Legal Docket - Questionable testimony

MARY REICHARD, HOST: It’s Monday, March 22nd, 2021. Welcome back to another week of The World and Everything in It! Good morning to you. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Today, the U.S. Supreme Court resumes oral arguments after the justices took a short break.

The plan is to finish up all arguments by the end of next month, April. 

Now, if you’ve been listening each week since October—and stick with it—you’ll hear something about each oral argument the justices hear this term. 

That’s our money-back guarantee. We cover them all.

REICHARD: Today, two oral arguments. 

The underlying claims are quite harrowing in the first one, which is a consolidated case. 

One man from Mexico and the other from China seek asylum in the United States. Each claims fear of persecution if returned to their home countries.

The man from Mexico has been in the United States for most of his life since the age of 8. He suffers from schizophrenia and says his life will be miserable in Mexico. Much of his family is here in the United States.

The man from China fears involuntary sterilization if he returns. He told immigration judges that in 2009, five Chinese officials entered his home and forced his wife to have an abortion. That was when China still had in place its one-child policy. The man tried to stop them from killing his child, and when he did, officers beat him, detained him, and deprived him of food and water for days.

EICHER: So those are the claims on the record. 

Now, to show eligibility for asylum, the law places the burden of proof on the alien.

A word about that term—alien. It is a legal term and it refers to any individual who does not have U.S. citizenship and is not a U.S. national. The two men are aliens in the eyes of the courts.

Immigration judges were not convinced by the testimony of the aliens based upon conflicting evidence they gave. The court denied asylum for both men.

The Board of Immigration Appeals agreed with that denial. 

But the U.S. Court of Appeals for the 9th Circuit overturned those denials of asylum. The appeals court said the immigration judges failed to specify whether the men gave credible testimony.

REICHARD: So the government appealed to the Supreme Court. The government says the appeals court can’t just presume an alien’s testimony is credible after the immigration judges found him not credible. That, even if the immigration judges wrote nothing about the credibility of the men.

Assistant Solicitor General Colleen Sinzdak argued for the government that an appeals court should only review the evidence in front of it. You might believe a person’s sincerity, and yet find the evidence doesn’t align with what he says.

She had a tough time getting that idea across. 

Listen to this lengthy exchange with Justice Clarence Thomas. You can hear him chuckling in the background. 

Not usually a good sign for your case.

SINZDAK: I think we can all imagine scenarios where someone might be credible but not persuasive. A lawyer might be credible in his arguments but not persuasive. My six-year-old son might be credible when he tells me he didn’t eat the cookies, but I may not ultimately find that persuasive if I find crumbs all over his room. So I think there is a distinction between the terms …

THOMAS: Well, it would seem to me that if you saw the crumbs, it would undermine credibility.

SINZDAK: Well, I think that if you think of credible as just capable of being believed, I can imagine explanations for the crumbs. I can imagine perhaps that the crumbs are there because his sister was framing him,  but I don’t ultimately find his account persuasive. So maybe it’s capable of being believed, but it doesn’t have the power to persuade. 

THOMAS: Well, it would seem as though, if the crumbs were around his mouth, you would think that that wasn’t quite credible, so it seems that the existence of the crumbs could be both, go to credibility and to persuasiveness.

Sinzdak pointed to other evidence in the record that supports denial of asylum. Outside of credibility. 

Justice Thomas pressed for details. Dai is the Chinese man’s name.

SINZDAK: Even though Dai said that his wife had been persecuted along with him in China, there was evidence demonstrating that his wife had voluntarily returned to China just about two weeks after his family came. So that evidence that his wife voluntarily returned undermines the persuasiveness of his testimony about his family’s persecution. And when the asylum officer asked Dai for the real story behind his travel to the United States, he said to make a better life for his child and because he didn’t have a job. He did not reference the persecution.

But Dai’s lawyer argued when an immigration lawyer decides someone is not credible, that finding has to be made explicit.  It was not made explicit, so the benefit of the doubt belongs to his client. 

Here’s lawyer David Zimmer:

ZIMMER: Dai gave extremely detailed testimony about the abuse the Chinese government inflicted on him for his resistance to their forced abortion of his child. He testified that the police are looking for him in China. And he testified about the continuing threats he faces. There is simply nothing that undermines that, and the agency never found that that testimony was noncredible. And we therefore would urge this Court to affirm.

And lawyer for the man from Mexico argued that all the angst over distinctions in word meaning is pointless. He urged the court: Simply require immigration judges to explain themselves.

