Oral Arguments in Urias-Orellana v. Bondi Raise Key Questions about how Federal Courts Interpret Asylum Protections

On December 1, 2025, the Supreme Court heard oral argument in Urias-Orellana v. Bondi, which raises important questions about the judiciary’s role in interpreting and applying asylum protections for noncitizens within the United States. The central question presented is whether federal courts of appeal must defer to a determination by the Board of Immigration Appeals (BIA) that a given set of undisputed facts does not demonstrate mistreatment severe enough to constitute “persecution” under the asylum provisions of the Immigration and Nationality Act (INA).

Under the INA, noncitizens on American soil may be eligible for asylum if they qualify as a refugee, defined as someone with “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1158(b)(1)(A); id. § 1101(a)(42). A noncitizen is presumptively eligible for asylum if they have “suffered persecution in the past.” 8 C.F.R. § 1208.13(b)(1).

Here, Petitioner and his family requested asylum after arriving to the United States, based on past threats of violence and an instance of assault in their home country of El Salvador. An immigration judge denied the family’s request for asylum, finding such conduct did not rise to the level of past persecution. The BIA upheld the judge’s persecution determination and removal order, applying the substantial evidence standard.

Petitioners assert that the plain text of the INA requires this issue – whether the mistreatment suffered by a noncitizen meets the legal standard for persecution – to be treated by federal courts as a question of law subject to de novo review. The government, however, contends the inquiry is primarily factual, so substantial evidence review was and is appropriate. In other words, this is ultimately a fight over how much deference to give persecution determinations on review. Currently, the circuit courts are deeply divided on this issue.

During arguments, Petitioners’ counsel faced significantly more questions regarding whether persecution determinations are primarily factual or legal in nature. Several Justices appear inclined to find that the determination of whether past threats and violence qualify as “persecution” is a factual question, not a legal one. In response, Petitioners’ counsel argued that it is a mixed question of law and fact that requires the application of legal principles to determine whether such experiences qualify as persecution. Additionally, the BIA itself treats the analysis as a legal inquiry (although the Board’s approach is not binding on the federal courts). Petitioners’ counsel further noted that the INA “uses the exact same words” as BIA’s regulations regarding the scope and standard for the court of appeals’ review.

The government faced significantly fewer questions. The government argued that Congress codified the substantial evidence approach in the Illegal Immigration Reform and Immigrant Responsibility Act, drawing from the case of INS v. Elias-Zacarias, and that other historical practice shows Congress intended for judicial review to be deferential. Justice Kagan noted the government raised “good history arguments” and had “arguments about the Elias-Zacarias case” but that none of the government’s arguments “come from the text” of the INA. The Justices also expressed concern that most determinations by immigration judges and the BIA would fit into the government’s definition of a factual inquiry. The government responded that courts can still review the legal standards being used and apply de novo review to correct pure legal errors.

Given the tenor of the Justices’ questioning, it appears that a majority, likely a strong one, will side with the government. If so, review of persecution determinations by the BIA will be subject only to deferential review.