Amicus Curiae Brief — Douglas Humberto Urias-Orellana, et al., Petitioners v. Pamela Bondi, Attorney General
Supreme Court briefSep 3, 2025
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No. 24-777
IN THE
Supreme Court of the United States
_______________
DOUGLAS HUMBERTO URIAS-ORELLANA; SAYRA ILIANA
GAMEZ-MEJIA; AND G.E.U.G.,
Petitioners,
v.
PAMELA BONDI, U.S. ATTORNEY GENERAL,
Respondent.
_______________
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_______________
BRIEF FOR FORMER EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW JUDGES
AS AMICI CURIAE IN SUPPORT OF PETITIONERS
_______________
JOHN MATTHEW BUTLER
ALEXANDER V. OGREN
GIBSON, DUNN &
CRUTCHER LLP
1700 M Street, N.W.
Washington, D.C. 20036
(202) 955-8500
RICHARD W. MARK
Counsel of Record
AMER S. AHMED
JAKE L. SHERMAN
GIBSON, DUNN &
CRUTCHER LLP
200 Park Avenue
New York, NY 10166
(212) 351-4000
rmark@gibsondunn.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICI CURIAE ................................1
SUMMARY OF ARGUMENT .....................................2
ARGUMENT ...............................................................6
I.
Treating Past Persecution As A Legal
Issue Accords With The Careful Balance
Struck By Congress In The INA. ........................ 6
A. Reserving factual determinations for
IJs while maintaining nondeferential
judicial review for legal
determinations accords with the
respective institutional roles of IJs,
the BIA, and the federal courts. .................. 6
B. Article III courts should review
whether an applicant faced past
persecution without deference
because it is an application of law to
an established set of facts that
requires primarily legal work. ................... 12
II.
Nondeferential Judicial Review Of Past
Persecution Aids Agency DecisionMaking And Furthers Efficient
Resolution Of Immigration Cases. ................... 24
CONCLUSION ..........................................................32
LIST OF AMICI CURIAE .........................................1a
ii
TABLE OF AUTHORITIES
Page(s)
CASES
Matter of A-S-B-,
24 I. & N. Dec. 493 (BIA May 8,
2008) ....................................................................... 9
Aguilar-Escoto v. Garland,
59 F.4th 510 (1st Cir. 2023) ................................. 10
Ahmed v. INS,
32 F. App’x 282 (9th Cir. 2002) ........................... 23
Alvarado-Ruiz v. Garland,
845 F. App’x 355 (5th Cir. 2021) ......................... 18
Argueta-Hernandez v. Garland,
87 F.4th 698 (5th Cir. 2023) ................................ 30
Arita-Deras v. Wilkinson,
990 F.3d 350 (4th Cir. 2021) ................................ 30
Avdeeva v. Tucker,
138 F.4th 641 (1st Cir. 2025) ............................... 17
Avila v. Att’y Gen.,
82 F.4th 250 (3d Cir. 2023) .................................. 18
Bowen v. Mich. Acad. of Family
Physicians,
476 U.S. 667 (1986) ................................................ 4
Brinegar v. United States,
338 U.S. 160 (1949) .............................................. 24
iii
Bufkin v. Collins,
145 S. Ct. 728 (2025) ............................................ 20
Buford v. United States,
532 U.S. 59 (2001) ................................................ 19
City of Newport v. Fact Concerts, Inc.,
453 U.S. 247 (1981) .............................................. 19
Comm’r v. Duberstein,
363 U.S. 278 (1960) .............................................. 21
Cruz-Hernandez v. Att’y Gen.,
659 F. App’x 719 (3d Cir. 2016) ........................... 17
Cuzzo Speed Techs. v. Com. for
Intellectual Prop.,
579 U.S. 261 (2016) .............................................. 10
U.S. Bank Nat’l Ass’n ex rel. CWCapital
Asset Mgmt. LLC v. Vill. at
Lakeridge, LLC,
583 U.S. 387 (2018) ............................ 13, 14, 20, 21
Duncan v. Barr,
919 F.3d 209 (4th Cir. 2019) ................................ 17
Erraez-Montano v. Bondi,
2025 WL 600974 (2d Cir. Feb. 25,
2025) ..................................................................... 18
Flores Molina v. Garland,
37 F.4th 626 (9th Cir. 2022) ................................ 11
Fon v. Garland,
34 F.4th 810 (9th Cir. 2022) .......................... 10, 11
iv
Fong Haw Tan v. Phelan,
333 U.S. 6 (1948) .................................................... 4
Garland v. Ming Dai,
593 U.S. 357 (2021) ...................................... 6, 7, 11
Google LLC v. Oracle Am., Inc.,
593 U.S. 1 (2021) ............................ 5, 12, 13, 14, 15
Guardado v. Bondi,
__ F.4th __, 2025 WL 2213217 (4th
Cir. Aug. 5, 2025) ................................................. 18
Guerrero-Lasprilla v. Barr,
589 U.S. 221 (2020) ........................ 4, 10, 14, 15, 16
Gutierrez de Martinez v. Lamagno,
515 U.S. 417 (1995) ................................................ 4
Hall v. United States,
566 U.S. 506 (2012) .............................................. 12
Hernandez v. McHenry,
2025 WL 354985 (5th Cir. Jan. 31,
2025) ..................................................................... 18
Hernandez-Mendez v. Garland,
86 F.4th 482 (1st Cir. 2023) ................................. 18
Highmark Inc. v. Allcare Health Mgmt.
Sys., Inc.,
572 U.S. 559 (2014) .............................................. 20
INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) .............................................. 21
v
INS v. Elias-Zacarias,
502 U.S. 478 (1992) .............................................. 12
Islam v. Gonzales,
469 F.3d 53 (2d Cir. 2006) ..................................... 8
Kotasz v. INS,
31 F.3d 847 (9th Cir. 1994) .................................. 17
Kucana v. Holder,
558 U.S. 233 (2010) .......................................... 4, 10
Lemus-Coronado v. Garland,
58 F.4th 399 (8th Cir. 2023) ................................ 18
Leocal v. Ashcroft,
543 U.S. 1 (2004) .................................................. 18
Liang v. Att’y Gen.,
15 F.4th 623 (3d Cir. 2021) .............................. 9, 13
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) ........................................ 11, 12
Mazariegos-Rodas v. Garland,
122 F.4th 655 (6th Cir. 2024) .............................. 18
Miguel-Pena v. Garland,
94 F.4th 1145 (10th Cir. 2024) ............................ 18
Mitchell v. Forsyth,
472 U.S. 511 (1985) ........................................ 15, 16
Montoya-Lopez v. Garland,
80 F.4th 71 (1st Cir. 2023) ................................... 22
vi
Morales-Gomez v. Sessions,
722 F. App’x 693 (9th Cir. 2018) ......................... 18
Ornelas v. United States,
517 U.S. 690 (1996) .................................. 15, 20, 24
Patel v. Garland,
596 U.S. 328 (2022) ................................................ 8
Pierce v. Underwood,
487 U.S. 552 (1988) .............................................. 13
Pullman-Standard v. Swint,
456 U.S. 273 (1982) .............................................. 12
Quintero v. Garland,
998 F.3d 612 (4th Cir. 2021) .................................. 8
Quinteros v. U.S. Att’y Gen.,
945 F.3d 772 (3d Cir. 2019) ................................. 30
Richardson v. Perales,
402 U.S. 389 (1971) ................................................ 8
Matter of S-M-J-,
21 I. & N. Dec. 722 (BIA Jan. 31,
1997) ....................................................................... 8
Salve Regina College v. Russell,
499 U.S. 225 (1991) .............................................. 11
Sarvia-Quintanilla v. INS,
767 F.2d 1387 (9th Cir. 1985) ................................ 7
Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296 (2d Cir. 2007) ................................... 7
vii
Sims v. Apfel,
530 U.S. 103 (2000) ................................................ 8
Singh v. Bondi,
139 F.4th 189 (2d Cir. 2025) ................................ 10
Singh v. INS,
292 F.3d 1017 (9th Cir. 2002) .............................. 21
Siqueira v. U.S. Att’y Gen.,
2024 WL 4590031 (11th Cir. Oct. 28,
2024) ..................................................................... 18
Smith v. Berryhill,
587 U.S. 471 (2019) ................................................ 4
Sumba-Yunga v. Garland,
2024 WL 4930396 (7th Cir. Dec. 2,
2024) ..................................................................... 18
Tairou v. Whitaker,
909 F.3d 702 (4th Cir. 2018) ................................ 23
Thompson v. Keohane,
516 U.S. 99 (1995) ................................................ 20
United States v. One Twin Engine Beech
Airplane, FAA Reg. No. N-9826Z
Serial No. AF-305,
533 F.2d 1106 (9th Cir. 1976) .............................. 14
Valarezo-Tirado v. Att’y Gen.,
6 F.4th 542 (3d Cir. 2021) .................................... 31
Whitney v. Brown,
882 F.2d 1068 (6th Cir. 1989) .............................. 14
viii
Wilkinson v. Garland.,
601 U.S. 209 (2024) .............................................. 16
Williams v. Mehra,
186 F.3d 685 (6th Cir. 1999) ................................ 14
Xue v. Lynch,
846 F.3d 1099 (10th Cir. 2017) ............................ 10
Matter of Z-Z-O-,
26 I. & N. Dec. 586 (BIA May 26,
2015) ....................................................................... 9
Zheng v. U.S. INS,
386 F.3d 66 (2d Cir. 2004) ..................................... 7
CONSTITUTIONAL PROVISIONS
U.S. Const. art. III, § 1 .............................................. 26
STATUTES
8 U.S.C. § 1101 ...................................... 2, 4, 16, 17, 18
8 U.S.C. § 1158 .............................................. 3, 6, 7, 18
8 U.S.C. § 1229a .................................................. 2, 3, 8
8 U.S.C. § 1252 ................ 1, 3, 4, 10, 11, 12, 15, 16, 20
Pub. L. No. 109-13, 119 Stat. 302 (2005) .................... 6
REGULATIONS
8 C.F.R. § 1001.1 ......................................................... 9
8 C.F.R. § 1003.1 ..................................................... 4, 9
ix
8 C.F.R. § 1208.13 ....................................................... 2
67 Fed. Reg. 54,878 (Aug. 26, 2002) ....................... 6, 9
84 Fed. Reg. 31,463 (July 2, 2019) ............................ 28
90 Fed. Reg. 15,525 (Apr. 14, 2025) .......................... 25
OTHER AUTHORITIES
Idrees Ali & Phil Stewart, US military
lawyers to serve as temporary
immigration judges, Reuters (Sept.
