July 18, 2025 | Volume 32, Issue 20
This Report summarizes cases granted review on June 30, 2025 (Part I).
Cases Granted Review
National Republican Senatorial Committee v. Federal Election Comm’n, 24-621.
At issue is whether the severe restrictions Congress has placed on how much money political parties can spend on campaigns in cooperation with the parties’ candidates violates the First Amendment. The Federal Election Campaign Act (FECA), now codified as amended at 52 U.S.C. §30101 et seq., provides that a party committee may give a federal candidate up to $5,000 per election, though a national party committee and its Senate committee may together contribute up to $57,800 to a Senate candidate’s campaign. On top of that, “the Party Expenditure Provision” (§30116(d)) purports to cap “all party expenditures” supporting federal candidates. “For presidential, Senate, and House races in states with only one representative, the limits are calculated by multiplying by two cents the voting-age population of the United States or the state, depending on the office.” In Colorado Republican Federal Campaign Comm. v. FEC, 518 U.S. 604 (1996) (Colorado I), the Court held that the Party Expenditure Provision was unconstitutional as applied to a party’s independent expenditures. But in FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001) (Colorado II), the Court held that the Party Expenditure Provision was facially constitutional as applied to a party’s coordinated expenditures. “Coordinated party expenditures [] include party payments of any expense made in coordination with a candidate or campaign, down to renting a rally venue, hiring fundraising consultants, or reimbursing a candidate’s travel bills. They also include payments made” for “general public political advertising paid for by a party committee and coordinated with a candidate or campaign that expressly advocates the election or defeat of a clearly identified federal candidate” or that “references a candidate within certain timeframes before the general election.” In 2014, Congress amended the Party Expenditure Provision “to increase the size of permissible coordinated party expenditures—but only for certain purposes.”
In 2022, the National Republican Senatorial Committee, the National Republican Congressional Committee, then-Senator J.D. Vance, and former Representative Steve Chabot (petitioners) brought facial and as-applied challenges to the coordinated party expenditure limits. The district court (per FECA) certified the issue to the en banc Sixth Circuit, which rejected the challenge by a 10-6 vote. The majority acknowledged that Supreme Court decisions since Colorado II may have undercut some of that decision’s reasoning. Nevertheless, held the court, it was bound by Colorado II.
Petitioners argue that “it is past time to either clarify the limited reach of Colorado II or overrule that decision outright. That 5-4 aberration was plainly wrong the day it was decided, and developments both in the law and on the ground in the 23 years since have only further eroded its foundations.” Petitioners assert that the Court has repeatedly held that there is “only one permissible ground for restricting political speech: the prevention of ‘quid pro quo’ corruption or its appearance.” But “as Colorado I pointed out, ‘Congress wrote the Party Expenditure Provision not so much because of a special concern about the potentially “corrupting” effect of party expenditures, but rather for the constitutionally insufficient purpose of reducing what it saw as wasteful and excessive campaign spending.’” Nor, argue petitioners, would it “make any sense to think of a party as ‘corrupting’ its candidates. The very aim of a political party is to influence its candidate’s stance on issues and, if the candidate takes office or is reelected, his votes.” (Citation and quotation marks omitted.) Petitioners say that the FEC defends the limits on the “Rube Goldberg” theory “that they are necessary to prevent ‘would-be bribers’ from ‘circumventing donor-to-candidate contribution limits’ through a scheme in which they ‘funnel’ their bribes through ‘a political party.’” They quote Judge Thapar’s response to it: “[s]uch a prophylaxis-upon-prophylaxis-upon-prophylaxis-upon-prophylaxis-upon-prophylaxis approach is a significant indicator that the regulation may not be necessary for the interest it seeks to protect.” Petitioners further insist that, “[o]n top of the limits’ underinclusivity, there are multiple alternatives available that would further an anticircumvention interest, while avoiding unnecessary abridgment of First Amendment rights.” (Quotation marks omitted.)
The FEC, in its responsive brief, agreed with petitioners that the party-expenditure limit “violates the First Amendment and this Court’s modern campaign-finance precedents. While the Court upheld the limit in FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001), the Court’s more recent decisions and other legal developments have eroded that precedent’s foundations.” The FEC therefore supported a grant of certiorari.
