Flores v. Garland

Citation3 F.4th 615
Decision Date29 June 2021
Docket NumberNo. 19-1591,19-1591
Parties Hernan PORTILLO FLORES, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. American Immigration Lawyers Association, Washington DC Chapter; American Immigration Lawyers Association, National; American Immigration Lawyers Association, Carolinas Chapter; Former Immigration Judges and Board of Immigration Appeals Members; Fairfax Court Appointed Special Advocates ; Kids in Need of Defense (KIND); Legal Aid Justice Center and Immigrant Health Experts, Amici Supporting Rehearing Petition.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Paul Whitfield Hughes, III, MCDERMOTT WILL & EMERY LLP, Washington, D.C., for Petitioner. Andrew C. MacLachlan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin J. Osorio, Alexandra Williams, MURRAY OSORIO PLLC, Fairfax, Virginia; Sarah P. Hogarth, MCDERMOTT WILL & EMERY LLP, Washington, D.C., for Petitioner. Joseph H. Hunt, Assistant Attorney General, Brian M. Boynton, Acting Assistant Attorney General, Donald E. Keener, Deputy Director, John W. Blakeley, Assistant Director, Holly M. Smith, Senior Litigation Counsel, Sarah K. Pergolizzi, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. D.C. Drake, DRAKE IMMIGRATION LAW, PLLC, Alexandria, Virginia; Anam Rahman CALDERÓN SEGUIN PLC, Fairfax, Virginia; Jillian N. Blake, BLAKE IMMIGRATION LAW, PLLC, Alexandria, Virginia; David L. Cleveland, LAW OFFICE OF DAVID CLEVELAND, Washington, D.C.; Johanna M. Gaughan, GABRIELA J. MATTHEWS & ASSOCIATES, Durham, North Carolina; Tamara L. Jezic, Diana M. Pak Yi, JEZIC & MOYSE, LLC, Wheaton, Maryland; Evelyn R.G. Smallwood, HATCH ROCKERS IMMIGRATION, Durham, North Carolina, for Amici AILA DC and Carolinas Chapters. Charles Shane Ellison, Katherine L. Evans, Amanda G. Dixon, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina; Tyler A. Young, Martin J. Demoret, David Yoshimura, Robert C. Gallup, FAEGRE DRINKER BIDDLE & REATH LLP, Des Moines, Iowa, for Amicus American Immigration Lawyers Association. Steven H. Schulman, AKIN GUMP STRAUSS HAUER & FELD, LLP, Washington, D.C., for Amici Former Immigration Judges and Board of Immigration Appeals Members. Andrew Frackman, New York, New York, John B. Sprangers, Rob Barthelmess, O'MELVENY & MYERS LLP, Los Angeles, California, for Amici Legal Aid Justice Center and Immigrant Health Experts. Lawrence D. Rosenberg, JONES DAY, Washington, D.C., for Amicus Fairfax Court Appointed Special Advocates. Stephen B. Kinnaird, Washington, D.C., Elizabeth Rose Kenerson, Katherine K. Solomon, Mary Wolfe, Zachary Zwillinger, PAUL HASTINGS LLP, New York, New York, for Amicus Kids in Need of Defense.

Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.

Petition for review granted, vacated and remanded by published opinion. Judge Thacker wrote the opinion, in which Chief Judge Gregory and Judges Motz, King, Keenan, Wynn, Diaz, Floyd, and Harris joined. Judge Wynn wrote a separate concurring opinion. Judge Quattlebaum wrote a dissenting opinion, in which Judges Wilkinson, Niemeyer, Agee, Richardson, and Rushing joined.

ON REHEARING EN BANC

THACKER, Circuit Judge:

When he was 15 years old, Hernan Portillo-Flores ("Petitioner"), a resident of El Salvador, sought refuge in the United States. When Petitioner was living in El Salvador, El Pelón, a leader of the infamous gang MS-13, and other gang members beat Petitioner on multiple occasions (once almost to the point of death) and made death threats against him because El Pelón wanted to date Petitioner's sister. Despite finding Petitioner and his sister credible, and despite hearing testimony that El Pelón showed up with the police to threaten Petitioner's mother at her home, the immigration judge ("IJ") denied Petitioner's claims for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"), and ordered him removed from the United States. The Board of Immigration Appeals ("BIA") affirmed.

In his petition for review, Petitioner contends that the BIA disregarded pertinent, significant evidence; failed to make factual findings sufficient to support its conclusion; failed to provide sufficient explanation for its conclusions; and did not consider the age of Petitioner at the time of his alleged persecution.

