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; SAYRA ILIANA

GAMEZ-MEJIA; AND G.E.U.G.,

v.

Petitioners,

PAMELA BONDI, U.S. ATTORNEY GENERAL,

Respondent.

____________________

On Writ of Certiorari to the

United States Court of Appeals for the First Circuit

____________________

BRIEF OF IMMIGRATION LAW AND INTERNATIONAL

HUMAN RIGHTS LAW SCHOLARS AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

____________________

Peter E. Davis

Counsel of Record

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

PDavis@jenner.com

Allison N. Douglis

Isabel F. Farhi

JENNER & BLOCK LLP

1155 Avenue of the Americas

New York, N.Y. 10036-2711

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ............................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .................................................... 4

ARGUMENT .............................................................. 7

I.

II.

International

Law

Requires

a

Meaningful and Independent Appeal

Process for Protection Claims. ........................ 7

A.

The INA Must Be Harmonized

with International Law. ....................... 7

B.

International Law Requires a

Meaningful and Independent

Appeal Process for Asylum

Applicants. .......................................... 10

C.

Independent Appellate Review

Requires De Novo Judicial

Review of What Qualifies as

“Persecution.” ...................................... 13

Sister Signatories Implement Their

International Law Obligations By

Conducting De Novo Review. ........................ 15

A.

United Kingdom .................................. 16

B.

New Zealand ....................................... 17

C.

European Union .................................. 18

D.

Canada ................................................ 19

CONCLUSION ......................................................... 21

ii

TABLE OF AUTHORITIES

CASES

Abbott v. Abbott, 560 U.S. 1 (2010)....................... 16

Air France v. Saks, 470 U.S. 392 (1985) .............. 15

El Al Israel Airlines, Ltd. v. Tseng, 525

U.S. 155 (1999)................................................. 15

Garcia v. Sessions, 856 F.3d 27 (1st Cir.

2017), abrogated on other grounds by

Riley v. Bondi, 145 S. Ct. 2190 (2025) ........ 9, 12

INS v. Aguirre-Aguirre, 526 U.S. 415

(1999) .................................................................. 4

INS v. Cardoza-Fonseca, 480 U.S. 421

(1987) ................................................ 4, 7, 8, 9, 10

INS v. Stevic, 467 U.S. 407 (1984)...................... 7, 9

Kofa v. INS, 60 F.3d 1084 (4th Cir. 1995)

(en banc) ............................................................. 9

Ming Shi Xue v. Board of Immigration

Appeals, 439 F.3d 111 (2d Cir. 2006) ................ 6

Murray v. Schooner Charming Betsy, 6

U.S. (2 Cranch) 64 (1804) ............................ 9, 12

Negusie v. Holder, 555 U.S. 511 (2009) .......... 10, 16

Olympic Airways v. Husain, 540 U.S. 644

(2004) ................................................................ 16

Sale v. Haitian Centers Council, Inc., 509

U.S. 155 (1993)................................................... 4

iii

STATUTES

8 U.S.C. § 1101(a)(42) ............................................. 4

INTERNATIONAL CASES

AN, Sala de lo Contencioso, Sección 2, de

09/02/2018,

Rec

605/2016,

https://www.asylumlawdatabase.eu/si

tes/default/files/aldfiles/AN%2C%20S

ala%20de%20lo%20Contencioso%2C%

20Rec%20605-2016.pdf .................................... 19

Canada (Minister of Citizenship &

Immigration) v. Vavilov, 2019 SCC 65

(Can.) ................................................................ 20

Mason v. Canada (Minister of Citizenship

& Immigration), 2023 SCC 21 (Can.) ............ 20

Case C-756/21, X. v. International

Protection

Appeals

Tribunal,

ECLI:EU:C:2023:523 (June 29, 2023)............. 19

OTHER AUTHORITIES

8 C.F.R. § 1003.1(a)(1) .......................................... 14

8 C.F.R. § 1003.1(g)(2) .......................................... 14

8 C.F.R. § 1003.1(h)............................................... 14

Álvaro Botero & Jens Vedsted-Hansen,

Asylum

Procedure,

in

Oxford

Handbook of Int’l Refugee L. 588

(Cathryn Costello et al. eds., 2021) ........... 10, 11

iv

Convention Against Torture and Other

Cruel,

Inhuman,

or

Degrading

Treatment or Punishment, S. Treaty

Doc. No. 100-20 (1988), 1465 U.N.T.S.

85 (entered into force June 26, 1987) .............. 13

Convention Relating to the Status of

Refugees, 19 U.S.T. 6223, 189 U.N.T.S.

150 (1951) ........................................................... 7

Stella Burch Elias & Paul Gowder,

Against Attorney General Self-Referral

in Immigration Law, 109 Minn. L. Rev.

