Amicus Curiae Brief — Douglas Humberto Urias-Orellana, et al., Petitioners v. Pamela Bondi, Attorney General

No. 24-777

IN THE

Supreme Court of the United States

_______________

DOUGLAS HUMBERTO URIAS-ORELLANA, ET AL.,

Petitioners,

v.

PAMELA BONDI, ATTORNEY GENERAL,

Respondent.

_______________

On Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

_______________

BRIEF OF AMICUS CURIAE

CENTER FOR INDIVIDUAL RIGHTS

IN SUPPORT OF PETITIONERS

_______________

CALEB KRUCKENBERG

CENTER FOR

INDIVIDUAL RIGHTS

1100 Connecticut Ave., N.W.

Suite 625

Washington, D.C. 20036

(202) 833-8400

JONATHAN C. BOND

Counsel of Record

TRENTON J. VAN OSS

LAVI M. BEN DOR

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

JBond@gibsondunn.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 5

I.

LOPER BRIGHT FORBIDS DEFERRING TO

THE EXECUTIVE BRANCH’S

INTERPRETATION HERE BECAUSE

CONGRESS DID NOT CLEARLY DELEGATE

AUTHORITY TO INTERPRET THE STATUTE .......... 5

A. Congress Must Speak Clearly To

Delegate Interpretive Power To An

Agency .................................................... 5

B. The First Circuit Erroneously Deferred

To The BIA Without Clear

Congressional Instruction To Do So .... 11

II. DEFERENCE IS PARTICULARLY

INAPPROPRIATE IN BIA CASES LIKE

THIS ONE ...................................................... 15

A. The BIA Lacks Relevant Special

Expertise ............................................... 16

B. The BIA’s Decisions Are Often Thinly

Reasoned And Inconsistent.................. 18

III. THE RULE OF LENITY FURTHER

PRECLUDES DEFERENCE IN THIS

CONTEXT ....................................................... 21

CONCLUSION ......................................................... 24

ii

TABLE OF AUTHORITIES

Cases

Page(s)

The Adventure,

1 F. Cas. 202 (No. 93) (CC Va. 1812) .................. 21

Barber v. Gonzales,

347 U.S. 637 (1954) ............................................. 22

Benslimane v. Gonzales,

430 F.3d 828 (7th Cir. 2005) ............................... 18

Bocova v. Gonzales,

412 F.3d 257 (1st Cir. 2005) ................................ 12

Bond v. United States,

572 U.S. 844 (2014) ............................................... 2

Chevron U. S. A. Inc. v. Natural

Resources Defense Council, Inc.,

467 U.S. 837 (1984) ............................................... 2

China Unicom (Americas) Operations

Ltd. v. FCC,

124 F.4th 1128 (9th Cir. 2024) ............................ 10

Collins v. Yellen,

594 U.S. 220 (2021) ............................................... 2

De Niz Robles v. Lynch,

803 F.3d 1165 (10th Cir. 2015) ........................... 19

Decatur v. Paulding,

39 U.S. (14 Pet.) 497 (1840) ................................ 13

Duffus v. MaineHealth,

2025 WL 1928339

(D. Me. July 14, 2025) ......................................... 10

Epic Systems Corp. v. Lewis,

584 U.S. 497 (2018) ............................................. 20

iii

Cases (continued)

Page(s)

Esteras v. United States,

145 S. Ct. 2031 (2025) ......................................... 14

Fong Haw Tan v. Phelan,

333 U.S. 6 (1948) ........................................... 22, 23

Free Enterprise Fund v. Public

Company Accounting Oversight

Board,

561 U.S. 477 (2010) ............................................... 2

Gomez-Abrego v. Garland,

26 F.4th 39 (1st Cir. 2022) .................................. 12

Guerrero-Lasprilla v. Barr,

589 U.S. 221 (2020) ....................................... 14, 15

Harrison v. Vose,

50 U.S. (9 How.) 372 (1850) ................................ 23

INS v. Aguirre-Aguirre,

526 U.S. 415 (1999) ....................................... 13, 17

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) ............................................. 18

INS v. St. Cyr,

533 U.S. 289 (2001) ....................................... 22, 23

Jinan Chen v. Lynch,

814 F.3d 40 (1st Cir. 2015) .................................. 11

Kucana v. Holder,

558 U.S. 233 (2010) ............................................... 8

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) ...... 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,

13, 14, 15, 16, 18, 19, 21

iv

Cases (continued)

Page(s)

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................................. 5

Mayfield v. U.S. Department of Labor,

117 F.4th 611 (5th Cir. 2024) .............................. 10

Moctezuma-Reyes v. Garland,

124 F.4th 416 (6th Cir. 2024) .................... 9, 10, 11

New York Legal Assistance Group v.

BIA,

987 F.3d 207 (2d Cir. 2021) ................................. 20

Pereira v. Sessions,

585 U.S. 198 (2018) ........................................... 8, 9

Perttu v. Richards,

605 U.S. 460 (2025) ............................................... 9

Quinchia v. U.S. Attorney General,

552 F.3d 1255 (11th Cir. 2008) ........................... 20

Seminole Tribe of Florida v. Florida,

517 U.S. 44 (1996) ................................................. 8

Shular v. United States,

589 U.S. 154 (2020) ....................................... 22, 23

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ................................... 4, 16, 18

United States v. Dickson,

40 U.S. (15 Pet.) 141 (1841) ................................ 16

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) ............................... 21

Valenzuela Gallardo v. Barr,

968 F.3d 1053 (9th Cir. 2020) ............................. 19

v

Cases (continued)

