Empathy for the Vulnerable? The Fourth Circuit's Internal Struggle to Grapple With the Trump Administration's Immigration Policies: Part II

West Virginia Law Review Online, Vol. 123

WVU College of Law Research Paper No. 2021-005

13 Pages Posted: 8 Mar 2021 Last revised: 12 Apr 2021

See all articles by Anne Marie Lofaso

Anne Marie Lofaso

West Virginia University - College of Law

Isabella Anderson

West Virginia University College of Law

Anna Filatova

West Virginia University College of Law

Blake Humphrey

West Virginia University College of Law

McKenna Meadows

West Virginia University College of Law

Brice Phillips

West Virginia University College of Law

Date Written: February 26, 2021

Abstract

Part I of this article described and analyzed Portillo-Flores v. Barr, a case in which the Fourth Circuit, over Judge Stephanie Thacker’s dissent, upheld the Board of Immigration Appeals’ (“BIA”) denial of asylum to a Salvadorian asylum seeker who, as a child, was beaten nearly to death by MS-13 because his sister fled the country to avoid becoming a gang leader’s girlfriend. It contends not only that Portillo-Flores is inconsistent with general immigration standards, but also that the Fourth Circuit committed two main legal errors. First, the Fourth Circuit erred in requiring that Portillo-Flores should have reported the persecution to police, even though such a report would have been ineffective or put him in more danger. Second, the Fourth Circuit failed to apply a child-specific standard when evaluating persecution against 14-year-old Portillo-Flores.

Part II of this article addresses a different class of vulnerable persons: the “public charge.” Under the Immigration and Nationality Act (“INA”), “any alien who . . . is likely at any time to become a public charge is inadmissible” to the U.S. “Public charges” cannot receive a visa to travel to the U.S., be granted admission to it, or receive status in it. While vulnerable groups like refugees, asylees, and other individuals admitted to the U.S. on humanitarian grounds are exempt from the public charge rule, 40% of all immigrants that are subject to the rule constitute another, equally vulnerable group: spouses and minor children of U.S. citizens seeking family-sponsored admission. This is the focus of Part II of this article.

Keywords: Immigration, Donald J. Trump, Mara Salvatrucha, MS-13, Portillo-Flores v. Barr, asylum, removal, CAT relief, Casa de Maryland v. Trump

JEL Classification: K37

Suggested Citation

Lofaso, Anne Marie and Anderson, Isabella and Filatova, Anna and Humphrey, Blake and Meadows, McKenna and Phillips, Brice, Empathy for the Vulnerable? The Fourth Circuit's Internal Struggle to Grapple With the Trump Administration's Immigration Policies: Part II (February 26, 2021). West Virginia Law Review Online, Vol. 123, WVU College of Law Research Paper No. 2021-005, Available at SSRN: https://ssrn.com/abstract=3798761

Anne Marie Lofaso (Contact Author)

West Virginia University - College of Law ( email )

PO Box 6130
101 Law Center Drive
Morgantown, WV 26506-6130
United States
304-293-7356 (Phone)
304-293-6891 (Fax)

Isabella Anderson

West Virginia University College of Law

101 Law School Drive
Morgantown, WV 26506
United States

Anna Filatova

West Virginia University College of Law

101 Law School Drive
Morgantown, WV 26506
United States

Blake Humphrey

West Virginia University College of Law

101 Law School Drive
Morgantown, WV 26506
United States

McKenna Meadows

West Virginia University College of Law

101 Law School Drive
Morgantown, WV 26506
United States

Brice Phillips

West Virginia University College of Law

101 Law School Drive
Morgantown, WV 26506
United States

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