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 LEGAL SERVICES PROVIDERS

AMERICAN GATEWAYS, CENTER FOR GENDER AND REFUGEE STUDIES, ET AL. AS

AMICI CURIAE

IN SUPPORT OF PETITIONERS

MELISSA CROW

CENTER FOR GENDER

AND REFUGEE STUDIES

1121 14th Street, N.W.

Ste. 200

Washington, DC 20005

ANNE DUTTON

CENTER FOR GENDER

AND REFUGEE STUDIES

200 McAllister Street

San Francisco, CA

94102

ETHAN NUTTER

Counsel of Record

SAMANTHA GARZA

VINSON & ELKINS LLP

200 W. 6th St., Ste 2500

Austin, TX 78701

(512) 542-8555

enutter@velaw.com

GARRETT T. MEISMAN

VINSON & ELKINS LLP

845 Texas Ave., Ste. 4700

Houston, TX 77002

Counsel for Amici Curiae (continued inside)

ROBERT PAUW

CENTER FOR GENDER

AND REFUGEE STUDIES

C/O GIBBS HOUSTON

PAUW

1000 Second Avenue

Ste. 1600

Seattle, WA 98104

MATTHEW X.

ETCHEMENDY

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Ste. 500 West

Washington, DC 20037

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

Table Of Authorities................................................. III

Interest Of Amici Curiae ............................................ 1

Introduction And Summary Of Argument ................. 4

Argument ..................................................................... 9

I.

Application of the proper standard of

review is critical to ensure fairness in

removal proceedings for immigration legal

services providers like Amici and the

noncitizens they represent. .................................. 9

II. Whether certain facts rise to the level of

persecution is more of a legal question

than a factual one, and thus should be

reviewed de novo. ................................................ 11

A. Under this Court’s U.S. Bank test, the

question here entails primarily legal

work. ............................................................. 11

B. Decisions

applying

substantialevidence review are inconsistent with

the U.S. Bank framework. ........................... 15

C. INS v. Elias-Zacarias does not

mandate substantial evidence review

for mixed questions of law and fact. ............ 17

D. Reviewing persecution determinations

under de novo review would comport

with the way immigration judges

frequently view circuit court authority

and correct imbalances in precedent. .......... 21

(I)

II

Conclusion ................................................................. 25

TABLE OF AUTHORITIES

Cases

Abdel-Masieh v. INS,

73 F.3d 579 (5th Cir. 1996) ...................................23

Abdulai v. Ashcroft,

239 F.3d 542 (3d Cir. 2001) ...................................21

Ali v. U.S. Att’y Gen.,

931 F.3d 1327 (11th Cir. 2019).......................... 5, 13

Arostegui-Maldonado v. Garland,

75 F.4th 1132 (10th Cir. 2023) ..............................16

Bose Corp. v. Consumers Union of U.S. Inc.,

466 U.S. 485 (1984)................................................13

Chen v. Ashcroft,

381 F.3d 221 (3rd Cir. 2004) .................................22

Crespin-Valladares v. Holder,

632 F.3d 117 (4th Cir. 2011) .................................19

Diallo v. Ashcroft,

381 F.3d 687 (7th Cir. 2004) .................................10

Don v. Gonzales,

476 F.3d 738 (9th Cir. 2007) .................................10

Escobedo Marquez v. Barr,

965 F.3d 561 (7th Cir. 2020) .................................15

Evans v. Sec’y, Dep’t of Corrs.,

703 F.3d 1316 (11th Cir. 2013)..............................10

Fon v. Garland,

34 F.4th 810 (9th Cir. 2022) ....................................9

Gjetani v. Barr,

968 F.3d 393 (5th Cir. 2020) ..................... 10, 23, 24

(III)

IV

Cases—Continued:

Page(s)

Google LLC v. Oracle Am., Inc.,

593 U.S. 1 (2021)...................................................20

Hassan v. Gonzales,

484 F.3d 513 (8th Cir. 2007) .................................13

He v. Garland,

24 F.4th 1220 (8th Cir. 2022) ............................ 7, 17

Hernandez v. Garland,

66 F.4th 94 (2d Cir. 2023) .....................................10

Hernandez-Avalos v. Lynch,

784 F.3d 944 (4th Cir. 2015) .................................13

Hernandez-Martinez v. Garland,

59 F.4th 33 (1st Cir. 2023) ....................................16

Huo Qiang Chen v. Holder,

773 F.3d 396 (2d Cir. 2014) ....................... 13, 14, 16

Hussain v. Holder,

567 F. App’x 223 (5th Cir. 2014) ..................... 23, 24

INS v. Elias-Zacarias,

502 U.S. 478 (1992)................ 6, 7, 17, 18, 19, 20, 21

Jean-Pierre v. U.S. Att’y Gen.,

500 F.3d 1315 (11th Cir. 2007)..............................16

Kaur v. Wilkinson,

986 F.3d 1216 (9th Cir. 2021)...................... 5, 12, 16

Kukalo v. Holder,

744 F.3d 395 (6th Cir. 2011) .................................15

Lumataw v. Holder,

582 F.3d 78 (1st Cir. 2009) ...................................18

Manuel-Soto v. Att’y Gen.,

121 F.4th 468 (3d Cir. 2024) .................................16

V

Cases—Continued:

Page(s)

