“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
Trump Third Circuit judge David Porter cast the deciding vote not to consider an immigrant’s application for asylum even though the government had failed to notify him of his opportunity to seek such relief. The July 2025 decision was in Real v Attorney General.
What happened in this case?
Roger Esteban Real lived in Colombia with his wife and son. He participated in a number of public protests and as a result, the police “arrested, detained and beat him.”
In 2022, although they did not speak English, Real and his family fled to the United States. He “surrendered to immigration authorities shortly after he arrived.” US officials took his phone, gave him a different cell phone, and released him and his family, with instructions to “check in” using the phone they gave him and show up at a court hearing in 2025. They did not ask him if he was afraid to return to Colombia or wanted asylum or issue any formal notice to him.
Around a year later, after the ordinary deadline for applying for asylum had passed, Real was arrested relating to a domestic dispute and was issued a Notice to Appear claiming he should be removed from the US. Real then applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
An immigration judge (IJ) found that Real’s mistreatment in Colombia “rose to the level of persecution” and granted him withholding from removal, but denied his application for asylum because it was too late. The Board of Immigration Appeals agreed. Accordingly, he took his case to the Third Circuit.
How did Trump judge Porter and the Third Circuit majority rule and why is it harmful?
Trump judge Porter cast the deciding vote in a 2-1 ruling by George W Bush judge Thomas Hardiman against Real and upheld the decision to deny him asylum. The majority maintained that despite the government’s failure to advise him of the one-year deadline, the fact that he did not comply with that requirement meant that his claim should be rejected. They specifically decided they did not have jurisdiction to decide his claim that “extraordinary circumstances” justified his failure to act within the one-year deadline.
Judge Michael Fisher, who was also nominated by President George W Bush, firmly dissented. He explained that recent Supreme Court precedent made clear that appeals courts do have jurisdiction to consider whether “extraordinary circumstances” warrant a later asylum application under federal immigration statutes. Such circumstances apply, he wrote, when the government “has misled a petitioner about what course of action to follow,” which is “exactly what happened here.” Fisher wrote that Real had surrendered himself, “complied” with all instructions, and “there were no red flags that would alert even English-speaking non-citizens that they needed to take further action” before the scheduled 2025 hearing. In short, the government “lulled Real into inaction.” These clearly constitute “extraordinary circumstances” under the immigration law, Fisher concluded, and Real should be able to present his case for asylum to an IJ.
This decision clearly harms Roger Real’s effort to obtain asylum and prevent dangerous deportation to Colombia. It also makes it harder for other immigrants to demonstrate “extraordinary circumstances” under immigration law, particularly in the Third Circuit, which includes Pennsylvania, New Jersey and Delaware. The ruling also illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.