The U.S. Supreme Court ruled Wednesday that federal appeals courts must follow a deferential standard of review to the Board of Immigration Appeals’ determination that asylum seekers did not experience the level of persecution necessary to qualify for asylum protections. Writing for a unanimous court, Justice Ketanji Brown Jackson said that appeals courts can only diverge from the judgment of the Board of Immigration Appeals when the evidence presented was “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” In doing so, she upheld a decision by the First Circuit Court of Appeals and handed the Trump administration a decisive victory that will have an impact well beyond this particular case.
Let’s take a look at the background.
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”.
To fully understand the case, let’s look at the process as outlined in the Immigration and Nationality Act.
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DOJ initiates removal proceedings before an immigration judge. Immigration judges are Article II rather than Article III judges. They are employees of the executive branch.
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The immigration judge conducts a removal hearing.
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If the alien is determined to be removable, the immigration judge enters an order of removal. This permits ICE to deport him. This is the “due process” allowed in immigration cases.
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Once ordered removed, the alien can file an asylum claim in which they have to show that returning home would subject them to “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
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The immigration judge renders a decision on those three issues. If denied, the alien can appeal the decision to the Board of Immigration Appeals. Like immigration judges, the BIA is an Article II entity, not a federal court.
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If the alien is still an unhappy camper, he can appeal to the appropriate Circuit Court of Appeals. This is the first time a federal (Article III) judge is authorized to examine the case. The law specifically says that the court may only review issues of law; it may not reexamine the factual findings.
At that point, the alien is either granted asylum or gets on the airplane home.
In this case, the immigration judge denied the asylum claim. The BIA denied his asylum claim. Then Urias-Orellana appealed to the First Circuit, which also denied his claim. He then appealed to the U.S. Supreme Court, claiming that the law was wrong:
The atextual deference regime driving the decision below invites inconsistent and incorrect results, often with life-threatening consequences. This Court should enforce the INA’s text and restore the Judiciary’s proper role in asylum cases. Federal courts must exercise their own independent judgment in deciding what constitutes “persecution” under the law. Because the First Circuit did not do so, its judgment must be vacated and the case remanded for further proceedings.
Essentially, his legal team was using the precedent set in Loper Bright Enterprises vs. Raimondo (see The Supreme Court Firebombs the Administrative State and Tells Congress to Get Off Its Butt and Work – RedState) to attack the deference to immigration courts required in the INA. For context, there are about 2.4 million pending asylum claims. Having each of those adjudicated and reviewed in immigration channels and again by a federal appeals court is not workable.
If they had prevailed, it would have opened every asylum claim to a new round of “fact-finding” at the Appeals Court level, reduced the BIA to an advisory group, and brought adjudicating asylum claims to a screeching halt, which, after all, was the true purpose of the case.
IANAL, but in addition to shutting down hostile actors’ ability to gum up the immigration appeals system, it laid down a marker that requires courts to comply with the law they have, not create the law they wish they had. And while the case was initially taken up by the Supreme Court prior to the (second) Trump administration, this ruling is undoubtedly a welcome one.
For decades, former presidents have been all talk and no action. Now, Donald Trump is eliminating the threat from Iran once and for all.
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