GARLAND, ATTORNEY GENERAL v. MING DAI

Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 19–1155. Argued February 23, 2021—Decided June 1, 2021 1

In each of these cases, a foreign national appeared before an immigration judge (IJ) and requested that he not be returned to his country of origin. For Cesar Alcaraz-Enriquez, the IJ first had to determine whether Mr. Alcaraz-Enriquez had committed a disqualifying “particularly serious crime” based on his prior California conviction for “inflicting corporal injury on a spouse or cohabitant.” See 8 U. S. C. §1231(b)(3)(B)(ii). The IJ considered both the probation report issued at the time of the conviction (which detailed a serious domestic violence incident) and Mr. Alcaraz-Enriquez’s own testimony at the removal proceeding (which included an admission that he hit his girlfriend but allegedly did so in defense of his daughter). Relying in part on the version of events in the probation report, the IJ held Mr. Alcaraz-Enriquez ineligible for relief. On appeal, the Bureau of Immigration Appeals (BIA) affirmed. In Ming Dai’s case, he testified that he and his family had suffered past persecution by Chinese officials and expected future persecution upon return. But Mr. Dai initially failed to disclose that his wife and daughter had both returned voluntarily to China since accompanying him to the United States. When confronted, Mr. Dai told the “real story” of why he remained in the United States. The IJ found that Mr. Dai’s testimony undermined his claims and denied relief. On appeal, the BIA affirmed. Mr. Alcaraz-Enriquez and Mr. Dai each sought judicial review, and in each case, the Ninth Circuit noted that neither the IJ nor the BIA made an explicit “adverse credibility determination” under the Immigration Nationality Act (INA). §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). Applying its own judge-made rule that a reviewing court must treat the noncitizen’s testimony as credible and true absent an explicit adverse credibility determination, the Ninth Circuit granted relief.

Held: The Ninth Circuit’s deemed-true-or-credible rule cannot be reconciled with the INA’s terms. Pp. 6–15.

 (a) The Ninth Circuit’s rule has no proper place in a reviewing court’s analysis. The INA provides that a reviewing court must accept “administrative findings” as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” §1252(b)(4)(B). And a reviewing court is “generally not free to impose” additional judge-made procedural requirements on agencies. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 524.

 Judicial proceedings in cases like these do not constitute “appeals” in which the “rebuttable presumption of credibility on appeal” applies absent an explicit credibility determination. §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). Here, there is only one appeal—from the IJ to the BIA. See §§1158(d)(5)(iii)–(iv). Subsequent judicial review takes place not by appeal, but by means of a “petition for review,” which the INA describes as “the sole and exclusive means for judicial review of an order of removal.” §1252(a)(5). A presumption of credibility may arise in some appeals before the BIA, but no such presumption applies in antecedent proceedings before an IJ or in subsequent collateral review before a federal court. This makes sense because reviewing courts do not make credibility determinations, but instead ask only whether any reasonable adjudicator could have found as the agency did. The Ninth Circuit’s rule gets the standard backwards by giving conclusive weight to any testimony that cuts against the agency’s finding. Pp. 6–9.

 (b) Mr. Alcaraz-Enriquez and Mr. Dai offer an alternative theory for affirming the Ninth Circuit. Because, they say, they were entitled to a presumption of credibility in their BIA appeals, they are entitled to relief in court because no reasonable adjudicator obliged to presume their credibility could have found against them. Even assuming that there was no explicit adverse credibility determination here, the Ninth Circuit’s reasoning is flawed for at least two reasons. Pp. 10–15.

  (1) The presumption of credibility on appeal under the INA is “rebuttable.” And the INA contains no parallel requirement of explicitness when it comes to rebutting the presumption on appeal. Reviewing courts, bound by traditional administrative law principles, must “uphold” even “a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286. In neither case did the Ninth Circuit consider the possibility that the BIA implicitly found the presumption of credibility rebutted. The BIA expressly adopted the IJ’s decision in Mr. Alcaraz-Enriquez’s case, which, in turn, noted that Mr. Alcaraz-Enriquez’s story changed from the time of the probation report to the time of the hearing—a factor the statute specifically identifies as relevant to credibility, see §§1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). And in Mr. Dai’s case, the BIA also adopted the IJ’s decision, which discussed specific problems with Mr. Dai’s demeanor, candor, and internal inconsistency—an analysis that certainly goes to the presumption of credibility even if the agency didn’t use particular words. See ibid. In each case, the Ninth Circuit should consider whether the BIA in fact found the presumption of credibility overcome. If so, it seems unlikely that the conclusion in either case is one no reasonable adjudicator could have reached. Pp. 10–13.