Page(s)

Van Loon v. Department of the Treasury,

122 F.4th 549 (5th Cir. 2024) .............................. 10

Ventura Coastal, LLC v. United States,

736 F. Supp. 3d 1342

(Ct. Int’l Trade 2024)........................................... 10

West Virginia v. EPA,

597 U.S. 697 (2022) ............................................... 9

Wilkinson v. Garland,

601 U.S. 209 (2024) ....................................... 14, 15

Wooden v. United States,

595 U.S. 360 (2022) ................................. 21, 22, 23

Statutes

5 U.S.C. § 551 ............................................................. 2

5 U.S.C. § 701 ............................................................. 2

8 U.S.C. § 1101 ........................................................... 3

8 U.S.C. § 1101(a)(42)(A) .......................................... 11

8 U.S.C. § 1158(b)(1)(A) ............................................ 11

8 U.S.C. § 1252(a)(2)(D)...................................... 14, 15

8 U.S.C. § 1252(b)(4)(B) ................................ 13, 14, 23

8 U.S.C. § 1252(b)(4)(C) ............................................ 14

8 U.S.C. § 1252(b)(4)(D)...................................... 14, 18

29 U.S.C. § 213(a)(5) ................................................... 7

33 U.S.C. § 1312(a) ..................................................... 7

vi

Statutes (continued)

Page(s)

42 U.S.C. § 5846(a)(2) ................................................. 7

42 U.S.C. § 7412(n)(1)(A)............................................ 7

Other Authorities

A. Barrett, Substantive Canons and

Faithful Agency,

90 B.U. L. Rev. 109 (2010) .................................... 9

The Federalist No. 78 (J. Cooke ed. 1961)

(A. Hamilton) ......................................................... 5

M. Kagan, Chevron’s Asylum: Judicial

Deference in Refugee Cases,

58 Hous. L. Rev. 1119 (2021) .............................. 18

M. Kagan, Dubious Deference:

Reassessing Appellate Standards of

Review in Immigration Appeals,

5 Drexel L. Rev. 101 (2012) ................................. 18

J. Ramji-Nogales et al., Refugee Roulette:

Disparities in Asylum Adjudication,

60 Stan. L. Rev. 295 (2007) ................................. 19

F. Sayed, The Immigration Shadow

Docket, 117 Nw. U. L. Rev. 895 (2023) ............... 20

A. Scalia & B. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ...... 21, 22

M. Sweeney, Enforcing/Protection: The

Danger of Chevron in Refugee Act

Cases, 71 Admin. L. Rev. 127 (2019) ...... 16, 17, 18

S. Wadhia & C. Walker, The Case

Against Chevron Deference in

Immigration Adjudication,

70 Duke L.J. 1197 (2021) .............................. 17, 19

vii

Regulations

Page(s)

8 C.F.R. § 1003.1(e)................................................... 20

IN THE

Supreme Court of the United States

No. 24-777

DOUGLAS HUMBERTO URIAS-ORELLANA, ET AL.,

Petitioners,

v.

PAMELA BONDI, ATTORNEY GENERAL,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

BRIEF OF AMICUS CURIAE

CENTER FOR INDIVIDUAL RIGHTS

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE*

The Center for Individual Rights (CIR) is a nonprofit, public-interest law firm dedicated to defending

individual rights essential to a free and flourishing society. Founded in 1989, CIR has a record of landmark

victories in this Court and many others, setting prec-

* Pursuant to Supreme Court Rule 37.6, no counsel for a

party authored this brief in whole or in part, and no person or

entity other than amicus or its counsel made a monetary contribution to this brief ’s preparation.

2

edents that restore and protect fundamental individual rights threatened by government actions.

CIR recognizes that protecting individual rights

requires maintaining the constitutionally defined role

of the federal government and each of its branches, as

“the separation of powers is designed to preserve

the liberty of all the people.” Collins v. Yellen, 594 U.S.

220, 245 (2021). In particular, CIR has a vital interest

in ensuring that the courts independently apply the

laws Congress has enacted as written—and do not inappropriately cede that function to the Executive

Branch. CIR has participated as an amicus in a number of cases involving structural limits and the separation of powers in the U.S. Constitution, including

Bond v. United States, 572 U.S. 844 (2014), and Free

Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010).

INTRODUCTION AND

SUMMARY OF ARGUMENT

In Loper Bright Enterprises v. Raimondo, 603 U.S.

369 (2024), this Court reasserted the foundational

principle that courts in all cases must exercise their independent judgment when interpreting statutes. That

critical function had been surrendered for 40 years under Chevron U. S. A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), which required

courts to defer to executive agencies’ interpretations of

statutes so long as they were “permissible.” But Loper

Bright overruled Chevron in favor of a return to the

traditional understanding of the judicial role codified

in the Administrative Procedure Act (APA), 5 U.S.C.

§§ 551 et seq., 701 et seq.—under which courts, not

agencies, have the final say on what the law is.

3

This case presents an opportunity to make clear

that Loper Bright meant what it said: The task of authoritatively interpreting the laws belongs to the Judiciary, not the Executive. But in the decision below,

the First Circuit reviewed only for substantial evidence a determination by the Board of Immigration

Appeals (BIA) that a set of undisputed facts did not

amount to “persecution” for purposes of asylum under

8 U.S.C. § 1101(a)(42), a provision of the Immigration

and Nationality Act (INA), 8 U.S.C. § 1101 et seq. As

a result, the court of appeals itself never decided independently what the statutory term “persecution”

means. Instead, it asked only whether “any reasonable adjudicator” could have agreed with the BIA’s

view, and upheld the agency’s decision under that deferential standard. The First Circuit did all this without any clear delegation in the statutory text—reviving the “implicit delegation” approach from Chevron

that Loper Bright rejected.