In granting certiorari, the Court also granted the Democratic National Committee’s motion for leave to intervene to defend the expenditure limits. And it appointed a private counsel to defend the Sixth Circuit judgment. The DNC’s intervention brief argues that the Court has consistently, and correctly, treated Congress’s “limits on coordinated expenditures as de facto contributions,” and therefore subjected them to exacting (not strict) scrutiny. And Colorado II, in applying exacting scrutiny, recognized that “substantial evidence demonstrates how candidates, donors, and parties test the limits of the current law,” which “shows beyond serious doubt how contribution limits would be eroded if inducement to circumvent them were enhanced by declaring parties’ coordinated spending wide open.” The DNC approvingly quoted Colorado II’s statement that “[c]oordinated expenditures of money donated to a party are tailor-made to undermine contribution limits. . . . Congress is entitled to its choice [in] limiting expenditures whose special value as expenditures is also the source of their power.”
Enbridge Energy, LP v. Nessel, 24-783.
At issue is “[w]hether district courts have the authority to excuse the thirty-day procedural time limit for removal in 28 U.S.C. §1446(b)(1).” In June 2019, Michigan Attorney General Dana Nessel filed suit (Nessel v. Enbridge) in Michigan state court seeking to shut down an international oil pipeline owned and operated by petitioner Enbridge Energy. General Nessel asserted violations of three state laws: the public trust doctrine, common-law public nuisance, and the Michigan Environmental Protection Act. In November 2020, while that case was pending, “the State of Michigan filed a second lawsuit (Michigan v. Enbridge) in state court, repeating the same basic facts and state-law theories alleged in the Attorney General’s complaint.” Enbridge removed Michigan v. Enbridge to federal court under the Grable doctrine and the federal common law of foreign affairs. See Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005) (upholding removal when there is a substantial federal issue embedded in the complaint). The federal district court denied Michigan’s motion to remand. Michigan then voluntarily dismissed its suit. In December 2021―more than two years after General Nessel filed her action―Enbridge removed Nessel v. Enbridge to federal court. The Attorney General moved to remand, arguing that Enbridge’s removal was untimely under §1446(b)(1), which imposes a 30-day deadline on removal. Enbridge responded that removal was timely “because it could not have ascertained that there were grounds for removal until the district court denied the motion to remand in the Governor’s case.” The district court denied the remand motion, ruling that federal jurisdiction was appropriate and excusing the delayed removal. The district court “set aside the 30-day deadline on equitable grounds, including its assessment of ‘the importance of a federal forum in deciding the disputed and substantial federal issues at stake,’ its decision that a federal forum was appropriate in the Governor’s case, and the fact that . . . Enbridge had filed a separate lawsuit in federal court where overlapping issues were pending.” The Sixth Circuit reversed. 104 F.4th 958.
The Sixth Circuit held that the 30-day deadline in §1446(b)(1) is “mandatory” and not subject to equitable exceptions. The court agreed that the 30-day deadline is not jurisdictional. And it presumed that non-jurisdictional statutes are presumptively subject to equitable exceptions. But it found that presumption rebutted here. The Sixth Circuit explained that §1446(b) contains a 30-day default rule and provides a couple of express exceptions. Based on this, the court concluded that the “statutory text expresses ‘a clear intent to compel rigorous enforcement’ of its deadlines, limited only by its explicit exceptions. Applying equitable tolling to either 30-day window in (b)(1) or (b)(3) would require adding a judicially made exception to Congress’s detailed, express scheme of exceptions and carveouts, an action the Supreme Court has cautioned against.” (Citation omitted.) The Sixth Circuit added that §1446(b) is “nested within U.S. Code Title 28, Part IV, titled ‘Jurisdiction and Venue.’ (Emphasis Added).” The court accordingly held that “§1446(b)’s time limitations are mandatory” and must be applied when invoked by the state-court plaintiff.
