Seeing the Forest

Supreme Court asylum decision burdens already overworked DOJ

Requests for asylum typically include complex descriptions of violence and fear followed by flight to the United States. In immigration courts, it falls on immigration judges to decide whether the facts on the ground are what the asylum applicant claims them to be. If they are, immigration judges must determine whether immigration law extends safe harbor to the applicant. Earlier this month, a unanimous Supreme Court decided, in Urias-Orellana v. Bondi, that federal appellate courts must defer to immigration judges and their colleagues who hear appeals. Although that decision may sound somewhat technical, it has major consequences: The court’s decision puts more responsibility on decision makers who are stretched thin by mounting caseloads, while making it more difficult for migrants to ask federal appellate courts to overturn asylum denials.

Asylum is a core humanitarian feature of federal immigration law. Stemming from the 1948 Universal Declaration of Human Right’s promise that “[e]veryone has the right to seek and to enjoy in other countries asylum from persecution,” it was added to U.S. law in 1980. Since then, any migrant who is in the United States may request legal permission to remain in the country as a permanent resident, opening a pathway to citizenship.

But for all its promise of safety in the United States, the law of asylum does not promise to protect everyone who faces violence, including death, abroad. To be granted asylum in the United States, a migrant must show that they have suffered past persecution or have a “well-founded fear of future persecution” because of one of five specific reasons: their race, religion, nationality, political opinion, or membership in a particular social group.

After considering any evidence that an applicant presents, which often includes testimony about the violence that led to their decision to flee, immigration judges are tasked with deciding whether the applicant has met the legal requirements. If the asylum applicant or the federal government – represented in immigration court by an attorney for the Immigration and Customs Enforcement division of the Department of Homeland Security – disagrees with the immigration judge’s decision, they can ask a separate entity, the Board of Immigration Appeals, to review it. Neither the nation’s immigration courts nor the BIA are part of the judicial branch. Instead, both are units of the Justice Department’s Executive Office for Immigration Review. Whichever party loses at the BIA can appeal to a federal circuit court.

This month’s decision in Urias-Orellana v. Bondi made clear that federal appellate courts have a limited role overseeing asylum claims. The court held that federal judges must ordinarily defer to the decision that the immigration judge and the BIA made about whether the facts constitute persecution. Their “determination whether a given set of undisputed facts rises to the level of persecution,” as required to receive asylum, “is generally ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,’” Justice Ketanji Brown Jackson wrote on behalf of a unanimous court.

Specifically, the justices’ opinion focuses on a small set of amendments that Congress made to immigration law in 1996. Douglas Humberto Urias-Orellana, who challenged an immigration judge’s denial of his asylum application, along with his wife and their minor son, “focus on the metaphorical trees” but “missed the forest” in which the provision constraining courts’ role was enacted, Jackson explained. These changes, signed into law by President Bill Clinton as part of the Illegal Immigration Reform and Immigrant Responsibility Act, “tend to restrict (rather than expand) review of immigration-related determinations in federal court,” Jackson wrote.

Photo by kazuend on Unsplash

As the justices suggest, context matters. The court focused on the legislative context in which Congress revamped judicial oversight of immigration agencies. But it overlooked the practical context in which its decision will reverberate. Like all claims raised in immigration court, requests for asylum enter a legal process characterized by vast quantities of cases falling on an ever-smaller number of decision makers.

Asylum applications are routine in immigration courts. In fiscal year 2025, for example, migrants filed almost 875,000 asylum cases with immigration courts nationwide. Added to the backlog of cases that already existed, the immigration court system ended the federal government’s fiscal year, on September 30, 2025, with almost 2.5 million asylum cases pending.

The Justice Department doesn’t publish similar data about the number of asylum appeals that reach the BIA. Still, the appellate bureau’s workload, which includes requests to review decisions by immigration judges about asylum requests, has increased substantially in the last few years. From the end of September 2024 to the end of December 2025, the number of appeals pending at the BIA increased by 58 percent. At the beginning of this year, there were almost a quarter million cases waiting to be decided by BIA members.

In addition to a growing workload and a smaller cadre of decision makers, immigration judges and BIA members, as Justice Department employees, are subject to policy directives that shift based on the political goals of the presidential administration. In June 2021, for example, the Executive Office of Immigration Review’s acting director, Jean King, informed immigration judges and BIA members that they were expected to consider whether a case fit the Biden administration’s immigration law enforcement priorities. Since asylum cases typically didn’t, immigration judges throughout Biden’s term decided fewer asylum claims based on their facts than they dismissed because of policy choices. And the EOIR’s acting director under Trump, Sirce Owen, instructed immigration judges and BIA members, in April 2025, to dismiss asylum requests without so much as a hearing.

Meanwhile, the number of EOIR decision makers has dropped. In the 2025 fiscal year, there were only 634 immigration judges spread throughout the country’s network of immigration courts, a drop of 101 from 735 immigration judges the year before. There are even fewer now: The agency’s most recent report indicates that there were 557 immigration judges working in the first quarter of 2026. Since the closing months of the Biden administration, it has hired a mere 25 immigration judges, suggesting that the agency is unlikely to bring on board enough new immigration judges to replace those who left voluntarily or were fired. The immigration court system has also lost hundreds of staff who support judges. Like the immigration courts, the number of appellate decision makers at the BIA has also dropped substantially. Last April, the Justice Department cut the number of permanent BIA members from 28 to 15.

Asylum saves lives, but the immigration judges and BIA members who decide asylum claims don’t have the resources they need to dig deep into the facts to distinguish strong cases from weak cases. Fewer staff facing growing caseloads under pressure to follow shifting policy directives is a recipe for short-changing the care that complicated legal determinations require. The court’s decision in Urias-Orellana doesn’t alter the work that immigration judges and BIA members do. But by instructing federal judges to defer to them, it does give their decisions greater weight, leaving questions of life and death in the hands of overworked, understaffed bureaucrats.

This article was first published at SCOTUSblog on March 18, 2026 as part of the Immigration Matters column.