The First Circuit’s decision cannot stand. Under

Loper Bright, the “presumption” is that “Congress expects courts to do their ordinary job of interpreting

statutes.” 603 U.S. at 403. Although the Court

acknowledged that Congress can (within constitutional limits) delegate to agencies the power to define

particular statutory terms, that delegation must be

clear and express to overcome the default presumption, to respect constitutional boundaries, and to allow

courts to police the outer edges of permissible delegations. Any other rule would reanimate Chevron’s discovery of implicit delegations in statutory silence.

Here, the INA lacks any statement—much less a clear

statement—delegating the power to define “persecution” in Section 1101(a)(42) to the BIA.

4

Deference was especially inappropriate in this

case, where the BIA’s decision lacked even the indicia

that may give an Executive Branch interpretation the

“power to persuade.” Loper Bright, 603 U.S. at 388

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944)). Deciding whether undisputed facts amount

to “persecution” requires legal judgment, not technical

or subject-matter expertise, and courts are best

equipped to apply law to facts—especially given sustained criticism of the BIA’s reasoning and decisionmaking process.

Even under Chevron, courts refused to defer to

single-judge, unpublished, non-precedential BIA opinions like the one in this case. Such opinions do not

necessarily embody even the considered view of the

Executive Branch, and represent only the opinion of a

single functionary. But under the First Circuit’s approach, those decisions get a level of deference contrary to even Chevron’s most robust outer edges.

The rule of lenity provides yet another reason to

reject the First Circuit’s deferential standard. While

Members of this Court have debated how much ambiguity is required for the rule of lenity to apply, the

First Circuit’s approach fails under any formulation.

Because the First Circuit defers to the government if

“any reasonable adjudicator” could agree, the government can win even in the face of grievous ambiguity

so long as it offers some minimally rational basis for

its position. That gets things backwards.

Loper Bright was clear: Without an express delegation of interpretive authority, reflexive deference to

agencies is no more. The decision below failed to heed

that instruction. The Court should reverse.

5

ARGUMENT

I.

LOPER BRIGHT FORBIDS DEFERRING TO THE

EXECUTIVE B RANCH’S INTERPRETATION HERE

BECAUSE CONGRESS DID NOT CLEARLY DELEGATE

AUTHORITY TO INTERPRET THE STATUTE

Under Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024), courts must determine for themselves what the best meaning of a statute is, without

deferring to an agency’s views. Congress may delegate to an agency the authority to define particular

statutory terms (subject to constitutional limits), but

it must speak clearly to do so. There is no clear delegation here, so the First Circuit should not have deferred to the BIA’s interpretation of the statute.

A. Congress Must Speak Clearly To Delegate

Interpretive Power To An Agency

1. In Loper Bright, this Court returned to “the

Framers’ understanding of the judicial function” and

reaffirmed that, in a case involving the Executive

Branch “as in any other,” “‘[i]t is emphatically the

province and duty of the judicial department to say

what the law is.’ ” Loper Bright, 603 U.S. at 385, 400

(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137,

177 (1803)). The Framers “envisioned that the final

‘interpretation of the laws’ would be ‘the proper and

peculiar province of the courts,’ ” “independent of influence from the political branches.” Id. at 385 (quoting The Federalist No. 78, p. 525 (J. Cooke ed. 1961)

(A. Hamilton)). That “elemental proposition,” codified

in the APA, reflects “judicial practice dating back to

Marbury: that courts decide legal questions by applying their own judgment.” Id. at 391-392. In overruling Chevron, this Court restored “the traditional un-

6

derstanding that questions of law [a]re for courts to

decide, exercising independent judgment.” Id. at 387.

As a result, whether or not “an administrative interpretation is in play,” courts must “use every tool at

their disposal” to determine the “single, best meaning”

of the statutory text. Loper Bright, 603 U.S. at 400-401.

A court’s duty to apply its own judgment to interpret

statutes does not disappear merely because “some

judges might (or might not) consider the statute ambiguous”; after all, “[t]he very point of the traditional

tools of statutory construction—the tools courts use

every day—is to resolve statutory ambiguities.” Ibid.

Those ambiguities do not license courts to “throw up

their hands” and “declar[e] a particular party’s reading” of the statute “permissible”—even when that

party is a federal agency. Ibid.

To be sure, the Court in Loper Bright recognized

that, in some cases, “the statute’s meaning may well

be that the agency is authorized to exercise a degree

of discretion.” 603 U.S. at 394-395. In those cases, a

court must “independently interpret the statute” to

determine “the boundaries of the delegated authority”

and then assess whether the agency “engaged in ‘reasoned decisionmaking’ within those boundaries.”

Ibid. (brackets and citations omitted).

But the Court was careful to cabin this principle

to statutes in which Congress expresses its “will” that

the agency have “discretionary authority.” Loper

Bright, 603 U.S. at 394-395. The Court pointed to

statutes that “‘expressly delegat[e]’ to an agency the

authority to give meaning to a particular statutory

term”; ones that “empower an agency to prescribe

rules to ‘fill up the details’ of a statutory scheme”; and

7

those that allow an agency “to regulate subject to

the limits imposed by a term or phrase that ‘leaves

[the] agenc[y] with flexibility.’ ” Ibid. The statutes the

Court highlighted all contained language that explicitly

delegated such authority to an agency. Id. at 395 nn.