2, 2025) ................................................................. 27
Amid “Nightmarish” Case Backlog,
Experts Call for Independent
Immigration Courts, A.B.A. News
(Aug. 9, 2019) ....................................................... 28
Arnold & Porter, 2019 Update Report:
Reforming the Immigration System:
Proposals to Promote Independence,
Fairness, Efficiency, and
Professionalism in Adjudication of
Removal Cases, UD 3-7 (Mar. 2019) ................... 28
Kent H. Barnett & Russell Wheeler,
Non-ALJ Adjudicators in Federal
Agencies: Status, Selection,
Oversight, and Removal, 53 Ga. L.
Rev. 1 (2018) ......................................................... 26
x
Courts in Crisis: The State of Judicial
Independence and Due Process in
U.S. Immigration Courts: Hearing
Before the Subcomm. on
Immigration and Citizenship of the
H. Comm. on the Judiciary, 116th
Cong. 2 (2020) ...................................................... 29
Anne Edland & Ola Svenson, Judgment
and Decision Making Under Time
Pressure Studies and Findings, in
Time Pressure and Stress in Human
Judgment and Decision Making 29
(Ola Svenson & A. John Maule eds.,
1993) ..................................................................... 29
Eberhard Feess & Roee Sarel, Judicial
Effort and the Appeals System:
Theory and Experiment, 47 J. Legal
Stud. 269 (2018) ................................................... 29
Executive Office for Immigration
Review Adjudication Statistics:
Pending Cases, New Cases, and
Total Completion (2025) ................................ 25, 26
Jonah B. Gelbach & David Marcus,
Rethinking Judicial Review of High
Volume Agency Adjudication, 96 Tex.
L. Rev. 1097 (2018) .............................................. 29
H.R. Rep. No. 109-72 (2005).................................. 8, 20
Immigration Litigation Reduction:
Hearing Before S. Comm. on the
Judiciary, 109th Cong. 5 (2006) .......................... 31
xi
Robert S. Kahn, Other People’s Blood:
U.S. Immigration Prisons in the
Reagan Decade (1996) .......................................... 26
Stephen H. Legomsky, Restructuring
Immigration Adjudication, 59 Duke
L.J. 1639 (2010) .................................................... 26
Luke T. Lee, Director of Plans and
Programs, Office of the U.S.
Coordinator for Refugee Affairs, The
Right to Compensation: Refugees and
Countries of Asylum, 80 Am. J. Int’l
L. 532 (1986)......................................................... 19
Faiza W. Sayed, The Immigration
Shadow Docket, 117 Nw. U.L. Rev.
893 (2023) ....................................................... 28, 29
Transactional Records Access
Clearinghouse, Immigration Court
Processing Time by Outcome, TRAC
Reports (last visited Sept. 1, 2025) ..................... 25
U.S. Courts, Federal Judicial Caseload
Statistics: 2024 ..................................................... 30
Alice Yiqian Wang, Presidential Power
and the Politics of Immigration
Reform, dissertation, Stanford
University (2025) ........................................... 27, 28
1
INTEREST OF AMICI CURIAE 1
Amici curiae are fifty-one (51) former immigration
judges (IJs) and members of the Board of Immigration
Appeals (BIA or Board). A complete list of signatories
can be found in the Appendix of Amici Curiae.
Amici have dedicated their careers to the
immigration court system and to upholding the
immigration laws of the United States. Each is
intimately familiar with the immigration court
system and its procedures. Together, they have a
distinct interest in ensuring that claims duly asserted
in immigration cases are afforded the level of Article
III judicial review required by law.
Under the Immigration and Nationality Act
(INA), IJs and the BIA make the initial determination
whether a noncitizen fleeing persecution abroad is
eligible for asylum protections, subject to Article III
review by a federal court of appeals. The INA directs
courts of appeals to base their review decisions “only
on the [relevant] administrative record” and instructs
them to defer to several types of administrative
determinations, including “findings of fact.” 8 U.S.C.
§ 1252(b)(4). But the INA does not require judicial
deference to agency “interpretation and application of
constitutional and statutory provisions.”
Id.
§ 1252(b)(9). Although agency actors are uniquely
situated to develop the factual record and should
accordingly receive deference in that sphere, it is the
1 Pursuant to this Court’s Rule 37.6, amici state 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, its members, or its
counsel made a monetary contribution intended to fund the
preparation or submission of this brief. Counsel of record for the
parties received timely notice of amici’s intent to file this brief.
2
duty of Article III courts to say what the law is. In
amici’s experience, this two-tiered approach
recognizes that Congress allowed for some executive
discretion
in
factfinding
while
assigning
nondiscretionary
interpretive
questions
of
immigration law to Article III courts.
SUMMARY OF ARGUMENT
To qualify for asylum under the INA, an applicant
must establish that he or she qualifies as a “refugee”
because he or she has suffered “persecution” or holds
“a well-founded fear of persecution” based on “race,
religion, nationality, membership in a particular
social group, or political opinion.”
8 U.S.C.
§ 1101(a)(42); see also 8 C.F.R. § 1208.13(b) (applicant
can establish refugee status by way of past
persecution or well-founded fear of future
persecution).
Thus, an IJ’s conclusion that an
applicant has suffered past persecution is a
significant step in establishing refugee status. If an
IJ holds that an applicant has faced past persecution,
the applicant “shall also be presumed to have a wellfounded fear of [future] persecution on the basis of the
original claim,” shifting the burden to the government
to disprove the presumption of future persecution.
8 C.F.R. § 1208.13(b)(1).
Congress drew clear boundaries in the INA about
the respective roles of IJs, the BIA, and the courts in
adjudicating noncitizens’ asylum claims. The INA
empowers IJs to develop the factual record based on
their firsthand experience with applicants by
conducting evidentiary hearings.
See 8 U.S.C.
§ 1229a(b)(1). Under the REAL ID Act, passed in
2005, an applicant’s testimony alone is sufficient to
establish eligibility for asylum if the “testimony is
3
credible, is persuasive, and refers to specific facts
sufficient to demonstrate that the applicant is a
refugee.” Id. § 1158(b)(1)(B)(ii). The Act squarely
identifies the IJ as the “trier of fact” with the
obligation to determine the applicant’s credibility. Id.
§ 1158(b)(1)(B)(iii); see also id. § 1229a(c)(4)(B)–(C)
(empowering the IJ to “determine whether or not the
[applicant’s] testimony is credible”).
For citizens ordered removed by the IJ, the INA
permits the BIA and, ultimately, the courts of appeals
to review the IJ decision for legal error, while
requiring deference to certain enumerated items,
including factual determinations. Id. § 1252(b)(4), (9).
The courts of appeals are deeply divided, however, on
whether an IJ’s determination that the established
facts constitute “persecution” under Section
1101(a)(42) is a factual determination deserving
deference or a legal conclusion that does not get
reviewed deferentially. See Pet. 15–21; Resp. 15–16.
