Supreme Court Declines To Address Lurking Loper Bright Question In Urias-Orellana v. Bondi

On Wednesday, the Supreme Court issued a unanimous decision authored by Justice Jackson in Urias-Orellana v. Bondi, a dispute over the standard of review Courts of Appeals should apply to Board of Immigration decisions on whether a set of undisputed facts rises to the level of “persecution” under the Immigration and Nationality Act in the asylum-eligibility context. Lurking in the background, this case potentially provided a window for the Court to elucidate how Loper Bright’s overruling of Chevron deference might impact how “mixed” questions of law and fact are reviewed generally and whether de novo review applies. After oral argument, it seemed unlikely the Court would take up that broader question, instead focusing on the particular statutory provision at issue. The Court did not take that path, so that Loper Bright question will have to wait for another day.

By way of background, in Urias-Orellana, the First Circuit reviewed for substantial evidence whether petitioners had suffered “persecution” within the meaning of the INA. Petitioners argued in their merits brief that “Loper Bright reinforces that federal courts must review de novo the BIA’s determinations about whether a given set of undisputed facts constitutes persecution under the law,” suggesting the INA—like the APA—does not expressly delegate interpretive power and thus, “under Loper Bright, federal courts must not give Chevron-like deference to the BIA’s construction of the term ‘persecution.’” The also Center for Individual Rights filed an amicus brief forcefully arguing that in light of Loper Bright de novo review must apply, amplifying Petitioner’s argument.

The Supreme Court did not reach that issue, however, instead holding that a particular provision of the INA “requires courts to review the entirety of the agency’s conclusions—both the underlying factual findings and the application of the INA to those findings—for substantial evidence.” In a footnote, the Court acknowledged without addressing Petitioner’s Loper Bright argument, writing:

“Our conclusion that §1252(b)(4)(B) applies to the persecution determination and sets forth a deferential standard of review means we need not address petitioners’ argument about Loper Bright Enterprises v. Raimondo, 603 U. S. 369 (2024). See Brief for Petitioners 23–24 (maintaining that Loper Bright requires de novo review under these circumstances). That decision is not applicable ‘when a particular statute’ mandates deferential review or otherwise ‘delegates authority to an agency consistent with constitutional limits.’ 603 U. S., at 413.”

(That footnote is quoting from the following passage in Loper Bright: “[W]hen a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.”). In other words, the INA itself was a proper Loper Bright delegation of authority to the agency setting a deferential standard of review outside of the scope of de novo review under Loper Bright.

It will be interesting to see if other litigants raise the broader Loper Bright argument in other statutory contexts and how it will fare in the absence of a statute that “mandates deferential review,” as well as what level of clarity is required to evade de novo review in these circumstances.

Michael Pepson is regulatory counsel at Americans for Prosperity Foundation.