Marbury v. Madison,

5 U.S. 137 1 Cranch 137 (1803).............................24

Matter of A-S-B-,

24 I. & N. Dec. 493 (B.I.A. 2008) ...........................14

Matul-Hernandez v. Holder,

685 F.3d 707 (8th Cir. 2012) ...............................5, 9

Medhin v. Ashcroft,

350 F.3d 685 (7th Cir. 2003) .................................18

Mingh Shi Xue v. BIA,

439 F.3d 111 (2d Cir. 2006) ...................................10

Mirisawo v. Holder,

599 F.3d 391 (4th Cir. 2010) .................................15

Morales v. Sessions,

860 F.3d 812 (5th Cir. 2017) ...................................9

Nazaraghaie v. INS,

102 F.3d 460 (10th Cir. 1996)................................17

Ozdemir v. INS,

46 F.3d 6 (5th Cir. 1994) .......................................23

Padilla-Franco v. Garland,

999 F.3d 604 (8th Cir. 2021) ........................... 14, 20

Pierce v. Underwood,

487 U.S. 552 (1988)................................................12

Plaza-Ramirez v. Sessions,

908 F.3d 282 (7th Cir. 2018) ............................. 8, 25

Portillo Flores v. Garland,

3 F.4th 615 (4th Cir. 2021) ....................................13

Pullman–Standard v. Swint,

456 U.S. 273 (1982)................................................12

VI

Cases—Continued:

Page(s)

Ravindran v. INS,

976 F.2d 754 (1st Cir. 1992) ..................................17

Saban-Cach v. Att’y Gen.,

58 F.4th 716 (3d Cir. 2023) ............................... 5, 13

Singh v. Ilchert,

63 F.3d 1501 (9th Cir. 1995) .................................20

Tesfamichael v. Gonzales,

469 F.3d 109 [(5th Cir. 2006) ................................22

U.S. Bank National Association v. Village at

Lakeridge, LLC,

583 U.S. 387 (2018). 4, 5, 6, 7, 11, 12, 13, 14, 15, 17,

20, 25

Xue v. Lynch,

846 F.3d 1099 (10th Cir. 2017)..............................18

Yar v. Garland,

94 F.4th 1077 (8th Cir. 2024) ................................16

Statutes

8 U.S.C. §1252 ...........................................................21

8 U.S.C. §1252(b) ................................................... 7, 24

8 U.S.C. §1252(b)(4)(B) .............................................10

Act of Sept. 30, 1996, Pub.L. 104-208, 110 Stat

3009 (1996) .............................................................20

Refugee Act of 1980, Pub. L. 96-212, 94 Stat.

102 (1980) .................................................................9

Other Authorities

Charles Shane Ellison, The Toll Paid When

Adjudicators Err: Reforming Appellate

Review Standards for Refugees, 38

Georgetown Immig. L. J. 144, 198–99 (2024) .. 6, 13,

14, 16, 21

(VII)

INTEREST OF AMICI CURIAE 1

Amicus Curiae American Gateways is a non-profit

legal services provider in Central Texas advocating

for low-income immigrants, refugees, and survivors of

persecution, torture, conflict, and human trafficking.

Created in 1987 to serve communities escaping war in

Central America, American Gateways has since

broadened its mission to ensure that refugees from all

over the globe have a path to immigration relief.

Amicus Curiae Center for Gender & Refugee Studies (“CGRS”) is a non-profit organization dedicated to

the study, advancement, and fair implementation of

refugee and human rights law. For twenty-five years,

CGRS has played a central role in the development of

asylum law and policy through litigation, scholarship,

and policy advocacy. CGRS also provides expert technical assistance to attorneys representing asylum

seekers nationwide, reaching over 8,400 unique asylum cases at all levels of the immigration and federal

court systems in the past year alone. The question before the Court relates directly to CGRS’s core mission

to ensure that humanitarian protections under U.S.

law comport with our international obligations.

Amicus Curiae the National Immigration Project

of the National Lawyers Guild (“National Immigration Project”) is a nonprofit legal advocacy and mem-

1 No counsel for any party authored this brief in whole or in

part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this

brief. No entity or person, aside from amici curiae and their

counsel, made any monetary contribution intended to fund the

preparation or submission of this brief.

(1)

2

bership organization of attorneys, advocates, legal organizations, and community organizations working to

defend and extend the rights of immigrants and to ensure access to immigration relief for those who are entitled to it. The National Immigration Project hosts

continuing legal education seminars on the rights of

noncitizens, is the author of numerous practice advisories, and provides technical assistance to our members on a range of topics including asylum and fearbased relief. Through its membership network and its

litigation, the National Immigration Project is acutely

aware of the importance of federal courts applying the

correct legal standard to its review of agency decisions

on asylum, withholding of removal, and Convention

against Torture protection–all forms of immigration

relief that particularly impact immigrants of color and

others who are systematically disadvantaged by the

immigration system.

Amicus Curiae the National Immigrant Justice

Center (“NIJC”) is a non-profit corporation headquartered in Chicago, Illinois. NIJC is dedicated to ensuring human rights protections and access to justice for

all immigrants, refugees, and asylum-seekers. By

partnering with more than 1,000 attorneys from the

nation’s leading law firms, NIJC provides direct legal

services to approximately 8,000 individuals annually.

NIJC’s experience in representing noncitizens in removal proceedings, and assisting other attorneys in

similar representation, informs NIJC’s advocacy, litigation, and educational initiatives, as it promotes human rights on a local, regional, national, and international stage. NIJC has a substantial interest in the

issue now before the Court, both as an advocate for

3

the rights of asylum-seekers generally and as the

leader of a network of pro bono attorneys who regularly represent them.

Amicus Curiae Center for Immigrant & Refugee

Advancement (“CIRA”) is the largest not-for-profit legal service provider for immigrants and refugees residing in Nebraska and western Iowa. CIRA’s mission

is to empower immigrants and refugees to live confidently and to create welcoming communities. As such,

CIRA has extensive experience representing applicants for asylum and related protections before the

Omaha Immigration Court. CIRA also represents clients before the Board of Immigration Appeals and the

United States Court of Appeals for the Eighth Circuit

to advocate for the proper application of the laws and

regulations surrounding asylum and related humanitarian protections.

