue the IJs, as the original triers-of-fact, not appellate courts, should be responsible for assessing credibility.