5-6 (citing 29 U.S.C. § 213(a)(5), 33 U.S.C. § 1312(a),

and 42 U.S.C. §§ 5846(a)(2) and 7412(n)(1)(A)). And in

rejecting as “fiction” Chevron’s “presumption” that

ambiguity or silence confers discretion, the Court was

emphatic that an ambiguity “is not a delegation to anybody, and a court is not somehow relieved of its obligation to independently interpret the statute.” Id. at

399-400, 404.

“The better presumption” is that “Congress expects

courts to do their ordinary job of interpreting statutes.”

Loper Bright, 603 U.S. at 403. Before a court surrenders that responsibility, it must carefully scrutinize

statutory language to determine whether Congress

“actually intended to delegate particular interpretive

authority to an agency.” Id. at 404 (citation omitted).

2. Congress must speak clearly if it wishes to oust

courts from their “ordinary job of interpreting statutes” and delegate that power to an agency. Loper

Bright, 603 U.S. at 403. Under Chevron, this Court

construed “statutory ambiguities” as “implicit delegations to agencies.” Id. at 399. Loper Bright rejected

that untenable premise, explaining that “[a]n ambiguity is simply not a delegation of law-interpreting

power.” Ibid. (citation omitted). Chevron erroneously

required clear language to overcome that default rule

of deference, but under Loper Bright the default rule

is the opposite: Courts—not agencies—definitively

decide what a statute means. To overcome that de-

8

fault, Congress must make its intent to delegate clear.

See id. at 394-395, 399-400, 403-404.

A clear-statement rule for delegations of lawinterpreting authority makes good sense in light of

the constitutional principles animating Loper Bright.

Courts’ authority to decide the meaning of statutes derives from “Article III of the Constitution” and reflects

“the Framers’ understanding of the judicial function.”

Loper Bright, 603 U.S. at 384-385. “[J]udicial practice

dating back to Marbury” is that courts “decide legal

questions by applying their own judgment.” Id. at

391-392; see also id. at 390 n.3 (recognizing “the deep

roots that this rule has in our Nation’s judicial tradition”). Indeed, as several Justices have observed, delegating interpretive authority to executive agencies—

giving them the power both to enforce the law against

individuals and to say what the law means—can raise

serious constitutional questions. See, e.g., id. at 413-416

(Thomas, J., concurring); id. at 429-435 (Gorsuch, J.,

concurring); Pereira v. Sessions, 585 U.S. 198, 219-221

(2018) (Kennedy, J., concurring).

Those serious constitutional questions counsel

against reading unclear language to effect a delegation of law-interpreting power to an executive agency.

Where, as here, there is a need to “temper Congress’

acknowledged powers” against “an essential component of our constitutional structure,” this Court has

not hesitated to adopt a clear-statement rule to avoid

constitutional concerns. Seminole Tribe of Florida

v. Florida, 517 U.S. 44, 55-56 (1996) (citation omitted); cf. Kucana v. Holder, 558 U.S. 233, 237 (2010)

(“Separation-of-powers concerns, moreover, caution

us against reading legislation, absent clear statement,

to place in executive hands authority to remove cases

9

from the Judiciary’s domain.”). Clear-statement rules

“help courts ‘act as faithful agents of the Constitution’ ” and enable them “to ensure that acts of Congress are applied in accordance with the Constitution.” West Virginia v. EPA, 597 U.S. 697, 736 (2022)

(Gorsuch, J., concurring) (quoting A. Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev.

109, 169 (2010)). And, where a court “can avoid the

constitutional question by answering the statutory

one,” that is the preferred route. Perttu v. Richards,

605 U.S. 460, 469 n.1 (2025). So when Congress has

not clearly expressed any intent to shift interpretive

authority away from the courts and into an executive

agency, courts should not assume it has done so.

A clear-statement rule is also crucial to prevent

courts from backsliding into Chevron. Under Loper

Bright, courts must “police the outer statutory boundaries” of congressional “delegations of authority,” and

may not simply “pretend that ambiguities are necessarily delegations.” 603 U.S. at 404. Courts searching

for implicit delegations in ambiguous statutory text

will find them everywhere, potentially short-circuiting

judicial review after only “cursory analysis” of the

statute. Pereira, 585 U.S. at 220 (Kennedy, J., concurring). That sort of “reflexive deference” was common

under Chevron, id. at 221, and would return like a

weed if courts could again find delegations of lawinterpreting power in unclear statutory language.

To minimize that risk, “[t]he actual delegation of authority to the agency must be clear.” Moctezuma-Reyes

v. Garland, 124 F.4th 416, 421 (6th Cir. 2024). As the

Sixth Circuit has explained, “expres[s] and explici[t]”

language “conferring discretion on the agency” is “critical”: “If broad language alone triggered deference,

10

we’d unwittingly return to construing less than precise words as implicit delegations to the agency that

warrant deference.” Id. at 420. But “[t]hat can’t be

right”; “[t]he case that declared ‘Chevron is overruled’

didn’t quietly reinstitute it.” Ibid. (quoting Loper

Bright, 603 U.S. at 412). Courts should therefore defer to an agency’s implementation of a statute only

“[w]hen ‘Congress has clearly delegated discretionary

authority to [the] agency.’ ” Van Loon v. Department

of the Treasury, 122 F.4th 549, 563 (5th Cir. 2024)

(emphasis added; citation omitted); see also, e.g., Mayfield v. U.S. Department of Labor, 117 F.4th 611, 617

(5th Cir. 2024) (finding “an uncontroverted, explicit

delegation of authority”); Duffus v. MaineHealth,

2025 WL 1928339, at *14 (D. Me. July 14, 2025)

(“Without [a] clear delegation, though, courts cannot

read congressional authorization for agency action

into every statute that uses broad terms.”); Ventura

Coastal, LLC v. United States, 736 F. Supp. 3d 1342,

1356-1358 (Ct. Int’l Trade 2024) (similar). Any less

vigilant approach would “give succor to Chevron resurrectionists.” China Unicom (Americas) Operations

Ltd. v. FCC, 124 F.4th 1128, 1165 n.11 (9th Cir. 2024)

(Bea, J., dissenting).

