March 30, 2026
Urias-Orellana v. Bondi, 607 U.S. ____ (2026) (Jackson, J.)
Response by Tania Valdez
Geo. Wash. L. Rev. On the Docket (Oct. Term 2025)
Slip Opinion | SCOTUSblog
Unanimous Supreme Court Deals Yet Another Blow to Noncitizens’ Access to Judicial Review
On March 4, 2026, the Supreme Court of the United States issued a decision, Urias-Orellana v. Bondi,1 weighing in on the standard of review applicable to a crucial aspect of asylum cases—whether an asylum-seeker’s fear of harm rises to the level of persecution.2 There had been a significant circuit split on the issue, with six circuits reviewing agency determinations de novo, and five circuits applying the highly deferential “substantial evidence” standard.3 In an opinion authored by Justice Jackson, all nine Justices voted to require the application of the substantial evidence standard nationwide. By deciding to weigh in, the Supreme Court thereby further restricted the already severely limited judicial review that had been available to many asylum-seekers in the six circuits that had previously applied de novo review.
Douglas Humberto Urias-Orellana, on behalf of himself, his wife (Sayra Ilian Gamez-Mejia), and their minor child (G.E.U.G.), testified in immigration court that his family had been targeted by a hit man for a local drug lord who had shot two of his brothers. Mr. Urias-Orellana and his wife and child moved around El Salvador several times, each time being rediscovered by the people who had threatened to kill them. He was also physically assaulted by the men on one occasion.4 Although the immigration judge (“IJ”) found Mr. Urias-Orellana’s testimony credible and the facts were undisputed in the case, the IJ nevertheless concluded that the threats did not rise to the level of past persecution under the stringent standards in the U.S. Court of Appeals for the First Circuit.5 The IJ also found that Mr. Urias-Orellana’s fear of future persecution was insufficient because he “had successfully escaped danger after many of his relocations and that any risk resurfaced only when Urias-Orellana returned to his hometown or nearby areas.”6 The Board of Immigration Appeals affirmed the denial of asylum. On a petition for review to the First Circuit, the court applied the deferential substantial evidence standard and affirmed.
The Supreme Court granted certiorari and resolved the case on statutory grounds. The Court analyzed 8 U.S.C. § 1252(b)(4), which provides the scope and standard of review of removal orders. The relevant subsection here, subsection (B), states: “[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”7 The Court noted that this statutory language requires the application of the substantial evidence standard to administrative findings of fact.8 Thus, the critical question for the Court was whether a lower court’s determination that a set of undisputed facts rose (or did not rise) to the level of persecution is an “administrative finding[ ] of fact.”9
The petitioners argued that the issue presented a “mixed question of law and fact,” which would allow for a less deferential standard of review. Indeed, six federal courts of appeal had adopted that approach. However, the Supreme Court disagreed, finding that the question of whether undisputed facts constitute persecution is strictly factual. The Court relied heavily on INS v. Elias-Zacarias,10 which it acknowledged was issued prior to the codification of § 1252(b)(4). However, the Court stated that the amendment to § 1252(b)(4) adopted the Elias-Zacarias standard, meaning that the case was still applicable.11
A more significant problem with the Court’s reliance on Elias-Zacarias is that the 1992 case was not about whether a set of facts rose to the level of persecution at all.12 Rather, Elias-Zacarias addressed whether the alleged persecution was on account of the asylum-seeker’s political opinion, which is known as the “nexus” requirement in asylum law.13 Whether acts meet the legal definition of “persecution” and whether the nexus requirement is met are two separate elements of an asylum claim. The nexus requirement has generally been treated by federal courts as a pure issue of fact, to which courts have then applied the substantial evidence standard.14 By contrast, six circuits historically treated the persecution question as a “mixed question of law and fact,” a bifurcated consideration where factual findings were reviewed deferentially to the fact-finder and legal findings—such as whether a set of undisputed facts meets the legal definition of persecution—received de novo review. But the Supreme Court treated the nexus and persecution elements as though they were the same.
