WASHINGTON – The Supreme Court wrestled Monday with how much power federal appeals courts should have to review asylum denials, pressing both sides on whether findings of persecution are legal matters that federal courts can independently (de novo) review or factual matters they must defer to immigration officials.
Under the Immigration and Nationality Act, asylum seekers whose claims have been denied by an immigration judge in the Executive Office for Immigration Review can appeal to the agency’s Board of Immigration Appeals (BIA). Following a denial by the BIA, an asylum applicant can bring their case to a federal court of appeals. The case in front of SCOTUS, Urias-Orellana v. Bondi, considers how much federal appeals courts can review in claims of persecution.
Federal appellate courts are required to defer to the facts found by the BIA, meaning they can review constitutional claims and questions of law but cannot reassess the facts of what happened. However, circuit courts disagree over whether a finding of persecution is considered a fact, significantly altering their roles in asylum proceedings.
Courts that view persecution as a matter of law review what the BIA determined occurred, but can reassess whether those facts meet the legal standard of “persecution.” Courts that view a finding of persecution as a fact, however, provide less judicial oversight of the executive agency’s determination and therefore provide fewer opportunities for individuals denied asylum to overturn their case.
Douglas Humberto Urias-Orellana and his family — who faced threats from a hitman in El Salvador — appealed their asylum denial to the Court of Appeals for the First Circuit. Nicholas Rosellini, who represented the family, argued to the Supreme Court that the appellate court claimed it reviews determinations de novo but defaulted to deference in practice. He argues these inconsistent approaches, even within individual circuit courts, demonstrate why the Supreme Court needs to step in.
“The government asked you to grant cert in this case because they agreed with us that the courts were so confused about the appropriate standard of review as to this narrow subcomponent of the asylum-eligibility determination,” Rosellini said.
The government argued that applying the persecution standard is a matter of judgment, not law. Assistant to the Solicitor General Joshua Dos Santos argued that immigration judges bring expertise to that task because they see thousands of similar cases and recurring fact patterns that appellate courts do not. He said that allowing de novo review would drag courts into reweighing evidence, which they are not suited to do.
Rosellini disagreed with the premise that a ruling in his client’s favor would dramatically change the practice of federal courts.
“Courts are already doing the kind of inquiry we’re suggesting here,” he said.
He added that when federal courts review these cases, they build a body of precedent that they can use for future cases, whereas immigration judges have to rule case-by-case.
Several justices expressed doubts about the petitioner’s approach. Justice Elena Kagan asked how courts could decide whether threats were serious enough to constitute persecution without reweighing evidence.
Justice Brett Kavanaugh pressed the government, noting that the BIA reviews these questions de novo. He asked Dos Santos why something the agency itself treats “as a question of law transforms into a question of fact” once the case reaches a federal court.
Some of the justices focused on the practical consequences of asking appellate courts to revisit immigration judges’ fact-finding, while others questioned how either approach aligns with the Court’s past treatment of mixed questions of law and fact. This particular case is considered “mixed” because both sides agree that the standard of persecution is legal, while they disagree over what the application of that standard is.
Justice Neil Gorsuch asked Dos Santos how the government’s concession that the standard of persecution is determined by the courts squares with treating the application of that standard as purely factual.
“I think this is very similar to what courts of appeals do in all kinds of contexts,” Dos Santos said.
