Empathy for the Vulnerable? The Fourth Circuit's Internal Struggle to Grapple With the Trump Administration's Immigration Policies: Part I
West Virginia Law Review Online, Vol. 123
16 Pages Posted: 8 Mar 2021 Last revised: 12 Apr 2021
Date Written: February 26, 2021
The Trump Administration’s immigration policies consistently targeted immigrants, refugees, children, victims of gang violence, and individuals classified as “public charges.” For example, one of former President Trump’s first Executive Orders increased detention of immigrants at the border, including women and children, and limited access to asylum nationwide by expanding expedited removal. Another Order issued the very same day cut federal funding to “sanctuary cities” —jurisdictions that refuse to cooperate with federal authorities in enforcing immigration laws for the sake of protecting immigrant communities. And still another originally suspended the issuance of visas to nationals from Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen—the so-called “Muslim Travel Ban”; shut down the U.S. refugee program for 120 days; slashed the number of refugees admissible to the U.S. in FY 2017 in half; and halted the resettlement of Syrian refugees indefinitely. Further, in 2018, former U.S. Attorney General Jeff Sessions overruled a 2016 Board of Immigration Appeals (“BIA”) decision, stating that judges generally cannot consider domestic and gang violence as grounds for asylum. And in 2020, the ACLU reported that over 600 children have yet to be reunited with their parents after being subject to a policy of separation at the U.S. border.
Needless to say, appellate courts have become embroiled in disputes over these contentious policy changes. This two-part series of articles reviews two such disputes. Part I describes and analyzes Portillo-Flores v. Barr, a case in which the Fourth Circuit, over Judge Stephanie Thacker’s dissent, upheld the BIA’s denial of asylum to a Salvadorian asylum seeker who, as a child, was beaten nearly to death by MS-13 because Portillo-Flores’s sister fled the country to avoid becoming a gang leader’s girlfriend. Part II analyzes Casa de Maryland v. Trump, a case that upheld the Trump Administration’s exceedingly broad definition of the statutory term “public charge,” over Judge Robert B. King’s dissent. Both cases showcase the extent to which the Fourth Circuit and other reviewing courts are grappling with the Trump Administration’s disdain for some of the most vulnerable members of the human race—children, refugees, asylum seekers, and the poor.
Keywords: Immigration, Donald J. Trump, Mara Salvatrucha, MS-13, Portillo-Flores v. Barr, asylum, removal, CAT relief
JEL Classification: K37
Suggested Citation: Suggested Citation