2331 (2025) ....................................................... 14

Eur. Parl. & Council Directive 2013/32,

2013 O.J. (L 180) 60, https://eurlex.europa.eu/eli/dir/2013/32/oj/eng ................ 18

Eur. Parl. & Council Regulation

2024/1348, 2024 O.J. (L 1348) 1,

https://eur-lex.europa.eu/eli/reg/2024/

1348/oj/eng ....................................................... 18

Gerald Heckman & Amar Khoday, Once

More unto the Breach: Confronting the

Standard of Review (Again) and the

Imperative of Correctness Review when

Interpreting the Scope of Refugee

Protection, 42 Dalhousie L.J. 49

(2019) ................................................................ 20

Mary Hoopes, Judicial Deference and

Agency Competence: Federal Court

Review of Asylum Appeals, 39 Berkeley

J. Int’l L. 161 (2021) .................................. 14, 15

v

Immigration & Protection Tribunal,

Ministry of Just., https://www.justice.

govt.nz/tribunals/immigration/immigr

ation-and-protection/ (last visited Aug.

25, 2025) ......................................................17-18

Immigration Act 2009, s 194 (N.Z.) ...................... 17

Immigration Act 2009, s 198(1) (N.Z.).................. 18

International Covenant on Civil and

Political Rights, 999 U.N.T.S. 171

(signed by the United States in 1976

and ratified in 1992) ........................................ 12

Fatma E. Marouf, The Role of Foreign

Authorities

in

U.S.

Asylum

Adjudication, 45 N.Y.U. J. Int’l L. &

Pol. 391 (2013) ................................................... 8

Migration & Home Affairs, Ex-Nunc

Examination, Eur. Comm’n, https://

home-affairs.ec.europa.eu/networks/

european-migration-network-emn/em

n-asylum-and-migration-glossary/gl

ossary/ex-nunc-examination_en (last

visited Aug. 26, 2025) ...................................... 18

Note, American Courts and the U.N. High

Commissioner for Refugees: A Need for

Harmony in the Face of a Refugee

Crisis, 131 Harv. L. Rev. 1399 (2018) ............7-8

Protocol Relating to the Status of

Refugees, 19 U.S.T. 6223, 606 U.N.T.S.

268 (1967) ........................................................... 7

vi

Justine N. Stefanelli, Judicial Review of

Immigration Detention in the UK, US

and EU: From Principles to Practice

(2020) ................................................................ 17

Robert Thomas, Administrative Justice

and Asylum Appeals: A Study of

Tribunal Adjudication (2011) ......................... 17

UNHCR, Comments of the United Nations

High Commissioner for Refugees on the

Proposed Rules from the U.S.

Department of Justice (Executive Office

for Immigration Review) and U.S.

Department of Homeland Security

(U.S. Citizenship and Immigration

Services), “Procedures for Asylum and

Withholding of Removal; Credible Fear

and Reasonable Fear Review” (July 15,

2020),

https://www.refworld.org/

legal/natlegcomments/unhcr/2020/en/

123896 ........................................................ 11, 12

vii

UNHCR, Comments of the United Nations

High Commissioner for Refugees on the

Proposed Rule from the U.S.

Department of Justice (Executive Office

for Immigration Review) and the U.S.

Department of Homeland Security

(U.S. Citizenship and Immigration

Services): “Procedures for Credible

Fear Screening and Consideration of

Asylum, Withholding of Removal, and

CAT Protection Claims by Asylum

Officers”

(May

31,

2022),

https://www.refworld.org/legal/natlegc

omments/unhcr/2022/en/124209 ..................... 12

UNHCR, Handbook on Procedures and

Criteria for Determining Refugee

Status

and

Guidelines

on

International

Protection

(2019),

https://www.unhcr.org/us/sites/en-us/

files/legacy-pdf/5ddfcdc47.pdf.......................... 11

UNHCR, Statement on the Right to an

Effective Remedy in Relation to

Accelerated Asylum Procedures (May

21, 2010), https://www.unhcr.org/

sites/default/files/legacy-pdf/4deccc

639.pdf .........................................................12-13

viii

UNHCR,

The

Principle

of

NonRefoulement Under International

Human Rights Law (Jan. 1, 2018),

https://www.ohchr.org/sites/default/

files/Documents/Issues/Migration/Glo

balCompactMigration/ThePrinciple

Non-RefoulementUnderInternational

HumanRightsLaw.pdf ..................................... 13

UNHCR Exec. Comm., Conclusions

Adopted by the Executive Committee

on

International

Protection

of

Refugees, No. 71 (XLIV), U.N. Doc.