Lawyer Neil Katyal said the immigration judge’s opinion was like a bad law-school exam:

KATYAL: It lays out the facts on both sides, but it never applies them to explain how it resolved this case. And that would be bad in general, but particularly when there’s a presumption of credibility coming in. That’s where the agency fell down.

Katyal cited case precedent in support of his side. Other agencies don’t just ignore credibility and the Supreme Court wouldn’t accept it if they did. 

They have to give reasons.

Perhaps Justice Stephen Breyer got to the nub of what several justices were thinking, in this exchange with Sinzdak for the government.

BREYER: My point I don’t get right now is the distinction between credible and true. See, my wife told me her mother was dying in China and that’s why she went back, she said. 

Okay? That’s the testimony. And you say it’s credible. Now how could it not be true if it’s credible?

SINZDAK: Well, I think the—the easiest way to understand this for me is to think about a scenario where a credible witness says that the light was red and three credible witnesses say that the light was green. You may decide that, in fact, the light was green. That doesn’t mean the first witness didn’t credibly testify that the light was red.

I heard a podcast by Malcolm Gladwell about memory. That sometimes we let our minds fool us into believing things that are not true. He used the example of journalist Brian Williams who famously claimed that the military helicopter he’d been riding in for a reporting assignment had been shot down in Iraq in 2003.

It turned out he was not even on that helicopter, and Williams called his saying he was on it “a mistake.”

I don’t think the justices found the government either credible or persuasive on the distinctions between truth, credibility, persuasiveness.  

But Justice Samuel Alito did say outright that the 9th Circuit botched the legal analysis, so perhaps that’ll win the case for the government.

Any decision in this case will affect immigrants who don’t want to be sent back to their home countries. So clarity on what immigration officials must say when they decline asylum requests is sorely needed.

I’ll put a “nerd alert” on our final oral argument today. 

This one involves intellectual property and patents. But how it’s resolved may give us a clue about where the new conservative majority stands on how much power the administrative state ought to have. 

What I mean by administrative state is that layer of government that doesn’t change much from administration to administration. Over the last several decades, Congress has ceded lots of authority to it and a school of legal thought says Congress can’t legitimately do that under our constitutional system. 

Now about this case: the question presented asks whether one of these “alphabet soup” agencies is constitutional—the U.S. Patent Trial and Appeals Board, the P-TAB, as it’s called. Congress created the P-TAB in 2011 to speed up the process when someone sues you for patent infringement. Now, patent holders don’t care for this process because the P-TAB has the power to throw out their patents.

And that’s what happened in this case: the losing side of a patent dispute now argues the administrative-law judges on the P-TAB are illegitimate because they didn’t receive Senate confirmation. 

The Constitution says the president must appoint these judges with Senate confirmation because they are in a class of officers known as “principal officers.” That’s distinct from “inferior officers” who don’t need Senate confirmation.

Lots of back and forth over where to draw lines to see just who is a “principal officer.” 

Here’s a key exchange between Justice Alito and the lawyer for the company who wants to keep the P-TAB as it is. This lawyer is Mark Perry. 

Before we hear it, two initialisms to toss into the alphabet soup: APJs— these are administrative patent judges. APJs preside over IPRs, meaning inter-partes review. An IPR is what the P-TAB calls a trial.

Here we go.

ALITO: Your brief has a very interesting metaphor. You say that the test here is a Goldilocks test. Is it — is it too hot? … and you also in your brief tick off all the ways in which there is control over these APJs. 

So I’m going to go through your list and eliminate them one by one, and you tell me when to stop, when we get to the point where we’ve crossed the line and there’s no longer sufficient control. All right. 

So let’s say that the director does not control whether to institute IPRs in the first place.

Justice Alito goes through several aspects of actions a judge—that APJ might take during the course of an IPR—the trial:

ALITO: He does not decide whether to dismiss an entire APJ proceeding rather than allow a panel’s decision to become final. Where along that line did we cross the Rubicon?

PERRY: Your Honor, of course, the director has all those powers, and any one of them might be removed…

ALITO: But you can’t tell me where along that line is the magic divider?

PERRY: Your Honor, if you want a magic divider, I would suggest it is the—the relationship to the President. An officer three steps removed from the President is—is never or almost never going to be a principal officer because he is a subordinate.

The ruling in this case has the potential to be very big. Meaning, the justices could invalidate the entire P-TAB system.

Whatever they end up doing, it’ll give us a peek into what the majority conservative justices think about the administrative state and the appointments clause of the Constitution.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite, File) In this Nov. 2, 2020, file photo the Supreme Court is seen at sundown in Washington. 

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