Portillo-Flores v. Garland, No. 19-1591 (4th Cir. 2021)Annotate this Case
On rehearing en banc, the court granted the petition for review of the BIA's decision affirming the IJ's denial of petitioner's claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) and order of removal.
The court concluded that the BIA erred at every step of the asylum analysis. The court explained that both the IJ and BIA legally erred in relying solely on the notion that petitioner's injuries did not require medical attention as grounds to reject petitioner's persecution argument. On remand, the court instructed that the BIA should bear in mind that the harm need not be physical. Where physical harm has occurred, as here, the main question is whether petitioner's mistreatment was of "sufficient severity," keeping in mind that a key difference between persecution and less-severe mistreatment is that the former is systematic while the latter consists of isolated incidents. Furthermore, the agency should also recognize that death threats need not be made directly to the petitioner. The court recognized the commonsense rule and instructed the BIA to apply on remand: Where a petitioner is a child at the time of the alleged persecution, the immigration court must take the child’s age into account in analyzing past persecution and fear of future persecution for purposes of asylum. Therefore, even if petitioner's beatings and the threats made against him would not rise to the level of past persecution for an adult, they may satisfy past persecution for a child. In determining whether petitioner had a well-founded fear of future persecution, the court concluded that the district court erred by conflating the persecution analysis with the nexus analysis. The court further concluded that there is no support whatsoever for the IJ or BIA's conclusion that petitioner has not sufficiently alleged a cognizable protected social group. Reviewing this claim under a substantial evidence standard, the court concluded that a reasonable adjudicator would be compelled to conclude that petitioner's membership in his nuclear family was at least one central reason for the alleged persecution committed on behalf of the gang. Finally, the court concluded that petitioner sufficiently exhausted his governmental control challenge. On the merits, the court concluded that the BIA's cursory analysis was erroneous for two reasons: (1) the agency essentially imposed a per se reporting requirement; and (2) it ignored vital evidence favorable to petitioner.
Because the BIA rested its conclusion as to withholding of removal on its flawed asylum determination, the court vacated the BIA's withholding conclusion as well. Likewise, the IJ and BIA's CAT analyses did not adequately address petitioner's evidence regarding police consent and/or acquiescence. The court vacated the immigration court decisions and remanded for further proceedings.
This opinion or order relates to an opinion or order originally issued on September 2, 2020.