SCOTUS sets high bar for overturning 'persecution' ruling | Massachusetts Lawyers Weekly

Pat Murphy//March 8, 2026//

The courts of appeals must apply substantial-evidence review to the Board of Immigration Appeals’ determination whether a given set of undisputed facts constitutes “persecution” for purposes of a noncitizen’s application for asylum under the Immigration & Nationality Act, a unanimous U.S. Supreme Court has held.

Under the INA, the government “may grant asylum” to a noncitizen if it “determines” that he “is a refugee.” Pursuant to 8 U.S.C. §1101(a)(42), an asylum seeker qualifies as a “refugee” if he “is unable or unwilling to return” to his country of nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

In the case before the court, the Douglas Humberto Urias-Orellana, his wife Sayra IlianaGamez-Mejia, and their minor child entered the U.S. without authorization in 2021. The native El Salvadorans applied for asylum after being placed in removal proceedings. The petitioners based their claim of persecution on Urias-Orellana’s testimony that he was being targeted by a hitman in El Salvador.

An immigration judge denied the petitioners’ asylum applications, concluding that Urias-Orellana’s testimony, while credible, did not establish past persecution or a well-founded fear of future persecution under the INA. The Board of Immigration Appeals affirmed the judge’s ruling.

The petitioners sought further review in the 1st U.S. Circuit Court of Appeals pursuant to 8 U.S.C.§1252(b)(2). The petitioners argued the undisputed facts of their case met the applicable standard that death threats may establish past persecution when they are “so menacing as to cause significant actual suffering or harm.”

The 1st Circuit affirmed on the ground that the agency’s conclusion that petitioners had not demonstrated with “substantial evidence” past persecution or a well-founded fear of future persecution. Under the substantial evidence standard, reversal is warranted only “if, in reviewing the record as a whole, any reasonable adjudicator would be compelled to conclude to the contrary.”

The U.S. Supreme Court granted certiorari to determine whether the court of appeals applied the appropriate standard of review when evaluating the petitioners’ asylum claim.

The court held §1252(b)(4)(B) requires courts to review the entirety of the agency’s conclusions — both the underlying factual findings and the application of the INA to those findings — for substantial evidence, meaning the agency’s determination whether a given set of undisputed facts rises to the level of persecution under §1101(a)(42)(A) is generally “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”

In reaching this conclusion, the court found instructive INS v. Elias-Zacarias, a 1992 decision in which the U.S. Supreme Court held that to obtain judicial reversal of the agency’s persecution determination, an asylum applicant “must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.”

Click here to read the full text of the U.S. Supreme Court’s March 4 decision in Urias-Orellana v. Bondi.

BULLET POINTS: “Petitioners primarily contend that Congress meant for de novo review to apply to persecution determinations because §1252(b)(4)(B) requires deference only for ‘findings of fact’ and no subparagraph of §1252(b)(4) explicitly addresses the ‘mixed question of law and fact’ that is the determination of past persecution and fear of future persecution. With their focus on the metaphorical trees, we think petitioners have missed the forest. It is certainly true that the required persecution determination turns on more than just the facts: The INA’s legal standard for ‘persecution’ must be applied to the IJ’s findings of fact. But Elias-Zacarias and the subsequent statutory history suggest that Congress meant for the entirety of this kind of ‘mixed’ determination — including both the IJ’s factual findings and the application of the statute to those findings — to receive deference under §1252(b)(4)(B). That makes sense because the overall determination of refugee status primarily requires the IJ to make critical factual findings about a given applicant’s experiences in his country of nationality. And even where, as here, the IJ accepts the applicant’s testimony as true, the IJ must make an antecedent determination on the factual question of the applicant’s credibility. Given that Congress has required the courts of appeals to give significant deference to IJ factfinding throughout §1252(b)(4), it would be anomalous indeed to conclude that courts can review substantially similar persecution-related findings de novo.”

— Justice Ketanji Brown Jackson, opinion of the court