A/48/12/Add.1 (Oct. 8, 1993), https://

www.unhcr.org/sites/default/files/leg

acy-pdf/578371524.pdf ..................................... 10

1

INTEREST OF AMICI CURIAE1

Amici are academics whose research focuses on

international human rights law and member states’

compliance with treaty obligations. Amici’s scholarly

work has explored the procedural protections required

to ensure the full range of rights guaranteed to

refugees under international law.

Professor Charles Shane Ellison is a clinical

law professor at Duke University School of Law2 with

expertise in U.S. and international refugee law. He

has researched and published on the ways in which

international legal norms should inform the

interpretation and application of United States

asylum protections—including as to the question

presented in this case. See Charles Shane Ellison, The

Toll Paid When Adjudicators Err: Reforming

Appellate Review Standards for Refugees, 38 Geo.

Immigr. L.J. 143 (2024).

He has authored or

coauthored amicus briefs on protection-based claims

in the First, Fourth, Fifth, Sixth, Eighth, Ninth, and

Tenth Circuit Courts of Appeals.

Professor Elspeth Guild holds a Global Chair in

Social Justice at the University of Liverpool and is

Emerita Professor at Radboud University, Nijmegen,

Pursuant to this Court’s Rule 37.6, counsel for amici curiae

certifies that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than

amici curiae or their counsel has made a monetary contribution

intended to fund the preparation or submission of this brief.

1

2 For all amici, titles and institutional affiliations are provided

for identification purposes only.

2

Netherlands and Queen Mary University of London.

She regularly advises European Union and Council of

Europe institutions on migration and asylum related

matters. She has written numerous studies for the

European Parliament including “Visas for Human

Rights Defenders” in 2024. She also advises the

Council of Europe and has written two Issue Papers

for the Commissioner for Human Rights. In 2022 she

assisted the Council of Europe Parliamentary

Assembly with an analysis of the E.U. Pact on

Migration and Asylum, resulting in resolution 2416

(2022). Her most recent book is Monitoring Border

Violence in the EU: Frontex in Focus (2023). Together

with Professor Song, she previously submitted an

amicus brief to this Court addressing other nations’

approaches to family reunification. See Br. of Migrant

Rights Initiative & Immigration, International &

Comparative Law Scholars as Amici Curiae in Supp.

of Resps., Dep’t of State v. Muñoz, No. 23-334 (U.S.

Mar. 28, 2024).

Professor James C. Simeon is a Professor in the

School of Public Policy and Administration (SPPA),

Faculty of Liberal Arts and Professional Studies, and

a former Head of McLaughlin College, Director of the

SPPA, and a former Acting Director and Deputy

Director at the Centre for Refugee Studies (CRS), at

York University, Toronto, Canada. Prior to joining

the faculty at York University, Professor Simeon

served as the first Executive Director of the

International Association of Refugee Law Judges

(IARLJ), now the International Association of Refugee

and Migration Judges (IARMJ). He is currently an

3

Associate Member of the IARMJ and serves as the

Coordinator of its Inter-Conference Working Party

Process. He is also one of the founding members of

the IARMJ America Chapter. He is a past President

of the Canadian Association for Refugees and Forced

Migration Studies (CARFMS), and a member of the

International Association for the Study of Forced

Migration (IASFM) and the Institute of Public

Administration of Canada (IPAC). Professor Simeon

served on the Immigration and Refugee Board of

Canada (IRB) as a Member and Coordinating Member

from September 1994 to October 2005. While a

Member and Coordinating Member of the IRB he sat

on a number of high-profile cases, including

Pushpanathan v Canada (Minister of Citizenship &

Immigr.), [1998] 1 S.C.R. 982 (Can.), an exclusion case

under Article 1F of the 1951 Convention relating to

the Status of Refugees argued at the Supreme Court

of Canada.

Professor Lili Song is a member of the Faculty

of Law at the University of Otago, where her primary

research area is refugee and immigration law. She

has taught New Zealand refugee and immigration law

there since 2020. She has held research or visiting

positions at Harvard University, Oxford University,

the University of Michigan, the East-West Center,

Melbourne University, the Australian National

University, Chiang Mai University, the Humanities

Institute (Myanmar), and Northwestern University.

She also serves as editor of the Otago Law Review. As

noted above, she submitted an amicus brief to this

Court in Department of State v. Muñoz.

4

Amici have a strong interest in ensuring that U.S.

asylum proceedings comply with international human

rights treaties to which the United States is a party.

They submit this brief to provide their perspective on

how international law, as interpreted by other

member states, bears on the procedural protections

for asylum and related protection proceedings.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The Immigration and Nationality Act (INA) is the

bedrock of the United States asylum system. A

refugee, the INA provides, is someone with “a wellfounded fear of persecution on account of race,

religion, nationality, membership in a particular

social group, or political opinion.”

8 U.S.C.

§ 1101(a)(42). But that law does not exist in a

vacuum. Congress adopted this definition “to bring

United States refugee law into conformance” with

international treaties, including the 1967 Protocol

Relating to the Status of Refugees (the “Protocol”).

