Expanded Deference, Diminished Review, Relief Restricted

Urias-Orellana narrows asylum review, raising the stakes for judicial oversight.

The final full week of the U.S. Supreme Court’s 2025-26 term included a watershed of decisions granting extraordinary deference to the executive branch’s authority over immigration enforcement—both at the border and in the interior of the country—all three of which were foreshadowed by the Court’s March 2026 decision in Urias-Orellana v. Bondi, a unanimous decision restricting U.S. courts of appeals to a “substantial-evidence” standard of review when assessing whether the underlying factual findings establish “past persecution” sufficient to demonstrate eligibility for asylum. Although the Urias-Orellana decision received significantly less attention than the immigration decisions that closed out the term, its impact is no less significant for asylum seekers who confront an increasingly hostile system of enforcement and face a narrowing legal landscape for protection in an administrative system that increasingly reflects the ideological priorities of the Trump Administration.

The underlying facts in Urias-Orellana were not disputed: Mr. Urias-Orellana and his family were subjected to numerous death threats, as well as a physical assault, and ongoing and threatening surveillance of Urias-Orellana and his family as they sought safety in other parts of their home country of El Salvador. The immigration judge (IJ) concluded—despite finding the testimony credible—that there was insufficient evidence of “actual suffering or harm” to establish that the death threats amounted to past or future persecution and denied asylum. The Board of Immigration Appeals (BIA) affirmed the IJ’s findings and upheld the order of removal. On appeal, the U.S. Court of Appeals for the First Circuit held that the undisputed facts regarding the death threats did not “compel” a different opinion, applying a substantial-evidence standard of review.

The Supreme Court agreed to hear the case to resolve a split in the courts of appeals as to whether the IJ’s conclusion that the threats rose to the level of past persecution was akin to a factual finding and thereby subject to the substantial-evidence standard of review or whether it was a mixed question of fact and law, whereby interpretations and conclusions of law are subject to de novo review by the courts of appeals under the immigration statute. The Court concluded that although “the required persecution determination turns on more than just the facts, … statutory history suggest that Congress meant for the entirety of this kind of ‘mixed’ determination—including both the IJ’s factual findings and the application of the statute to those findings—to receive deference.” In granting such deference to agency determinations, the Court dismissed in a footnote arguments raised by the petitioners as to the impact of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo on questions of agency deference, concluding that the statute itself mandated deferential review.

In her unanimous decision for the Court, Justice Ketanji Brown Jackson wrote that “with their focus on the metaphorical trees, we think petitioners have missed the forest.” But as immigration practitioners and scholars well know, the “trees” are never metaphorical, and ignoring those trees against the backdrop of an aggressive deportation agenda—the actual forest—has life and death consequences for the individuals and families seeking safety and security in the United States.

Determinations of eligibility for asylum and final orders of removal routinely involve mixed questions of law and fact, and to not parse out the trees for the forest—determining what is a finding of fact and what involves the interpretive application of law to fact—effectively re-enforces the deference to the executive branch that has resulted in what immigration scholars Jaya Ramji-Nogales, Andrew I. Schoenholtz and Philip G. Schrag have referred to as “refugee roulette.” As they articulated in their amicus brief, judicial oversight has worked to preserve a degree of consistency in the application of asylum protections in the United States. The importance of judicial oversight was reiterated in the amicus brief by former IJs and members of the BIA, who argued that judicial review of the ultimate findings of “persecution … respects the separation of powers and preserves ‘the strong presumption that Congress intends judicial review of administrative action.’” Judicial review by federal courts has also served as the backstop to the preservation of even the most minimal of due process protections, ultimately safeguarding what is left of the U.S. system of asylum and refugee protection and the United States’ obligations under the 1967 Protocol Relating to the Status of Refugees and the underlying 1951 Convention Relating to the Status of Refugees.

Looking ahead, the question remains as to how federal courts will apply the Urias-Orellana decision in subsequent appeals, where the U.S. Department of Justice—through the BIA—articulates one standard of review for mixed questions of law and fact where the IJ grants relief yet appears to articulate another standard of review for mixed questions of law and fact when their agency’s decisions are questioned before the federal courts. Just two months after the Urias-Orellana decision, in Matter of G-L-C-, the BIA—in sustaining the government’s appeal of the IJ’s grant of protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for a transgender woman from Jamaica—stated: “We review the Immigration Judge’s factual findings regarding the type and likelihood of mistreatment that the respondent will experience for clear error and her legal determinations as to whether the mistreatment constitutes torture de novo.” The BIA’s reasoning in Matter of G-L-C- is reiterated in a number of precedential decisions issued since January 2025 that reinforce the executive branch’s stated campaign of mass deportations, yet appear at odds with the Court’s conclusion in Urias-Orellana and contrary to the Department of Justice’s arguments before the Court. The lives of the thousands of asylum seekers and other immigrants seeking relief before the immigration courts, and their families, are at stake, as is the legitimacy of the immigration court system itself.