U.S. Supreme Court Upholds Immigration Judges Under Substantial Evidence Standard

(EL SALVADOR) — The U.S. Supreme Court heard arguments in Urias-Orellana v. Bondi on December 2, 2025, taking up a dispute over how tightly federal appeals courts must defer to immigration judges and the Board of Immigration Appeals when they decide whether mistreatment amounts to “persecution” in asylum cases.

The case puts the justices at the center of a long-running fight over appellate review in asylum law: whether “persecution” is treated mainly as a factual finding that gets deference, or whether courts can more independently assess whether the facts meet the legal standard.

No decision has been released, and a ruling is expected in 2026.

At stake is a question with nationwide consequences for consistency in asylum adjudication and for how much weight reviewing courts give to agency fact-finding in removal cases. Different approaches across the country can shape outcomes in similar cases, depending on which federal circuit reviews the petition.

The justices are reviewing an asylum denial involving the Urias-Orellana family, whose experiences in El Salvador included threats and one physical altercation. An immigration judge denied asylum in 2022, concluding those experiences did not rise to past persecution and noting that similarly situated family members remained unharmed in El Salvador.

The Board of Immigration Appeals upheld that decision in 2023, affirming the removal order.

The 1st Circuit then deferred to the agency under the substantial evidence standard, applying the Immigration and Nationality Act’s direction that administrative fact findings are conclusive unless “any reasonable adjudicator would be compelled to conclude to the contrary” under INA § 242(b)(4)(B).

That framework, and how it applies to “persecution,” sits at the heart of Urias-Orellana v. Bondi. The dispute turns on whether the determination that a person suffered “persecution” is itself a factual finding, or something closer to a mixed or legal question that invites a more searching look from appellate judges.

The case also highlights the practical significance of how courts describe what immigration judges do when they evaluate asylum claims. Immigration judges often assess testimony, weigh evidence, and draw inferences, and those steps can look like classic fact-finding.

At the same time, the INA uses “persecution” as a legal threshold that applicants must meet, and the court fight centers on whether that threshold determination is treated as a matter for agency discretion and deference or for more independent judicial assessment.

The Supreme Court took the case to resolve a circuit split, with different federal circuits applying different levels of scrutiny when reviewing whether mistreatment legally qualifies as “persecution.”

Some circuits, including the 9th, conduct independent review of whether mistreatment meets the legal “persecution” standard.

Other circuits, including the 1st, treat the issue as primarily factual and defer to the BIA and immigration judges.

That split can produce inconsistent results across circuits, not because the underlying statutory term changes, but because the standard of review affects how difficult it is to overturn an agency decision.

Under deferential review, an applicant who loses before an immigration judge and the BIA faces a higher bar on appeal, because a court must uphold the agency’s findings unless the record forces a contrary conclusion under the substantial evidence standard.

A less deferential approach gives courts more room to decide that a given set of facts does or does not cross the persecution line, which can lead to more frequent reversals or remands in close cases.

U.S. Solicitor General D. John Sauer told the justices that persecution findings are “primarily factual,” arguing that the decisions depend on weighing evidence, making inferences, judging credibility, and balancing facts. That framing supports deference to the agency, the government argued, as part of the INA’s broader approach to administrative review.

The petitioners urged the opposite approach, arguing that Congress omitted express deference language for this question even though it used explicit deference language in other INA provisions. In their view, that omission supports independent judicial review, which they said would promote consistency.

Those competing positions sharpen a fundamental appellate question: whether “persecution” calls for an agency-centered answer anchored in fact-finding, or a more court-centered answer that treats the label as a legal threshold courts can assess without the same level of restraint.

The labels matter because the Supreme Court’s articulation of the standard can guide not only this case but also how lower courts handle asylum appeals across the country. A ruling that treats persecution as factual would likely reinforce the substantial evidence standard as a meaningful barrier to overturning agency outcomes on this point.

A ruling that treats the persecution determination as more legal or mixed would likely permit more aggressive review by circuit courts, potentially changing how often applicants can win reversals after losing before an immigration judge and the BIA.

During the December 2, 2025, arguments, a majority of justices appeared inclined to rule for the government. The justices signaled agreement with viewing persecution as factual and requiring deferential review, consistent with precedents against de novo review of fact-finders.

That impression, drawn from the direction of questioning at argument, left the government positioned as it urged deference for agency determinations.

Even so, the Supreme Court has not issued a decision, and the case remains pending as the court moves through its 2026 calendar.

When the ruling arrives, it will be closely read for how it classifies the persecution question. The Supreme Court could describe persecution as factual, legal, or mixed, and it could also explain how INA § 242(b)(4)(B) applies when a court reviews a BIA decision that affirms an immigration judge’s view of what the facts amount to.

The decision is also likely to be parsed for the degree of instruction it gives to lower courts about separating “what happened” from “whether what happened qualifies as persecution.” The government’s framing emphasizes that the decision itself depends on evidence and fact-balancing, while the petitioners emphasize the need for independent review to promote uniformity.

The Urias-Orellana family’s case illustrates how these standards can shape the end result. An immigration judge found in 2022 that threats and one physical altercation did not reach the level of past persecution in their situation, with the additional point that similarly situated family members remained unharmed in El Salvador.

The BIA’s 2023 affirmance put the removal order in place, and the 1st Circuit’s reliance on the substantial evidence standard made that agency outcome difficult to disturb absent a record that would compel the opposite conclusion.

A Supreme Court decision endorsing the government’s deference approach would likely make that kind of affirmance harder to challenge on appeal across circuits, because reviewing courts would more routinely treat the persecution call as one for the agency unless the record compels a contrary conclusion.

A decision endorsing the petitioners’ approach would likely make appellate review of persecution less tethered to deference and more focused on whether the established facts satisfy the legal threshold, aligning more circuits with the independent-review approach described in the 9th Circuit.

The dispute over standards of review arrives alongside other asylum-related litigation, but those cases raise different legal questions than the one in Urias-Orellana v. Bondi.

One separate line of cases involves metering, described as capped asylum processing at ports. That issue was under review after a 2025 grant, and it traces back to litigation overseen by Judge Cynthia Bashant in the Southern District of California in 2021, with the 9th Circuit affirming 2-1.

Another separate area involves third-country transfers under the Convention Against Torture, including Art. 3 and INA § 241(b)(3). That litigation was stayed June 23, 2025.

Those cases concern access to processing at ports and protection pathways tied to CAT and removal to third countries, rather than the narrow but consequential question in Urias-Orellana v. Bondi about the standard of review for persecution determinations by immigration judges and the BIA.

For asylum practitioners and applicants, the Supreme Court’s decision could clarify what kinds of arguments have traction on appeal when the agency has already found that the harm described does not amount to persecution. The court’s formulation will help define whether appellate judges primarily check for evidentiary support or more directly evaluate the persecution threshold.

The ruling is also expected to influence how circuits handle the split going forward, because the Supreme Court can resolve whether courts should follow the more deferential approach associated with the 1st Circuit or the more independent approach associated with the 9th Circuit.

When the decision comes down in 2026, attention will focus on the holding, how the justices describe the persecution determination, and what instructions they give lower courts about applying the substantial evidence standard in asylum cases that turn on whether harm rises to the level of “persecution.”