Imagine that you’re one of the 520 or so immigration judges trying to slog through the estimated 3.3 million pending immigration cases, many of which are asylum cases. Unlike other judges, you don’t have contempt authority to hold attorneys accountable. And most denial of asylum decisions you make get appealed to the Board of Immigration Appeals within the Department of Justice for review. And even if they uphold your factual and legal findings and order of removal, the case gets appealed to the federal courts, some of which apply different standards of deference to your hard work.
Yesterday, those immigration judges and members of the Board of Immigration Appeals got some welcome news from the Supreme Court in Urias-Orellana v. Bondi, which clarified the standard federal courts must use when reviewing Board of Immigration Appeals determinations.
In a unanimous decision written by Justice Ketanji Brown Jackson, the Supreme Court held that courts of appeals must apply the substantial evidence standard to the agency’s determination whether a given set of undisputed facts rises to the level of persecution, or demonstrates a well-founded fear of future persecution, under 8 U.S.C. §1101(a)(42)(A) for asylum claims.
This is welcome news as it will give immigration judges and the Board of Immigration Appeals confidence that their findings of fact and application of the law will receive the deference they are due from federal courts of appeals. Moreover, this decision provides clarity to federal appeals courts about what standard they must apply when reviewing these types of actions.
In this case, the petitioners were Douglas Humberto Urias-Orellana, his wife, and their minor child. They entered the U.S. illegally in 2021. After they were apprehended, they were placed in removal proceedings, admitted they were in the country illegally, and subsequently applied for asylum.
Under 8 U.S.C. §1158(b)(1)(A) of the Immigration and Nationality Act, the U.S. government “may grant asylum” to a noncitizen if it “determines” that he or she “is a refugee.” To qualify as a “refugee,” a person must be “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.”
Urias-Orellana was the sole witness in his case before the immigration judge and claimed that he was being targeted in his hometown by a hitman in El Salvador. As a result, he and his family had moved to other cities in El Salvador where they were safe. The immigration judge believed Urias-Orellana’s testimony but decided that it did not establish past persecution under the statute and also found that it did not present a well-founded fear of future persecution.
In his ruling, the immigration judge explained that under 1st U.S. Circuit Court of Appeals precedent (where the case was brought), “death threats may establish past persecution only when they are ‘so menacing as to cause significant actual suffering or harm.’” His past-persecution claim failed because he had not submitted “any medical, psychiatric, or psychological evaluations indicating that he had experienced such suffering or harm.”
Furthermore, because the claims of the wife and child were derivative of Urias-Orellana’s, the immigration judge denied those too. As a result, all three were denied asylum and ordered removed.
They all appealed to the Board of Immigration Appeals, which affirmed and agreed with the findings of the immigration judge.
All three then appealed to the 1st Circuit Court pursuant to 8 U.S.C. §1252, which governs judicial review of removal orders. They argued that the death threats established past persecution that met the standard under 1st Circuit precedent, i.e., that they were “so menacing as to cause significant actual suffering or harm.”
The Court of Appeals emphasized that its review was limited to “whether the Agency conclusion [that petitioners] had not demonstrated past persecution or a well-founded fear of future persecution was supported by substantial evidence.” Under that standard, reversal was warranted only “if, in reviewing the record as a whole, any reasonable adjudicator would be compelled to conclude to the contrary.”
Applying that standard, the Court of Appeals affirmed because, just as the immigration judge and the Board of Immigration Appeals did below, Urias-Orellana’s testimony “did not compel a finding of either past persecution or a well-founded fear of future persecution.”
The agency reasonably concluded that the threats experienced by Urias-Orellana were not “so menacing as to cause significant actual suffering or harm.” It similarly determined that, because “Urias-Orellana was able to live in towns across El Salvador for years without harassment and only encountered difficulties once he returned to his hometown,” a reasonable factfinder would not be compelled to find a well-founded fear of future persecution.
The case then came to the U.S. Supreme Court where Justices started by noting that 8 U.S.C. 1252(b)(4) addresses the “scope and standard of review” that the court of appeals must apply when evaluating immigration judge and Board of Immigration Appeals removal orders. The court noted that “each of §1252(b)(4)’s four subparagraphs truncates the court’s review in a particular manner.”
According to the court, in this case, 8 U.S.C. §1252(b)(4)(B) controls and provides that “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” The court noted that it had “previously interpreted subparagraph (B) to prescribe a deferential, ‘substantial-evidence standard’ for review of agency factual findings.’”
Applying the facts and the law to this case, the court held that “§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 Immigration and Nationality Act to those findings—for substantial evidence.” Jackson made clear that the court rejected Urias-Orellan’s contention and that of multiple U.S. Circuit Courts of Appeals that a de novo standard of review should only apply to the finding of facts.
Courts now have clear guidance that they must apply substantial evidence review to the Board of Immigration Appeals’ findings of fact as well as the ultimate statutory question of whether the facts compel a finding of either past persecution or a well-founded fear of future harm in these types of immigration proceedings.