Petitioners advocate for deference to IJs on
findings of fact, consistent with the statutory and
regulatory scheme, while preserving the traditional
role of the courts of appeals as arbiters of the law,
including whether a given set of facts amounts to
“persecution.”
See Pet. Br. 18–23; Pet. 23–30.
Petitioners’ interpretation respects the careful
balance struck by Congress in the INA.
First, Petitioners’ view reflects the unique
institutional missions of administrative immigration
courts and Article III courts of appeals. IJs are
specifically designated to develop the factual record
and to assess applicants’ credibility when making
their overall removability determination, see 8 U.S.C.
§ 1229a(b)(1), (c)(4), and both the BIA and courts of
4
appeals are limited in their review of IJs’ factual
findings, but remain empowered to review legal
conclusions without deference, see 8 C.F.R.
§ 1003.1(d)(1), (d)(3) (BIA review); 8 U.S.C.
§ 1252(a)(2)(D), (5), (b)(2), (9) (Article III review). This
approach respects the separation of powers and
preserves “the strong presumption that Congress
intends judicial review of administrative action.”
Smith v. Berryhill, 587 U.S. 471, 483 (2019) (quoting
Bowen v. Mich. Acad. of Family Physicians, 476 U.S.
667, 670 (1986)). “When a statute is ‘reasonably
susceptible to divergent interpretation, [the Court]
adopt[s] the reading that accords with traditional
understandings and basic principles: that executive
determinations generally are subject to judicial
review.’” Kucana v. Holder, 558 U.S. 233, 251 (2010)
(quoting Gutierrez de Martinez v. Lamagno, 515 U.S.
417, 434 (1995)). Indeed, “[s]eparation-of-powers
concerns” militate “against reading legislation, absent
clear statement, to place in executive hands authority
to remove cases from the Judiciary’s domain.” Id. at
237; see also Fong Haw Tan v. Phelan, 333 U.S. 6, 10
(1948) (“[S]ince the stakes are considerable for the
individual, we will 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.”).
Second, courts of appeals should review without
deference whether a set of facts constitutes
“persecution” under 8 U.S.C. § 1101(a)(42) because
this question is primarily legal.
See GuerreroLasprilla v. Barr, 589 U.S. 221, 227 (2020) (“Nothing
in that [statute] precludes the conclusion that
Congress used the term ‘questions of law’ to refer to
the application of a legal standard to settled facts.”
(citation omitted)). The Court has recognized this
5
approach to breaking down mixed questions of law
and fact, and determining the appropriate standard of
review, in other contexts. See, e.g., Google LLC v.
Oracle Am., Inc., 593 U.S. 1, 24 (2021). Based on that
approach, the courts of appeals should review
nondeferentially agency decisions on the inextricably
linked question of whether adjudicated facts establish
“persecution” as a matter of law.
Third, Petitioners’ interpretation best promotes
the efficient operation of the immigration court
system.
Given crippling case backlogs, the
requirement that IJs focus on making the factual
record, and administrative pressure on IJs and the
BIA, it is inevitable that IJs occasionally will err on
the law. Substantive Article III review of those
administrative
decisions
promotes
faithful
application of the law as Congress intended. IJs and
the BIA rely also on the precedential decisions of
courts of appeals to develop the law and to clarify
difficult, recurring issues they face. Far from creating
additional work for IJs and the BIA, Article III review
provides guidance for future cases and aids the
immigration courts in navigating their caseloads.
6
ARGUMENT
I.
Treating Past Persecution As A Legal Issue
Accords With The Careful Balance Struck By
Congress In The INA.
A. Reserving factual determinations for IJs
while
maintaining
nondeferential
judicial review for legal determinations
accords with the respective institutional
roles of IJs, the BIA, and the federal
courts.
When the Immigration and Naturalization
Service revised its “analytical approach to deciding
cases” in 2002 to adjust authority between IJs and the
BIA, the agency “focuse[d] on the qualities of
adjudication
that
best
suit
the
different
decisionmakers.” Board of Immigration Appeals:
Procedural Reforms to Improve Case Management, 67
Fed. Reg. 54,878, 54,890 (Aug. 26, 2002). As the
agency explained, IJs “are better positioned to discern
the credibility and assess the facts with the witnesses
before them; the Board is better positioned to review
the decisions from the perspective of legal standards
and exercise of discretion.”
Id.
Congress has
established a similar balance between the expertise of
agency decision-makers and the courts of appeals.
The REAL ID Act, 119 Stat. 302 (2005),
specifically designates IJs as the “trier[s] of fact.”
8 U.S.C. §§ 1158(b)(1)(B)(ii), (iii); Garland v. Ming
Dai, 593 U.S. 357, 373 (2021) (“[T]he factfinder—here
the IJ—makes findings of fact, including
determinations as to the credibility of particular
witness testimony.”). To that end, the REAL ID Act
confers upon IJs initial authority to determine
7
whether “the applicant is a refugee,” and requires
that, if the applicant elects to rely only on his own
testimony, “the applicant satisf[y] the trier of fact that
the applicant’s testimony is credible, persuasive, and
refers to specific facts sufficient to demonstrate that
the applicant is a refugee.”
8 U.S.C.
§§ 1158(b)(1)(B)(i)–(ii). The Act also empowers IJs to
“weigh the credible testimony along with other
evidence of record” and to require that an applicant
provide further corroborating evidence “unless the
applicant does not have the evidence and cannot
reasonably
obtain
the
evidence.”
Id.
§ 1158(b)(1)(B)(ii).
Adverse
credibility
determinations should be made “explicitly” on the
record to overcome a “rebuttable presumption of
credibility on appeal” to the BIA.
Id.
§ 1158(b)(1)(B)(iii); see also Ming Dai, 593 U.S. at 367
(the statutory credibility presumption “encourages”
IJs to make “specific findings about credibility”).
As the Court has already noted, “[t]he IJ—who
actually observes the witness—is best positioned to
assess the applicant’s credibility in the first instance.”
Ming Dai, 593 U.S. at 367. First-hand exposure to
applicants and institutional knowledge grants IJs a
“unique advantage among all officials involved in the
process” and, hence, places them in the best position
to “discern, often at a glance,” issues of witness
credibility. Zheng v. U.S. INS, 386 F.3d 66, 73 (2d Cir.
2004), overruled on other grounds by Shi Liang Lin v.
U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007). Put
simply, an IJ, “by virtue of his acquired skill,” is
“uniquely qualified” to assess the facts as presented
by a witness in immigration cases.
SarviaQuintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir.
8
1985); see also H.R. Rep. No. 109-72, at 167 (2005)
(Conf. Rep.) (IJs bring special “expertise” to the “task”
of assessing witness credibility).
IJs’ responsibilities for overseeing the creation of
the factual record extend far beyond assessing the
credibility of witnesses. All courts of appeals to have
reached the question have unanimously held that IJs
have an affirmative, positive “obligation to establish
and develop the record.” Islam v. Gonzales, 469 F.3d
53, 55 (2d Cir. 2006); see also Quintero v. Garland, 998
F.3d 612, 623 & n.9 (4th Cir. 2021) (collecting cases).
For instance, the IJs “shall administer oaths, receive
evidence, and interrogate, examine, and crossexamine the [applicant] and any witness.” 8 U.S.C.
§ 1229a(b)(1). They may also “issue subpoenas for the
attendance of witnesses and presentation of
evidence.”
Id.
These statutory commands are
consistent with the Court’s observation that an
administrative law judge (ALJ) typically “acts as an
examiner charged with developing the facts.”
Richardson v. Perales, 402 U.S. 389, 410 (1971); see
also Sims v. Apfel, 530 U.S. 103, 111 (2000) (ALJ has
a “duty to investigate the facts”).
The statutes’ grant of factfinding authority to IJs
makes practical sense—they have the experience and
training to weigh evidence. IJs hear testimony,
review documents, and consider an applicant’s
testimony before “evaluating conflicting evidence to
make a judgment about what happened.” Patel v.
Garland, 596 U.S. 328, 341 (2022). IJs often accrue
“significant knowledge from their experience
involving the conditions in numerous countries.”
Matter of S-M-J-, 21 I. & N. Dec. 722, 728 (BIA Jan.
31, 1997). Their institutional role and experience puts
9
them in the best position to assess, for example,
whether a particular event was motivated by political
animus, how many attackers were involved in an
incident and the dangerousness of weapons used.
These issues are typical of the factfinding IJs
regularly confront.
Different from the IJs, the BIA is the designated
agency arbiter of law, and it is “confine[d]” to
“deciding whether the facts as found by an [IJ] justify
a particular legal conclusion about persecution.”
Liang v. Att’y Gen., 15 F.4th 623, 627 (3d Cir. 2021)
(Jordan, J., concurring); see also 8 C.F.R.
§ 1003.1(d)(1) (“The Board shall function as an
appellate body charged with review of [IJs’]
administrative adjudications under the [INA] . . . .”).