*

*

*

Barely a year into the post-Chevron era, some

courts are already getting the message: Courts and

agencies cannot revive Chevron in a different form by

finding congressional delegations in unclear language.

The decision below, however, does exactly that. This

Court should confirm that, under Loper Bright, deference to an agency is appropriate only in the limited

instances where Congress has clearly conferred on the

agency the power to say what the law means.

11

B. The First Circuit Erroneously Deferred

To The BIA Without Clear Congressional

Instruction To Do So

The First Circuit’s approach here exemplifies the

perils of courts “quietly reinstitut[ing]” Chevron by

construing “broad,” “less than precise” statutory language as “implicit delegations to the agency that warrant deference.” Moctezuma-Reyes, 124 F.4th at 420.

In asking only whether the BIA’s decision was permissible under the forgiving substantial-evidence standard, the decision below improperly “place[d] a finger

on the scales of justice in favor of the most powerful of

litigants, the federal government,” Loper Bright,

603 U.S. at 433 (Gorsuch, J., concurring)—even though

Congress never clearly authorized such deference.

1. In analyzing petitioners’ requests for asylum,

the First Circuit had to determine whether the record

evidence demonstrated “persecution or a well-founded

fear of persecution.” 8 U.S.C. § 1101(a)(42)(A) (defining “refugee”); see id. § 1158(b)(1)(A) (alien eligible for

asylum if he is a “refugee”). Making that determination necessarily required the court first to ascertain

what “persecution” means. But the court itself never

did so and did not assess independently whether the

undisputed evidence, as the agency had found it, constituted “persecution” under the statute.

Instead, the court of appeals “cabin[ed] [its] review” to whether the BIA’s determination that petitioners had not made the necessary showing “was supported by substantial evidence.” Pet. App. 10a. As the

First Circuit has previously explained, “[t]his is not a

petitioner-friendly standard of review.” Jinan Chen

v. Lynch, 814 F.3d 40, 45 (1st Cir. 2015) (citation omit-

12

ted). Under that standard, the court mistakenly believed that it was bound to accept the BIA’s conclusions about what constitutes persecution, even if the

court disagreed, “as long as” those conclusions “[we]re

supported by reasonable, substantial and probative

evidence on the record considered as a whole.” Pet.

App. 9a (quoting Gomez-Abrego v. Garland, 26 F.4th

39, 45 (1st Cir. 2022)). As a result, petitioners could

not prevail simply by convincing the First Circuit that

the BIA was wrong about the meaning of “persecution” as a matter of law; they had to establish that

“any reasonable adjudicator would be compelled to

conclude to the contrary.” Ibid. (citations omitted).

Having stacked the deck against petitioners, the

First Circuit unsurprisingly ruled for the BIA. The

court determined, for example, that the BIA “reasonably concluded” that the threats at issue did “not meet

th[e] threshold” for past persecution. Pet. App. 11a.

It also cited circuit precedents where the court had similarly “upheld [BIA] decisions” on the same issue applying the same deferential standard. Id. at 12a-13a. In

other words, it accepted the BIA’s legal judgment

about what constitutes “persecution.” See ibid. And

the court closed by concluding not that the BIA’s decision was correct, but only that “the record here did not

compel” a contrary conclusion. Id. at 13a.

That is Chevron in all but name. Indeed, prior

First Circuit decisions made no secret that Chevron

undergirds the court’s deferential approach: The

court has said that “[p]ersecution is a protean word,

capable of many meanings,” and that “[b]ecause the

word ‘persecution’ is not defined by statute, it is in the

first instance the prerogative of the Attorney General,

acting through the BIA, to give content to it.” Bocova

13

v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005) (citing

INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)).

That mode of analysis did not survive Loper Bright.

The First Circuit’s deferential review thus rested

on Chevron’s defunct method of interpretation and abdicated “the judicial role.” Loper Bright, 603 U.S. at

385. The court never deployed “the traditional tools

of statutory construction” to interpret the asylum

statute. Id. at 401. Rather, it “declar[ed] a particular

party’s” approach to the statute “permissible,” id. at

400, by concluding that the BIA’s conclusions on past

and future persecution were “reasonabl[e],” Pet. App.

11a; see id. at 9a. The decision below thus “adopt[ed]

the construction given by” the Executive Branch,

without deciding whether that construction was correct. Loper Bright, 603 U.S. at 386, 410 (quoting Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 515 (1840)).

2. The First Circuit’s decision cannot be justified

on the theory that Congress delegated to the BIA the

power to define the legal standard for persecution, because the INA says no such thing. Nothing in the statutory text amounts to the kind of delegation that

Loper Bright acknowledged may be permissible.

The Solicitor General invokes the INA’s provision

stating that, on judicial review of a final order of removal, the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B);

see Br. in Opp. 9-13. But that provision does not support deferring to the BIA here. See Pet. Br. 20-21,

29-32. Loper Bright itself distinguished between an

agency’s factual findings and its legal judgment about

what the law means, holding that the APA mandated

14

deference to the former but not the latter. 603 U.S. at

387-392. The INA’s command of deference to agency

factfinding, like the APA’s, comes nowhere close to a

clear delegation of law-interpreting power.