  (2) The presumption of credibility applies with respect to credibility but the INA expressly requires the noncitizen to satisfy the trier of fact on credibility, persuasiveness, and the burden of proof. §§1158(b)(1)(B)(ii), 1231(b)(3)(C), 1229a(a)(4)(B). Even if the BIA treats a noncitizen’s testimony as credible, the agency need not find such evidence persuasive or sufficient to meet the burden of proof. Here, the Ninth Circuit erred by treating credibility as dispositive of both persuasiveness and legal sufficiency. Pp 13–15.

884 F. 3d 858 and 727 Fed. Appx. 260, vacated and remanded.

 Gorsuch, J., delivered the opinion for a unanimous Court.

Notes
1 Together with No. 19–1156, Garland v. Alcaraz-Enriquez, also on certiorari to the same court.


UNITED STATES v. COOLEY

Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 19–1414. Argued March 23, 2021—Decided June 1, 2021

Late one night Officer James Saylor of the Crow Police Department approached a truck parked on United States Highway 212, a public right-of-way within the Crow Reservation in the State of Montana. Saylor spoke to the driver, Joshua James Cooley, and observed that Cooley appeared to be non-native and had watery, bloodshot eyes. Saylor also noticed two semiautomatic rifles lying on Cooley’s front seat. Fearing violence, Saylor ordered Cooley out of the truck and conducted a patdown search. Saylor also saw in the truck a glass pipe and a plastic bag that contained methamphetamine. Additional officers, including an officer with the federal Bureau of Indian Affairs, arrived on the scene in response to Saylor’s call for assistance. Saylor was directed to seize all contraband in plain view, leading Saylor to discover more methamphetamine. Saylor took Cooley to the Crow Police Department where federal and local officers further questioned Cooley. Subsequently, a federal grand jury indicted Cooley on drug and gun offenses. The District Court granted Cooley’s motion to suppress the drug evidence. The Ninth Circuit affirmed. It reasoned that a tribal police officer could stop (and hold for a reasonable time) a non-Indian suspect if the officer first tries to determine whether the suspect is non-Indian and, in the course of doing so, finds an apparent violation of state or federal law. The Ninth Circuit concluded that Saylor had failed to make that initial determination here.

Held: A tribal police officer has authority to detain temporarily and to search non-Indian persons traveling on public rights-of-way running through a reservation for potential violations of state or federal law. Pp. 3–9.

  (a) As a “general proposition,” the “inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Montana v. United States, 450 U. S. 544, 565. The Court identified in Montana two exceptions to that general rule, the second of which fits almost like a glove here: A tribe retains inherent authority over the conduct of non-Indians on the reservation “when that conduct threatens or has some direct effect on . . . the health or welfare of the tribe.” Id., at 566. The conclusion that Saylor’s actions here fall within Montana’s second exception is consistent with the Court’s prior Montana cases. See Strate v. A–1 Contractors, 520 U. S. 438, 456 n. 11; see also Atkinson Trading Co. v. Shirley, 532 U. S. 645, 651. Similarly, the Court has held that when the “jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.” Duro v. Reina, 495 U. S. 676, 697. Ancillary to the authority to transport a non-Indian suspect is the authority to search that individual prior to transport, as several state courts and other federal courts have held. While that authority has sometimes been traced to a tribe’s right to exclude non-Indians, tribes “have inherent sovereignty independent of th[e] authority arising from their power to exclude,” Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 425 (plurality opinion), and here Montana’s second exception recognizes that inherent authority. In addition, recognizing a tribal officer’s authority to investigate potential violations of state or federal laws that apply to non-Indians whether outside a reservation or on a public right-of-way within the reservation protects public safety without implicating the concerns about applying tribal laws to non-Indians noted in the Court’s prior cases. Finally, the Court doubts the workability of the Ninth Circuit’s standards, which would require tribal officers first to determine whether a suspect is non-Indian and, if so, to temporarily detain a non-Indian only for “apparent” legal violations. 919 F. 3d 1135, 1142. The first requirement produces an incentive to lie. The second requirement introduces a new standard into search and seizure law and creates a problem of interpretation that will arise frequently given the prevalence of non-Indians in Indian reservations. Pp. 3–7.

  (b) Cooley’s arguments against recognition of inherent tribal sovereignty here are unpersuasive. While the Court agrees the Montana exceptions should not be interpreted so as to “ ‘swallow the rule,’ ” Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 330, this case does not raise that concern due to the close fit between Montana’s second exception and the facts here. In addition, the Court sees nothing in existing federal cross-deputization statutes that suggests Congress has sought to deny tribes the authority at issue. To the contrary, existing legislation and executive action appear to operate on the assumption that tribes have retained this authority. Pp. 8–9.

919 F. 3d 1135, vacated and remanded.

 Breyer, J., delivered the opinion for a unanimous Court. Alito, J., filed a concurring opinion.