Amicus Curiae the Florence Immigrant & Refugee

Rights Project (“Florence Project”) provides free legal

and social services to adults and children detained in

immigration custody in Arizona. Every year, the Florence Project provides free legal services to thousands

of noncitizens facing removal, including thousands

who are seeking asylum or withholding of removal.

Since our founding in 1989, the Florence Project has

sought to ensure that all people facing removal have

access to counsel, understand their rights, and are

treated fairly and humanely.

Amici have an interest in the sound development

of immigration and asylum law and present this brief

to advocate for a more fair and administrable immigration system. Amici hope that this brief can highlight the importance of asylum relief, as well as other

4

fear-based protection, and the need to ensure the

proper balance of authority between administrative

immigration courts and federal courts of appeals.

INTRODUCTION AND

SUMMARY OF ARGUMENT

1. This case raises an important question for review: whether courts of appeals review de novo the

BIA’s determination that established facts do not rise

to the level of persecution. This critical determination

is often outcome-determinative, and the stakes are

life-or-death.

Fortunately, this Court’s existing precedent provides the answer. In U.S. Bank National Association

v. Village at Lakeridge, LLC, this Court addressed the

standard of review to be applied to “mixed” questions

of law and fact. 583 U.S. 387, 394 (2018). This Court

explained that the proper standard of review for

mixed questions—i.e., questions about whether historical facts “satisfy [a] statutory standard”—depends

upon “the nature of the mixed question” and “which

kind of court * * * is better suited to resolve it.” Id. at

394–95. Under that framework, mixed questions

should be reviewed de novo if they “require courts to

expound on the law, particularly by amplifying or

elaborating on a broad legal standard” and “developing auxiliary legal principles of use in other cases.” Id.

at 396. But where the question “immerse[s] courts in

case-specific factual issues—compelling them to marshal and weigh evidence, make credibility judgments,

and otherwise address * * * ‘multifarious, fleeting,

special, narrow facts that utterly resist generalization,’” review is more deferential. Ibid. Thus, the

5

standard of review depends “on whether answering

[the question] entails primarily legal or factual work.”

Ibid.

Applying the U.S. Bank framework, the question

of whether an established set of facts rises to the level

of persecution under the Immigration and Nationality

Act involves primarily legal work. Congress did not

define “persecution,” so courts have been left to develop its meaning. Courts have consistently recognized that persecution means some form of serious

harm—such as “the credible threat of death, torture,

or injury to one’s person or liberty.” Matul-Hernandez

v. Holder, 685 F.3d 707, 711 (8th Cir. 2012). But because of the incredible variation in harms and circumstances across cases, courts have been called upon to

develop auxiliary legal principles to determine what

kinds of harm rise to the level of persecution. See, e.g.,

Kaur v. Wilkinson, 986 F.3d 1216, 1222–25 (9th Cir.

2021) (explaining that rape and torture are “a fortiori

conduct that reaches the level of persecution”); Ali v.

U.S. Att’y Gen., 931 F.3d 1327, 1334 (11th Cir. 2019)

(“An applicant is a victim of religious persecution

when he cannot practice his religion openly.”). Courts

have also provided guidance for how such conduct

must be evaluated, such as by requiring that the applicant’s experiences be considered in the “aggregate.”

Saban-Cach v. Att’y Gen., 58 F.4th 716, 728–31 (3d

Cir. 2023). Through this “evolutionary process of common-law adjudication,” the meaning of persecution

has come to be defined by a “complex set of rules” that

are most properly regarded as legal in nature.

Charles Shane Ellison, The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards for

6

Refugees, 38 Georgetown Immig. L. J. 144, 198–99

(2024).

2. Despite the importance of the issue, circuit court

decisions have been contradictory and confusing

about the standard of review to be applied to determinations regarding persecution. Decisions that apply

substantial evidence review to determine whether established facts constitute persecution are contrary to

U.S. Bank’s guidance on mixed questions. In those decisions, which include the First Circuit’s decision under review, courts usually commence the persecution

inquiry by reciting a series of prototypical circumstances that have defined the contours of “persecution” in prior cases. See, e.g., Pet.App. 10a-11a

(“[C]redible, specific threats can amount to persecution if they are severe enough—particularly if they are

death threats * * *”). By invoking precedents that

have set these factual guideposts, courts tacitly

acknowledge that previous judges’ applications of the

persecution standard to settled facts provide legal

guidance for the cases at bar. Put differently, such

precedents have “amplif[ied] or elaborat[ed] on a

broad legal standard” in a way that is “of use in other

cases.” U.S. Bank, 583 U.S. at 396. The application of

settled legal principles is itself legal work requiring de

novo review.

Likewise, many courts improperly rely on this

Court’s decision in INS v. Elias-Zacarias, 502 U.S.

478 (1992) to justify substantial evidence review. This

misapprehension stems from a single sentence in

Elias-Zacarias, where the Court noted that “[t]he

BIA’s determination that [an applicant] was not eligi-

7

ble for asylum must be upheld” if supported by substantial evidence. 502 U.S. at 481. From that sentence, some courts have inferred that “the ultimate

question of past persecution * * * as well as the findings underlying that determination, are judicially reviewed under the substantial evidence standard that

applies to agency findings of fact.” He v. Garland, 24

F.4th 1220, 1224 (8th Cir. 2022) (emphasis added).