Agency regulations prohibit the BIA from engaging in
further factfinding when reviewing a determination of
an IJ and significantly proscribes the BIA’s review of
IJ factfinding under a clear error standard. See 8
C.F.R. § 1001.1(d)(3)(i), (iv). If the BIA is to determine
that “further factfinding is needed in a particular
case,” it “may remand the proceedings to” the IJ to
conduct that analysis. Id. § 1001.1(d)(3)(iv).
The Board is empowered to review questions of
law de novo, 8 C.F.R. § 1003.1(d)(3)(ii), and it has
expressly held that whether a given set of undisputed
facts amounts to past persecution is a question of law
that gets reviewed de novo. See Matter of A-S-B-, 24
I. & N. Dec. 493, 496–97 (BIA May 8, 2008), overruled
in part on other grounds by Matter of Z-Z-O-, 26 I. &
N. Dec. 586, 589–91 (BIA May 26, 2015); see also 67
Fed. Reg. at 54890 (“The ‘clearly erroneous’ standard
does not apply to determinations of matters of law”
including “whether the facts established by a
10
particular [applicant] amount to ‘past persecution’”).
As several courts of appeals have remarked, “[i]t is
certainly odd, to say the least, for [the courts of
appeals] to review for substantial evidence a
determination the BIA itself has concluded is legal in
nature.” Xue v. Lynch, 846 F.3d 1099, 1105 (10th Cir.
2017); see also, e.g., Aguilar-Escoto v. Garland, 59
F.4th 510, 520 (1st Cir. 2023); Fon v. Garland, 34
F.4th 810, 823 (9th Cir. 2022) (Collins, J., concurring).
The upshot is that credibility determinations and
adjudicative facts are important predicates to the
subsequent legal determination whether an applicant
has sufficiently proven that he has suffered past
persecution. Because these predicate factual issues
are best suited for resolution by IJs, Congress
“expressly afford[ed] IJs discretion” over evidentiary
matters subject to “review for substantial evidence.”
Singh v. Bondi, 139 F.4th 189, 201 (2d Cir. 2025); see
also 8 U.S.C. § 1252(b)(4)(B). The same cannot be said
for questions of law, which require substantive
judicial review from Article III courts.
Indeed, structural separation of powers grants
Article III courts the final word on issues of law.
There is a “well-settled” and “strong” presumption
“favoring judicial review of administrative action.”
Guerrero-Lasprilla, 589 U.S. at 229 (internal
quotations omitted). And that presumption extends
equally to “statutes that may limit” the scope of
judicial review. Cuzzo Speed Techs. v. Com. for
Intellectual Prop., 579 U.S. 261, 273 (2016). The
Court has “consistently” applied this presumption to
“legislation regarding immigration” and requires a
“clear and convincing” statement from Congress to
disregard it. Kucana, 558 U.S. at 251, 252.
11
Furthermore, “reviewing courts remain bound by
traditional administrative law principles” when
reviewing the determinations of the BIA, Ming Dai,
593 U.S. at 369—which necessarily includes the
“traditional understanding that questions of law were
for courts to decide,” Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 387 (2024); see also id. at 431
(Gorsuch, J., concurring) (noting that courts
traditionally reviewed “so-called mixed questions of
law and fact” without deference). This structure is
important because Article III judges are independent,
and their responsibilities over a wide range of cases,
including other areas of administrative law, provides
them a broad interpretive perspective that the BIA
lacks. See Salve Regina College v. Russell, 499 U.S.
225, 231–233 (1991) (discussing appellate courts’
“institutional advantages” in giving legal guidance).
The INA preserves these general administrative
law principles favoring independent judicial review.
It states that “administrative 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) (emphasis added). Beyond provisions
proscribing review of the executive’s discretionary
functions, see id. § 1252(a)(2)(B), (b)(4)(C)–(D), the
clear text of the statute limits judicial review only of
factual findings, not legal determinations, see, e.g.,
Fon, F.4th at 822–23 (Collins, J., concurring); Flores
Molina v. Garland, 37 F.4th 626, 641 (9th Cir. 2022)
(Korman, J., concurring). In fact, Section 1252
explicitly preserves judicial review “of constitutional
claims or questions of law,” including “interpretation
and application of constitutional and statutory
12
provisions,” but does not proscribe the scope of that
review. Id. § 1252(a)(2)(D), (b)(9).
Had Congress intended to curtail judicial review
under the INA, it would have “articulated” a
“deferential standard applicable to questions of law”
to depart from the foundational maxim “that courts
decide legal questions by applying their own
judgment.” Loper Bright, 603 U.S. at 392. Indeed,
Congress is presumed to be aware of existing law
when it passes legislation, see Hall v. United States,
566 U.S. 506, 516 (2012), and the courts have long
distinguished between pure questions of law, mixed
questions of law and fact, and pure factual findings,
see Pullman-Standard v. Swint, 456 U.S. 273, 288–90
& n.19 (1982). Yet, the INA nowhere limits the
applicable standard of review for anything but a pure
finding of fact. See 8 U.S.C. § 1252(b)(4)(B).2
B. Article III courts should review whether
an applicant faced past persecution
without deference because it is an
application of law to an established set of
facts that requires primarily legal work.
This Court has established a clear framework for
determining whether a mixed question of law and fact
should be reviewed without deference on appeal:
break the question down into its smallest constituent
parts, and if answering the question requires
primarily legal work, then it should be reviewed
without deference. See Google, 593 U.S. at 24. Under
that approach, the determination of “ultimate facts,”
2 Some courts have misread INS v. Elias-Zacarias, 502 U.S. 478
(1992), to require substantial-evidence review for the existence
of past persecution, but that view is incorrect, see Pet. Br. 41–42.
13
which involve the application of a legal standard to a
set of established predicate facts, is typically
considered to involve primarily legal work. Whether
an applicant suffered past persecution is precisely
such a question of law: the IJ decides whether a set
of predicate facts (which the IJ has found) satisfies the
legal doctrine codified under the term “persecution.”
See Liang, 15 F.4th at 627 (Jordan, J., concurring).
i. Nondeferential review of whether an established set
of facts constitutes past persecution aligns with this
Court’s treatment of similar questions in the
immigration context and in other fields of law.
The process for deciding whether appellate courts
should review a particular question that involves both
factual and legal considerations without deference is
well-defined: courts should determine what type of
analysis the question primarily requires, and if it is
primarily legal, the question should be reviewed
without deference. To begin, when dealing with a
“mixed question of law and fact[] . . . a reviewing court
should try to break such a question into its separate
factual and legal parts, reviewing each according to
the appropriate legal standard.” Google, 593 U.S. at
24.
Questions of fact involve “marshal[ling] and
weigh[ing] evidence, mak[ing] credibility judgments,
and otherwise address[ing] what [courts] have . . .
called ‘multifarious, fleeting, special, narrow facts
that utterly resist generalization,’” and they are
typically treated with deference to the lower court.
U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt.
LLC v. Vill. at Lakeridge, LLC, 583 U.S. 387, 396
(2018) (quoting Pierce v. Underwood, 487 U.S. 552,
14
561–562 (1988)). Questions of law, by contrast,
“requir[e] courts to expound on the law, particularly
by amplifying or elaborating on a broad legal
standard.” Id. And when a question that involves
both factual and legal considerations “can be reduced
no further,” the reviewing court should determine the
standard of review based “on whether answering it
entails primarily legal or factual work.” Google, 593
U.S. at 24 (quoting U.S. Bank, 583 U.S. at 396).
One type of question that has been commonly
understood to entail primarily “legal inquiry” is the
“application of a legal standard to undisputed or
established facts.” Guerrero-Lasprilla, 589 U.S. at
227. Courts have recognized, for decades, that
deference may not be appropriate for these types of
legal conclusions, or “ultimate facts.” See, e.g., United
States v. One Twin Engine Beech Airplane, FAA Reg.
No. N-9826Z Serial No. AF-305, 533 F.2d 1106, 1108
(9th Cir. 1976) (“At some point in the process of
abstracting ‘ultimate facts’ from ‘basic facts’, the trial
court crosses the line from making findings of fact to
making conclusions of law.”). Cf. Williams v. Mehra,
186 F.3d 685, 690 (6th Cir. 1999) (“Whether the
doctors were deliberately indifferent is . . . an issue of
ultimate fact as distinguished from subsidiary or
basic fact. . . . [which] requires [the court] to compare
the doctors’ conduct with a legal standard of
deliberate indifference. . . . [I]n accord with the
established standards of appellate review. . . we treat
mixed questions as legal questions rather than as
factual questions.” (citing Whitney v. Brown, 882 F.2d
1068, 1071 (6th Cir. 1989))).