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

Consistent with that history, this Court has long

looked to international law in resolving questions

about the meaning of the INA’s framework for asylum

and related protection claims. See, e.g., id. at 436–39

& nn.20–23; Sale v. Haitian Ctrs. Council, Inc., 509

U.S. 155, 174–78 (1993); INS v. Aguirre-Aguirre, 526

U.S. 415, 426–28 (1999).

The Protocol requires signatories to maintain a

process that allows them to determine fairly and

efficiently whether someone qualifies as a refugee.

5

And the United Nations High Commissioner for

Refugees (UNHCR)—the main body responsible for

providing international protection to refugees—has

explained that this requires an appeal to be conducted

by an independent body.

Applied to the U.S. system, the Board of

Immigration Appeals (BIA) is not that “independent”

body. While empowered to conduct de novo review of

Immigration Judge decisions, the BIA is the opposite

of independent: it is an arm of the Department of

Justice. Indeed, the Attorney General has unfettered

power to refer BIA cases to herself and render

precedential decisions.

So in the U.S. system, it is up to federal courts to

provide the independent and impartial review

required. But they cannot fulfill that role with one

hand tied behind their backs. As Petitioners explain,

independent judicial review—with de novo review of

questions like what conduct rises to the level of

persecution under the law—is necessary to safeguard

asylum applicants in a context where a wrong decision

may mean life or death. Judges should not have to

look the other way once they have decided that the

immigration authority seeking to remove a noncitizen

wrongly interpreted the governing law. De novo

judicial review of determinations about the legal

meaning of persecution is needed to fulfill

international law’s promise of meaningful and

independent judicial review.

In recognition of these principles, sister

signatories bound by the same international law

6

obligations conduct de novo review, or their

jurisdiction’s equivalent, of asylum determinations.

Those states’ approaches inform this Court’s

understanding of the United States’ international-law

obligations under the Protocol and related treaties.

Amici submit this brief to aid the Court in its

understanding of two topics. First, amici urge the

Court to consider the United States’ international law

obligations—including treaties governing asylum and

related protections—in resolving the appropriate

standard of review under the INA. And second, as

international law scholars in jurisdictions around the

world, amici wish to share their understanding of

other jurisdictions’ approaches to this same issue.

The stakes could hardly be higher. “[E]ach time

we wrongly deny a meritorious asylum application, …

we risk condemning an individual to persecution.

Whether the danger is of religious discrimination,

extrajudicial punishment, forced abortion or

involuntary sterilization, physical torture or

banishment, we must always remember the toll that

is paid if and when we err.” Ming Shi Xue v. Bd. of

Immigr. Appeals, 439 F.3d 111, 114 (2d Cir. 2006)

(Calabresi, J.). That is precisely why international

law guarantees a meaningful and independent appeal

from denials of asylum—and why applicants should

receive de novo judicial review on the legal meaning of

persecution.

7

ARGUMENT

I.

International Law Requires a Meaningful

and Independent Appeal Process for

Protection Claims.

A.

The INA Must Be Harmonized with

International Law.

This Court has consistently recognized that the

INA’s asylum protections are interpreted in light of

U.S. treaty obligations and other international

commitments. See e.g., INS v. Stevic, 467 U.S. 407,

425–26 (1984); Cardoza-Fonseca, 480 U.S. at 432–33.

It should do the same here.

Two principal international treaties govern

treatment of refugees: the 1951 Convention Relating

to the Status of Refugees, 19 U.S.T. 6223, 189

U.N.T.S. 150 (the “Convention”), and the 1967

Protocol Relating to the Status of Refugees, 19 U.S.T.

6223, 606 U.N.T.S. 268 (the “Protocol”), which

incorporated articles 2 through 34 of the Convention

and imposed additional obligations. The United

States acceded to the Protocol in 1968. In doing so, it

“agreed to comply with the substantive provisions of

Articles 2 through 34” of the Convention. CardozaFonseca, 480 U.S. at 429; see Stevic, 467 U.S. at 416.

Before the United States signed the Protocol, “U.S.

law demonstrated some similarities to the language in

the Convention but in important respects did not

require compliance with the Convention and thus

with the Protocol.” Note, American Courts and the

U.N. High Commissioner for Refugees: A Need for

8

Harmony in the Face of a Refugee Crisis, 131 Harv. L.

Rev. 1399, 1401 (2018). The Refugee Act of 1980

amended the INA to “bring United States refugee law

into conformance with the 1967 United Nations

Protocol.” Cardoza-Fonseca, 480 U.S. at 436–37

(citation omitted).