But that inference overreads Elias-Zacarias, which

concerned disputed facts regarding the alleged persecutors’ motive—not the primarily legal question of

whether a given set of facts amounts to persecution

under the INA. 502 U.S. at 482–84.

Considered in context, Elias-Zacarias is perfectly

consistent with the Court’s U.S. Bank framework, and

does not cast doubt on the application of de novo review. Substantial evidence review was appropriate in

Elias-Zacarias because the Court was reviewing factual findings—it considered the evidence to determine

what motivated the guerillas to seek Elias-Zacarias

out and did not find compelling evidence that it was

his political opinion. 502 U.S. at 482–84. But when the

facts are undisputed, and the sole question is whether

those facts meet the legal standard of persecution, the

question is appropriately reviewed de novo.

But relying on deferential circuit court precedent

is problematic for another reason: because the government cannot appeal an adverse BIA decision, circuit

courts generally cannot affirm immigration judges or

the BIA’s holdings in favor of noncitizens that facts

establish persecution. See 8 U.S.C. §1252(b). The result is a lopsided picture of the meaning of persecu-

8

tion—on the one hand, circuit court decisions affirming the BIA’s finding of no persecution abound, while

on the other hand, BIA decisions finding that persecution is established never reach the circuit courts.

The problem is compounded when immigration

judges and the BIA apply circuit-court precedent as if

circuit courts were expounding on the law. When immigration officials are deciding whether a given set of

facts rises to the level of persecution in the first instance, they frequently consult circuit court precedent. Infra II.D. But by comparing facts in a given

case to the deferential holdings of circuit courts, the

result is a “a “one-way upward ratchet for the standard.” Plaza-Ramirez v. Sessions, 908 F.3d 282, 285 n.1

(7th Cir. 2018). That is because deferential decisions

“are not necessarily reliable or even sufficient guides”

on the meaning of persecution, and only show that the

underlying immigration decisions are not so clearly

unreasonable as to warrant reversal under the substantial evidence standard. Ibid.

Applying de novo review to whether established

facts satisfy the legal standard of persecution will help

to correct that lopsided view of the law and allow

courts to provide guidance on the legal principles governing persecution for application by administrative

immigration officials in other cases.

The Court should reverse, and hold that whether

an established set of facts rises to the level of harm for

“persecution” is a primarily legal determination subject to de novo review.

9

ARGUMENT

I.

Application of the proper standard of review

is critical to ensure fairness in removal

proceedings for immigration legal services

providers like Amici and the noncitizens

they represent.

The stakes in asylum proceedings are extremely

high, as asylum is often the difference between life

and death. Since Congress passed the Refugee Act of

1980, U.S. asylum laws have protected noncitizens

who are “unable or unwilling to return to” their country of origin “because of persecution or a well-founded

fear of [future] persecution on account of” one or more

protected grounds. Refugee Act of 1980, Pub. L. 96212, §201(a), 94 Stat. 102, 102 (1980) . Courts have

consistently recognized that persecution means some

form of serious harm—such as “the credible threat of

death, torture, or injury to one’s person or liberty on

account of a protected ground.” Matul-Hernandez v.

Holder, 685 F.3d 707, 711 (8th Cir. 2012); Morales v.

Sessions, 860 F.3d 812, 816 (5th Cir. 2017) (persecution includes “threats to life, confinement, torture,

and economic restrictions so severe that they constitute a threat to life or freedom”) Fon v. Garland, 34

F.4th 810, 813 (9th Cir. 2022) (“persecution is an extreme concept that does not include every sort of treatment our society regards as offensive”). Thus, by definition, persecution determinations involve the risk of

severe physical or psychological harm.

Given the stakes in an asylum proceeding, standards of review take on a heightened importance.

Judges uniformly agree that “[s]tandards [of review]

matter.” Hernandez v. Garland, 66 F.4th 94, 104 (2d

10

Cir. 2023) (Pooler, J. dissenting). “Standards of review

are critical to the business of judging, and can often

be outcome-determinative.” Evans v. Sec’y, Dep’t of

Corrs., 703 F.3d 1316, 1336 (11th Cir. 2013). Particularly in the asylum context, where erroneous denials

“risk condemning an individual” to persecution or

death, standards of review are critically important.

Mingh Shi Xue v. BIA, 439 F.3d 111, 113–14 (2d Cir.

2006).

Indeed, judges routinely lament that under a less

deferential standard of review for persecution, noncitizens would be entitled to protection. See Gjetani v.

Barr, 968 F.3d 393, 401 (5th Cir. 2020) (Dennis, J. dissenting) (arguing that had the court applied “de novo

review,” the noncitizen “made a sufficient showing to

establish past persecution under our precedents”); Diallo v. Ashcroft, 381 F.3d 687, 697 (7th Cir. 2004)

(“Were we reviewing Diallo’s claim de novo, we might

be inclined to find that * * * Diallo was the victim of

past persecution[.]”); Don v. Gonzales, 476 F.3d 738,

743 (9th Cir. 2007) (“[T]he dissent makes a number of

points that may well have led a majority of this panel

to conclude differently than the [immigration judge],

were we reviewing the matter de novo.”). Judicial review should minimize the risk of erroneous denial,

and de novo review of the legal meaning of undisputed

facts serves that purpose.

While Congress has prescribed the standard of

review for administrative findings of fact, it has not

prescribed a standard of review for mixed questions of

law and fact. 8 U.S.C. §1252(b)(4)(B) (“administrative

findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the

11

contrary”). Accordingly, courts must determine based

on background principles what the appropriate

standard of review is.