15
This Court has also treated questions that require
a court to determine if a collection of facts satisfies a
legal threshold as involving primarily legal work. For
example, in Ornelas v. United States, the Court held
that nondeferential appellate review of whether
“historical facts [that] are admitted or established . . .
satisfy the relevant statutory or constitutional
standard . . . of reasonable suspicion and probable
cause is consistent with the position we have taken in
past cases.” 517 U.S. 690, 696–97 (1996) (cleaned up).
In Google, the Court held that “the ultimate ‘fair use’
question [in copyright cases] primarily involves legal
work,” even though it may “involve determination of
subsidiary factual questions[.]” 593 U.S. at 24. And
the Court explained in Mitchell v. Forsyth that,
although “the resolution of th[e] legal issues [of
whether a defendant is entitled to qualified
immunity] will entail consideration of the factual
allegations that make up the plaintiff’s claim for
relief,” the same is true of other situations in which
appellate courts do not defer to lower court
conclusions.
472 U.S. 511, 528 (1985) (listing
examples).
This Court has affirmed this general approach
when construing statutes circumscribing the
availability of Article III review under the
immigration laws. In Guerrero-Lasprilla, the Court
considered whether a provision of the INA that
limited the availability of Article III review of BIA
decisions to “constitutional claims or questions of
law,” 8 U.S.C. § 1252(a)(2)(D), barred review of “the
application of law to established facts”—specifically,
whether the facts established that Mr. GuerreroLasprilla “acted diligently” in pursuing his claim. 589
16
U.S. at 224, 230. Concluding that the INA permitted
Article III review, the Court held that the ultimate
question of whether a noncitizen acted diligently was
“a questio[n] of law within the meaning of
§ 1252(a)(2)(D).” Id. at 228. The Court looked not
only at the text and history of § 1252, but also to the
general meaning of “questions of law” as explained in
the Court’s precedent in other areas, finding that the
preexisting “judicial usage” establishes “that the term
[questions of law] can reasonably encompass
questions about whether settled facts satisfy a legal
standard.” Id. at 227–28 (citing Mitchell, 472 U.S. at
528 n.9).
And last year, the Court addressed a similar issue
in Wilkinson v. Garland. There, the Court considered
statutory language that permitted cancellation of a
removal that would result in “exceptional and
extremely unusual hardship,” and the issue was
whether application of that language to a given set of
facts constituted a question of law under
§ 1252(a)(2)(D). 601 U.S. 209, 211–12 (2024). The
Court held that such a determination is “a
quintessential mixed question of law and fact” that is
reviewable under § 1252. Id. at 212. Relevant here,
the Court rejected the argument that “the application
of a ‘statutory standard’” is not a question of law under
the statute. Id. at 223.
Whether a given set of undisputed facts
demonstrates mistreatment severe enough to
constitute “persecution” under 8 U.S.C. § 1101 is such
a mixed question that requires primarily legal work.
To make that determination, IJs must look at all of
the evidence, including testimony and documentary
17
evidence, about the treatment the noncitizen claims to
have suffered to ascertain what actually happened
and why (including by determining whether the
noncitizen is credible). Each of these determinations
is entitled to deference. Then the IJ must decide
whether this set of established facts, collectively,
constitutes “persecution”—a statutory term of art.
See Cruz-Hernandez v. Att’y Gen., 659 F. App’x 719,
722 (3d Cir. 2016) (“‘[P]ersecution’ itself is a legal term
of art, and whether harm rises to the level of
persecution is a legal question that the BIA reviews
de novo.”).
The courts of appeals have, by and large, not
deferentially reviewed whether a lower tribunal has
correctly applied a legal term of art to a given set of
facts. See, e.g., Avdeeva v. Tucker, 138 F.4th 641, 645
(1st Cir. 2025) (“[T]he term ‘prevailing party’ is a ‘legal
term of art’ . . . . We review a determination of
‘prevailing party’ status de novo.”); Duncan v. Barr,
919 F.3d 209, 215 (4th Cir. 2019) (“[T]he BIA reviews
de novo the IJ’s legal conclusion as to whether this
future mistreatment amounts to ‘torture,’ which is ‘a
term of art under the CAT . . . .’”). One particularly
salient example is the question of whether a given set
of facts satisfies the legal term “particular social
group” (PSG). Kotasz v. INS, 31 F.3d 847, 852 n.7 (9th
Cir. 1994). A noncitizen may be eligible for asylum if
they can establish that they have been, or fear being,
persecuted on the basis of their membership in a PSG.
8 U.S.C. § 1101(a)(42). And the courts of appeals are
almost universal in reviewing de novo whether the
PSG claimed by the individual has sufficient
characteristics—i.e., facts—that make it “cognizable”
18
under the immigration laws.3 This unusual degree of
circuit court alignment is particularly instructive in
construing whether a determination of past
persecution should be reviewed independently
because both “persecution” and “particular social
group” are legal predicates (with alternatives) within
the same statutory definition of “refugee,” see id.
§ 1101(a)(42), which is the status a noncitizen must
satisfy to be eligible for asylum, id. § 1158(b)(1)(A).
See generally Leocal v. Ashcroft, 543 U.S. 1, 2 (2004)
(“[T]he Court construes language in its context and in
light of the terms surrounding it.”).
The courts of appeals that review the question of
persecution deferentially, however, have misapplied
this Court’s instructions from the cases resolving
ancillary but related questions. There is no question
that, under Guerrero-Lasprilla and Wilkinson, the
question of “persecution” under 8 U.S.C. § 1101
should be viewed as a question of law, or, at minimum,
as a mixed question of law and fact.
3 See Hernandez-Mendez v. Garland, 86 F.4th 482, 490 (1st Cir.
2023); Erraez-Montano v. Bondi, 2025 WL 600974, at *1 (2d Cir.
Feb. 25, 2025); Avila v. Att’y Gen., 82 F.4th 250, 257 (3d Cir.
2023); Guardado v. Bondi, __ F.4th __, 2025 WL 2213217, at *2
(4th Cir. Aug. 5, 2025); Alvarado-Ruiz v. Garland, 845 F. App’x
355, 356 (5th Cir. 2021); Mazariegos-Rodas v. Garland, 122 F.4th
655, 664 (6th Cir. 2024); Sumba-Yunga v. Garland, 2024 WL
4930396, at *3 (7th Cir. Dec. 2, 2024); Lemus-Coronado v.
Garland, 58 F.4th 399, 402 (8th Cir. 2023); Morales-Gomez v.
Sessions, 722 F. App’x 693, 693 (9th Cir. 2018); Miguel-Pena v.
Garland, 94 F.4th 1145, 1160 (10th Cir. 2024); Siqueira v. U.S.
Att’y Gen., 2024 WL 4590031, at *2 (11th Cir. Oct. 28, 2024). But
see Hernandez v. McHenry, 2025 WL 354985, at *1 (5th Cir. Jan.
31, 2025).
19
And several factors the Court has looked to when
determining the deference due to a lower court
decision indicate that the question of past persecution
constitutes legal work for which nondeferential
review is both appropriate and necessary. For
example,
The “question is important and appears likely
to recur.” City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 257 (1981) (articulating reasons
for deciding to review unpreserved issue de
novo rather than for plain error). Cf. Buford v.
United States, 532 U.S. 59, 65 (2001) (holding
that deferential review was appropriate for the
question of whether a prior conviction was
“consolidated” for sentencing purposes in part
because it is “a minor, detailed, interstitial
question of . . . law, buried in a judicial
interpretation of an application note,” not “a
generally recurring . . . interpreti[on of] a set of
legal words,” like those in “an individual
guideline”). As one former official has noted,
“‘persecution’ [is] the most critical element in
the definition of ‘refugee.’” Luke T. Lee,
Director of Plans and Programs, Office of the
U.S. Coordinator for Refugee Affairs, The Right
to Compensation: Refugees and Countries of
Asylum, 80 Am. J. Int’l L. 532, 539 (1986).
As explained above, see supra § I.A, one of the
core reasons to grant plenary review is
institutional competence.
While IJs are
uniquely suited to establish the factual record,
Article III courts are well-positioned to provide
guidance on these issues given their expertise
and exposure to a wide range of legal issues.
20
It is simply “[t]radition[]” that “decisions on
‘questions of law’ are ‘reviewable de novo.’”
Highmark Inc. v. Allcare Health Mgmt. Sys.,
Inc., 572 U.S. 559, 563 (2014).
Nondeferential review is “essential” when a
primary purpose of review is to ensure “uniform
precedent” that will “provide [officials] with a
defined set of rules which, in most instances,
makes it possible to reach a correct
determination.” Bufkin v. Collins, 145 S. Ct.
728, 740 (2025) (quoting Ornelas, 517 U.S. at
697) (cleaned up); see also U.S. Bank, 583 U.S.
at 396 (“[W]hen applying the law involves
developing auxiliary legal principles of use in
other cases—appellate courts should typically
review a decision de novo”); Thompson v.
