Portillo-Flores v. Barr
| Decision Date | 02 September 2020 |
| Docket Number | No. 19-1591,19-1591 |
| Citation | 973 F.3d 230 |
| Parties | Hernan PORTILLO-FLORES, Petitioner, v. William P. BARR, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Alexandra Maria Williams, Benjamin James Osorio, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Sarah Kathleen Pergolizzi, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Holly M. Smith, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before THACKER, QUATTLEBAUM, and RUSHING, Circuit Judges.
Hernan Alexander Portillo-Flores ("Portillo") petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming an Immigration Judge's ("IJ") denial of his application for asylum, withholding of removal and protection under the Convention Against Torture ("CAT"), and ordering his removal from the United States to El Salvador. In seeking a reversal of the BIA's decision, Portillo confronts a "narrow and deferential" standard of review. Djadjou v. Holder , 662 F.3d 265, 273 (4th Cir. 2011).
Like offensive linemen on a football team, standards of review are not glamorous or exciting. But that does not mean they are unimportant. To the contrary, standards of review are "elemental expression[s] of judicial restraint" that "focus reviewing courts upon their proper role when passing on the conduct of other decision-makers." Evans v. Eaton Corp. Long Term Disability Plan , 514 F.3d 315, 320, 321 (4th Cir. 2008). In doing so, standards of review designate a "primary decision-maker other than the reviewing court" and prescribe a level of deference meant to "safeguard the superior vantage points of those entrusted with primary decisional responsibility." Id . at 321.
These principles of primacy and deference are particularly pertinent for immigration decisions, where "the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.’ " See Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 2418, 201 L.Ed.2d 775 (2018) (quoting Fiallo v. Bell , 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) ); Blanco de Belbruno v. Ashcroft , 362 F.3d 272, 278–79 (4th Cir. 2004) ; see also Hampton v. Mow Sun Wong , 426 U.S. 88, 101 n. 21, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976). In the asylum context, where I.N.S. v. Orlando Ventura , 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (quoting SEC v. Chenery Corp. , 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ) (internal citation omitted).
Often, standards of review, like offensive linemen in a football game, control the outcome of an appeal. That is the case here. We need only find substantial evidence in the record to support the findings that Portillo was not entitled to relief, and, because we do, we deny Portillo's petition for review.
Portillo, a native and citizen of El Salvador, entered the United States in October 2015 near Eagle Pass, Texas as a 15-year-old unaccompanied juvenile. He soon encountered U.S. Customs and Border Protection agents and admitted to illegally entering the country by crossing the Rio Grande.
The Department of Homeland Security ("DHS") served Portillo with a Notice to Appear for removal proceedings, charging him under the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i), as a noncitizen present in the United States without having been admitted or paroled. He was released to live with family, and the DHS later initiated the removal proceedings.
Portillo conceded removability but applied for asylum, withholding of removal and protection under the CAT. He claimed that if he returns to El Salvador, he would be "harmed, tortured, or killed" by the gang MS-13 because of his membership in a particular social group—namely, "a member of [his] sister's family." J.A. 780. He also stated that Salvadorian police will not protect him because they are "working along with MS-13 in order to fulfill their threats to [his] family." Id.
At Portillo's individual removal hearing, Portillo and his sister, Paola, testified before the immigration court. Paola said that the family's problems with MS-13 began in 2013 when she was living with Portillo and their mother in Ciudad Delgado, El Salvador. A local gang leader, known as "El Pelon," wanted her to be his girlfriend. Paola testified that when she resisted, El Pelon told her that if she failed to submit to his demands, "he might kill [her] mother and/or [her] brother." J.A. 201. One day, as she left school, El Pelon confronted Paola and told her that if she continued to refuse him, "something's going to happen" to Portillo and their mother. J.A. 203. Paola testified that neither she nor her family went to the police about these threats. Instead, the family sent her to the United States.
Portillo testified that he was not told about these threats. But, in the months after Paola's departure from El Salvador, members of MS-13 approached him five or six times with knives and a handgun, asking for information about her location. Once, a group of gang members told Portillo, who was then 14 years old, that if he failed to help them, he would "get hurt." J.A. 139. Portillo also testified that the gang beat him three or four times. During this period, he would sometimes "get home without shoes, beaten up, with bruises, and even sometimes without a shirt," but he never told his family what was happening. J.A. 205. Portillo said the last beating he received from MS-13 was the worst. Although he conceded he received no medical treatment after this incident, Portillo testified that he almost died.
Portillo said that, after he was last approached by MS-13, his mother sent him to live with his uncle on a ranch in Chalatenango, about two hours away from Ciudad Delgado. While there, Portillo said he did not leave the ranch and had food brought to him because he feared MS-13 would find him.
During the time Portillo was away, his mother told him that four uniformed police officers came to the house looking for him, and that two gang members were watching the visit from a distance. Paola said their mother felt this interaction meant "El Pelon or the gang was linked to the police because they were asking about [Portillo]." J.A. 206. Following the visit, Portillo said his mother moved to an apartment in Ciudad Delgado and, as far as he knows, she has not been contacted by the gang since.
Portillo testified that although he had no interaction with the gang in Chalatenango, he left after about a month because he was afraid that the gang would find him. He claimed he could not simply hide in another region of El Salvador because MS-13 is "all over the country," and that, regardless of where he moved, they may be able to find him. J.A. 152. Portillo left El Salvador and entered the United States in October of 2015. Portillo said he never went to the police about the conduct of the MS-13 gang members because he "knew that the police did not have the capacity to protect [him] from that gang." J.A. 147.
In addition to this testimony, Portillo submitted documents in support of his application for relief, including reports on country and gang conditions in El Salvador, as well as statements from family members and friends. However, Portillo conceded that his mother is the only other person with first-hand knowledge of his treatment by MS-13.
The immigration judge found Portillo and his sister to be credible witnesses. Yet, she denied his application for asylum, withholding of removal and protection under the CAT.
Regarding the requirements for asylum, the IJ first found that, although Portillo was threatened and beaten by members of MS-13, his "injuries did not require any medical attention and based on that, ... the level of harm that [Portillo] experienced does not rise to the level of persecution." J.A. 79. And while Paola testified "that she received death threats towards her mother and brother," the IJ declined to find "that the death threats the sister received could be imputed" to Portillo. J.A. 80. However, the IJ noted that if the BIA determined that the threats could be imputed to Portillo, he may be able to establish past persecution "since death threats constitute harm rising to the level of persecution." J.A. 80 (citing Hernandez-Avalos v. Lynch , 784 F.3d 944 (4th Cir. 2015) ).
The IJ also found that "the harm [Portillo] suffered did not occur at the hands of the El Salvadoran government or an agent that the government is unwilling or unable to control." J.A. 80. She emphasized that Portillo did not report his treatment by MS-13 to the police, and that, based on reports submitted by the government, El Salvador has taken steps to address gang activity and police corruption.
Echoing her past-persecution analysis, the IJ also ruled that Portillo did not otherwise establish a well-founded fear of future persecution. Accordingly, she concluded Portillo failed to establish his eligibility for asylum. And because Portillo failed to meet "the lower asylum standard," he "necessarily fail[ed] to satisfy the more stringent standard of withholding of removal." J.A. 81.
As to Portillo's CAT claim, the IJ held that Portillo did not "provide[ ] evidence that shows that it is more likely than not that he specifically would be tortured in the future in El Salvador with the consent or acquiescence of the government." J.A. 81. As a result, she denied his request for relief under the CAT.1
Portillo timely appealed the IJ's...
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