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Friday, August 10, 2012

Sanchez v Sanchez, 2012 WL 3204183 (W.D.Tex.) [Mexico] [Grave Risk of Harm] [Well-Settled] [Federal & State Judicial Remedies]



In Sanchez v Sanchez, 2012 WL 3204183 (W.D.Tex.) Petitioner Angelica Lopez Sanchez's and Ramon Gonzalez were the parents of R.G.L. (Born 1998), S.I.G.L.
(Born 1999) and A. S.G.L. (Born 2004). The children were all born in Mexico. Petitioner was a resident of Mexico. From birth until June 9, 2011, the children continuously lived with their mother in Ciudad Juarez, Chihuahua, Mexico. On or about June 9, 2011, the children's aunt, Miriam Lopez Sanchez, took the children from Ciudad Juarez to the El Paso, Texas residence of their uncle, Jose Enrique Lopez Sanchez. Miriam Lopez Sanchez did not have Petitioner's permission to remove the children to Texas. If Miriam did have permission to take the children to Texas, it was only for the purposes of a temporary visit. While in El Paso, Texas, the children resided in several locations, Miriam's home, and the home of someone named Antonio. Despite several requests by the Petitioner, Jose Enrique Lopez Sanchez and Miriam Lopez Sanchez refused to return the children to Petitioner.

Eventually, on or about July 18, 2012, either Jose or Miriam took the children to the Santa Fe International Bridge for the purposes of returning the children. The children were dropped off at the bridge and instructed to walk across to the Mexican border. Petitioner and her boyfriend were on the other side waiting for the children. Rather than walk across the border, the oldest child Ramon decided he did not want to return to Mexico and he "handed" himself and his siblings to U.S. Immigration and Customs Enforcement (ICE) officials. The ICE officials detained the children on the U.S. side of the Santa Fe International Bridge. They were not accompanied by any adult. Rather than return the children to Petitioner, ICE agents were advised that Miriam Lopez Sanchez made allegations that the children were abused by Petitioner's
boyfriend, Arturo Quinonez. ICE officials decided that they could not return the children until the allegations of abuse could be determined. ICE officials later transferred the children from an El Paso facility, to a Brownsville, Texas facility, and later to a U.S. Department of Health and Human Services, Office of Refugee Resettlement (ORR), Division of Unaccompanied Children's Services (DUCS) foster care facility in San Antonio, Texas. The Director of that facility was Asennet Segura.

On June 8, 2012, Petitioner filed her Verified Petition for return in the District Court.
The District Court found that the Republic of Mexico was the children's country of habitual residence prior to June 2011. The children were physically located in Texas. Pursuant to an agreement between the U.S. Office of Refugee Resettlement, located within the U.S. Department of Health and Human Services, and Baptist Child and Family Services (BCFS), the children had been placed in a BCFS foster home. The Respondent, Asennet Segura, was BCFS Executive Director of Residential Programs.

The Department of Homeland Security instituted removal proceedings against
the children. Attorney Lee Teran and the St. Mary's Law School Clinic  entered
appearances as attorneys for the children in those immigration proceedings. On July 6, 2012, the St. Mary's Clinic filed I-589 asylum applications on behalf of the children.
On July 11, 2012, the Refugee and Immigrant Center for Education and Legal
Services (RAICES) through attorney Alexandra Minnaar, filed a Petition in Suit 
Affecting the Parent-Child Relationship in the 438th Judicial District Court of Bexar
County, Texas. In that suit it requested that the state court find "that it is not in [the]
best interests [of the children] to return to their parents' country of nationality, Mexico. The children also request that the [state] court find that reunification with one or both of their parents is not viable due to abuse, abandonment, or neglect, or a similar basis under state law." RAICES had a contractual agreement with the Republic of Mexico's Consulate in San Antonio to provide certain legal services in Texas for its citizens. The Republic of Mexico did not authorized the filing of this state lawsuit and opposed it.

The Young Center for Immigrant Children's Rights at the University of Chicago has sent the Court a letter claiming that it had been appointed by the ORR as the Child Advocate for the three children. They argued that returning the children to Mexico would pose a grave risk of physical and psychological harm because Arturo Quinonez, who it claimed was the children's stepfather was a violent person, beat the mother and the children and that the drug cartel Los Aztecas threatened the family because of Arturo Quinonez. Petitioner testified that she and Arturo were not married. Petitioner claimed that she separated from Arturo and now lived with her father.