Keohane, 516 U.S. 99, 114–15 (1995) (holding
independent review appropriate for “‘in
custody’ determinations” because they guide
future decisions).
One of Congress’s core
reasons for providing for judicial review of BIA
decisions in the first place is to create a uniform
body of law on key issues so that immigration
judges can make correct decisions without a
substantial need for error correction. See H.R.
Rep. 109-72, at 174 (2005) (Conf. Rep.) (stating
that the changes to 8 U.S.C. § 1252 will
“restor[e] uniformity and order to the law”).
And deferential review is not appropriate for a
statutory term of art like the application of past
persecution to a given set of facts. In some
cases in which this Court held review of the
application of a legal term to a given set of facts
should be deferential, the Court specifically
identified that the terms being applied were
21
familiar to ordinary human experience. See,
e.g., U.S. Bank, 583 U.S. at 397–98 (deciding
the standard of review for the question of
whether two parties are behaving as
“strangers,” which is a “familiar term”);
Comm’r v. Duberstein, 363 U.S. 278, 288–89
(1960) (concluding that whether property
received is a “gift” is a question of fact due to
“nontechnical nature of the statutory standard,
the close relationship of it to the date of
practical human experience,” and other
factors). By contrast, “persecution” is a “legal
term of art” that poses “translational
difficult[ies],” Singh v. INS, 292 F.3d 1017,
1022 (9th Cir. 2002), and has origins in
international law, see INS v. Cardoza-Fonseca,
480 U.S. 421, 439 n.22 (1987) (“[T]he Handbook
provides significant guidance in construing the
Protocol, to which Congress sought to
conform.”).
In sum, there is no sound basis in purpose or
precedent to deviate from these holdings and review a
question that undisputably involves legal work with
deference to an administrative agency.
ii. Application of Nondeferential Review to Petitioner’s
Claims Illustrates Why Independent Review is
Necessary and Appropriate to the Question of
Whether an Applicant Has Suffered Past
Persecution.
The undue deference the First Circuit applied to
the question of whether Mr. Urias-Orellana suffered
past persecution limits the decision’s utility for future
immigration judges facing similar underlying facts.
The court below acknowledged that “[c]redible,
22
specific threats,” especially “death threats,” can
amount to past persecution if they are severe enough.
Pet. App. 10a–11a (quoting Montoya-Lopez v.
Garland, 80 F.4th 71, 80 (1st Cir. 2023)). Yet it
reasoned that even a “record [that] supports a
conclusion contrary to that reached by the [Agency] is
not enough to warrant upsetting” the decision below.
Pet. App. 9a (emphasis in original). As a result, the
court did not decide whether the facts in this case
could support a finding of past persecution. Instead,
the only guidance it provided is “that the record here
did not compel a finding of past persecution.” Pet.
App. 13a.
The circumstances in Mr. Urias-Orellana’s case
contain many of the same hallmarks in which
persecution has been found. There are several critical
facts that the IJ determined had actually transpired—
each of which would be clearly entitled to deference—
that show the record might at least have been
susceptible to a finding of past persecution. For
example,
Mr. Urias-Orellana’s two half-brothers were
shot multiple times by the same “hitman” who
had “vowed to kill [his brothers’] entire family,”
resulting in “severe[] injur[ies]” to both of them.
Pet. App. 3a–4a.
After these shootings, Mr. Urias-Orellana fled
his hometown out of “fear[] for his and his
family’s safety.” Pet. App. 4a.
Despite moving to a nearby town, Mr. UriasOrellana continued to receive warnings or
threats, one by masked men “warn[ing] him
23
that they would ‘leave [him] like’ his halfbrothers and possibly kill him,” and another by
masked men “threaten[ing] to kill him,” if he
did not concede to their demands. So, Mr.
Urias-Orellana moved again. Pet. App. 5a.
When Mr. Urias-Orellana returned to his
hometown to visit his mother, masked men
again “threatened him” and “warned him that
they would kill him” if he did not give in to their
demands, and they “assaulted him by striking
him three times in the chest.” Pet. App. 5a.
Other courts of appeals have found that a similar
record compelled a finding of past persecution. See,
e.g., Ahmed v. INS, 32 F. App’x 282, 283 (9th Cir.
2002) (finding of past persecution was compelled by
the noncitizen’s testimony that he “and his family
were beaten, shot at, and threatened with kidnaping
and death on numerous occasions”); Tairou v.
Whitaker, 909 F.3d 702, 708–09 (4th Cir. 2018) (death
threats constitute past persecution). But because of
the deferential standard of review, the court below did
not even address whether these facts could support a
finding of past persecution, leaving immigration
judges within the First Circuit in the dark about
whether findings of this type would support a
conclusion of “persecution.”
The difference in these two outcomes highlights
the need for a standard of review that will promote
consistency in the law. As it stands, it is simply luck
of the draw whether an Immigration Judge deciding
the case of a petitioner who has received death
threats, been assaulted, and had family members shot
multiple times will treat that matter consistently with
24
other, similar matters. The deferential review of
these decisions perpetuates inconsistent outcomes
and leads to confusion by immigration judges about
how to handle the hundreds or thousands of cases
with similar, established facts that all courts of
appeals—if required to provide clear guidance on the
issue—would agree could show past persecution. The
diverse outcomes regarding what set of facts
constitutes persecution defy the very purpose of the
asylum scheme (protecting “refugees”) and the
legislative judgment to allow judicial review of orders
of removal (to ensure consistent application of law).
As this Court explained in Ornelas,
A policy of sweeping deference would
permit, “[i]n the absence of any
significant difference in the facts,” “the
Fourth Amendment’s incidence [to]
tur[n] on whether different trial judges
draw general conclusions that the facts
are sufficient or insufficient to constitute
probable cause.” Such varied results
would be inconsistent with the idea of a
unitary system of law. This, if a matterof-course, would be unacceptable.
517 U.S. at 697 (alterations in original) (citation
omitted) (quoting Brinegar v. United States, 338 U.S.
160, 171 (1949)).
II. Nondeferential Judicial Review Of Past
Persecution Aids Agency Decision-Making
And Furthers Efficient Resolution Of
Immigration Cases.
IJs and the BIA are overburdened with an everexpanding case backlog, and nondeferential review
25
aids in correcting erroneous legal conclusions
resulting from unavoidable errors. The immigration
courts’ backlog has increased exponentially since the
early 2010s, with 3,797,662 active cases as of July
2025. Executive Office for Immigration Review
Adjudication Statistics: Pending Cases, New Cases,
and
Total
Completion
(2025)
(hereinafter
“Adjudication Statistics”). Thus far, the number of
pending cases stands at a little over nine times the
number of new cases that the immigration courts
received this year (448,019 cases). Id. And while IJs
have made an admirable effort to close out their
pending cases, their current closure rate of 588,128
cases per year makes little headway against the evergrowing backlog. Id. In recent years, the court’s
backlog has spilled over into other areas of the
immigration apparatus and has resulted in
substantial wait times for immigration court
respondents whose cases languish for over 1,000 days,
on average, before being fully adjudicated.4
For the BIA, the story is equally concerning.
Following a 2025 reduction to the size of the Board by
the DOJ, the BIA now stands at only 15 members.
Reducing the Size of the Board of Immigration
Appeals, 90 Fed. Reg. 15,525 (Apr. 14, 2025). But, as
of July 2025, 186,473 appeals remain pending with
the BIA, with another 72,200 appeals filed and only
23,889 closed this year. Adjudication Statistics,
4
Transactional Records Access Clearinghouse (TRAC),
Immigration Court Processing Time by Outcome, TRAC Reports,
https://tracreports.org/phptools/immigration/court_backlog/cour
t_proctime_outcome.php#:~:text=Fiscal%20Year%202023&text
=State%20%3D%20California&text=State%20%3D%20Californ
ia%2C%20Court%20Location,Entire%20 (last visited Sept. 1,
2025).
26
supra. Combined with the recent reduction in BIA
membership, the DOJ’s efforts thus far have done
little to increase the BIA’s efficiency or decrease its
case backlog. In fact, the BIA’s adjudication statistics
this year are not substantively different from those in
2019, when the BIA received 63,325 new appeals and
closed 26,271 pending cases.
Id.
While some
adjudication statistics remain relatively unchanged,
the BIA’s backlog of pending cases has not; indeed, the
BIA’s backlog has more than doubled from 91,952
cases in 2019 to 186,471 cases this year. Id.
Given the unique institutional setup of the
immigration courts, their growing backlogs are likely
to exacerbate errors in judicial decision-making. IJs
lack the robust tenure protections that characterize
ALJs and Article III judges. See Kent H. Barnett &
Russell Wheeler, Non-ALJ Adjudicators in Federal
Agencies: Status, Selection, Oversight, and Removal,
53 Ga. L. Rev. 1, 83–84 (2018) (ALJs); U.S. Const. art.
III, § 1 (Article III judges). Rather, they are quasijudicial bodies that operate under the purview of, and
are overseen by, the Department of Justice and the
Attorney General.
