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

An asylum seeker from El Salvador who received credible death threats is asking the Supreme Court to allow federal judges to independently review whether his experience meets the legal definition of 'persecution.' The government argues that courts must defer to the immigration agency's decision, treating it as a factual judgment. The outcome will determine how much power federal courts have to second-guess life-or-death decisions made by immigration authorities.

The petitioner's argument is that applying a legal standard like 'persecution' to a set of undisputed facts is a question of law, which is the core function of the judiciary. He contends that allowing judges to review these decisions independently is necessary to build a consistent and predictable body of law defining what persecution means. Without this oversight, different immigration officials could reach opposite conclusions on similar facts, and both decisions could be upheld as reasonable, leading to arbitrary outcomes for asylum seekers.

The government counters that determining whether mistreatment is severe enough to be persecution is a fact-intensive judgment, not a legal definition. It involves weighing the totality of the circumstances—such as the nature of the threats against the fact that the person was not physically harmed—which is a task best suited for the expert agency that heard the evidence. During arguments, Justice Alito compared this to how a jury determines 'negligence' in a car accident case, a classic factual question that appellate courts review with deference.

This inconsistency is at the heart of the legal dispute over the power of federal courts in asylum cases. The petitioner, an asylum seeker, points out that within the immigration system, the Board of Immigration Appeals (BIA) reviews an immigration judge's persecution finding 'de novo,' meaning from scratch and without deference. This internal process treats the determination as a question of law. Yet, the government argues that when that same BIA decision is appealed to a federal court, judges must suddenly treat it as a factual finding and give it significant deference.

During oral arguments, Justice Kavanaugh highlighted this contradiction. He called the petitioner's point 'good' and pressed the government's lawyer to explain why a determination 'treated as a question of law transforms into a question of fact' simply because it moves from an administrative appeal to a judicial one. This line of questioning suggested he found the government's position logically inconsistent and difficult to defend.

The government's position is that the overall inquiry into persecution is fundamentally a fact-finding mission, even if the agency's own internal review standards are different. However, the apparent contradiction creates a difficult dilemma. It forces the Supreme Court to decide whether the nature of a legal inquiry is inherent to the question being asked, or if it can change depending on which institution is doing the asking.

Justices often use analogies to clarify whether a complex legal issue should be categorized as a 'question of law' for a judge to decide independently or a 'question of fact' for a jury or agency to decide with deference. In a case concerning whether an asylum seeker's mistreatment was severe enough to be 'persecution,' the justices used analogies to probe this distinction.

Justice Alito compared the 'persecution' determination to the legal concept of 'negligence.' In a lawsuit over a car accident, a jury listens to the facts and decides if a driver was negligent. An appeals court will not re-decide that question but will defer to the jury's finding as long as it is reasonable. Justice Alito suggested that determining persecution is similarly a practical, fact-based judgment that courts should not second-guess.

Similarly, Justice Kagan framed the legal test as deciding if a threat is 'menacing enough to cause actual harm.' She then characterized the task of applying that rule as weighing the evidence to see 'whether these threats were indeed that level of menacing,' concluding that this 'sounds like really weighing evidence to me. That sounds really factual.' Both analogies support the government's position that deciding what counts as persecution is a fact-intensive judgment call, not an abstract legal interpretation, and therefore deserves deference from federal courts.

The government argues that the Supreme Court's decision in INS v. Elias-Zacarias already settled the matter, establishing that courts must defer to the immigration agency's findings on asylum eligibility. That case requires courts to uphold the agency's decision if it is supported by 'substantial evidence.' The government contends this deferential standard applies directly to the current dispute over whether an asylum seeker's suffering qualifies as 'persecution.'

The asylum seeker argues for a crucial distinction. He claims Elias-Zacarias involved a pure question of fact: determining the subjective motive of the persecutors, which required weighing evidence about their state of mind. In contrast, his case involves undisputed facts—everyone agrees he received death threats. The only question is the legal significance of those facts. He argues that applying a legal term like 'persecution' to an agreed-upon history is a question of law that judges must decide independently to ensure legal consistency.

This distinction was a point of sharp disagreement among the justices. Justice Sotomayor challenged the petitioner, stating that the facts in Elias-Zacarias were also undisputed and that the issue there was likewise whether those facts met a legal standard. She characterized it as a 'mixed question of law and fact and mostly a factual question,' suggesting she believes the precedent is directly on point and controls the outcome of this case in the government's favor.

The case presents two competing views on the role of federal courts. The asylum seeker argues for 'de novo' review, which would allow a federal judge to examine the facts of his case and decide from scratch whether his mistreatment legally qualifies as 'persecution.' The government advocates for a highly deferential 'substantial evidence' standard, where a judge must uphold the agency's decision as long as it is supported by any reasonable evidence, even if the judge would have decided differently.

Justice Gorsuch proposed a potential middle ground, borrowing a standard used for reviewing jury verdicts. Under this approach, a federal court would have to accept all the facts as the immigration agency found them. The judge would not be allowed to re-weigh the evidence. However, the judge would then ask a purely legal question: 'whether any reasonable fact finder could conclude that that was persecution as a matter of law.'

This standard is still deferential to the agency's role in finding facts, but it frames the ultimate determination as a legal one for a judge to make. It carves out a more significant judicial role than the government's all-or-nothing deference model, while stopping short of the complete, independent review sought by the petitioner. This compromise could potentially reconcile the agency's expertise in gathering facts with the judiciary's responsibility for interpreting and ensuring the consistent application of federal law.