Urias-Orellana v. Bondi, Att'y Gen.

    Issues

    If the Board of Immigration Appeals concludes that undisputed facts do not constitute “persecution,” does a federal court of appeals have to defer to that judgment?

    Oral argument:
    December 01, 2025
    Court below:
    United States Court of Appeals for the First Circuit

    This case involves a decision made by the Board of Immigration Appeals (“BIA”), determining that certain facts did not amount to persecution. Petitioners Douglas Humberto Urias-Orellana and his family contend that whether the undisputed facts meet the legal threshold of persecution is primarily a legal question, and so federal courts must apply de novo review. Respondent Attorney General Pamela Bondi counters that whether an asylum seeker has met their burden of proving persecution is a fact-intensive inquiry, and substantial-evidence review should apply. The outcome of this case could impact the consistency of asylum petitions moving forward, the efficiency of judicial review in asylum cases, and may implicate further understanding of Loper Bright. 

    Questions as Framed for the Court by the Parties

    Whether a federal court of appeals must defer to the Board of Immigration Appeals’ judgment that a given set of undisputed facts does not demonstrate mistreatment severe enough to constitute “persecution” under 8 U.S.C. § 1101(a)(42).

    Facts

    Petitioners are Douglas Humberto Urias-Orellana, his wife, and their minor child.  Urias-Orellana and his family are citizens of El Salvador. They entered the United States on June 28, 2021, without authorization and were found to be, and admitted to being, removable. However, Urias-Orellana and his family applied for both asylum and protection under the Convention Against Torture.

    During the asylum hearing on March 14, 2022, Urias-Orellana presented evidence that a “sicario,” or hitman, severely injured two of his half-brothers and promised to kill Urias-Orellana’s entire family. Urias-Orellana attempted to relocate his family within El Salvador several times over the span of multiple years. [SF1] Despite moving, after some time at the new location, masked men would find Urias-Orellana. Each time, the men threatened him and demanded money from him. On one occasion, the men struck Urias-Orellana three times in the chest. Urias-Orellana testified that this continued harassment led him and his family to leave El Salvador for the United States.

    To qualify for asylum, the Immigration and Nationality Act (“INA”) required Urias-Orellana to show harm rising to the level of persecution. The Immigration Judge (“IJ”) held that the evidence Urias-Orellana presented did not rise to the level of persecution necessary to qualify for asylum. The IJ pointed to Urias-Orellana’s relatives, who were able to live without suffering harm. The IJ also referenced Urias-Orellana’s repeated relocations within El Salvador as successful because of the long lengths of time between appearances by the masked men. While the IJ found Urias-Orellana’s testimony credible, the IJ held that the threats were not menacing enough to rise to the level of being considered past persecution.

    Urias-Orellana appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). The BIA reviewed the facts and affirmed the IJ’s conclusion that the threats Urias-Orellana experienced did not satisfy the standard of persecution under the INA.

    Urias-Orellana petitioned the United States Court of Appeals for the First Circuit for review of the BIA’s decision. While the First Circuit reviewed BIA’s legal conclusions de novo, the court applied substantial-evidence review to the BIA’s factual findings. Substantial-evidence review is a deferential form of review that permits a court to reverse an agency’s findings if, and only if, any reasonable adjudicator could come to a contrary conclusion. The First Circuit determined that whether Urias-Orellana demonstrated persecution under the INA was a factual issue. Applying substantial-evidence review, the First Circuit affirmed the IJ’s and the BIA’s determination that Urias-Orellana had not established past persecution.

    On June 30, 2025, the Supreme Court of the United States granted Urias-Orellana’s petition for certiorari.

    Analysis

    WHETHER DEFERENCE IS REQUIRED BY THE INA 

    Urias-Orellana argues that the Immigration and Nationality Act (“INA”) does not require courts to defer to Board of Immigration Appeals (“BIA”) decisions concerning what constitutes persecution.  The INA, according to Urias-Orellana, requires courts to give deference to four specific categories of administrative agency decisions. Urias-Orellana contends that since the INA directs courts to give deference to certain administrative agency decisions and omits any language requiring courts to defer to the BIA’s persecution determinations, Congress did not intend to grant deference to these decisions by the BIA. Therefore, Urias-Orellana concludes, the INA does not require courts to show deference to a BIA determination that a noncitizen is ineligible for asylum because the facts do not rise to the level of persecution.  