Enbridge’s cert papers do not contain an express merits argument. But they assert that “[o]ver a hundred years ago, this Court recognized that the time limit for removal is not jurisdictional and that the statute should be interpreted equitably to carry out the statutory purposes. See Powers v. Chesapeake & O Ry. Co., 169 U.S. 92, 98 (1898).” Enbridge further argues that the Fifth and Eleventh Circuit have held (properly in its view) that the 30-day deadline in §1446(b) can be extended in exceptional circumstances.
Rico v. United States, 24-1056.
At issue is whether the fugitive-tolling doctrine― which “hold[s] that criminal defendants should not receive credit toward prison sentences for time that they are not behind prison walls”―applies in the context of supervised release. In 2010, petitioner Isabel Rico was sentenced to 84 months’ imprisonment to be followed by four years of supervised release for a drug-trafficking offense. In 2017, after Rico violated several drug-related conditions of her supervised release, the district court revoked Rico’s supervised release and sentenced her to two additional months’ imprisonment, to be followed by a new 42-month supervised-release term. During this new period of supervised release, Rico absconded (i.e., her parole officer couldn’t track her down). In May 2018, the probation office filed a petition alleging that Rico had violated her supervised release conditions by using drugs and by changing her residence without notice. Rico was eventually arrested in January 2023—about a year and a half after the scheduled expiration of her supervised-release term. The probation office then amended the pending violation petition, dismissing the earlier drug-use charges but now alleging that, in addition to absconding, Rico had also committed multiple new state-law offenses―including a possession-for-sale offense in January 2022, after the scheduled expiration of her supervised release. Rico admitted to the offenses, but argued that the district court lacked jurisdiction to adjudicate the January 2022 drug-related offense as a supervised-release violation, because her term of supervised release had expired in June 2021. “The government responded that the clock on Ms. Rico’s supervision term was paused when she absconded in May 2018 (with about three years remaining) and did not resume until she was apprehended in January 2023—meaning that she was still technically on supervised release when she committed the 2022 drug offense. For her part, Ms. Rico argued that the ‘fugitive tolling’ doctrine on which the government relied was inapplicable in the context of supervised release[.]” (Citations omitted.) The district court ruled for the government, holding that the fugitive-tolling doctrine applied under Ninth Circuit precedent. The Ninth Circuit affirmed based on its precedent. 2025 WL 720900.
Rico argues that there is a circuit split on whether the fugitive-tolling doctrine applies in the context of supervised release. On the merits, she asserts that there is “no textual basis” for its application here. Rico notes that “there is only one statutory provision that governs tolling in the supervised-release context: 18 U.S.C. §3624(e). Section 3624(e) states that ‘[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.’” (Citation omitted.) Rico adds that “other provisions of federal criminal law do account for the possibility that a defendant may abscond.” Rico also argues that the government’s position is not logical. The fugitive-tolling doctrine makes sense in the prison context, for “’[t]he idea is that a person should not be credited with serving a prison sentence if he is not, in fact, in prison.’” “This logic does not apply, however, in the case of supervised release. Whereas tolling in the case of custodial abscondment results in the correct amount of time served in prison, tolling in the supervised-release context results in adding time to the term of supervised release.”
The United States responds that tolling here reflects the “well-established common law principle that ‘[m]ere lapse of time without imprisonment or other restraint contemplated by the law does not constitute service of sentence.’” Congress legislates against the backdrop of such common law principles, which govern unless the statute clearly abrogates them. Yet, argues the United States, “[n]othing in the supervised-release statute’s text, context, or purpose signals that Congress intended to displace the background rule here.” And although supervised release is a relatively recent innovation, it is closely analogous to parole, as to which the fugitive-parole doctrine has long applied. As to policy and logic, the United States asserts that “[a]bsconding does not entitle a defendant either to shorten her term of supervised release or time-shift it by inserting an anything-goes period of violations that have no consequences with respect to the term of supervised release that she should be serving.”
Cox Communications, Inc. v. Sony Music Entertainment, 24-171.
This case concerns the extent to which internet service providers are responsible for copyright infringement by users of their service. The two questions presented are: (1) “Did the Fourth Circuit err in holding that a service provider can be held liable for ‘materially contributing’ to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it?” (2) “Did the Fourth Circuit err in holding that mere knowledge of another’s direct infringement suffices to find willfulness under 17 U.S.C. §504(c)?”