In doing so, Congress adopted a definition of

“refugee” that is “virtually identical to the one

prescribed by Article 1(2) of the Convention”:

an individual who ‘owing to a wellfounded fear of being persecuted for

reasons of race, religion, nationality,

membership of a particular social

group or political opinion, is outside the

country of his nationality and is unable

or, owing to such fear, is unwilling to

avail himself of the protection of that

country; or who, not having a

nationality and being outside the

country of his former habitual

residence, is unable or, owing to such

fear, is unwilling to return to it.’

Cardoza-Fonseca, 480 U.S. at 437 (quoting 8 U.S.C.

§ 1101(42)).

Congress intended “that the new

statutory definition of ‘refugee’ be interpreted in

conformance with the Protocol’s definition.” Id. (citing

S. Rep. No. 96-590, at 20 (1980); H.R. Rep. No. 96-608,

at 9 (1979)); see also Fatma E. Marouf, The Role of

Foreign Authorities in U.S. Asylum Adjudication, 45

N.Y.U. J. Int’l L. & Pol. 391, 398 & nn.23–24 (2013)

(collecting legislative history “explicitly stat[ing] that

9

Congress intended to conform U.S. domestic law to the

nation’s international obligations under the Protocol

and give ‘statutory meaning to our national

commitment to human rights and humanitarian

concerns’”).

Consistent with that history, courts look to

international law “as a guide to construing the

statutory provisions at issue so as to give effect to

Congress’s intent to honor the United States’

obligations under international law.”

Garcia v.

Sessions, 856 F.3d 27, 42 (1st Cir. 2017), abrogated on

other grounds by Riley v. Bondi, 145 S. Ct. 2190

(2025). That comports with the canon of construction

that “an act of Congress ought never to be construed

to violate the law of nations if any other possible

construction remains.” Murray v. Schooner Charming

Betsy, 6 U.S. (2 Cranch) 64, 118 (1804); accord Garcia,

856 F.3d at 42; Kofa v. INS, 60 F.3d 1084, 1090 (4th

Cir. 1995) (en banc).

This Court has made the point explicit in prior

protection cases, holding that international law—

while not dispositive—sheds important light on the

meaning of the INA. See Stevic, 467 U.S. at 425–26

(acknowledging that Congress “intended that [the

term ‘refugee’] would be construed consistently with

the Protocol”); Cardoza-Fonseca, 480 U.S. at 432–33

(considering “the abundant evidence of an intent [in

enacting the INA] to conform the definition of ‘refugee’

and our asylum law to the United Nation’s Protocol to

which the United States has been bound since 1968”).

10

B.

International Law Requires a

Meaningful

and

Independent

Appeal

Process

for

Asylum

Applicants.

A state’s obligations under the Protocol include the

requirement to provide “fair and efficient procedures

for the determination of refugee status.” UNHCR

Exec. Comm., Conclusions Adopted by the Executive

Committee on International Protection of Refugees,

No. 71 (XLIV), U.N. Doc. A/48/12/Add.1 (Oct. 8, 1993),

https://www.unhcr.org/sites/default/files/legacy-pdf/5

78371524.pdf. States may comply with the duties

imposed by the Convention through various

procedural mechanisms.

Álvaro Botero & Jens

Vedsted-Hansen, Asylum Procedure, in Oxford

Handbook of Int’l Refugee L. 588, 590 (Cathryn

Costello et al. eds., 2021).

Nonetheless, the

Convention (and by extension the Protocol) imposes a

duty on signatories to design and conduct “national

examination procedures … in such a way as to ensure

compliance with the obligations undertaken” by

signing on to the Convention or Protocol, “in

accordance with the obligation to perform treaty

obligations in good faith and the principle of

effectiveness as generally recognized in international

law.” Id.

This principle is echoed in guidance from the

UNHCR. See Cardoza-Fonseca, 480 U.S. at 438–39 &

n.22 (noting that UNHCR guidelines “provide[ ]

significant guidance in construing the Protocol, to

which Congress sought to conform”); Negusie v.

Holder, 555 U.S. 511, 536–37 (2009) (Stevens, J.,

11

concurring in part and dissenting in part) (drawing

from UNHCR guidance and recognizing the Court

“has looked for guidance in the past” from the same).

The UNHCR’s Handbook on Procedures and Criteria

for Determining Refugee Status and Guidelines on

International Protection declares that “[a] person is a

refugee within the meaning of the 1951 Convention as

soon as he fulfills the criteria contained in the

definition. … He does not become a refugee because of

recognition, but is recognized because he is a refugee.”

UNHCR, Handbook on Procedures and Criteria for

Determining Refugee Status and Guidelines on

International Protection ¶ 28 (2019), https://www.

unhcr.org/us/sites/en-us/files/legacy-pdf/5ddfcdc47.

pdf. Given that broad protection, member states have

an “implicit duty to establish administrative or

judicial mechanisms that are able to deal

meaningfully with applications for asylum.” Botero &

Vedsted-Hansen, supra, at 589.

