Bad news for Democrats
- Thread starter Diogenes
- Start date
The Supreme Court decided Urias-Orellana v. Bondi on Thursday in a 9-0 decision, with the Opinion written by Justice Jackson.
The question presented by the case was the “standard of review” to be used by Circuit Courts of Appeal when considering appeals of decisions by the Board of Immigration Appeals (BIA).
Here is the basic process for a removal case that is appealed to the Circuit Court -- the details can vary some depending on the claims raised, but this is the basic process:
By statute the Congress has dramatically limited the jurisdiction of Article III courts to be involved in this process. But judges at various levels had been unable — mostly due to progressive activism — to resist the urge to insert themselves and lay upon the civil process a veneer of quasi-criminal procedural requirements on the basis that illegal aliens who have made it into the U.S. have a “liberty” interest in remaining that implicates notions of “due process” under the Fifth Amendment.
The immigration courts are not Article III courts — they are one of a few different “administrative” courts created by Congress and operated by the Executive Branch as an alternative forum to resolve civil disputes between the federal government and individuals.
The question before the Court was the subject of conflicting Circuit Court decisions about the degree of “deference” the Circuit Courts must give to the conclusions drawn by the BIA from undisputed facts as presented to the IJ and BIA on the likelihood of persecution should the alien be returned to his home country. Could the Circuit Courts draw a different conclusion from the same evidence when that evidence was undisputed before the BIA?
Granting relief under an asylum claim is always discretionary but the burden of proof is lower -- an applicant need only show a “well founded fear” of persecution even if the chances of actual persecution are relatively low. But merely demonstrating such a “well founded” fear does not entitle an applicant to a grant of asylum. The IJ can decide that while the fear is real, the chances of persecution are so low that asylum in the U.S. is not justified.
Relief in the form of “withholding of removal” is mandatory -- i.e., where the risk of persecution is found to exist, the alien cannot be sent to the country in question. But the burden of proof is higher — the alien must show it is “more likely than not” that he will suffer persecution if sent back.
By statute, the Circuit Courts of Appeal are limited to reviewing the legal decisions made by the IJ or BIA -- and cannot reconsider factual determinations. But the law has a category of decisions by judges called “mixed” questions of law and fact where the “factual” issue is instrumental in deciding the question of law. The issue in the Supreme Court case is the extent to which factual determinations that are involved in making a legal decision must be accepted by the Appeals Court as determined by the IJ and BIA.
The Urias case involved “undisputed” factual claims made by Urias -- which were far from compelling but there was no evidence offered by DOJ to the contrary. Urias claimed he had been targeted by a hitman in his home country of El Salvador. The IJ found Urias’ testimony to be credible but it did not establish “past persecution” or a well-founded fear of future persecution. The BIA affirmed, and the First Circuit Court of Appeal affirmed the BIA, finding that the record did not compel a contrary finding.
Justice Jackson’s opinion is only 13 pages long, and there were no concurring opinions. The outcome seems rather self-evidence — as seems to be the view of the Court. But the decision resolves a split among the Circuits.
As noted, Congress has drafted immigration statutes in a way that limits the role of Article III courts in the immigration/removal process. With regard to review in the Court of Appeal of BIA decisions, 8 U.S.C. Sec. 1252(b)(4) provides the Court with direction:
I’m struggling to find more to write because the balance of Justice Jackson’s short opinion is, to me, largely self-evident. But I think one point she does make that may have been a central reason for accepting the case for review is that she pointedly rejects the proposition that “mixed” questions of law and fact should be reviewed by the Circuit Courts “de novo.” That means the Circuit Court would not give any deference to the BIA or IJ on the issue, but would decided the “mixed questions” based on their own independent view of the facts and evidence.
That will not happen now.
The question presented by the case was the “standard of review” to be used by Circuit Courts of Appeal when considering appeals of decisions by the Board of Immigration Appeals (BIA).
Here is the basic process for a removal case that is appealed to the Circuit Court -- the details can vary some depending on the claims raised, but this is the basic process:
- DOJ initiates removal proceedings before the Immigration Courts.
- The Immigration Judge conducts a removal hearing to determine only if the alien is subject to removal, and enters an Order of Removal if he is.