Instead, the statutory structure points in the opposite direction. In addition to subjecting “findings of

fact” to deferential review, 8 U.S.C. § 1252(b)(4)(B),

the INA does the same for “a decision that an alien is

not eligible for admission” and for the ultimate “discretionary judgment whether to grant” asylum, id.

§ 1252(b)(4)(C)-(D). But none of those provisions covers the asylum-eligibility question presented here,

and the statute does not set a blanket deferential

standard of review for all “questions of law”; instead,

like the APA, the INA reserves such questions for

courts. See id. § 1252(a)(2)(D). Nor does the INA authorize deference for “mixed questions of law and

fact,” which this Court has held “are always reviewable as questions of law under § 1252(a)(2)(D).” Wilkinson v. Garland, 601 U.S. 209, 218-219 (2024) (citing Guerrero-Lasprilla v. Barr, 589 U.S. 221, 225

(2020)). “The natural implication” of that silence “is

that Congress did not intend for courts” to defer to the

BIA’s views on such questions. Esteras v. United

States, 145 S. Ct. 2031, 2040 (2025); see also Loper

Bright, 603 U.S. at 392 n.4.

Indeed, the question the First Circuit confronted

here—whether the undisputed facts satisfy the definition of “persecution” under the INA—is precisely the

kind of legal question to which the BIA is entitled no

deference. See Pet. Br. 20-21, 29-32. This Court has

twice held that a “questio[n] of law” under Section

1252 includes “the question whether a given set of

facts meets a particular legal standard.” Guerrero-

15

Lasprilla, 589 U.S. at 227; accord Wilkinson, 601 U.S.

at 217. Far from delegating such questions to the BIA,

the INA expressly reserves them for courts. 8 U.S.C.

§ 1252(a)(2)(D). And making that sort of legal judgment is a familiar task across a range of everyday judicial contexts, like motions to dismiss and summary

judgment. See, e.g., Guerrero-Lasprilla, 589 U.S. at

227-228 (collecting cases). The question in this case is

of a piece: Deciding whether a given set of facts meets

the legal standard for “persecution” is a quintessential

“question of law under § 1252(a)(2)(D),” Wilkinson,

601 U.S. at 217—and “questions of law [a]re for courts

to decide, exercising independent judgment,” Loper

Bright, 603 U.S. at 387.

At the very least, the INA lacks any clear statement delegating to the BIA the power to define “persecution.” Particularly in light of Guerrero-Lasprilla

and Wilkinson, the statute’s mandate of deference for

“findings of fact” does not unambiguously encompass

that power. Without any such clear statement, Loper

Bright’s presumption in favor of courts—not Chevron’s presumption in favor of agencies—controls.

II. DEFERENCE IS PARTICULARLY INAPPROPRIATE

IN BIA CASES LIKE THIS ONE

Loper Bright restored the primacy of the Judiciary

in interpreting statutes. The Court also acknowledged that judges “exercising independent judgment”

can nonetheless “accor[d] due respect to Executive

Branch interpretations of federal statutes.” 603 U.S.

at 385. But not all agency interpretations pack the

same punch. For example, courts historically gave

more weight to agency interpretations crafted by those

who were “masters of the subject” and those that were

16

“issued roughly contemporaneously with enactment of

the statute and remained consistent over time.” Id. at

386 (citation omitted). Even then, courts were not “at

liberty” to “surrender” their “own judgment” or to let it

be “supersede[d]” by an agency’s view. Id. at 386-387

(quoting United States v. Dickson, 40 U.S. (15 Pet.)

141, 162 (1841) (Story, J.)).

The BIA’s decision here carries none of the hallmarks of Executive Branch interpretations with the

“power to persuade.” Loper Bright, 603 U.S. at 388

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944)). Its legal view of what “persecution” means is

not “based upon * * * specialized experience”; does

not reflect any “informed judgment” on policy issues;

and does not demonstrate “thoroug[h]” or “consisten[t]” consideration of the issues at stake. Ibid.

(quoting Skidmore, 323 U.S. at 139-140). The BIA’s

legal determination in this case therefore does not

warrant any special respect—much less deference.

A. The BIA Lacks Relevant Special Expertise

When it comes to “resolving statutory ambiguities,” “agencies have no special competence”; “[c]ourts

do.” Loper Bright, 603 U.S. at 400-401. Nor is the

question at hand—whether a given set of facts

amounts to “persecution” under the statute—the sort

of “technical matter” where an agency’s “body of experience and informed judgment” might prove persuasive. Id. at 402 (citation omitted).

The “expertise required to interpret the INA * * *

does not require familiarity with technical or scientific

information, nor with the workings of an industry, nor

even, for the most part, with the mechanics of immigration enforcement.” M. Sweeney, Enforcing/Protec-

17

tion: The Danger of Chevron in Refugee Act Cases,

71 Admin. L. Rev. 127, 174 (2019) (Sweeney). “[M]ost

of the statutory ambiguities the BIA addresses in the

INA” thus “do not implicate any technical or scientific

expertise,” either. S. Wadhia & C. Walker, The Case

Against Chevron Deference in Immigration Adjudication, 70 Duke L.J. 1197, 1223 (2021) (Wadhia &

Walker); see also id. at 1219 (“Job announcements for

immigration judges * * * do not require any legal or

policy expertise in immigration or foreign relations, or

any other scientific or technical expertise.”). Instead,

interpreting the INA “demands expertise in legal

analysis and the application of law to facts—precisely

the sort of expertise that federal courts have” and the

BIA often lacks. Sweeney 175.