Consistent with these requirements, UNHCR has

stated that member states shall “preserv[e] critical

due process protections such as the right to an

independent appeal.”3

This appeal must be

“conducted by an independent body.”

UNHCR

See UNHCR, Comments of the United Nations High

Commissioner for Refugees on the Proposed Rules from the U.S.

Department of Justice (Executive Office for Immigration Review)

and U.S. Department of Homeland Security (U.S. Citizenship

and Immigration Services), “Procedures for Asylum and

Withholding of Removal; Credible Fear and Reasonable Fear

Review” 9 (July 15, 2020), https://www.refworld.org/legal/

natlegcomments/unhcr/2020/en/123896 [hereinafter UNHCR

Comments on Procedure for Asylum].

3

12

Comments on Procedure for Asylum at 33 (internal

quotation marks omitted).4

Other international covenants further support the

need for an independent appeal process.

See

Charming Betsy, 6 U.S. (2 Cranch) at 118; supra page

9. The International Covenant on Civil and Political

Rights (ICCPR), 999 U.N.T.S. 171, was signed by the

United States in 1976 and ratified in 1992. Although

the ICCPR is similarly not self-executing, “the

Supreme Court and lower federal courts frequently

consult the ICCPR as an interpretive tool to

determine important issues in the area of human

rights law.” Garcia, 856 F.3d at 60–61 (Stahl, J.,

dissenting) (collecting cases). The ICCPR provides

“an appeal right against decisions which could lead to

removal”: at the stage where “forced removal is

inevitable,” the person seeking asylum must have an

opportunity for “effective, independent review of the

decision to expel.” UNHCR, Statement on the Right to

See also UNHCR, Comments of the United Nations High

Commissioner for Refugees on the Proposed Rule from the U.S.

Department of Justice (Executive Office for Immigration Review)

and the U.S. Department of Homeland Security (U.S. Citizenship

and Immigration Services): “Procedures for Credible Fear

Screening and Consideration of Asylum, Withholding of

Removal, and CAT Protection Claims by Asylum Officers” 6 (May

31,

2022),

https://www.refworld.org/legal/natlegcomments/

unhcr/2022/en/124209 (“Asylum-seekers have a right to an

effective remedy under international human rights law and

should be able to appeal the factual and legal findings of a

negative decision before an independent and impartial

administrative or judicial tribunal or other body.” (emphasis

added)).

4

13

an Effective Remedy in Relation to Accelerated Asylum

Procedures ¶ 42 (May 21, 2010), https://www.unhcr.

org/sites/default/files/legacy-pdf/4deccc639.pdf.

Likewise, the UNHCR has interpreted the

Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment, S.

Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85

(entered into force June 26, 1987), to require states to

“put in place mechanisms and allocate resources to

ensure that the [international human rights law]

protection needs of all migrants can be assessed

individually and with due process, including as a

supplement to asylum determination mechanisms.”

UNHCR, The Principle of Non-Refoulement Under

International Human Rights Law (Jan. 1, 2018),

https://www.ohchr.org/sites/default/files/Documents/

Issues/Migration/GlobalCompactMigration/ThePrin

cipleNon-RefoulementUnderInternationalHuman

RightsLaw.pdf.

C.

Independent

Appellate

Review

Requires De Novo Judicial Review

of What Qualifies as “Persecution.”

As applied to the United States, the international

law requirement of independent review necessitates

de novo judicial review to determine what conduct

rises to the level of persecution for purposes of asylum

and related protection claims. Neither BIA review nor

more deferential judicial review suffices.

First, the BIA itself does not provide the necessary

independent review. Members are appointed by the

14

Attorney General and act as the Attorney General’s

“delegates.” See 8 C.F.R. § 1003.1(a)(1). And the

Attorney General may at any point direct the BIA to

refer a case for the Attorney General’s review and

final decision, which is precedential and binding. Id.

§ 1003.1(g)(2), (h). This means that individual BIA

decisions are not insulated from political pressure,

because the Attorney General may at her option

provide the decision on a case. And, “due to the

famous lack of independence of the overall system of

immigration adjudication, decisions of the BIA are, or

at least can be, functionally exercises of the will of the

Attorney General even without the direct use of the

referral power.” Stella Burch Elias & Paul Gowder,

Against

Attorney

General

Self-Referral

in

Immigration Law, 109 Minn. L. Rev. 2331, 2384–85 &

n.225 (2025) (collecting sources showing that “[b]oth

immigration judges and the BIA are famously supine

toward the policy judgments of presidents”).