Noncitizens and immigration legal services

providers depend on a fair review of asylum

determinations. As just one example, American

Gateways serves over 1,000 noncitizens each year,

and advises on the asylum process and the likely

outcome of an asylum claim. But judicial deference to

immigration judges and the Board of Immigration

Appeals means that decisions with similar facts can

result in different outcomes, and courts of appeals

cannot correct erroneous decisions or provide

consistency through uniform rules. Moreover,

consistency helps organizations like Amici to advise

clients on the likely outcome of immigration

proceedings. De novo review of important mixed

questions, such as whether established facts show

that the harm suffered rises to the level of

persecution, helps provide predictability.

II.

Whether certain facts rise to the level of

persecution is more of a legal question than

a factual one, and thus should be reviewed

de novo.

A.

Under this Court’s U.S. Bank test, the

question here entails primarily legal

work.

In U.S. Bank National Association v. Village at

Lakeridge, LLC, this Court addressed the standard of

review that applies to “mixed” questions of law and

fact—i.e., questions about whether historical facts

“satisfy [a] statutory standard.” 583 U.S. 387, 394

12

(2018) (quoting Pullman–Standard v. Swint, 456 U.S.

273, 289 n.19 (1982)). The Court explained that the

proper standard of review for such questions depends

on “the nature of the mixed question” and “which kind

of court * * * is better suited to resolve it.” Id. at 395.

Specifically, a mixed question should be reviewed

de novo if it “require[s] courts to expound on the law,

particularly by amplifying or elaborating on a broad

legal standard” and “developing auxiliary legal principles of use in other cases.” Id. at 396. On the other

hand, a mixed question should be reviewed using the

standard applicable to factual determinations if it

“immerse[s] courts in case-specific factual issues—

compelling them to marshal and weigh evidence,

make credibility judgments, and otherwise address

* * * ‘multifarious, fleeting, special, narrow facts that

utterly resist generalization.’” Ibid. (quoting Pierce v.

Underwood, 487 U.S. 552, 561–62 (1988)). Put differently, the applicable standard of review depends on

whether answering the mixed question “entails primarily legal or factual work.” Ibid.

Applying the U.S. Bank framework, primarily legal work is required when deciding what conduct

amounts to “persecution,” so this question should be

reviewed de novo. After all, this inquiry typically requires delineating which categories of harm are sufficiently severe, as a matter of law, to satisfy the persecution standard. Courts in asylum cases have determined that sexual assaults, death threats, economic

deprivations, severe psychological harm, and various

other forms of conduct rise to that level. See, e.g., Kaur

v. Wilkinson, 986 F.3d 1216, 1222–25 (9th Cir. 2021);

Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th

13

Cir. 2015); Huo Qiang Chen v. Holder, 773 F.3d 396,

404–06 (2d Cir. 2014). Courts have also provided guidance for how such conduct must be evaluated, such as

by requiring that the applicant’s experiences be considered in the “aggregate,” Saban-Cach v. Att’y Gen.,

58 F.4th 716, 728–31 (3d Cir. 2023), and that harms

to children be weighted more heavily, Portillo Flores

v. Garland, 3 F.4th 615, 629 (4th Cir. 2021). Further,

courts have determined that certain types of harm are

almost always persecution. See, e.g., Hassan v. Gonzales, 484 F.3d 513, 517 (8th Cir. 2007) (noting female

genital mutilation rises to the level of persecution); Ali

v. U.S. Att;y Gen., 931 F.3d 1327, 1334 (11th Cir.

2019) (“An applicant is a victim of religious persecution when he cannot practice his religion openly.”).

Through this “evolutionary process of common-law adjudication,” the meaning of persecution has come to be

defined by a “complex set of rules” that are most

properly regarded as legal in nature. Charles Shane

Ellison, The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards for Refugees, 38

Georgetown Immig. L. J. 144, 198–99 (2024) (quoting

Bose Corp. v. Consumers Union of U.S. Inc., 466 U.S.

485, 502 (1984)). The continued application of those

rules in a given case “will undoubtedly lead to developing additional auxiliary principles that will help

guide future adjudications in the direction of greater

uniformity.” Id. at 198.

Furthermore, there is no reason to believe that

the agency is “better suited” than are appellate courts

to resolve the question of whether particular facts rise

to the level of persecution. See U.S. Bank, 583 U.S. at

14

395. Although an immigration judge may have an advantage in assessing credibility and finding facts, “no

such advantage remains when the facts are undisputed, and the only question is whether the facts

found” meet the standard of persecution. Ellison, supra, at 199. To the contrary, courts of appeals have

their own “institutional advantage” in ensuring uniform guidance in the development of the law. Ibid.

This principle is recognized by the BIA itself, which,

as Petitioners point out, reviews de novo an immigration judge’s determinations as to whether certain conduct amounts to persecution. Pet.Br. 8–9, 21 (quoting

Matter of A-S-B-, 24 I. & N. Dec. 493, 496–97 (B.I.A.

2008)).

To be sure, primarily factual work is required

when finding the “underlying facts,” Padilla-Franco v.

Garland, 999 F.3d 604, 607 (8th Cir. 2021), such as

“whether certain events [occurred or] will * * * occur,”

Huo Qiang Chen, 773 F.3d at 403. But appellate disputes over the persecution element “rarely turn” on

such questions. Ellison, supra, at 161. In this case, for

example, the immigration judge found Mr. UriasOrellana’s testimony to be credible, and the operative

facts (regarding past violence and threats in El Salvador) are uncontested. See Pet.App. 3a-6a. Accordingly,

the remaining question to be answered is whether

those facts rise to the level of persecution, which

should be reviewed de novo under the U.S. Bank

framework.

15

B.

Decisions

applying

substantialevidence review are inconsistent with

the U.S. Bank framework.