Cox Communications is an internet service provider for more than 6 million accounts. Of those accounts, about 57,000 were used to commit copyright infringement. Sony provided Cox with automated notices for each instance, and Cox was able to prevent further infringement on all but a few thousand. The accounts that continued to infringe were “regional ISPs” which served universities, hotels, the military, or businesses. These accounts often served hundreds or thousands of individuals, making termination of internet serves impractical, according to Cox. Sony sued Cox for contributory copyright infringement because Cox failed to prevent further infringement. In a previous suit, the Fourth Circuit held that contributory infringement required actual knowledge or willful blindness of the accounts’ infringement. BMG Rights Management (US) LLC v. Cox Communications, Inc., 881 F.3d 293 (4th Cir. 2018). In this case, the district court held that the automated notices from Sony meant Cox had “actual knowledge” of user infringement. The jury then found Cox both vicariously and contributorily liable and having acted willfully (under an instruction, based on BMG, that directed the jury to find Cox willful if “Cox had knowledge that its subscribers’ actions constituted infringement of plaintiffs’ copyrights”). The willfulness finding allowed the jury to award $1 billion in damages. On appeal, the Fourth Circuit reversed on vicarious liability because Cox did not profit from the infringement. But it upheld the verdict on contributory infringement because Cox did not terminate access to the internet for the infringing parties. 93 F.4th 222. The Fourth Circuit reasoned that continuing to “supply[] a product with knowledge that the recipient will use it to infringe copyrights is exactly the sort of culpable conduct sufficient for contributory infringement.”
Cox raises two reasons for granting certiorari for the first question. First, Cox points out there is now a three-way circuit split on the meaning of Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), which held that contributory liability required purposeful misconduct. The Second and Tenth Circuits require “affirmative, culpable conduct” for liability; the Ninth Circuit adopted a reasonable effort standard under which an ISP is not liable if it makes a reasonable effort to prevent the infringement; and the Fourth Circuit took a stricter interpretation under which awareness of and failure to eliminate any infringement results in contributory liability. Cox says it would not be liable under either the Second and Tenth Circuit’s or the Ninth Circuit’s interpretations. Additionally, in BMG, the Fourth Circuit acknowledged that contributory liability is a subset of aiding and abetting liability. Therefore, Cox argues, the Fourth Circuit’s reasoning is at odds with Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023), which held that ISPs could not be liable for failure to terminate services for users they knew were engaged in wrongful acts.
On the second question (concerning willfulness), Cox argues that the Fourth Circuit erred because its ruling in BMG results in all secondary infringement being automatically willful. This increases the statutory damages 500% per 17 U.S.C. 504(c)(1)-(2). The Fourth Circuit’s interpretation is incorrect, Cox says, because willfulness is well established to be an awareness of the wrongfulness of defendant’s own actions. Yet in BMG, the Fourth Circuit held that willfulness occurs when one is aware of unlawful conduct through a provided service, i.e., of another’s unlawful actions. Cox argues that the Fourth Circuit’s approach conflicts with Safeco Insurance Co. of America v. Burr, 551 U.S. 47 (2007), which ruled that civil willfulness occurs when the defendant knowingly or recklessly fails in its own duty. Cox maintains that its interpretation fits well with the Copyright Act’s use of willfulness to impose enhanced damages. The Fourth Circuit makes the “enhanced” damages standard.
M & K Employee Solutions, LLC v. Trustees of the IAM Pension Fund, 23-1209.
ERISA, as amended by the Multiemployer Pension Plan Amendments Act (MPPAA), imposes “withdrawal liability” when an employer withdraws from an underfunded multiemployer pension plan. Withdrawal liability must be computed “as of the end of the plan year preceding the plan year in which the employer withdraws.” E.g., 29 U.S.C. §1391(b)(2)(E)(i). The Court limited the grant of certiorari to the following question: “Whether 29 U.S.C. §1391’s instruction to compute withdrawal liability ‘as of the end of the plan year’ requires the plan to base the computation on the actuarial assumptions most recently adopted before the end of the year, or allows the plan to use different actuarial assumptions that were adopted after, but based on information available as of, the end of the year.”