Nor does deferential judicial review suffice. Amici

endorse Petitioners’ persuasive showing that

deferential review of Immigration Judge and BIA

determinations on what conduct legally qualifies as

persecution requires courts to uphold erroneous legal

determinations—in short, to deny asylum eligibility

notwithstanding their independent judgment that the

noncitizen is eligible for asylum. See Pet. Br. 18–32.

That is problematic on its own terms, but it is

especially so in the context of the U.S. immigration

system. “[T]he cases provide many examples of clear

errors in [the BIA’s] decision-making that were

remedied by the courts.” Mary Hoopes, Judicial

15

Deference and Agency Competence: Federal Court

Review of Asylum Appeals, 39 Berkeley J. Int’l L. 161,

193 (2021). Federal court review is necessary to

“recognize and address problems that go unaddressed

by the agency through their review of fact-intensive,

high volume adjudication,” including immigration

decision-making. Id. at 195 (citing Jonah B. Gelbach

& David Marcus, Rethinking Judicial Review of High

Volume Agency Adjudication, 96 Tex. L. Rev. 1097,

1101 (2018)). And only de novo review ensures that

asylum eligibility determinations are made correctly

and in accordance with international law obligations.

II.

Sister Signatories Implement Their

International

Law

Obligations

By

Conducting De Novo Review.

Sister signatories comply with their international

law obligations by undertaking de novo review of legal

determinations concerning asylum. Amici set forth

those approaches below to guide this Court in its

analysis of the question presented.

At the outset, courts and jurists have consistently

recognized that “the opinions of [the United States’]

sister signatories [are] entitled to considerable

weight” in determining U.S. international law

obligations. Air France v. Saks, 470 U.S. 392, 404

(1985) (quoting Benjamins v. British Eur. Airways,

572 F.2d 913, 919 (2d Cir. 1978)) (considering French

decisions and scholarship on Swiss and German law

in construing “accident” under Warsaw Convention);

accord El Al Israel Airlines, Ltd. v. Tseng, 525 U.S.

155, 175–76 & n.16 (1999) (considering decisions from

16

the United Kingdom, New Zealand, and Singapore in

assessing liability under the Warsaw Convention);

Abbott v. Abbott, 560 U.S. 1, 16–18 (2010) (considering

decisions from the United Kingdom, Israel, Austria,

South Africa, and Germany interpreting the Hague

Convention, and acknowledging contrary authority

from Canada and France); see also Negusie, 555 U.S.

at 537 (Stevens, J., concurring in part and dissenting

in part) (“When we interpret treaties, we consider the

interpretations of the courts of other nations.”);

Olympic Airways v. Husain, 540 U.S. 644, 660 (2004)

(Scalia, J., dissenting) (“We can, and should look to

decisions of other signatories when we interpret

treaty provisions. Foreign constructions are evidence

of the original shared understanding of the

contracting parties. Moreover, it is reasonable to

impute to the parties an intent that their respective

courts strive to interpret the treaty consistently.”).

Here, as discussed below, Protocol signatories—

including the United Kingdom, New Zealand, and

European Union member states including Spain—

apply their jurisdiction’s equivalent of de novo review

to asylum determinations.

This reflects their

understanding that only de novo review of what

constitutes persecution under the law is sufficient to

afford adequate protections to asylum applicants.

A.

United Kingdom

The United Kingdom is a good example. United

Kingdom Administrative Court judges typically view

themselves as the “primary decision maker” when

reviewing Home Office determinations that affect

17

individual liberty or determine whether there has

been a human rights violation, including in the

context of immigration detention. See Justine N.

Stefanelli, Judicial Review of Immigration Detention

in the UK, US and EU: From Principles to Practice

158–59 (2020). In doing so, they look not just to

“whether the Home Secretary’s judgment was

unreasonable” but rather to whether the judgment

was “lawful.” Id. at 158. While United Kingdom

courts may defer to immigration authorities on factual

matters particularly within their expertise, such as

the average time it takes to obtain travel documents,

they nonetheless engage in de novo review of “the

application of the law to th[e] facts.” Id. at 165; accord

Robert Thomas, Administrative Justice and Asylum

Appeals: A Study of Tribunal Adjudication 78 (2011)

(observing that United Kingdom asylum applicants

are entitled to a “de novo decision” by an “independent

judge” upon refusal by the Home Office).

B.

New Zealand

The same is true in New Zealand. Under the 2009

New Zealand Immigration Act, if a refugee status

claim is considered and then declined by Immigration

New Zealand, the government agency responsible for

immigration and asylum affairs, the claimant can

appeal the decision to the Immigration & Protection

Tribunal as of right. Immigration Act 2009, s 194

(N.Z.).

The Tribunal is a specialist tribunal

administered by New Zealand’s Ministry of Justice

and chaired by a district court judge. See Immigration

& Protection Tribunal, Ministry of Just.,

https://www.justice.govt.nz/tribunals/immigration/im

18

migration-and-protection/ (last visited Aug. 25, 2025).