    Bondi claims the INA does require a deferential standard of review for persecution determinations.  Bondi argues that Congress expressly provides in the INA that findings of fact made by administrative agencies are subject to substantial-evidence review by the courts. According to Bondi, whether undisputed facts rise to the level of persecution is a question of fact, and so a substantial-evidence standard of review should apply. Bondi contends that even if Congress did not include a standard of review in cases such as these, courts traditionally applied substantial-evidence review to persecution decisions. Bondi further argues that, as Congress was aware of this precedent, the fact that there is no contrary language in the statute means Congress did not want to depart from this settled understanding. Bondi claims that if Congress wanted to expand judicial review in asylum cases, it would have done so explicitly.

    EFFECT OF LOPER BRIGHT

    Urias-Orellana reasons that Loper Bright Enterprises v. Raimondo requires courts to review the BIA’s determinations de novo. Urias-Orellana argues that Loper Bright’s holding required courts to apply de novo review to decisions by agencies that involve legal questions. Urias-Orellana admits that Congress can entitle the agency to judicial deference. However, Urias-Orellana contends that Congress did not entitle the BIA to deference in the INA. Urias-Orellana continues that while the persecution decisions involve factual findings, they also involve questions of law, so the BIA determinations at issue here are required to be reviewed de novo under Loper Bright.

    Urias-Orellana argues that mandating a substantial-evidence review for the BIA’s persecution decisions would resurrect Chevron U.S.A, Inc. v. NRDC, which was overturned by Loper Bright and would require courts to defer to agency interpretations of statutes that they administer. Urias-Orellana contends that Loper Bright explained that courts should not show deference to administrative agencies’ rulings if they provide legal interpretations of statutes. Urias-Orellana points out that the interpretation of statutes is a uniquely judicial function. According to Urias-Orellana, the framers of the Constitution believed that courts were best situated to determine the meaning of laws enacted by Congress.

    Bondi counters that Urias-Orellana is incorrectly applying Loper Bright. Bondi agrees with Urias-Orellana that Loper Bright requires courts to apply de novo review for decisions involving legal questions. For example, Bondi suggests that if the case involved the legal standards for how to show persecution, Loper Bright would be applicable. However, Bondi contends that this case does not concern a legal question. Bondi argues that the persecution decisions are mixed questions of fact and law, which Bondi defines as when the agency’s interpretation of a statute is bound with a factual review of the evidence.

    Bondi points out that a question may be mixed when administrative agencies do not clarify legal principles, but mainly perform fact-intensive inquiries. According to Bondi, these persecution decisions are primarily factual in nature. Bondi argues that Loper Bright’s holding intends to prevent disturbing the judicial branch from exercising its sole authority to decide legal questions. However, Bondi explains, applying substantial-evidence review to mixed questions would not disturb this authority. Bondi further contends that substantial-evidence review is consistent with Loper Bright.

    MIXED QUESTIONS OF LAW AND FACT

    Urias-Orellana argues that persecution decisions are not simply factual questions because the BIA must make legal determinations about what constitutes persecution. According to Urias-Orellana, persecution decisions involved the BIA determining whether a set of undisputed facts about an asylum seeker’s experiences met the legal standard of persecution. Urias-Orellana suggests that when the BIA interprets facts found by the IJ and applies the legal standard of persecution, the BIA is answering a mixed question of fact and law. Urias-Orellana contends that substantial-evidence review does not apply to these mixed questions of fact and law.

    Urias-Orellana instead argues that persecution decisions are primarily legal inquiries that require de novo review. Urias-Orellana claims that, even if the mixed question heavily involves factual evidence, courts should still apply de novo review. Urias-Orellana contends that a court reviewing the fact-intensive review can give weight to the legal standards. In this case, according to Urias-Orellana, courts are more equipped than the BIA to determine the legal standard of what qualifies as persecution under the INA. Urias-Orellana posits that the “ultimate persecution question” is an objective legal inquiry into whether a hypothetical person would view the harm and mistreatment as persecution. Urias-Orellana claims that courts regularly develop legal principles for applying the persecution standard. Specifically, Urias-Orellana emphasizes that courts have recognized some harms as persecution, including physical violence so extreme that even attempts qualify and other procedures like female body mutilation.  