Stephen H. Legomsky,
Restructuring Immigration Adjudication, 59 Duke
L.J. 1639, 1641–44 (2010).
This relationship—
whereby, for instance, IJs can be disciplined for failing
performance reviews or may be removed by the
Attorney General without a hearing—has led some
scholars to characterize IJs as mere “bureaucrats in
judges’ robes.” See generally Robert S. Kahn, Other
27
People’s Blood: U.S. Immigration Prisons in the
Reagan Decade (1996).5
Here, IJs’ dual roles as judges and “bureaucrats”
place them in a difficult position: they must satisfy
goals that are frequently, if not fundamentally, in
tension. As judicial actors, IJs must uphold due
process rights for those who come before them. As
administrators, they are incentivized to comply with
the wishes of their principals, who may be more
inclined to reward production volume than quality
legal decision-making. This combination of growing
backlogs and top-down pressure to clear those
backlogs means that IJs often have less time to
engage substantively with complex legal issues.
External pressures to complete cases quickly can
easily “get in the way” of getting cases “right.” For
example, since it is less time-consuming to issue a
removal order and close out a case than to issue a
continuance, IJs are strongly incentivized to opt for
the former rather than the latter in order to meet
“[their] numbers.” Alice Yiqian Wang, Presidential
Power and the Politics of Immigration Reform,
dissertation, Stanford University (2025). As one IJ
explained, “wanting to do [their] job [correctly] is hard
5 The recent decision to bolster IJs’ ranks with military and
civilian attorneys from the Department of Defense, apparently
with no regard for whether they have training or experience in
immigration law, further underscores the Executive Branch’s
discretion over IJs’ appointment and tenure—and the need for
nondeferential review of legal issues decided by IJs and the
agency. See Idrees Ali & Phil Stewart, US military lawyers to
serve as temporary immigration judges, Reuters (Sept. 2, 2025),
https://www.reuters.com/legal/government/us-military-lawyersserve-temporary-immigration-judges-2025-09-03/.
28
to reconcile with wanting to keep [their] job” due to
upper
management’s
emphasis
on
judicial
expediency. Id. (emphasis added). One IJ bluntly
described her experience on the bench as nothing less
than “nightmarish,” and explained that she had only
“about half a judicial law clerk and less than one fulltime legal assistant to help [her]” through her
“pending caseload [of] about 4,000 cases.”6
The BIA is similarly resource-constrained.
Docket pressures have led BIA members to spend a
“mere one hour adjudicating each appeal.” Faiza W.
Sayed, The Immigration Shadow Docket, 117 Nw.
U.L. Rev. 893, 945 (2023). BIA members have also
increasingly turned to mechanisms by which they can
affirm an IJ’s conclusion with minimal analysis. For
instance, BIA members may opt for an Affirmance
Without Opinion (AWO).7 Following a September
2019 Rule, AWOs issued by the BIA are “presumed to
have considered all of the parties’ relevant issues and
claims of error on appeal regardless of the type of the
BIA’s decision.” Board of Immigration Appeals:
Affirmance Without Opinion, Referral for Panel
Review, and Publication of Decisions as Precedents,
6 Amid “Nightmarish” Case Backlog, Experts Call for
Independent Immigration Courts, A.B.A. News (Aug. 9, 2019),
https://www.americanbar.org/news/abanews/aba-newsarchives/2019/08/amid-_nightmarish-case-backlog--experts-callfor-independent-imm/.
7 Arnold & Porter, 2019 Update Report: Reforming the
Immigration System: Proposals to Promote Independence,
Fairness, Efficiency, and Professionalism in Adjudication of
Removal
Cases,
UD
3–7
(Mar.
2019),
https://www.americanbar.org/content/dam/aba/publications/com
mission_on_immigration/2019_reforming_the_immigration_syst
em_volume_2.pdf.
29
84 Fed. Reg. 31,463 (July 2, 2019). With this Rule,
BIA members may now issue a two-sentence opinion
endorsing the IJ’s decision and rely on a regulatory
presumption of regularity, regardless of the
underlying record.
Due to both time pressures and external
incentives to “cut corners,” “[c]onsistency and
accuracy across this staggering number of decisions
may be impossible to achieve.” Sayed, supra, at 944.
“[T]he time and resource shortfalls that afflict agency
decision-making may make its adjudicators more
error-prone, while federal judges’ comparative surfeit
of both improves their relative capacity to decide cases
accurately.”8 On this issue, social science research
has cautioned time and time again that “[t]he
accuracy of human judgments decreases under time
pressure.”9
8 Jonah B. Gelbach & David Marcus, Rethinking Judicial
Review of High Volume Agency Adjudication, 96 Tex. L. Rev.
1097, 1111 (2018); see also Courts in Crisis: The State of Judicial
Independence and Due Process in U.S. Immigration Courts:
Hearing Before the Subcomm. on Immigration and Citizenship of
the H. Comm. on the Judiciary, 116th Cong. 2 (2020) (“Despite
their best efforts, immigration judges struggle to deliver just and
timely decisions. Many judges lack the necessary resources and
staff to maximize their productivity, as reports indicate that
clerical and support staff haven’t been hired at the same pace as
new judges.”).
9 Anne Edland & Ola Svenson, Judgment and Decision Making
Under Time Pressure Studies and Findings, in Time Pressure
and Stress in Human Judgment and Decision Making 29, 35–36
(Ola Svenson & A. John Maule eds., 1993); see also Eberhard
Feess & Roee Sarel, Judicial Effort and the Appeals System:
Theory and Experiment, 47 J. Legal Stud. 269, 270–71 (2018).
30
These mistakes are not merely theoretical.
Increased pressures on the immigration court system
have already resulted in significant factual errors and
oversights, which Article III courts have sought to
correct. See, e.g., Argueta-Hernandez v. Garland, 87
F.4th 698, 703 (5th Cir. 2023) (concluding that “the
BIA misapplied prevailing case law, disregarded
crucial evidence, and failed to adequately support its
decisions”); Arita-Deras v. Wilkinson, 990 F.3d 350,
358 (4th Cir. 2021) (criticizing several IJ and BIA as
clearly “err[oneous] as a matter of law” and “flawed,”
with “no plausible basis . . . in violation of the Board’s
precedent”); Quinteros v. U.S. Att’y Gen., 945 F.3d
772, 791 (3d Cir. 2019) (McKee, J., concurring)
(highlighting that “[t]here are numerous examples of
[the BIA’s] failure to apply the binding precedent of
this Circuit,” including “in the two years since we
explicitly emphasized its importance”).
Article III appellate review serves as a critical
device to correct past mistakes and avoid future ones.
Since 2014, the courts of appeals have remanded more
than 10,000 cases back to the BIA. During this same
time period, the courts of appeals have issued
remands in approximately 16 to 20 percent of all BIA
appeals (with a remand rate of around 20 percent in
2024).10 Because Article III judges do not face the
same time pressures or resource limitations as their
IJ and BIA counterparts, they are better positioned to
10 U.S. Courts, Federal Judicial Caseload Statistics: 2024,
https://www.uscourts.gov/statistics-reports/federal-judicialcaseload-statistics-2024 (“BIA appeals accounted for 80 percent
of administrative agency appeals and constituted the largest
category of administrative agency appeals filed in each circuit
except the DC Circuit.”).
31
engage meaningfully with and analyze the legal
principles at hand. Judge Walker of the Second
Circuit echoed this sentiment when he noted that
“[o]ne of [his] court’s problems with the BIA is that it
rarely seems to adjudicate the outstanding legal issues
in a case, no doubt because the judges lack the time to
do so.”11 Article III courts play a critical role in
ensuring that Executive Branch productivity
mandates do not override the obligation to give due
attention to a case and that “crowded dockets or a
backlog of cases” do not “allow an IJ or the BIA to
dispense with an adequate explanation . . . merely to
facilitate
or
accommodate
administrative
expediency.” Valarezo-Tirado v. Att’y Gen., 6 F.4th
542, 549 (3d Cir. 2021).
Independent review of the past persecution
question by Article III also helps to develop the body
of immigration law and, thereby, to increase judicial
efficiency. For example, in situations where IJs and
the BIA have spent insufficient time considering a
case, or failed to write out complete reasoning for a
decision, Article III courts may step in and fill the gap
left by agency adjudicators. By articulating clear and
uniform binding legal principles applicable to a broad
set of cases, the courts of appeals equip IJs and the
BIA to make faster and more accurate future
determinations about whether a given set of facts
amounts to persecution. Review by Article III courts
thus ultimately leads to more efficient adjudication
11 Immigration Litigation Reduction: Hearing Before S. Comm.
on the Judiciary, 109th Cong. 5 (2006) (Statement of Hon. John
M. Walker, Jr., Chief Judge of the United States Court of
Appeals for the Second Circuit)
(emphasis
added).