In turn, by statute, the Tribunal must determine the

claim de novo. Immigration Act 2009, s 198(1) (N.Z.)

(providing that when hearing an appeal under the

relevant section, “the Tribunal must … determine the

matter de novo”).

C.

European Union

So too with European Union members. The

European Union’s Asylum Procedure Directive, which

was in place until 2024, required member states to

provide “for a full and ex nunc examination of both

facts and points of law” of courts’ or tribunals’

decisions to withdraw protection from refugees, as a

baseline requirement for an “effective remedy” to an

adverse decision. Eur. Parl. & Council Directive

2013/32, art. 46 ¶ 3, 2013 O.J. (L 180) 60, https://eurlex.europa.eu/eli/dir/2013/32/oj/eng. An “ex nunc”

determination requires “consideration of the evidence

of the situation (all elements, facts and points of law)

available at the moment of the decision.” Migration &

Home Affairs, Ex-Nunc Examination, Eur. Comm’n,

https://home-affairs.ec.europa.eu/networks/europeanmigration-network-emn/emn-asylum-and-migrationglossary/glossary/ex-nunc-examination_en

(last

visited Aug. 26, 2025). Although the Directive was

replaced in 2024 by a new international protection

regulation, the new regulation likewise preserves the

right to “a full and ex nunc examination of both facts

and points of law” before a court or tribunal of first

instance. Eur. Parl. & Council Regulation 2024/1348,

art. 67 ¶ 3, 2024 O.J. (L 1348) 1, https://eurlex.europa.eu/eli/reg/2024/1348/oj/eng. The decision

19

to review even factual determinations anew exceeds

what is required and sought by Petitioners here.

As an example of implicitly ex nunc review, the

Spanish National Court overturned an administrative

denial of refugee status on the grounds that gang

extortion was “common criminality” rather than

persecution. AN, Sala de lo Contencioso, Sección 2, de

09/02/2018, Rec 605/2016, https://www.asylumlaw

database.eu/sites/default/files/aldfiles/AN%2C%20Sa

la%20de%20lo%20Contencioso%2C%20Rec%20605-2

016.pdf. The court provided a substantive review of

the law at issue, including considering new UNHCR

guidance that was issued after the initial decision. Id.

Similarly, a Court of Justice of the European

Union (CJEU) ruling under the prior governing

Directive with similar language to the European

Union’s 2013 directive confirmed that even without a

specific requirement of ex nunc review, such review

was required. See Case C-756/21, X. v. Int’l Protection

Appeals Tribunal, ECLI:EU:C:2023:523 (June 29,

2023). It explained that a “court or tribunal of first

instance, tasked with performing the judicial scrutiny

function provided for in Article 39 of [the European

Council’s directive][,] … is required to carry out [a] full

review.” Id. ¶ 63. More specifically, it must have “the

power to deliver a decision ex nunc on the basis of the

elements produced before it.” Id.

D.

Canada

The Canadian courts have likewise given rigorous

scrutiny to legal determinations related to asylum,

20

including what constitutes a “well-founded fear of

persecution.” Gerald Heckman & Amar Khoday, Once

More unto the Breach: Confronting the Standard of

Review (Again) and the Imperative of Correctness

Review when Interpreting the Scope of Refugee

Protection, 42 Dalhousie L.J. 49, 72–74 (2019). For

example, Canadian courts apply independent review

to “general questions of law that are of central

importance to the legal system as a whole,” because

they require “uniform and consistent answers.”

Canada (Minister of Citizenship & Immigr.) v.

Vavilov, 2019 SCC 65, paras. 17, 58–59 (Can.)

(internal quotation marks omitted). And even in other

circumstances, Canadian courts carefully scrutinize

administrative decisions and reverse when they

violate established legal principles or fail to consider

important factors. In Mason v. Canada, for example,

the Canadian Supreme Court reversed a lower court

decision because the administrative tribunal failed to

consider “Canada’s non-refoulement obligation under

Article 33 of the Refugee Convention.” Mason v.

Canada (Minister of Citizenship & Immigr.), 2023

SCC 21, para. 104 (Can.).

*

*

*

The approaches of sister signatories to the Protocol

corroborate that de novo judicial review on the legal

meaning of persecution is the appropriate standard to

promote the United States’ compliance with its

international law obligations.

21

CONCLUSION

The First Circuit’s judgment should be vacated

and remanded for further proceedings applying a de

novo standard of review.

Respectfully submitted,

Peter E. Davis

Counsel of Record

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

Allison N. Douglis

Isabel F. Farhi

JENNER & BLOCK LLP

1155 Avenue of the Americas

New York, N.Y. 10036-2711

September 3, 2025

Counsel for Amici Curiae