    Bondi counters that persecution decisions should not be reviewed de novo because findings regarding past persecution cannot reasonably be described as primarily legal in nature. Bondi claims that the BIA determines whether an asylum seeker faced persecution based on the factual circumstances, including the asylum seeker’s injuries, threats made against the applicant, and any family members who suffered harm. Bondi further contends that courts have applied substantial-evidence review to mixed questions that consist mainly of a factual inquiry.  

    Bondi argues that the courts determine which standard of review to apply by considering which decisionmaker is best suited to answering the question in the case. According to Bondi, if the decisionmaker is looking at the credibility of evidence presented and deciding the weight that evidence should have, then the decisionmaker is engaged in fact-intensive work and the standard of review for factual determinations applies. Bondi applies this reasoning and argues that when an asylum seeker is proving a level of persecution exists to qualify for asylum, the BIA focuses on the asylum seeker’s past injury and suffering. Bondi claims that this is mainly a fact-based inquiry, in which the IJ and BIA look at the applicant’s past experiences under the totality of circumstances. Bondi argues that, similar to other factual questions, the agency needs to assess the credibility and weight of the factual evidence to come to a conclusion.  

    Discussion

    CONSISTENCY IN ASYLUM DETERMINATIONS 

    In support of Urias-Orellana, a group of immigration law professors (collectively “Immigration Law Professors”) argue that major discrepanciesexist between immigration tribunals across the country. Immigration Law Professors argue that a report compiled by the Government Accountability Office shows major differences in outcomes depending on the immigration judge (“IJ”). For example, Immigration Law Professors claim that asylum claim approval rates can vary between forty-seven and fifty-seven percentage points based on the IJ presiding over the case and the location where the asylum claim was first launched. Immigration Law Professors further argue that BIA decisions are rarely precedential or binding, which makes it more difficult to establish consistent results.

    Bondi counters the claim that de novo review of persecution decisions would aid uniformity.  Bondi points out that the BIA relied on the legal standard of the First Circuit in this case and that permitting de novo review would not address the issue of different circuits having different standards for what qualifies as persecution under the INA. Bondi contends that even if there is variation in the individual decisions made by the IJs and the BIA, this is a result of the fact-based nature of the inquiry. In fact,Bondi asserts, any variation in individual persecution decisions demonstrates that the determinations are case specific and cannot be addressed more broadly. Bondi argues these cases “resist generalization” and that Urias-Orellana can only speculate as to whether a circuit court could provide more uniform results with de novo review.

    JUDICAL EFFICIENCY

    In support of Urias-Orellana, Former Executive Office for Immigration Review Judges (“Former Immigration Judges”) argue that due to the overwhelming number of cases, IJs are under extreme pressure. Former Immigration Judges contend this can lead to factual oversights and errors because important information is missed by these decision-makers, changing the overall outcome in an applicant’s case. Former Immigration Judges point out that many IJs do not have the proper resources and staff to keep up with their caseloads, and there are not sufficient resources to hire additional help. Without additional help, Former Immigration Judges claim that errors will continue to be made by the IJs, and applicants will suffer as a result. Judicial review, Former Immigration Judges argue, can correct the mistakes caused by IJ overwhelm.

    Bondi counters that, under the current system, more than 200,000 asylum decisions are adjudicated annually. According to Bondi, if federal courts were permitted to review all asylum claims that involved a mixed question of fact and law on a de novo basis, the federal courts would be overwhelmed. Bondi argues that the BIA has the manpower required to make the most efficient decisions. Based on the current infrastructure, Bondi contends the BIA is the only entity that has the capacity to adjudicate the sheer number of asylum claims made in the United States. Bondi further argues that IJs are the closest to the record, have subject-matter expertise in adjudicating asylum petitions, and have experience with the facts common to immigration cases. As such, Bondi argues, IJs and the BIA are best suited for efficiently carrying out the fact-intensive inquiries necessary to establish persecution.

    Conclusion

    Authors

    Written by:      John Lauro and Evan Pittman

    Edited by:        Sara Fischer

    Additional Resources