The Supreme Court on Monday tried to sort out whether federal judges must defer to immigration courts when they hear appeals of asylum claims, in a case that could help speed up some deportation cases.
At issue is the way Congress wrote immigration law and whether it intended the executive branch, which runs the immigration courts as a part of the Justice Department, to be insulated from at least some second-guessing by the circuit courts of appeals.
Assistant Solicitor General Joshua Dos Santos told the high court that the immigration courts — both the initial immigration judges and the Board of Immigration Appeals — have built up substantial knowledge in this area and circuit judges should accept their findings when they look at the specific facts of a case, such as what type of persecution an asylum-seeker claims to have faced back home.
“The agency has expertise here to apply to deciding those questions,” Mr. Dos Santos said during oral argument.
But a Salvadoran family, which was denied asylum by the immigration courts, told the justices that the circuit courts could also amass that expertise once they start to handle these cases more.
“Let judges get to judging. The courts of appeals are well-equipped for the job,” Nicholas Rosellini told the court.
Asylum is political protection granted to foreigners in the U.S. who prove they would face persecution if forced to return to their homes. It’s similar to refugee status, which is for those seeking protection while not yet on U.S. soil.
Asylum can be used as a defense against deportation, and claims have risen amid the recent migrant surge.
If a migrant is denied asylum by the immigration courts, he can appeal to the U.S. Circuit Court for his geographic area.
The cases can turn on country-specific questions, and the same type of threatening behavior may be enough to earn asylum for someone from one country but not from another.
About half of the circuits defer to the immigration courts on that kind of persecution fact-finding.
Experts say the immigration courts are generally stricter in their approach to asylum claims than the circuit courts would be. Striking the principle of deference could make it tougher for the administration to win some asylum cases.
In the case before the justices, Douglas Humberto Urias-Orellana and Sayra Iliana Gamez-Mejia and their child said they faced the prospect of violence in their home country of El Salvador because a cartel sicario, or hitman, had targeted their extended family.
The immigration courts acknowledged the threats but said Mr. Urias-Orellana and Ms. Gamez-Mejia themselves managed to adjust by moving to another location in El Salvador. The immigration courts also found that Mr. Urias-Orellana never proved that the threats he faced caused him actual harm.
The First Circuit deferred to those judgments, and Mr. Urias-Orellana appealed to the Supreme Court.
The Justice Department said asylum law assumes deference.
“The way Congress was thinking about it was these are primarily factual inquiries that the [immigration judge] is going to make, that we want to have the attorney general take care of,” Mr. Dos Santos said.
The justices on Monday struggled with tension between what issues are matters of fact, such as what type of threat was used, and what are matters of law, such as the definition of persecution.
Justice Elena Kagan, an Obama appointee, said that while history and past practice supported the administration’s view, the law itself was less clear.
“You have one good argument in this case, but honestly, none of them come from the text,” she said.
