Orellana v. Bondi: Standard of Review Established for Article III Immigration Appeal

1. Introduction

In 2021, citizens of El Salvador, Douglas Humberto Urias-Orellana, his wife, Sayra Iliana Gamez-Mejia, and their minor child, G. E. U. G., entered the United States without authorization to seek asylum. An asylum seeker can apply for asylum in two ways: either submit an affirmative application to the Department of Homeland Security (DHS) or assert asylum as a defense to removal proceedings. The family chose the latter. Under the Immigration and Nationality Act (INA) §1101(a)(42), the U.S. Government may only grant asylum if an asylum-seeker qualifies as a refugee — an individual who “is unable or unwilling to return” to their country “because of persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Therefore, at the hearing, Petitioner Urias-Orellana testified that a “sicario” (i.e., hitman) had been targeting him since 2016. After being denied both in their initial application before an Immigration Judge (IJ) and their appeal at the Board of Immigration Appeals (BIA), the petitioner sought review in an Article III federal court.
Historically, the Courts of Appeals (CoA) have either broken down the appeal into two parts, reviewing the agency’s factual findings for substantial evidence and its legal conclusions de novo (from the beginning), or reviewed both the underlying factual findings of the case and the agency’s legal application to those findings under the substantial-evidence standard. The substantial-evidence standard of review “means — and means only — such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” The U.S. CoA for the First Circuit applied the substantial-evidence standard and affirmed the BIA’s decision. The Supreme Court granted certiorari to determine whether federal courts must apply substantial-evidence review to the BIA’s determination that a given set of undisputed facts constitutes “persecution” under 8 U.S.C. §1101(a)(42).

2. Procedural History

During Petitioner Urias-Orellana’s removal hearing at the federal immigration court, he argued that the sicario had shot two of his half-brothers and issued a death threat against the rest of his family. In order to escape the sicario’s threats, Urias-Orellana’s family relocated within El Salvador four times before making the final decision to escape to the U.S., after finding out that they had been trailed. While the IJ acknowledged Urias-Orellana’s account of the facts, the IJ concluded that the facts were insufficient to establish “past persecution” or a “well-founded fear.” The IJ compared the death threats to the standard established in Bonilla v. Mukasey (2008), that a past persecution may only be established when they are “so menacing as to cause significant actual suffering or harm.” Given that the Petitioners had not submitted any medical, psychiatric, or psychological evaluations testifying to such suffering or harm, Urias-Orellana failed to establish past persecution. Likewise, the IJ reasoned that there was no legitimate fear of future persecution because Urias-Orellana only faced risks when he was near his hometown.
The Petitioner appealed the ruling to the BIA, but the BIA affirmed the IJ’s conclusion, rendering Urias-Orellana ineligible for refugee status. Permitted by 8 U. S. C. §1252(b)(2), Urias-Orellana petitioned for further review with the First Circuit CoA in the judicial system. Here, they argued that the undisputed facts of this case met the past persecution standard. Under these circumstances, the CoA applied the substantial-evidence standard, where reversal was warranted only if reviewing the record as a whole would compel the adjudicator to conclude the contrary. Ultimately, the CoA affirmed, concluding that Urias-Orellana’s did not compel a finding of either past persecution or a well-founded fear of future persecution. The court reasoned that the death threats were not menacing enough to cause significant actual suffering or harm, and that Urias-Orellana was able to relocate himself in El Salvador successfully. The Supreme Court granted certiorari to evaluate whether the CoA applied the correct standard of review to Urias-Orellana’s asylum claims.

3. Decision

In a unanimous decision written by Justice Jackson, the Court ultimately decided that the CoA should apply the substantial-evidence standard for BIA’s persecution determinations. They reasoned that in an adjacent case, INS v. Elias-Zacarias (1992), the Supreme Court overturned the CoA’s decision to grant asylum after reading that the INA required the CoA to apply the substantial-evidence review. In that case, the Court established that the INA contained a provision specifying that agency “findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive,” meant substantial evidence, thereby triggering the substantial-evidence standard of review 8 U. S. C. §1105a(a)(4) (1988 ed.). Thus, Elias-Zacarias established that the INA’s provision for substantial evidence review encompassed both the agency’s factual findings and the application of the statutory standard to the established facts.

4. Conclusion

While cases, such as Wilkinson v. Garland (2024) and Guerrero-Lasprilla v. Barr (2020), raise related questions to those in Urias-Orellana, they address only whether federal courts have jurisdiction to review removal orders — not on the applicable standard. In both cases, the Court held that mixed questions of law and fact can qualify as “questions of law,” and are therefore permitted to be judicially reviewed by the CoA. Hence, the Supreme Court’s ruling in Urias-Orellana is crucial to interpreting the INA as it establishes a standard of review for removal orders. While other amendments to the INA have generally restricted judicial review, this decision expands the judiciary’s role in immigration by ensuring that persecution determinations are no longer deferred entirely to executive agencies.