How should federal courts review determinations by the Board of Immigration Appeals (BIA) about asylum seekers’ claims of persecution? Should federal courts review those claims de novo? Or defer to them?
The circuits split on this question. In Urias-Orellana, the BIA denied the persecution claimed by the petitioners. They argued that they were persecuted by gangs in El Salvador due to their social group—they had relatives who were in a dispute with gang members. The First Circuit also denied the claimed persecution, deferring to the BIA’s determination.
The petitioners want the Court to require de novo review. If this persecution determination were clearly a legal one, they would have a good argument with this Court. Petitioners, in fact, try to argue that allowing federal courts to defer would “resurrect” Chevron deference, which the Court only recently discarded. However, the determination could also easily be seen as a factual one, in which case federal courts would be okay to defer to the BIA.
The model predicts that the Court will affirm the First Circuit, meaning at a minimum that it will not require de novo review of BIA determinations regarding persecution. The most likely dissent is Sotomayor. Kavanaugh might also dissent or write separately, as he seemed relatively sympathetic during argument to the idea that this might be a legal determination or a mixed determination of fact and law.
Vote predictions
