PORTILLO FLORES v. GARLAND

No. 19-1591.

3 F.4th 615 (2021)

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.

United States Court of Appeals, Fourth Circuit.

Decided: June 29, 2021.


Attorney(s) appearing for the Case

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.

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

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...

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