- The Alien can then make an application for Withholding of Removal, an application to receive Asylum and remain in the U.S. (if filed less than one year after arrival), and/or a claim under the Convention Against Torture.
- The Immigration Judge renders a decision on those three issues. If denied, the Alien can appeal all IJ decisions to the Board of Immigration Appeals.
- Decisions by the Board of Immigration Appeals -- by statute -- can only go to the Circuit Court of Appeals for the Circuit where the alien’s removal proceeding took place.
- The Circuit Court only reviews issues of law raised in and decided by the IJ and the BIA — not questions of fact.
By statute the Congress has dramatically limited the jurisdiction of Article III courts to be involved in this process. But judges at various levels had been unable — mostly due to progressive activism — to resist the urge to insert themselves and lay upon the civil process a veneer of quasi-criminal procedural requirements on the basis that illegal aliens who have made it into the U.S. have a “liberty” interest in remaining that implicates notions of “due process” under the Fifth Amendment.
The immigration courts are not Article III courts — they are one of a few different “administrative” courts created by Congress and operated by the Executive Branch as an alternative forum to resolve civil disputes between the federal government and individuals.
The question before the Court was the subject of conflicting Circuit Court decisions about the degree of “deference” the Circuit Courts must give to the conclusions drawn by the BIA from undisputed facts as presented to the IJ and BIA on the likelihood of persecution should the alien be returned to his home country. Could the Circuit Courts draw a different conclusion from the same evidence when that evidence was undisputed before the BIA?
Granting relief under an asylum claim is always discretionary but the burden of proof is lower -- an applicant need only show a “well founded fear” of persecution even if the chances of actual persecution are relatively low. But merely demonstrating such a “well founded” fear does not entitle an applicant to a grant of asylum. The IJ can decide that while the fear is real, the chances of persecution are so low that asylum in the U.S. is not justified.
Relief in the form of “withholding of removal” is mandatory -- i.e., where the risk of persecution is found to exist, the alien cannot be sent to the country in question. But the burden of proof is higher — the alien must show it is “more likely than not” that he will suffer persecution if sent back.
By statute, the Circuit Courts of Appeal are limited to reviewing the legal decisions made by the IJ or BIA -- and cannot reconsider factual determinations. But the law has a category of decisions by judges called “mixed” questions of law and fact where the “factual” issue is instrumental in deciding the question of law. The issue in the Supreme Court case is the extent to which factual determinations that are involved in making a legal decision must be accepted by the Appeals Court as determined by the IJ and BIA.
The Urias case involved “undisputed” factual claims made by Urias -- which were far from compelling but there was no evidence offered by DOJ to the contrary. Urias claimed he had been targeted by a hitman in his home country of El Salvador. The IJ found Urias’ testimony to be credible but it did not establish “past persecution” or a well-founded fear of future persecution. The BIA affirmed, and the First Circuit Court of Appeal affirmed the BIA, finding that the record did not compel a contrary finding.
Justice Jackson’s opinion is only 13 pages long, and there were no concurring opinions. The outcome seems rather self-evidence — as seems to be the view of the Court. But the decision resolves a split among the Circuits.
As noted, Congress has drafted immigration statutes in a way that limits the role of Article III courts in the immigration/removal process. With regard to review in the Court of Appeal of BIA decisions, 8 U.S.C. Sec. 1252(b)(4) provides the Court with direction:
In a decision that might surprise many of the advocates for illegal aliens who expected a more sympathetic ear from the Court’s progressives, the Court’s 9-0 vote was in support of the following as written by Justice Jackson:
I’m struggling to find more to write because the balance of Justice Jackson’s short opinion is, to me, largely self-evident. But I think one point she does make that may have been a central reason for accepting the case for review is that she pointedly rejects the proposition that “mixed” questions of law and fact should be reviewed by the Circuit Courts “de novo.” That means the Circuit Court would not give any deference to the BIA or IJ on the issue, but would decided the “mixed questions” based on their own independent view of the facts and evidence.
The rejection of de novo review of any factual determination by the IJ or BIA is probably the most noteworthy part of the holding. Any kind of de novo would be an invitation to Article III judges to substitute their views for the view of the IJs and members of the BIA. It would become a huge bottleneck in the removal process, and create a mechanism for Courts of Appeal to send cases back to BIA based on factual disagreements.
That will not happen now.