“Petitioners are employers that withdrew from the IAM National Pension Fund in 2018. The IAM National Pension Fund provides benefits to employees covered by collective bargaining agreements with the International Association of Machinists and Aerospace Workers, AFL-CIO. Because the plan year matches the calendar year, the measurement date for petitioners’ withdrawal liability was December 31, 2017.” (Citations omitted.) (The “measurement date” is the last day of the plan year preceding the year of the employer’s withdrawal.) “In November 2017, the plan actuary used a 7.5% interest rate or ‘discount rate’ to value the plan’s underfunding. The actuary did not change this assumption before the measurement date. When the actuary calculated petitioners’ withdrawal liability, however, it used a 6.5% discount rate. The actuary changed several of its actuarial assumptions as a result of a January 24, 2018 meeting with respondents (the plan’s trustees). It is undisputed that this interest-rate reduction did not occur until after petitioners’ measurement date.” (Citations omitted.) According to petitioners, “[t]he actuary’s post-measurement date revision of its interest rate assumption dramatically increased the plan’s estimated underfunding.” This “generated a commensurate increase in the withdrawal liability assessed against petitioners.”
Petitioners challenged their withdrawal liability assessments in arbitration. An arbitration panel ruled for petitioners, holding “that actuaries must calculate withdrawal liability using the actuarial assumptions that they endorsed as of the measurement date. “Respondents challenged these arbitral awards by filing four actions in federal district court. Three of the actions were consolidated before one district court judge, while the fourth proceeded separately before a different judge in the same district. The two district court judges vacated the arbitral awards before them for similar reasons.” (Citations omitted.) The district courts “ruled that actuaries may use actuarial assumptions adopted after the measurement date—so long as the new assumptions are adopted based on ‘information available’ on the measurement date.” The D.C. Circuit affirmed. “Like the district courts, the court of appeals construed the statutory provisions as requiring actuaries to base their assumptions ‘on the body of knowledge available up to the measurement date.’” 92 F.4th 316.
Petitioners point to the Court’s summary of the key ERISA provisions: “the withdrawal charge for an employer withdrawing from an underfunded plan . . . equals that employer’s fair share of the underfunding as calculated on December 31” the year before. Milwaukee Brewery Workers’ Pension Plan v. Jos. Schlitz Brewing Co., 513 U.S. 414, 418 (1995). And under the statute, actuaries must use “assumptions and methods which, in the aggregate, are reasonable (taking into account the experience of the plan and reasonable expectations) and which, in combination, offer the actuary’s best estimate of anticipated experience under the plan.” 29 U.S.C. §1393 (a)(1).” This means, say petitioners, that “determining plan underfunding as of the measurement date requires using both the historical facts that existed on that date and the assumptions that the actuary actually believed on that date. Any approach that uses assumptions that the actuary disbelieved on the measurement date is inherently anachronistic.”
Respondents counter that “[t]he MPPAA enumerates two requirements for actuarial assumptions: An actuary must employ assumptions that (i) ‘in the aggregate, are reasonable,’ and (ii) ‘in combination, offer the actuary’s best estimate of anticipated experience under the plan’” 29 U.S.C. §1393(a)(1). The statute imposes no timing requirement concerning when an actuary must select its assumptions. Presumably, when Congress expressly enumerated the requirements for actuarial assumptions in §1393, it did not intend for courts to imply an additional timing requirement not provided for in the statute.” Respondents also maintain that petitioners’ position “runs afoul of the MPPAA’s requirement that assumptions reflect an actuary’s ‘best estimate of anticipated experience under the plan.’ Id. §1393(a).” The United States filed an amicus brief at the invitation of the Court which agreed with respondents on the merits.
FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd., 24-345.
At issue is “whether Congress created an implied private right of action in Section 47(b) of the Investment Company Act (ICA)[.]” Congress enacted the ICA in 1940 as part of a comprehensive effort to eliminate abuses in the securities industry, vesting broad regulatory authority in the Securities and Exchange Commission “over the business practices of investment companies” like mutual funds and exchange-traded funds. Section 47(b) states that contracts which violate the ICA are unenforceable and may be rescinded, but it does not clearly say whether private investors can sue to enforce this or if only the SEC can do so.