Although various circuit courts have applied substantial-evidence review when addressing whether established facts rise to the level of persecution, those

courts’ own analyses reveal why such deferential review is inappropriate. In those decisions, which include the First Circuit’s decision under review, courts

usually commence the persecution inquiry by reciting

a series of prototypical circumstances that have defined the contours of “persecution” in prior cases. See,

e.g., Pet.App. 10a-11a (“[C]redible, specific threats can

amount to persecution if they are severe enough—particularly if they are death threats * * * .”); Mirisawo v.

Holder, 599 F.3d 391, 396 (4th Cir. 2010) (“[E]conomic

persecution” occurs when the harm “threatens the life

or freedom of the applicant.”); Kukalo v. Holder, 744

F.3d 395, 400 (6th Cir. 2011) (Persecution can take the

form of “detention, arrest, interrogation, prosecution,

imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture.”); Escobedo

Marquez v. Barr, 965 F.3d 561, 565 (7th Cir. 2020)

(Threats can constitute persecution “if the perpetrators attempt to follow through on the threat[s].”).

By invoking precedents that have set these factual

guideposts, courts tacitly acknowledge that previous

judges’ applications of the persecution standard to settled facts provide legal guidance for the cases at bar.

Put differently, such precedents have “amplif[ied] or

elaborat[ed] on a broad legal standard” in a way that

is “of use in other cases.” U.S. Bank, 583 U.S. at 396;

16

see Ellison, supra, at 199 (observing that the “evolutionary process” of interpreting the persecution requirement has produced rules that cannot “be regarded any longer as purely factual”). It defies reason

to accept that a prior panel’s analysis has this effect,

while suggesting that a court’s own application of the

persecution standard to undisputed facts is necessarily a narrow factual determination warranting deference to the BIA.

The better approach is embodied in decisions of

courts applying de novo review, which likewise rely on

the lines drawn in previous cases, while also accepting

that their own conclusions may guide application of

the persecution standard in the future. See, e.g., Kaur,

986 F.3d at 1222–25 (applying a broad principle that

“attempted rape almost always constitutes persecution”); Huo Qiang Chen, 773 F.3d at 404–06 (holding

that “imposition of a * * * fine does not, by itself” constitute past persecution as a matter of law).

Indeed, some of the same courts that have applied

substantial-evidence review to such persecution determinations—including the First Circuit—review de

novo the analogous question of “[w]hether a particular

act constitutes torture” for purposes of protection under the Convention Against Torture (“CAT”). Hernandez-Martinez v. Garland, 59 F.4th 33, 40 (1st Cir.

2023); accord Manuel-Soto v. Att’y Gen., 121 F.4th

468, 472 (3d Cir. 2024); Yar v. Garland, 94 F.4th 1077,

1078 (8th Cir. 2024); Arostegui-Maldonado v. Garland, 75 F.4th 1132, 1144 & n.8 (10th Cir. 2023); JeanPierre v. U.S. Att’y Gen., 500 F.3d 1315, 1316, 1321–

22 (11th Cir. 2007). These courts apparently agree

that “primarily legal work” is involved in determining

17

whether certain facts amount to “torture.” See U.S.

Bank, 583 U.S. at 396. There is no principled reason

for courts to take the opposite approach when asking

whether conduct rises to the level of “persecution” for

purposes of asylum—especially given that applicants

commonly seek asylum and CAT relief in tandem.

C.

INS v. Elias-Zacarias does not mandate

substantial evidence review for mixed

questions of law and fact.

Some courts have held that substantial evidence

review applies to a determination that established

facts do not rise to the level of persecution because of

an erroneous interpretation of this Court’s opinion in

INS v. Elias-Zacarias, 502 U.S. 478 (1992). See, e.g.,

Ravindran v. INS, 976 F.2d 754, 758–59 (1st Cir.

1992) (concluding that Elias-Zacarias requires

substantial

evidence

review

of

persecution

determinations); Nazaraghaie v. INS, 102 F.3d 460,

463 n.2 (10th Cir. 1996) (holding that Elias-Zacarias

“foreclose[s] any argument” for application of a

“standard less deferential than substantial

evidence”).

This misapprehension stems from a single sentence in Elias-Zacarias, where the Court noted that

“[t]he BIA’s determination that [an applicant] was not

eligible for asylum must be upheld” if supported by

substantial evidence. 502 U.S. at 481. From that sentence, some courts have inferred that “the ultimate

question of past persecution *** as well as the findings

underlying that determination, are judicially reviewed under the substantial evidence standard that

applies to agency findings of fact.” He v. Garland, 24

F.4th 1220, 1224 (8th Cir. 2022) (emphasis added); see

18

also Lumataw v. Holder, 582 F.3d 78, 91 (1st Cir.

2009) (noting that the court’s “authority to disturb the

agency’s determination” that undisputed facts “did

not rise to the level of past persecution” was “constrained by [the] deferential ‘substantial evidence’

standard of review”); Medhin v. Ashcroft, 350 F.3d

685, 688–89 (7th Cir. 2003) (citing Elias-Zacarias for

proposition that substantial evidence standard applies to persecution determinations). But that inference overreads Elias-Zacarias, which concerned disputed facts regarding the alleged persecutors’ motive—not the primarily legal question of whether a

given set of facts amounts to persecution under the

INA. 502 U.S. at 482–84. See Xue v. Lynch, 846 F.3d

1099, 1105 n.11 (10th Cir. 2017) (circuits rely “uncritically” on Elias-Zacarias).

In Elias-Zacarias, this Court addressed whether

“acts of conscription by a nongovernmental group constitute persecution on account of political opinion.”