The District Court found that the children were wrongfully retained by Respondent. It also found that Respondent had failed to establish that there was a grave risk that the children's return would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation. Advocates for the children argued that the following, either individually or in   combination, would expose the children to physical or psychological harm or otherwise place the child in an intolerable situation: (1) the Petitioner's boyfriend subjected Petitioner to physical domestic abuse by either physically striking her various times a week or is verbally abusive to Petitioner; (2) the Petitioner's mother once saw her daughter's face "black and blue" from hits inflicted by the boyfriend; (3) Petitioner's boyfriend used drugs (marijuana use and ingesting some form of pills for "nerves") in the home; (4) the boyfriend hit the two oldest children with a belt and his hand; (5) the boyfriend required that the children assist him in washing cars and seldom paid them; (6) the boyfriend sold marijuana and may be hiding drugs for cartel members at the home; (7) Ramon's father failed to secure medical treatment on one occasion when Ramon was injured in a vehicle accident. Ramon's mother promptly secured medical attention for him; and (8) Petitioner caused the children to miss school because of financial problems.

The District Court found that Petitioner had been in an on and off relationship with Arturo Quinonez for years. He was convicted in Oklahoma in 1989 and 1997 for assault with a deadly weapon. On October 2, 1998 Shannon Danelle Quinonez secured a divorce from Arturo. The state district court in Oklahoma found that Arturo was "dangerous to the physical well-being of [Shannon] and the minor children and that he should be restrained from harassing, molesting or interfering with the peaceful existence of [Shannon] or the minor children...."

 
The St. Mary's School of Law Center for Legal and Social Justice Immigration and Human Rights Clinic (attorneys Lee Teran, Albert Kauffman, Adriane Meneses) sought leave to intervene on behalf of the three children. The motion stated that the
minor children sought to appear in this action through Alex Hernandez as Next Friend. Alex Hernandez was married to Maria Balderas. Ms. Balderas was Petitioner's sister. Alex Hernandez was not related by blood to the children. Neither he nor any of the attorneys listed above had been appointed by any Texas court as attorneys or guardians at litem for the children. Ms. Balderas testified that she had not authorized anyone to initiate any legal action for the children. Petitioner and the children's father had likewise not authorized Alex Hernandez or any of the attorneys listed above to initiate any legal action on behalf of the children. The Court found that this action ran counter to the objectives set forth in Hague Convention and denied the motion.

The proposed intervenors mentioned above filed a motion to dismiss arguing that the Court lacked jurisdiction Alternatively, they sought dismissal arguing that the
Department of Homeland Security had exclusive legal control of the children pursuant to 8 U.S.C.A. 1232. The Court found that the proposed intervenors had no standing "zone of war, famine, or disease," or in cases of serious abuse or neglect. Respondent provided evidence that there has been a surge of violent activity in Monterrey due to drug cartel activity and that the neighborhood where Petitioner lives is dangerous. This is not sufficient to find that Monterrey is a "zone of war." See Silverman, 338 F.3d at 900-01 (finding that general regional violence in Israel does not establish a "zone of war"); Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1365-66 (finding civil instability and presence of violent   demonstrations in Argentina did not amount to a "grave risk" or "intolerable situation").

The District Court observed that Respondent had to establish that there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. It is not enough to put forward evidence of past acts of domestic abuse or past drug activity in the home. Petitioner testified that she severed her ties with her former boyfriend and moved to a new home. There was testimony that Petitioner previously separated from her boyfriend and reconciled with him, only to fall prey to domestic abuse again. This was a disturbing pattern. Petitioner testified that she understood the children did not want any association with her former boyfriend and that she concluded that her children were more important to her than her relationship with Mr. Quinonez. Neither the children, nor any other interested party, had raised concerns that the children would suffer physical or psychological harm by returning the children to their mother (assuming that Mr. Quinonez was no longer present). The Mexican Government presented evidence that they had an agency similar to the Texas Department of Child Protective Services and can monitor any claims of abuse or neglect. The attempted intervenors' argument that "the country of habitual residence ... may be incapable or unwilling to give the child[ren] adequate protection" must be measured against the Hague Convention goals and deference to a sovereign foreign country.