In June 2023, Saba Capital Master Fund, Ltd., and Saba Capital Management, L.P. (Saba) sued FS Credit Opportunities Corp. and other entities (the Funds) in federal district court. Saba objected to the Funds’ adopting “control-share” provisions under the Maryland Control Share Acquisition Act, which limited the voting rights of large shareholders. Saba claimed these provisions violated Section 18(i) of the ICA, which guarantees equal voting rights (“one-share, one-vote”) to fund shareholders. Saba sought rescission of these resolutions under Section 47(b), arguing for an implied private right of action. The district court, bound by Second Circuit precedent (Oxford University Bank v. Lansuppe Feeder, LLC, 933 F.3d 99 (2d Cir. 2019)), ruled that Section 47(b) creates an implied private right of action and granted summary judgment for Saba on the merits. “On appeal, because the Second Circuit was also bound by Oxford University Bank, the Funds again reserved their right to argue that Section 47(b) does not create an implied private right of action. The Second Circuit affirmed the district court’s judgment, without addressing the implied-private-right-of-action issue.” (Citations omitted.)
The Funds argue that the Second Circuit’s rule is wrong because the Supreme Court has created a strong presumption against the creation of implied private rights of action, a presumption not overcome here. That is because Section 47(b) lacks any “rights-creating” language; it merely describes contract unenforceability and conditions for denying rescission. According to the Funds, the Second Circuit in Oxford University Bank inferred an implied right of action based on a misinterpretation of statutory text and in disregard of the ICA’s overall structure. Specifically, the Funds point to Section 36(b) of the ICA, where Congress expressly created a private right of action allowing security holders to sue for breach of fiduciary duty. The Funds contend that this demonstrates Congress’s knowledge of how to create a private cause of action when it desired one.
Saba, by contrast, argues that the plain text of Section 47(b)(2) of the ICA unambiguously provides a private right of action for parties to illegal contracts to seek rescission. It asserts that Section 47(b)(1) makes such contracts defensively unenforceable, while Section 47(b)(2)―by stating that “a court may not deny rescission at the instance of any party”―presupposes that a party can affirmatively seek rescission by filing suit. This interpretation, according to Saba, is consistent with the ICA’s core purpose of protecting investors and shareholders against abusive management practices and aligns with how similar provisions in other securities acts, like the Investment Advisers Act and the Exchange Act, have been interpreted to allow for rescission.
Urias-Orellana v. Bondi, 24-777.
At issue is whether federal courts of appeal should review de novo or for substantial evidence a Board of Immigration Appeals determination that a given set of facts do not show “persecution” under 8 U.S.C. §1101(a)(42)(A)―a showing that can make an individual a “refugee” eligible for asylum. “Noncitizens granted asylum may not be removed from this country and have a path to becoming lawful permanent residents.” “[N]oncitizens on American soil are generally eligible for asylum if they qualify as a ‘refugee.’ 8 U.S.C. §1158(b)(1)(A). A refugee is someone with ‘a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ Id. § 1101(a)(42). Noncitizens are presumptively eligible for asylum if they have ‘suffered persecution in the past.’ 8 C.F.R. §1208.13(b)(1).’” [E]ven without showing past persecution, a noncitizen can establish a ‘well-founded fear of persecution’ by demonstrating both ‘a genuine fear of future persecution’ and ‘an objectively reasonable basis for that fear.’”
“Noncitizens in removal proceedings may request asylum and other relief from removal, claims that an immigration judge (IJ) decides in the first instance. . . . Noncitizens ordered removed by an IJ may appeal to the [Board of Immigration Appeals (BIA)]. . . . If the BIA declines to disturb the IJ’s decision, the removal order becomes final and subject to judicial review in ‘an appropriate court of appeals.’ . . . The Immigration and Nationality Act directs courts to defer to four specified kinds of administrative determinations, including ‘findings of fact.’ [8 U.S.C.] §1252(b)(4). It also explicitly safeguards judicial review over ‘constitutional claims’ and ‘questions of law’—which encompasses both the “interpretation and application of constitutional and statutory provisions.” 8 U.S.C. §1252(a)(2)(D), (b)(9) (emphasis added).”