502 U.S. at 480. Elias-Zacarias was a native of Guatemala who was apprehended for entering the United

States without inspection. Id. at 479. He requested

asylum, and during his immigration proceedings he

testified that prior to his departure from Guatemala,

two armed, masked guerillas came to his house and

asked him and his parents to join their group. Ibid. He

and his parents refused, and the guerillas told them

that they would be back. Ibid. Fearing their return,

Elias-Zacarias fled to the United States. Id. at 480. He

testified that he did not want to join the guerillas because he was afraid that the government would retaliate against him and his family. Ibid. On appeal from

19

the denial of asylum relief, the Ninth Circuit concluded that conscription by a guerilla organization

“necessarily constitutes ‘persecution on account

of * * * political opinion.’” Id. at 481.

This Court reversed. The Court’s analysis centered

on resolving disputed facts regarding whether the

guerillas sought to conscript Elias-Zacarias on account of his political opinion, and held that they did

not. The Court noted that acts of conscription were not

necessarily persecution on account of political opinion

because one’s motive for resisting recruitment could

be as simple as “fear of combat, [or] a desire to remain

with one’s family and friends,” rather than any political opinion held by the petitioner. Id. at 482. Applying

the substantial evidence standard, this Court concluded that the evidence did not “compel[] the conclusion” that Elias-Zacarias would be persecuted “because of [his] political opinion.” Id. at 483 (emphasis

in original). Indeed, the court observed that the evidence indicated that Elias-Zacarias was not expressing any political opinions at all—his refusal stemmed

from fear of retaliation. Ibid. (emphasis in original).

Substantial evidence review was appropriate in

Elias-Zacarias because the Court was reviewing factual findings—it considered the evidence to determine

whether the guerillas persecuted Elias-Zacarias on

account of his political opinion and did not find compelling evidence that Elias-Zacarias’s political opinion

motivated the harm. A persecutor’s subjective motives

are a “classic factual question.” Crespin-Valladares v.

Holder, 632 F.3d 117, 127–28 (4th Cir. 2011). Nothing

in the Elias-Zacarias analysis implies that the substantial evidence standard extends to every aspect of

20

the asylum eligibility determination, which includes

both questions of fact and questions of law. See Singh

v. Ilchert, 63 F.3d 1501, 1507 (9th Cir. 1995) (noting

that Elias-Zacarias’s holding that the substantial evidence standard of review applies to a certain factual

finding “does not mean that every review of an asylum

eligibility determination involves only questions of

fact, nor does it alter [the] application of de novo review to questions of law”); Google LLC v. Oracle Am.,

Inc., 593 U.S. 1, 24 (2021) (requiring courts to “break”

mixed questions into “separate factual and legal

parts, reviewing each according to the appropriate

standard” until they “can be reduced no further”).

In other words, Elias-Zacarias does not mandate

substantial evidence review for cases such as this one

where the facts are undisputed. In such a scenario, a

reviewing court need not weigh the facts because they

are established. It need only determine whether the

facts presented fit within the legal guideposts of what

is and is not persecution. See, e.g., Padilla-Franco,

999 F.3d at 607–08 (finding no past persecution because threats alone typically cannot constitute persecution). That is “primarily legal * * * work,” warranting de novo review. U.S. Bank, 583 U.S. at 396.

Finally, it bears noting that Elias-Zacarias predates the creation of the statutory standards of review

in the INA in 1996. See Act of Sept. 30, 1996, Pub.L.

104-208, 110 Stat 3009 (1996). Indeed, the INA

adopted some language from Elias-Zacarias. The

Court had explained in a footnote that “[t]o reverse [a]

BIA finding we must find that the evidence not only

supports that conclusion, but compels it.” Elias-Zacarias, 502 U.S. at 481. Similarly, the INA provides that

21

“administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §1252 (1996) (emphasis added). Notably, Congress cabined this standard of

review to the agency’s findings of fact—not to mixed

questions of law and fact or legal questions. See Ellison, supra, at 155 (discussing the codification of language from Elias-Zacarias in the INA). Had Congress

intended legal decisions or mixed questions to be reviewed under the same deferential substantial evidence standard, it would have said so expressly.

D.

Reviewing persecution determinations

under de novo review would comport

with the way immigration judges

frequently view circuit court authority

and correct imbalances in precedent.

In addition to the reasons above, there is a practical reason for de novo review: immigration judges

and the BIA frequently treat circuit court decisions as

authoritative legal determinations on the level of

harm required to establish persecution. Abdulai v.

Ashcroft, 239 F.3d 542, 553 (3d Cir. 2001) (“The BIA

is required to follow court of appeals precedent within

the geographical confines of the relevant circuit.”).

As a practical matter, immigration judges frequently treat circuit court decisions as de novo determinations of whether the facts rise to the level of persecution, rather than decisions affirming on substantial evidence grounds. For example, one American

Gateways client’s immigration judge decision relied

upon Fifth and Third Circuit decisions reviewing for

substantial evidence to conclude that certain harm

did not rise to the level of persecution:

22

Here, there is no indication that Respondent’s arrest and detention, in and of itself,

was “excessive or arbitrary.” In Tesfamichael

[v. Gonzales], the Fifth Circuit held that the

applicant’s “unpleasant and unduly prolonged” one month detention did not rise to

the level of persecution. 469 F.3d [109, 117

(5th Cir. 2006)]; see also Chen v. Ashcroft,

381 F.3d 221, 234–35 (3rd Cir. 2004) (finding that a beating by an official that did not

require medical attention did not rise to the

level of persecution). 2

Yet the Fifth Circuit’s decision in Tesfamichael

did not “hold” that a one-month detention is legally

insufficient to constitute persecution. 469 F.3d at 117.