Although we owe deference to the BIA, that deference is not blind. Here, where the agency contravened prevailing case law, disregarded crucial evidence, and failed to explain its decisions, we are compelled to grant the petition for review, vacate the immigration court decisions, and remand to the agency for further proceedings.

I.

In 2013, Petitioner was living with his mother and sister, Paola, in Ciudad Delgado, El Salvador. El Pelón, a local MS-13 group leader, began calling and texting Paola, then a tenth grader. El Pelón indicated he wanted Paola to be his girlfriend and told her that if she failed to submit to his demands, he might kill her mother and Petitioner. El Pelón began following Paola and told her that if she continued to refuse him, "something's going to happen" to Petitioner and her mother. A.R. 203.1 El Pelón would also have other gang members approach her and issue threats. Paola eventually informed her mother of El Pelón's continuing threats. As a result, the family decided to send Paola to the United States for her safety.

After Paola fled El Salvador, El Pelón and other MS-13 members began targeting Petitioner, then only 14 years old, seeking information about Paola's whereabouts. MS-13 approached Petitioner on five or six occasions over the course of several months, always asking him about Paola. Each time they contacted Petitioner, the gang members were armed with knives and guns. Three or four of the times that MS-13 members approached Petitioner, the gang members beat him up. Petitioner's mother saw him arrive home several times without shoes, with bruises, and shirtless. The final beating Petitioner received was so severe that he testified that he "almost die [sic] on that occasion." A.R. 143.2

This last beating prompted Petitioner to disclose the ongoing issue to his mother. Concerned for her child's safety, Petitioner's mother decided to send Petitioner to a ranch in Chalatenango, El Salvador, to live with his uncle. Petitioner testified that he believed MS-13 would have killed him if he had remained in Ciudad Delgado.

Once in Chalatenango, Petitioner remained in hiding. But while Petitioner was in Chalatenango, "four people who were policemen working with the gang members came to [Petitioner's mother's] house threatening [her] so that [Petitioner] would turn himself into [sic] the gang members." A.R. 290. During this encounter, Petitioner's mother saw El Pelón standing outside in the alleyway behind the police. Likewise, Paola testified that when her mother looked out the door during this confrontation with the police, her mother "saw ... El P[e]lon, so she understood that El P[e]lon or the gang was linked to the police because they were asking about [Petitioner]." Id. at 206. Following this incident, Petitioner's mother left her home and remains in hiding in El Salvador.

As a result of the threats and beatings, Petitioner's mother and sister ultimately decided to send Petitioner to the United States. Petitioner entered the United States at age 15 without inspection on approximately October 12, 2015. United States Customs and Border Protection detained Petitioner upon his entry to the United States. Petitioner received a hearing on the charge of removability before an IJ and asserted claims for asylum, withholding of removal, and protection pursuant to the CAT.

At Petitioner's hearing, his sister Paola testified about El Pelón's threats against her brother. Specifically, Paola testified that had Petitioner remained in El Salvador, "if he had not been dead by now, that could have been a miracle from God." A.R. 208. She further testified that she and her mother thought it best to send Petitioner to the United States because "[i]t was going to come to the point that [the gang] w[as] going to be able to find him. And they weren't going to be using words anymore. He was going to get murdered." Id .

For his part, Petitioner testified that had he stayed in Ciudad Delgado, the MS-13 members "would have killed me because the last time they beat me up, ... I almost died. And I believe that they could have taken more reprisals against me." A.R. 146–47. Petitioner also testified that he did not go to the police "because [he] knew that the police did not have the capacity to protect [him] from th[e] gang." Id. at 147. He recounted that a friend, Omar, who filed a police report against the gang, "turned up dead" "inside of a well." Id. at 148.

Significantly, the IJ found both Petitioner and his sister Paola credible "due to their demeanor, their candor, they were responsive to all questions, and their testimony was consistent, both between their two testimonies and also with the written statements that are in the file." A.R. 79. Petitioner also filed numerous exhibits including declarations from family members and neighbors corroborating his stated reasons for leaving El Salvador. His mother submitted a declaration explaining, "Several times the MS-13 gang members beat [Petitioner] up," always "ask[ing] him for his sister Paola." Id. at 290. The gang members "told [Petitioner] that if he did not turn Paola in to them, then they were going to do damage to him and to his family." Id. Petitioner's mother also "received threats from the gang members" and "lost [her] house" because she had to leave. Id. The family was "living in fear." Id.

Petitioner supplemented the testimonial evidence about the danger he faced in El Salvador and the inability of the police to protect him with...

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