35 Years of Fairfax CASA: Creating a Child Standard in Asylum Cases
Like many who seek asylum, Hernan Portillo-Flores left his home seeking safety. However, unlike some, Hernan was only a child. At 15, Hernan entered the United States alone, escaping a life riddled with uncertainty and danger. His family’s world had changed drastically when a lead gang member of MS-13 took a liking to Hernan’s sister, Paola, who was only in 9th grade.
After being followed and threatened by MS-13 gang members on multiple occasions, Paola was sent to the United States to live with an uncle in Virginia, while her brother remained with their mother in El Salvador. Hernan and Paola’s mother didn’t go to the police: two years earlier, their stepfather was found beaten, shot in the head and dumped in a well, and the police didn’t investigate his killing. After gang members noticed her disappearance, they questioned Hernan about Paola’s whereabouts. They threatened him and beat him, showing up with knives and guns. After a brutal attack, which left Hernan fearing for his life, Hernan’s mother sent him to live with a relative far from their home. Later, the police arrived at their home with MS-13 gang members in tow, asking for Hernan. It became clear to the family that Hernan’s life was in danger, and that even the police were corrupt and working with MS-13.
At that point, Hernan’s mother made the difficult decision to send Hernan to the United States. Hernan crossed the border into the United States and was met by U.S. Customs and Border Patrol Agents. Hernan With no relatives able to take custody of Hernan, he entered the child welfare system, and Fairfax CASA received Hernan’s case. The CASA and CASA Supervisor supported and advocated for Hernan for years, staying with him once he turned 18 and entered Fostering Futures.
Soon after turning 18, Hernan was arrested and detained by U.S. Immigration and Customs Enforcement and set to be deported back to El Salvador. Priscilla Jahanian, the CASA Supervisor on his case, was beside herself. Worried about the danger and brutality Hernan faced if he was returned to El Salvador, she consulted Executive Director Darcy Hubbard. They knew that deportation would likely result in Hernan’s death. A new immigration firm had recently moved in upstairs from the CASA office, so together, they walked upstairs and asked to speak to an attorney. Ben Osorio, a partner in Murray Osorio, PLLC, allowed them to come into his office and they shared Hernan’s story with him. Understanding the severity of the situation, Ben promised to look into the Hernan’s case. Within a week, Ben offered to serve as Hernan’s lawyer.
“I’d been looking for a case similar to this one. I thought it’d be a favorable finding with a perfect fact pattern. Bad facts make bad laws. Hernan had a fact pattern that supported the child perspective of asylum,” said Ben, about what led him to take the case.
Despite the support Hernan found in Ben, his asylum claim was denied. The court held there was insufficient evidence of “persecution,” a required element in an asylum claim. Hernan was deported and Ben ensured that he was placed in a “safe house” in Mexico, while he continued the fight to get Hernan back to the United States. When the Board of Immigration Appeals (BIA) affirmed the previous judge’s ruling, Ben continued to fight for Hernan. He brought the case before the U.S. Court of Appeals for the Fourth Circuit. The case was denied yet again. Osorio requested an en banc hearing—which is alegal proceeding where all the judges of an appellate court hear and decide a case together, rather than the typical smaller panel of judges that usually presides over appeals. Ben enlisted an incredible team of attorneys, who successfully pled Hernan’s case. The court vacated BIA decision and remanded the case, criticizing the BIA and the Immigration Judge for disregarding crucial evidence, failing to explain their decisions thoroughly, and contradicting case law.
Hernan’s case is incredibly important because The Fourth Circuit established a Child Standard for Persecution, holding that the harm faced by a child may be less severe than that experienced by an adult but still qualify as persecution. This recognition aligns with the understanding that children are more vulnerable. The court also ruled that asylum applicants, especially children, are not required to report persecution to the police, particularly in countries where law enforcement may not provide adequate protection from gangs, and the court recognized that even indirect death threats made against the petitioner could constitute persecution. “It’s cited all the time,” Ben explained, “I would say 80% of decisions I see, the judges are reciting [this case]. This had a huge impact—even for all cases of asylum—not just for kids.”
Despite numerous setbacks, Hernan’s case had a significant impact on asylum law in the U.S. Court of Appeals for the Fourth Circuit (Maryland, Virginia, West Virginia, North Carolina, and South Carolina). This decision broadens protections for vulnerable asylum seekers, particularly children fleeing gang violence, and holds that immigration courts must provide a more thorough and reasoned analysis when denying asylum claims. While courts in other circuits are not required to follow the Fourth Circuit’s decision, they might consider it when handling similar cases, especially if the reasoning is compelling.
The appeal has presented a new opportunity for Hernan’s case to be reviewed—and not just for him. The decision changed the way asylum cases are being evaluated, giving others in similar situations a better opportunity to seek protection against persecution. When asked how Hernan’s case has changed case law for children seeking asylum, Ben replied, “It’s created a bigger shield. I think it’s great in terms of changing the law and winning more asylum cases. It’s overall more beneficial to those seeking asylum.”