Rather, the Fifth Circuit merely concluded that “substantial evidence supports the BIA determination

that [the noncitizen] did not experience past persecution.” Ibid. Under that deferential standard of review,

the Fifth Circuit may have just as easily affirmed had

the BIA reached the opposite conclusion. Likewise,

the Third Circuit’s decision in Chen merely concluded

that the BIA’s finding that the noncitizen’s experiences “did not rise to the level of persecution” was not

so wrong that “any reasonable adjudicator would be

compelled to conclude to the contrary.” 381 F.3d at

235.

Similarly, another immigration judge determined

that a beating with a bat that resulted in several

stitches was not adequately severe based on deferential circuit court decisions:

2 Decision on file with American Gateways.

23

Even assuming arguendo that the 2019 beating of the Respondent was related to a protected ground, such as his political opinion,

this single incident of physical harm does not

rise to the level necessary to demonstrate

past persecution. See Abdel-Masieh v. INS,

73 F.3d 579, 584 (5th Cir. 1996) (finding that

the applicant did not suffer persecution

where he was “arrested, twice detained, and

beaten on both occasions” because he did not

“characterize the beatings he received as ‘severe’ nor [did] he demonstrate that his detentions were ‘excessive or arbitrary’”); Ozdemir

v. INS, 46 F.3d 6, 7 (5th Cir. 1994) (concluding that the [noncitizen] did not suffer persecution where he was detained for 3 days and

beaten); Hussain v. Holder, 567 F. App’x 223

(5th Cir. 2014) (unpublished) (holding several instances of physical assault, denial of

college admission, threats to life, and calling

of names was insufficient to support a finding

of past persecution); Gjetani v. Barr, 968 F.3d

393, 398 (5th Cir. 2020) (collecting cases). 3

All of those decisions relied upon by the immigration judge applied deferential substantial evidence review. Abdel-Masieh, 73 F.3d at 583–84 (applying the

“substantial evidence standard” to the BIA’s “finding

that Abdel has not suffered past persecution”);

Ozdemir, 46 F.3d at 8 (“We conclude that substantial

evidence exists to support the BIA’s conclusion of no

past persecution on account of political opinion.”);

3 Decision on file with American Gateways.

24

Hussain, 567 F. Appx. at 227 (“On the record before

us, we cannot say that the evidence is so compelling

that no reasonable factfinder could determine that the

harms suffered by the Hussains did not rise to the

level of persecution.”); Gjetani, 968 F.3d at 397 (applying substantial evidence review). Thus, those decisions provide little guidance about the meaning of persecution for use in the first instance.

The confusion of immigration officials applying

circuit court precedent is understandable given that

the primary duty of circuit judges is to decide legal issues. Marbury v. Madison, 5 U.S. 137, 177, 1 Cranch

137 (1803) (“It is emphatically the province and duty

of the judicial department to say what the law is.”).

Indeed, courts have an “institutional advantage” in

ensuring uniform guidance in the development of the

law. Ellison, supra, at 199. Thus, applying de novo review at the circuit level of whether established facts

meet the definition of “persecution” will provide appropriate guidance to immigration judges and the

BIA.

Relying on deferential precedents is especially

problematic because circuit courts generally cannot

review cases in which the immigration judge or BIA

found past persecution. Circuit courts have jurisdiction to review orders of removal, but do not have jurisdiction to review grants of asylum. 8 U.S.C.

§1252(b). The result is a lopsided picture of the meaning of persecution—on the one hand, circuit court decisions affirming the BIA’s finding of no persecution

abound, while on the other hand, BIA decisions holding that persecution is established never reach the circuit courts.

25

Thus, continued deferential review on the meaning of persecution results in a “one-way upward

ratchet for the standard.” Plaza-Ramirez v. Sessions,

908 F.3d 282, 285 n.1 (7th Cir. 2018). When immigration officials apply circuit court precedent in the first

instance, those deferential precedents generally affirm findings of no persecution. Ibid. However, those

deferential decisions “are not necessarily reliable or

even sufficient guides” on the meaning of persecution.

Ibid.

Applying de novo review to whether established

facts satisfy the legal standard of persecution will help

to correct that lopsided view of the law and allow

courts to provide guidance on the meaning of persecution, i.e., “to expound on the law, particularly by amplifying or elaborating on a broad legal standard.”

U.S. Bank, 583 U.S. at 396.

CONCLUSION

The Court should reverse, and hold that whether

an established set of facts rises to the level of harm for

“persecution” is a primarily legal determination subject to de novo review.

26

Respectfully submitted.

MELISSA CROW

CENTER FOR GENDER AND

REFUGEE STUDIES

1121 14th Street, N.W.

Ste. 200

Washington, DC 20005

ANNE DUTTON

CENTER FOR GENDER AND

REFUGEE STUDIES

200 McAllister Street

San Francisco, CA 94102

ROBERT PAUW

CENTER FOR GENDER AND

REFUGEE STUDIES

C/O GIBBS HOUSTON PAUW

1000 Second Avenue

Ste. 1600

Seattle, WA 98104

ETHAN NUTTER

Counsel of Record

SAMANTHA GARZA

VINSON & ELKINS LLP

200 W. 6th St., Ste 2500

Austin, TX 78701

(512) 542-8555

enutter@velaw.com

GARRETT T. MEISMAN

VINSON & ELKINS LLP

845 Texas Ave., Ste. 4700

Houston, TX 77002

MATTHEW X. ETCHEMENDY

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Ste. 500 West

Washington, DC 20037

Counsel for Amici Curiae

SEPTEMBER 3, 2025