Justices Spar Over Whether Courts Must Defer to Agency on What Counts as Persecution in Asylum Cases

The petitioner, Douglas Humberto Urias-Orellana, is a Salvadoran national whose asylum claim was denied after an immigration judge found his testimony credible — including, according to petitioner's counsel, that the death threats he experienced were credible and menacing — but concluded that those experiences did not legally constitute persecution. The Board of Immigration Appeals and the First Circuit affirmed, with the First Circuit applying deferential substantial evidence review to the BIA's determination.

The central question before the Court is whether that application of the persecution standard to undisputed facts is a legal question that courts of appeals must review de novo, or a primarily factual inquiry subject to deferential substantial evidence review. The case arrives against a backdrop of acknowledged circuit confusion: petitioner's counsel represented at argument that the government supported certiorari on the ground that courts of appeals were applying inconsistent standards to this narrow question.

Arguing for the petitioners, Nicholas Rosellini contended that deciding whether undisputed facts qualify as persecution involves legal interpretation, not fact-finding, and that even the BIA treats the issue as a question of law subject to de novo review internally. He argued that courts have spent decades developing auxiliary legal principles — on threats, sexual violence, religious persecution, and economic deprivation — and that under the Court's framework from U.S. Bank, that pattern of law development marks a mixed question warranting de novo review. He drew analogies to fair use under copyright law and antitrust, where courts review the ultimate legal question independently even when the analysis is record-intensive.

Joshua Dos Santos, arguing for the government, countered that the inquiry is primarily factual because it requires weighing evidence and drawing inferences — pointing to the specific facts of Urias-Orellana's case, including that his half-brothers appeared to have been fine after moving away, that his mother, stepsister, and stepfather were never threatened or harmed, and that the threats demanded money, leaving open questions about their source and seriousness. Dos Santos argued that Congress codified substantial evidence review in IIRIRA with awareness of the Court's prior decision in Elias-Zacarias, which had applied deferential review to a persecution-related question, and that there is no realistic chance Congress silently departed from that practice. He also acknowledged, however, that if a petitioner challenges the legal standard itself — rather than its application to particular facts — courts may review that question de novo.

Several justices pressed both sides hard. Justice Kagan questioned whether the real work in any given case is simply weighing evidence of how menacing particular threats were, which she suggested sounds factual regardless of the legal label. Justice Jackson raised the possibility that the statutory text of the provision within Section 1252(b)(4) addressing agency determinations of admission ineligibility — which makes such determinations conclusive unless manifestly contrary to law — might already supply the standard of review, a textual argument neither party had advanced. Justice Gorsuch explored whether the Court could develop the law through the substantial evidence framework itself, by holding as a matter of law that no reasonable fact finder could reach a given conclusion. Justice Kavanaugh pressed the government on why the BIA reviews the immigration judge's persecution determination de novo if the inquiry is primarily factual, and whether lower courts are already doing what the government's brief concedes they should do on pure legal questions.

Rosellini argued in rebuttal that even if the Court sides with the government on the standard, the First Circuit and other circuits are not currently applying the government's own conceded rule — that legal challenges to the persecution standard itself receive de novo review — and that a ruling clarifying that point would warrant vacatur of the judgment below.

The case is Urias-Orellana v. Bondi, No. 24-777.