Under Chevron, this Court deferred to the BIA

where it “exercise[d] especially sensitive political

functions that implicate questions of foreign relations.” Aguirre-Aguirre, 526 U.S. at 425 (citation

omitted). Such cases may still warrant a degree of judicial respect for the Executive Branch’s judgment

and expertise. Aguirre-Aguirre itself, for example,

concerned a decision whether “to deem certain violent

offenses committed in another country as political in

nature, and to allow the perpetrators to remain in the

United States”—which “could affect our relations with

that country or its neighbors,” and for which “[t]he judiciary [wa]s not well positioned to shoulder primary

responsibility for assessing the likelihood and importance of such diplomatic repercussions.” Id. at 425.

But not every immigration case implicates those concerns; indeed, “it is the very unusual case that affects

anyone or anything other than the parties themselves.” Sweeney 174-175. “The vast majority of im-

18

migration cases require expertise, not in foreign affairs, but rather in the legal interpretation of a complex statutory and regulatory scheme.” Ibid.; see also,

e.g., M. Kagan, Chevron’s Asylum: Judicial Deference

in Refugee Cases, 58 Hous. L. Rev. 1119, 1151-1152

(2021). In ordinary immigration cases like this one,

the sole question concerns the meaning of text Congress enacted. Courts—not the BIA—are best suited

to perform that task. And to the extent cases implicate foreign-policy concerns, Congress has accounted

for those concerns by making the ultimate decision

whether to grant asylum discretionary. See 8 U.S.C.

§ 1252(b)(4)(D). There is thus no need or basis to accord additional deference to the BIA’s legal interpretations that Congress did not authorize.

B. The BIA’s Decisions Are Often Thinly

Reasoned And Inconsistent

On the whole, the BIA’s decisions lack the thorough reasoning that could have the “power to persuade” a court. Loper Bright, 603 U.S. at 388 (quoting

Skidmore, 323 U.S. at 140). The BIA has been subject

for decades to stinging criticism for the quality of its

analysis. Judicial “criticisms of the Board and of the

immigration judges have frequently been severe,” and

courts have repeatedly faulted the agency for adjudications that “fal[l] below the minimum standards of

legal justice.” Benslimane v. Gonzales, 430 F.3d 828,

829-830 (7th Cir. 2005) (collecting cases); see also, e.g.,

INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987)

(Blackmun, J., concurring) (chastising the agency for

“years of seemingly purposeful blindness” in interpreting statutory provision “entrusted to its care”); M. Kagan, Dubious Deference: Reassessing Appellate Standards of Review in Immigration Appeals, 5 Drexel L.

19

Rev. 101, 153-154 (2012) (citing cases “reflect[ing]

deeper systemic doubts” about the quality of immigration judges’ decisionmaking). These critiques may be

the consequence of an agency overwhelmed by a staggering caseload, which is “further exacerbated by the

fact that immigration judges and BIA members face

pressure to meet quotas and follow guidelines set by

the attorney general.” Wadhia & Walker 1229-1230.

The agency’s rulings are also notoriously inconsistent, further undermining any persuasive value.

One study of asylum cases, for example, found “amazing disparities in grant rates, even when different adjudicators in the same office each considered large

numbers of applications from nationals of the same

country.” J. Ramji-Nogales et al., Refugee Roulette:

Disparities in Asylum Adjudication, 60 Stan. L. Rev.

295, 296 (2007); see id. at 302. Similar inconsistencies

plague the BIA: In one case, for instance, the BIA

adopted three different definitions of the same statutory phrase, leaving the court to consider (and reject)

the agency’s “most recent definition.” Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1057-1059 (9th Cir.

2020). In another, the BIA “invoked Chevron to overrule a judicial precedent on which many immigrants

had relied,” and “then sought to apply its new interpretation retroactively to punish those immigrants.”

Loper Bright, 603 U.S. at 440 (Gorsuch, J., concurring) (citing De Niz Robles v. Lynch, 803 F.3d 1165

(10th Cir. 2015)). Consistency is simply not a feature

of BIA adjudication, so courts cannot rely on the BIA

to speak with one voice on questions of law. And

“whatever argument might be mustered for deferring

to the Executive on grounds of political accountability,

surely it becomes a garble when the Executive speaks

20

from both sides of its mouth, articulating no single position on which it might be held accountable.” Epic

Systems Corp. v. Lewis, 584 U.S. 497, 520 (2018).

Exacerbating these problems is the BIA’s heavy

reliance on resolving cases through unpublished, nonprecedential opinions. “[T]he vast majority of the final decisions issued by the BIA each year” are unpublished; they are “cited and relied upon by the BIA

itself, by immigration judges, and by lawyers representing the government in immigration proceedings,”

but they “are not readily available to lawyers representing clients in immigration proceedings.” New

York Legal Assistance Group v. BIA, 987 F.3d 207,

208-209 (2d Cir. 2021). These decisions—including

the one in this case—are often rendered by a single

BIA member, rather than the full Board. See 8 C.F.R.

§ 1003.1(e). As the view of a single individual, they

may not reflect the considered judgment of the Executive Branch. And even under Chevron, these singlemember, unpublished, non-precedential decisions

should not have garnered deference, see, e.g., Quinchia

v. U.S. Attorney General, 552 F.3d 1255, 1258 (11th

Cir. 2008); Pet. Br. 28-29—but they do now, at least

under the First Circuit’s approach.

