Unanimous SCOTUS Opinion Streamlines Review of Asylum Decisions

The Supreme Court this week issued a unanimous opinion in Urias-Orellana v. Bondi, affirming a decision issued by the U.S. Court of Appeals for the First Circuit that had rejected a claim by a family of Salvadoran nationals that they had improperly been denied humanitarian protection. That opinion will streamline judicial review of administrative asylum adjudications — and rein in activist federal judges, especially in so-called “sympathetic” cases.

The Facts

The petitioners — Douglas Humberto Urias-Orellana, his wife Sayra Iliana Gamez-Mejia, and their minor child (identified only as “G.E.U.G.”) — entered the United States illegally in 2021 and were placed into removal proceedings in the Boston immigration court.

They conceded they were removable but claimed they would be harmed if returned to El Salvador by a “sicario” who had been targeting the father since 2016, when the hitman shot two of his half-brothers and “vowed to kill every member of his family”.

The family claimed they repeatedly moved within El Salvador, but:

After each move, Urias-Orellana was threatened by men who demanded money and warned that they would leave him like his brothers if he did not pay up. One of the men even physically assaulted Urias-Orellana when he returned to his hometown for a brief visit.

Finally, the family alleged they decided to leave El Salvador after Douglas Urias-Orellana was told that unidentified men were “asking around town about the arrival of any newcomers”.

The IJ’s Decision

Based on these claims, the family applied for asylum and related protections as “relief” from removal.

To be granted asylum under section 208 of the Immigration and Nationality Act (INA), applicants must show they have been “persecuted” or have a “well-founded fear” of persecution based on one of five factors: race, religion, nationality, membership in a particular social group, or political opinion.

Persecution generally has been defined as, “the infliction of suffering or harm, under government sanction, upon persons who differ in a way regarded as offensive (e.g., race, religion, political opinion, etc.), in a manner condemned by civilized governments”. That can include harm authorities are unable or unwilling to control.

Also salient to the Urias-Orellanas’ protection claim was a First Circuit holding that “credible verbal death threats may fall within the meaning of ‘persecution’ only when the threats are ‘so menacing as to cause significant actual suffering or harm’” (cleaned up).

After considering the family’s claims, the immigration judge (IJ) found that Douglas Urias-Orellana had failed to show past persecution under that First Circuit standard, because he had failed to submit “any medical, psychiatric, or psychological evaluations indicating that he had experienced such suffering or harm”.

Further, the IJ concluded that the family had failed to show a well-founded fear of future persecution because the father “had successfully escaped danger after many of his relocations” and that risks only reemerged after he “returned to his hometown or nearby areas”.

On these bases, the IJ denied the family’s asylum claim and ordered them removed.

The Appeals

The family appealed the IJ’s denial to the Board of Immigration Appeals (BIA), which affirmed the immigration court’s decision and concluded that Douglas Urias-Orellana had failed to establish either “past harm in the aggregate rising to the level of persecution” or “a well-founded fear of future persecution”.

They then filed a petition for review with the First Circuit, arguing that they had shown that the threats they suffered were sufficient “to cause significant actual suffering or harm” under that court’s persecution definition.

In November 2024, a three-judge panel of the circuit court issued an opinion dismissing that appeal.

The panel noted that, under the INA and precedent, it could not reverse the IJ’s decision simply because “the record supports a conclusion contrary to that reached by the” immigration court. Rather, reversal would only be warranted if the record compelled a “contrary conclusion” to the one the IJ reached.

Judicial Review of Immigration Decisions

Section 242 of the INA, “Judicial review of orders of removal”, governs appeals of agency immigration decisions, and as subparagraph (b)(4)(B) therein states, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”.

Let me explain.

In the removal hearing context, IJs are the only adjudicators to question applicants and to hear the testimony they offer in support of their claims. Consequently, as the Ninth Circuit has recognized:

An immigration judge alone is in a position to observe an alien's tone and demeanor, to explore inconsistencies in testimony, and to apply workable and consistent standards in the evaluation of testimonial evidence. He is, by virtue of his acquired skill, uniquely qualified to decide whether an alien's testimony has about it the ring of truth. The courts of appeals should be far less confident of their ability to make such important, but often subtle, determinations.

Seven years later, in a seminal 1992 opinion, INS v. Elias-Zacarias, the Supreme Court rejected the notion that a reviewing federal court may overturn an administrative asylum determination simply because the court believes the evidence supports a conclusion different from that of the BIA below.

It explained that to reverse a factual administrative finding, a reviewing court must find “the evidence not only supports” its “conclusion, but compels it” (emphasis in original).

Thus, the Court concluded, an asylum applicant who “seeks to obtain judicial reversal of the BIA's determination ... must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution”.

Congress adopted that holding from Elias-Zacarias when it revised the judicial review standards in section 242(b)(4) of the INA in 1996.

To be clear, reviewing courts are expected to review legal determinations of administrative adjudicators de novo, without giving them any special respect, even under the 1996 amendments to section 242 of the INA. Factual determinations, however, are entitled to deference by federal judges on review.

The Supreme Court’s Unanimous Opinion

The Supreme Court’s newest justice, Ketanji Brown Jackson, authored the unanimous opinion in Urias-Orellana, and at issue was whether a “persecution” finding for purposes of the asylum statute is a factual determination (due deference) or a legal one (to be reviewed by federal judges de novo).

As the foregoing suggests, both factual determinations and legal ones are involved whenever an IJ either concludes that the evidence establishes persecution or doesn’t. The term is not defined in the INA, but rather has been explained and expounded upon through precedent.

As Justice Jackson explained, however, Elias-Zacarias and the statutory history of section 242(b)(4)(B) of the INA “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”.

She concluded: “Given that Congress has required the courts of appeals to give significant deference to IJ factfinding throughout [section 242(b)(4) of the INA], it would be anomalous indeed to conclude that courts can review substantially similar persecution-related findings de novo.”

On that basis, the Court affirmed the First Circuit’s opinion, which in turn affirmed the BIA’s and IJ’s findings that the Urias-Orellana family had failed to establish that they were eligible for asylum.

Why It Matters

Figuring out whether a threat or harm rises to the level of “persecution” is the most important “mixed determination” decision an IJ must resolve in an asylum case, but it’s far from the only one.

Deciding whether applicants have proven that they are members of “a particular social group” or have a “political opinion” also requires IJs to apply legal precedent to (usually contested) facts as well. This opinion will also guide review of those decisions.

Asylum cases like this often include very sympathetic claims made by objectively sympathetic individuals.

Consequently, it is only natural to expect certain adjudicators — including some IJs, BIA members, and circuit court judges — to examine protection claims in such a way as to allow aliens to remain despite the fact that their applications fail to satisfy the strict standards Congress has established for asylum relief.

Regrettably, some judges go to great lengths to distinguish both the clear language of the INA and precedent to “do justice” in what they deem “exceptional” asylum cases. Not only can that slow the process, but it can also subvert the expressed will of Congress.

The Supreme Court’s unanimous opinion in Urias-Orellana, authored by its newest member, will impede activist judges’ attempts to reverse valid asylum decisions and will streamline judicial reviews. Given that there are 2.4 million asylum claims pending in the immigration courts — 63 percent of the total backlog — that will make our whole immigration system work much more quickly.