Due to the Court’s ruling in Urias-Orellana, all circuits are now required to apply the highly deferential substantial evidence standard to the issue of whether undisputed facts rise to the level of persecution. Thus, these determinations by immigration judges and the BIA—decisions that potentially mean the difference between life and death for an asylum-seeker—are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,”15 substantially eroding already severely limited judicial review. In an era of mass immigration enforcement, increasing caseloads for immigration judges amid politically motivated firings and hirings,16 and attempts by the agency to outright eliminate appellate and judicial review,17 this further erosion is no small thing.
As a final consideration, advocates for noncitizens’ legal rights and access to justice saw a glimmer of hope in Loper Bright Enterprises v. Raimondo,18 daring to believe that a standard that lessens deference to executive agencies might equally apply to immigration agencies.19 Yet, the Court did not use this case as an opportunity to address Loper Bright, concluding that the INA provision at issue here either “mandates deferential review or otherwise ‘delegates authority to an agency consistent with constitutional limits.’”20 Time will tell whether Loper Bright will ever benefit noncitizens in removal proceedings.
Right or wrong on the merits, the Urias-Orellana case continues the Supreme Court’s trend of chipping away at the already extremely limited judicial review afforded to noncitizens facing deportation.
Tania Valdez is an Associate Professor of Law at the George Washington University Law School. Professor Valdez has represented numerous asylum-seekers and other migrants facing deportation. Her research focuses on systemic inadequacies of protections for migrants, particularly in the current era of aggressive immigration enforcement.
Recommended Citation
Tania Valdez, Unanimous Supreme Court Deals Yet Another Blow to Noncitizens’ Access to Judicial Review, Geo. Wash. L. Rev. On the Docket (Mar. 30, 2026), https://www.gwlr.org/noncitizens-access-to-judicial-review/.
References
[1] No. 24-777 (U.S. Mar. 4, 2026).
[2] Id. at 1.
[3] Id. at 6 nn.2–3 (collecting cases).
[4] Id. at 2.
[5] The First Circuit’s standard for past persecution holds that death threats are only sufficient “when they are ‘so menacing as to cause significant actual suffering or harm.’” Id. at 3 (quoting Bonilla v. Mukasey, 539 F.3d 72, 77 (1st Cir. 2008)). Compare that high standard to the Fourth Circuit, which has found that credible testimony that an asylum seeker “received death threats from Mara 18” was enough to establish a well-founded fear of future persecution. Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015).
[6] Urias-Orellana, slip op. at 3.
[7] Id. at 6 (quoting § 1252(b)(4)(B)).
[8] Id. at 7.
[9] Id. at 1–2.
[10] 502 U.S. 478.
[11] Urias-Orellana, slip op. at 8–11.
[12] See INS v. Elias-Zacarias, 502 U.S. 478 (1992).
[13] Specifically, Elias-Zacarias questioned the motives of the persecutors, which is a purely factual issue. Id. at 482.
[14] A study analyzing standards of review in asylum cases found that, across circuits, “factual findings related to the motivation of the persecutor and the historical or predicted cause of the harm will remain subject to deferential review on appeal.” Charles Shane Ellison, The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards for Refugees, 38 Geo. Immigr. L.J. 143, 177–79 (2024).
[15] Urias-Orellana, slip op. at 7.
[16] Eric Katz, ‘Climate of fear’: Immigration judges say functioning of their court system is in jeopardy due to Trump’s firings, Government Executive (Nov. 14, 2025), https://www.govexec.com/management/2025/11/climate-fear-immigration-judges-say-functioning-their-court-system-jeopardy-due-trumps-firings/409544; Kaelan Deese, DOJ adds 42 new immigration judges with Trump-aligned enforcement records, Washington Examiner (Mar. 13, 2026, 14:53 ET), https://www.washingtonexaminer.com/news/justice/4491196/doj-42-new-immigration-judges-trump-enforcement-records (noting the immigration court backlog is currently 3.37 million cases).
[17] Nate Raymond, US judge blocks Trump bid to fast-track dismissals of immigration appeals, Reuters (Mar. 9, 2026), https://www.reuters.com/legal/government/us-judge-blocks-trump-bid-fast-track-dismissals-immigration-appeals-2026-03-09.
[18] Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
[19] Id.
[20]Urias-Orellana, slip op. at 12 n.6 (quoting Loper Bright, 603 U.S. at 413).