The BIA’s regular issuance of such decisions leads

to even more inconsistent adjudication of cases. Unpublished opinions “frequently conflict with each other

or with published decisions,” and the BIA “rarely, if

ever, explains why two seemingly similar cases should

have such disparate outcomes.” F. Sayed, The Immigration Shadow Docket, 117 Nw. U. L. Rev. 895, 897

(2023). By disposing of so many cases in this way, the

BIA has “all but abandoned” any serious attempt “to

provide guidance as to the meaning of vague, often

21

complicated statutory language and to ensure uniformity in the application of immigration law across

the nation.” Id. at 898. In doing so, the BIA has

“stunt[ed] the development and understanding of immigration law and likely contribute[d] to well-documented disparities in its application by immigration

adjudicators.” Ibid. That sort of adjudication should

not be treated as persuasive.

*

*

*

The BIA’s decision here does not carry any of the

“factors which” could even “give it power to persuade.”

Loper Bright, 603 U.S. at 388 (citation omitted). The

First Circuit erred by according it controlling weight.

III. THE RULE OF LENITY FURTHER PRECLUDES

DEFERENCE IN THIS CONTEXT

Deference to the BIA’s interpretation of what constitutes “persecution” is also inconsistent with the

rule of lenity. If “persecution” is susceptible of multiple reasonable interpretations, then the rule of lenity

required the First Circuit to resolve the ambiguity

against the government—not in its favor.

1. “The ‘rule of lenity’ is a new name for an old

idea—the notion that ‘penal laws should be construed

strictly.’ ” Wooden v. United States, 595 U.S. 360, 388

(2022) (Gorsuch, J., concurring) (quoting The Adventure, 1 F. Cas. 202, 204 (No. 93) (CC Va. 1812) (Marshall, C.J.)). The rule is a tool of construction “perhaps not much less old than construction itself.”

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95

(1820). Under the rule, “[a]mbiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant’s favor.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts

22

296 (2012) (Reading Law). So “if two rational readings are possible, the one with the less harsh treatment of the defendant prevails.” Ibid.

The rule of lenity is not limited to criminal cases:

“Historically, lenity applied to all ‘penal’ laws—that

is, laws inflicting any form of punishment, including

ones we might now consider ‘civil’ forfeitures or fines.”

Wooden, 595 U.S. at 396 n.5 (Gorsuch, J., concurring).

In particular, this Court has long applied the rule in

removal proceedings, giving it force as “the longstanding principle of construing any lingering ambiguities

in deportation statutes in favor of the alien.” INS v.

St. Cyr, 533 U.S. 289, 320 (2001) (citation omitted).

Deportation, after all, “is a drastic measure and at

times the equivalent of banishment or exile”; it is “the

forfeiture for misconduct of a residence in this country.” Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)

(citation omitted). Removal from the United States

thus practically operates as a “penalty.” Ibid. Courts

must therefore “resolve * * * doubts in favor” of an

alien facing removal, and may not “assume that Congress meant to trench on his freedom beyond that

which is required by the narrowest of several possible

meanings of the words used.” Ibid.; see also, e.g., Barber v. Gonzales, 347 U.S. 637, 642-643 (1954) (laws

governing removal “should be strictly construed”).

2. The First Circuit’s approach was erroneous under any conception of the rule of lenity. The standard

for invoking the rule has been articulated in different

ways. This Court has often said that the rule applies

when, after all the “traditional canons of statutory

construction” have been exhausted, a “grievous ambiguity” remains, and the court “can make no more than

a guess as to what Congress intended.” Shular v.

23

United States, 589 U.S. 154, 166-167 (2020) (Kavanaugh, J., concurring) (citations omitted); see id. at

nn. 1-2 (collecting cases). Some Members of this Court

have argued that a “grievous” ambiguity is unnecessary and that the rule operates to resolve “all reasonable doubts” about a penal statute’s meaning against

the government. Wooden, 595 U.S. at 392-393 (Gorsuch, J., concurring in the judgment) (quoting Harrison v. Vose, 50 U.S. (9 How.) 372, 378 (1850)).

The distinction in formulations makes no difference here, however, because under either one the decision below is wrong. The First Circuit’s substantialevidence standard requires upholding the BIA’s application of the statute unless “any reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B); see Pet. App. 9a-10a. In other

words, so long as the BIA could cobble together some

plausible basis for its position, it would be entitled to

deference. That is clearly incompatible with lenity: It

is not enough that the government’s interpretation

“might find support in logic,” Fong Haw Tan, 333 U.S.

at 10, or that its reading is “rational,” Reading Law

296. That outcome would allow even “grievous” statutory ambiguities to be resolved in the agency’s favor,

Shular, 589 U.S. at 167-168 (Kavanaugh, J., concurring), so long as the government offered some minimally rational argument. That cannot be right.

If the rule of lenity means anything, it must mean

that courts cannot defer to the government’s interpretation of a removal statute merely because some reason can be posited in support of that position. The

First Circuit should have resolved any “lingering ambiguities” about what the statute meant “in favor of

the alien,” not the BIA. St. Cyr, 533 U.S. at 320.

24

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

CALEB KRUCKENBERG

CENTER FOR

INDIVIDUAL RIGHTS

1100 Connecticut Ave., N.W.

Suite 625

Washington, D.C. 20036

(202) 833-8400

JONATHAN C. BOND

Counsel of Record

TRENTON J. VAN OSS

LAVI M. BEN DOR

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

JBond@gibsondunn.com

Counsel for Amicus Curiae

September 3, 2025