The attempted intervenors also argued that under Article 13, the two oldest children
attained an age and degree of maturity to opine that they do not wish to be returned to Mexico. The Court considered this argument and met with the two oldest children in chambers. Although bright and well-mannered, the children had just completed fifth and eighth grades. Although they wished to remain in the United States, there was no certainty that the Immigration Court would actually grant any asylum application. The children's preferences were based on animosity towards their mother's boyfriend. They had not expressed to the Court any concern about their mother. They recognized that their financial and comfort level living in San Antonio exceeded what they formerly enjoyed in Ciudad Juarez. They, understandably, did not want to give up their current lifestyle.

The Court that Respondent failed to establish by clear and convincing evidence that there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The age of maturity exception also failed. Respondent also has failed to establish that Article 20 mandate denial of Petitioner's Petition for the return of the children. Petitioner's motion for return of the children was granted. The motion was dismissed for that
reason. It also held that 8 U.S.C. 1232 was not applicable in this case. No one advanced any argument or testimony that the children had been victims of a severe form of trafficking in persons, and there was no credible evidence that the children were at risk of being trafficked upon return to the child's country of nationality or of last habitual residence. Accordingly, in the alternative, the motion to dismiss was denied.

      
Although the Court denied the motions from the proposed intervenors and the
above named attorneys, the Court evaluated the arguments they raised in its decision.
It observed that in Vazquez v. Estrada, 2011 WL 196164 (N.D.Tex. Jan. 19, 2011), the removing parent argued that returning the child to Mexico would expose her to a grave risk of physical harm due to the "spiraling violence and surge in murders
in Monterrey" and because of "specific violent acts that have been committed in the
school [the child] attended in Monterrey and in the neighborhood where Petitioner
resides."The court found that the removing parent failed to establish the exception by
clear and convincing evidence: " Like the other defenses, the grave risk defense must be narrowly construed. The defense was not intended to encompass situations such as the return to a home where money is in short supply or where educational opportunities are more limited. Instead, a grave risk or intolerable situation exists where return of the child would send the child to a "zone of war, famine, or disease," or in cases of serious abuse or neglect. Respondent provided evidence that there has been a surge of violent activity in Monterrey due to drug cartel activity and that the neighborhood where Petitioner lives is dangerous. This is not sufficient to find that Monterrey is a "zone of war." See Silverman, 338 F.3d at 900-01 (finding that general regional violence in Israel does not establish a "zone of war"); Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1365-66 (finding civil instability and presence of violent  demonstrations in Argentina did not amount to a "grave risk" or "intolerable situation").

The District Court observed that Respondent must establish that there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. It is not enough to put forward evidence of past acts of domestic abuse or past drug activity in the home. Petitioner testified that she severed her ties with her former boyfriend and moved to a new home. There was testimony that Petitioner previously separated from her boyfriend and reconciled with him, only to fall prey to domestic abuse again. This was a disturbing  pattern. Petitioner testified that she understood the children did not want any association with her former boyfriend and that she concluded that her children were more important to her than her relationship with Mr. Quinonez. Neither the children, nor any other interested party, had raised concerns that the children would suffer physical or psychological harm by returning the children to their mother (assuming that Mr. Quinonez was no longer present). The Mexican Government presented evidence that they had an agency similar to the Texas Department of Child Protective Services and can monitor any claims of abuse or neglect. The attempted intervenors' argument that "the country of habitual residence ... may be incapable or unwilling to give the child[ren] adequate protection" must be measured against the Hague Convention goals and deference to a sovereign foreign country.

The attempted intervenors also argued that under Article 13, the two oldest children attained an age and degree of maturity to opine that they do not wish to be returned to Mexico. The Court considered this argument and met with the two oldest children in chambers. Although bright and well-mannered, the children had just completed fifth and eighth grades. Although they wished to remain in the United States, there was no certainty that the Immigration Court would actually grant any asylum application. The children's preferences were based on animosity towards their mother's boyfriend. They had not expressed to the Court any concern about their mother. They recognized that their financial and comfort level living in San Antonio exceeded what they formerly enjoyed in Ciudad Juarez. They, understandably, did not want to give up their current lifestyle.

The Court that Respondent failed to establish by clear and convincing evidence that there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The age of maturity exception also failed. Respondent also has failed to establish that Article 20 mandate denial of Petitioner's Petition for the return of the children. Petitioner's motion for return of the children was granted.