32
and fewer errors as IJs and the BIA work through
their existing backlogs.
CONCLUSION
For the reasons stated above and in Petitioners’
brief, the judgment below should be reversed, and the
case should be remanded for further proceedings not
inconsistent with this Court’s judgment.
33
Respectfully submitted,
JOHN MATTHEW BUTLER
ALEXANDER V. OGREN
GIBSON, DUNN &
CRUTCHER LLP
1700 M Street, N.W.
Washington, D.C. 20036
(202) 955-8500
RICHARD W. MARK
Counsel of Record
AMER S. AHMED
JAKE L. SHERMAN
GIBSON, DUNN &
CRUTCHER LLP
200 Park Avenue
New York, NY 10166
(212) 351-4000
rmark@gibsondunn.com
Counsel for Amici Curiae
September 3, 2025
APPENDIX
Table of Contents
Page
List of Amici Curiae…………………………...............1a
1a
LIST OF AMICI CURIAE
1.
The Honorable Steven Abrams served as an
Immigration Judge at the Varick Street and
Queens Wackenhut Immigration Courts in
New York, NY, from 1997 until 2013.
2.
The Honorable Terry A. Bain served as an
Immigration Judge in New York, NY, from
1994 until 2019.
3.
The Honorable Sarah M. Burr served as an
Immigration Judge, and then as Assistant
Chief Immigration Judge, in New York, NY,
from 1994 until 2012.
4.
The Honorable Sarah Cade served as an
Immigration Judge in Boston, MA, from 2021
until 2025.
5.
The Honorable Jeffrey S. Chase served as
an Immigration Judge in New York, NY, from
1995 until 2007. Along with Deborah E. Anker,
he is co-author of Law of Asylum in the United
States (2025 ed.).
6.
The Honorable Joan V. Churchill served as
an Immigration Judge from 1980 until 2005 in
Washington, D.C., and Arlington, VA,
including five terms as a Temporary Member of
the Board of Immigration Appeals.
7.
The Honorable Raisa Cohen served as an
Immigration Judge in New York, NY, from
2016 until 2024.
2a
8.
The Honorable Matthew D’Angelo served
as an Immigration Judge in Boston, MA, from
2003 until 2018.
9.
The Honorable Chloe Dillon served as an
Immigration Judge in San Francisco, CA, from
2022 until 2025.
10.
The Honorable Bruce J. Einhorn served as
an Immigration Judge in Los Angeles, CA, from
1990 until 2017.
11.
The Honorable Cecelia M. Espenoza served
as a Member of the Board of Immigration
Appeals from 2000 until 2003.
12.
The Honorable Carla Espinoza served as an
Immigration Judge in Chicago, IL, from 2023
until 2025.
13.
The Honorable Noel A. Ferris served as an
Immigration Judge in New York, NY, from
1995 until 2013. She previously served as Chief
of the Immigration Unit at the U.S. Attorney’s
Office for the Southern District of New York
from 1987 until 1990.
14.
The Honorable James R. Fujimoto served
as an Immigration Judge in Chicago, IL, from
1990 until 2019.
15.
The Honorable Annie S. Garcy served as an
Immigration Judge in Newark, NJ, and
Philadelphia, PA, from 1990 until 2023.
16.
The Honorable Alberto E. Gonzalez served
as an Immigration Judge in San Francisco, CA,
from 1995 until 2005.
3a
17.
The Honorable John F. Gossart, Jr. served
as an Immigration Judge in Baltimore, MD,
from 1982 until 2013.
18.
The Honorable Paul Grussendorf served as
an Immigration Judge in Philadelphia, PA, and
San Francisco, CA, from 1997 until 2004.
19.
The Honorable Miriam Hayward served as
an Immigration Judge in San Francisco, CA,
from 1997 until 2018.
20.
The Honorable Megan Herndon served as
an Assistant Chief Immigration Judge in
Richmond, VA, from 2021 until 2025.
21.
The Honorable Sandy Hom served as an
Immigration Judge in New York, NY, from
1993 until 2018.
22.
The Honorable Charles M. Honeyman
served as an Immigration Judge in New York,
NY, and Philadelphia, PA, from 1995 until
2020.
23.
The Honorable Rebecca Jamil served as an
Immigration Judge in San Francisco, CA, from
2016 until 2018.
24.
The Honorable William P. Joyce served as
an Immigration Judge in Boston, MA, from
1996 until 2002.
25.
The Honorable Edward F. Kelly served as a
Member of the Board of Immigration Appeals
from 2017 until 2021. He previously served as
Assistant Chief Immigration Judge and then
Deputy Chief Immigration Judge from 2011 to
4a
2013 and 2013 to 2017, respectively, at the
Executive Office for Immigration Review
Headquarters in Falls Church, VA.
26.
The Honorable Carol King served as an
Immigration Judge in San Francisco, CA, from
1995 until 2017.
She also served as a
Temporary Member of the Board of
Immigration Appeals for six months between
2010 and 2011.
27.
The Honorable Eliza C. Klein served as an
Immigration Judge in Miami, FL, Boston, MA,
and Chicago, IL, from 1994 until 2015. She
then served as a Senior Immigration Judge in
Chicago, IL, from 2019 until 2023.
28.
The Honorable Elizabeth A. Lamb served
as an Immigration Judge in New York, NY,
from 1995 until 2018.
29.
The Honorable Donn L. Livingston served
as an Immigration Judge in Denver, CO, and
New York, NY, from 1995 until 2018.
30.
The Honorable Dana Leigh Marks served
as an Immigration Judge in San Francisco, CA,
from 1987 until 2021.
31.
The Honorable Margaret McManus served
as an Immigration Judge in New York, NY,
from 1991 until 2018.
32.
The Honorable Steven Morley served as an
Immigration Judge in Philadelphia, PA, from
2010 until 2022.
5a
33.
The Honorable Irma Perez served as an
Immigration Judge in Los Angeles, CA, Santa
Ana, CA, and West Los Angeles, CA, from 2023
until 2025.
34.
The Honorable George Proctor served as an
Immigration Judge in Los Angeles, CA, and
San Francisco, CA, from 2003 until 2008.
35.
The Honorable Laura L. Ramirez served as
an Immigration Judge in San Francisco, CA,
from 1997 until 2018.
36.
The Honorable Carmen Maria Rey Caldas
served as an Immigration Judge in Lumpkin,
GA, and New York, NY, from 2022 until 2025.
37.
The Honorable John W. Richardson served
as an Immigration Judge in Phoenix, AZ, from
1990 until 2018.
38.
The Honorable Lory D. Rosenberg served
as a Member of the Board of Immigration
Appeals from 1995 until 2002.
39.
The Honorable Susan G. Roy served as an
Immigration Judge in Newark, NJ, from 2008
until 2010.
40.
The Honorable Andrea Saenz served as a
Member of the Board of Immigration Appeals
from 2021 until 2025.
41.
The Honorable Paul W. Schmidt served as
a Member and then Chairperson of the Board
of Immigration Appeals from 1995 until 2003.
He then served as an Immigration Judge in
Arlington, VA, from 2003 until 2016. Prior to
6a
his service on the Board and as an Immigration
Judge, he served as Deputy General Counsel of
the former Immigration & Naturalization
Service from 1978 until 1987. He was also the
Acting General Counsel from 1979 until 1981
and 1986 until 1987.
42.
The Honorable Douglas B. Schoppert
served as an Immigration Judge in New York,
NY, from 1997 until 2024.
43.
The Honorable Noelle Sharp served as an
Assistant Chief Immigration Judge in Houston,
TX, from 2021 until 2025.
44.
The Honorable Patricia M. B. Sheppard
served as an Immigration Judge in Boston, MA,
from 1993 until 2006.
45.
The Honorable Ilyce S. Shugal served as an
Immigration Judge in San Francisco, CA, from
2017 until 2019.
46.
The Honorable Helen Sichel served as an
Immigration Judge in New York, NY, from
1997 until 2020.
47.
The Honorable Andrea Hawkins Sloan
served as an Immigration Judge in Portland,
OR, from 2010 until 2017.
48.
The Honorable A. Ashley Tabaddor served
as an Immigration Judge in Los Angeles, CA,
from 2005 until 2021.
49.
The Honorable Robert D. Vinikoor served
as an Immigration Judge in Chicago, IL, from
1984 until 2017.
7a
50.
The Honorable Robert D. Weisel served as
an Immigration Judge and then Assistant
Chief Immigration Judge in New York, NY,
from 1989 until 2016.
51.
The Honorable Elizabeth Young served as
an Immigration Judge, Assistant Chief
Immigration Judge, and then Regional Deputy
Immigration Judge in San Francisco, CA, from
2016 until 2025.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.