Elena Kagan Questions Legal Standard in Asylum Case Oral Arguments

Standard of Review in Asylum Cases

• 🎯 Justice Kagan questioned attorney Joshua Dos Santos regarding the standard of review for mixed questions in asylum cases, specifically in relation to the Urias-Orellana v. Bondi case.
• ❓ Kagan pressed Dos Santos on whether his position would lead to every mixed question being subject to de novo review or substantial evidence review.

Attorney's Arguments and Textual Basis

• ⚖️ Dos Santos argued that not all mixed questions are alike, referencing the court's discussion in US Bank.
• 🚫 When asked for examples of mixed questions that would not receive substantial evidence review, Dos Santos stated he did not have specific examples in that respect.
• 🗣️ He noted that many issues in the immigration space are factual, and legal questions turning on statutory interpretation might be considered factual if the primary work involves interpreting definitions, structure, or legislative history.

Kagan's Skepticism on Textual Arguments

• 🧐 Justice Kagan expressed difficulty understanding Dos Santos's argument, stating that while he had good arguments, none of them came from the text of Section 1158.
• 📜 She acknowledged his historical arguments and references to the Elias Zacharias case but questioned using the classification of 'trial of fact' in 1158 to determine the standard of review.

Congressional Intent and Factual Inquiry

• 🔑 Dos Santos contended that Congress viewed the refugee determination as primarily factual, citing Section 1158's language about applicants sustaining their burden by satisfying the 'trier of fact'.
• 📊 He further explained that the provision details how the trier of fact weighs testimony and evidence, which, combined with Congress's codification of language from Aaliyah Zachcharias, indicates a congressional intent for these to be factual inquiries handled by the IJ and the Attorney General.