Justices Weigh Deference to Immigration Judges on Asylum (1)

The US Supreme Court appeared open to letting courts defer to administrative decisions on whether immigrants show they face harm serious enough to qualify for asylum.

Several justices across the ideological divide questioned at argument on Monday why such a decision wouldn’t be considered the type of factual finding that generally calls for appeals courts to apply a deferential standard of review.

The conservative-dominated court has shown a repeated interest in questions surrounding the issue of deference in federal courts. In 2024, the justices gutted a doctrine that said judges must defer to agencies’ interpretations of unclear laws.

The central question in Monday’s case is based on a panel of immigration judges’ decision to reject an asylum application from a Salvadoran and his family after finding their experience didn’t establish persecution or reasonable fear of persecution under the Immigration and Nationality Act.

The applicant’s lawyers argued that such a judgment is a legal question that demands review under the court’s jurisprudence. Some of the justices pushed back.

“We’re going to have to look at all of this evidence, all of these facts, and decide whether these threats were indeed that level of menacing,” said Justice Elena Kagan. “That sounds really factual.”

Justices Clarence Thomas and Sonia Sotomayor also questioned how the case was distinct from INS v. Elias Zacharias, a 1992 ruling that a decision by the Board of Immigration Appeals can be reversed only if the evidence presented “was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.”

The case largely hinges on what standard of review the justices decide is required for asylum decisions by immigration judges, who are employees of the executive branch.

The Justice Department noted in its brief that immigration courts decide roughly 200,000 asylum applications a year, which they argue largely turn on factual assessments.

‘Violent Vendetta’

Douglas Humberto Urias-Orellana, Sayra Ilian Gamez-Mejia, and their minor child joined that pool of applicants after fleeing El Salvador in 2021. They claimed in court filings that a cartel hitman pursued a “years-long, violent vendetta against their extended family.”

A US immigration judge rejected their bid for asylum, citing in part the family’s previous successful relocation within El Salvador.

The BIA, an administrative body that hears immigration matters on behalf of the attorney general, affirmed that judgment, which Urias-Orellana then appealed to the US Court of Appeals for the First Circuit.

But the First Circuit denied review, concluding that it must defer to the BIA’s judgment as long as it was supported by reasonable evidence.

Urias-Orellana’s lawyers at Latham & Watkins claimed that such reasoning was flawed and that the court should remand the case for further proceedings. They also argued the decision flew in the face of Loper Bright Enterprises v. Raimondo, the court’s 2024 blockbuster decision on gutting agency deference in federal courts.

Deferential Standard

But that ruling never came up in arguments on Monday, with the justices mostly focusing on whether persecution under the immigration act is a legal or factual question.

Justice Neil Gorsuch also raised Elias Zacharias, saying it “seems to suggest the same” deferential standard for courts reviewing jury verdicts would apply in this context.

At the same time Gorsuch drew a concession from a Justice Department lawyer on what type of question would be subject to review.

“If there’s some dispute about what persecution means as a matter of law, a court could resolve that de novo,” said Gorsuch, referring to the standard for review of primarily legal determinations.

“Yes, that’s right,” said DOJ lawyer Joshua Dos Santos.

Justices Ketanji Brown Jackson and Brett Kavanaugh prodded Dos Santos about what represents a legal question in the context of an asylum application, including whether it includes the term “extreme suffering.”

Jackson appeared to have doubts over parts of the asylum applicant’s arguments, but she raised worries about a ruling that would say an asylum determination isn’t a question of law.

“I guess I’m just concerned about the suggestion that in the second stage,” she said, “where we have settled on the facts and we’re deciding whether or not the agency has decided whether or not the legal standard is met, that we’re somehow now in a world that is not a question of law.”

Fifty-one former immigration judges and members of the BIA filed a friend-of-the-court brief pushing the justices to give courts the power to review such issues, arguing they’re mixed questions of law and fact courts are well-equipped to handle.

The case is Urias-Orellana v. Bondi, U.S., 24-777, argument heard 12/1/25.