“Petitioners Douglas Humberto Urias-Orellana, Sayra Ilana Gamez-Mejia, and their minor child, G.E.U.G., are citizens of El Salvador. They fled their home country after an extended campaign of terror against their family orchestrated by a ‘sicario’ (which roughly translates to ‘hitman’) for a local drug lord.” (Citation and some quotation marks omitted.) Soon after they entered the United States, immigration officials sought to remove them. Petitioners did not dispute their removability; but they sought asylum. Douglas testified before an IJ, who found him credible and accepted his recitation of the facts as credible. But the IJ found that the attested facts did not amount to past persecution and failed to show that the family could not reasonably relocate to El Salvador. The BIA upheld the IJ’s removal order. “Accepting the IJ’s credibility determination and taking Douglas’s testimony as true, the BIA held that the facts of this case, taken ‘in the aggregate,’ do not ‘rise[] to past persecution.’” The BIA next agreed with the IJ’s determination that petitioners failed to show that they could not reasonably relocate to El Salvador. The First Circuit denied petitioners’ petition for review. 121 F.4th 327. Following circuit precedent, the court “cabin[ed] [its] review to whether” the BIA’s “conclusion that [Douglas] had not demonstrated past persecution or a well-founded fear of future persecution was supported by substantial evidence.” Under that standard, held the court, it could not “disturb” the BIA’s denial of asylum unless “any reasonable adjudicator would be compelled to conclude to the contrary.” The First Circuit then held that petitioners did not meet that strict standard.
Petitioners argue that the circuits are deeply split over whether deference must be given “to the BIA’s legal judgment that a given set of undisputed facts does not establish mistreatment severe enough to constitute ‘persecution’ under Section 1101(a)(42).” On the merits of that question, petitioners assert that “[t]he INA directs federal courts to defer to a discrete list of administrative determinations, including factual findings. 8 U.S.C. §1252(b)(4). The BIA’s rulings on what kinds and degree of mistreatment qualify as ‘persecution’ under Section 1101(a)(42) are not on that list.” Petitioners add that the Court “has ‘already rejected’ the argument that ‘a primarily factual mixed question is a question of fact.’ Wilkinson v. Garland, 601 U.S. 209, 225 (2024); accord Guerrero-Lasprilla v. Barr, 589 U.S. 221, 231 (2020). . . . So BIA determinations on the matter cannot be ‘findings of fact’ subject to substantial-evidence review under Section 1252(b)(4)(B),” the provision upon which the United States relies.
The United States agreed that certiorari was warranted, given the deep circuit split. On the merits, it supports the First Circuit’s substantial-evidence standard. The United States argues that, “[t]hrough an amendment to the INA in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546, Congress directed that a court of appeals reviewing an order of removal must accept ‘administrative findings of fact’ as ‘conclusive,’ unless ‘any reasonable adjudicator would be compelled to conclude to the contrary.’ 8 U.S.C. 1252(b)(4)(B). In doing so, Congress echoed this Court’s determination in INS v. Elias-Zacarias, 502 U.S. 478 (1992), that, under an earlier version of the statute, an asylum applicant who ‘seeks to obtain judicial reversal of the BIA’s determination’ that he is ineligible for asylum ‘must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.’” And, says the United States, the “Court has since reiterated that that aspect of Elias-Zacarias remains good law.” The United States notes that “[a]n agency finding that a series of events and circumstances does not constitute persecution may not be one of pure historical fact. But Section 1252(b)(4)(B)’s coverage of ‘administrative findings of fact’ encompasses what this Court has called ‘mixed questions’ of law and fact that are of a ‘primarily . . . factual’ nature.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Michaela Herdoíza, NAAG Law Clerk
- David Leibert, NAAG Law Clerk
- James Pearsall, NAAG Law Clerk
- Shuhan Wang, NAAG Law Clerk
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