Recent Hague Convention District Court Cases - Hernandez v Erazo, 2023 WL 2775165 (W.D. Texas 2023)

 [Mexico][Petition granted] [Consent defense rejected][Well Settled defense rejected]

In Hernandez v Erazo, 2023 WL 2775165 (W.D. Texas 2023) Petitioner Luis Ortiz Hernandez (“Ortiz”) initiated this action to secure the return of his son, M.S.O. who was allegedly removed from Mexico without Petitioner’s consent or acquiescence by the Child’s mother, Respondent Ruth Sarai Erazo on October 9, 2021. The Child was born in Tequixquiac, Mexico on January 25, 2021, and, until his removal to the United States, lived with his parents, who never married, at Petitioner’s family residence in Mexico City, Mexico. The petitioner established a prima facie case.

 

Erazo filed an answer asserting that the Child was not wrongfully removed because Petitioner had consented to, and even helped organize—M.S.O.’s removal to the United States. According to Erazo, she and Ortiz had arranged to move their family to the United States, with Erazo and M.S.O. crossing into the United States first, to be followed by Ortiz. Erazo’s answer further asserts that the Child should not be returned to Mexico because the Petition was not filed in this case until over a year after M.S.O.’s removal and the Child is now well-settled in his new environment.

 

Based on the parties’ testimony at trial, the Court concluded that Ortiz did consent to M.S.O.’s removal from Mexico but that removal was conditioned on Ortiz’s ability to rejoin his family in the United States or, at the very least, on his continued relationship with Erazo. See Baxter, 423 F.3d at 373 (“Mrs. Baxter’s decision [to end her marriage and remain in Delaware] represented a change in plan from what she and Mr. Baxter had agreed upon before departing to Delaware. It was clear error for the District Court to find otherwise.”); Cocom v. Timofeev, No. 2:18-cv-002247, 2019 WL 76773, at *13–14 (D.S.C. Jan. 2, 2019) (condition that respondent file a petition on behalf of petitioner for immigration to the United States after respondent’s move to the United States was not met); Chumachenko v. Belan, No. 18-CV-9728-LTS, 2018 WL 6437062, at *8 (S.D.N.Y. Dec. 7, 2018) (evidence established that parties never shared an intent to permanently move the children to the United States outside the confines of an intact family unit. Respondent and his mother’s self-serving, inconsistent testimony were not sufficient to establish consent defense). Erazo  failed to establish by a preponderance of the evidence that Ortiz clearly and unequivocally intended for M.S.O. to remain in the United States regardless of his relationship with Erazo or his ability to join Erazo and M.S.O. in Texas. Accordingly, Erazo failed to establish the affirmative defense of consent.

 

Erazo argued that the Petition was not filed in this case until over a year after M.S.O.’s removal, and that M.S.O. should remain in the United States because he was now well settled in his new environment. In determining whether a wrongfully-removed child is well-settled in United States, and thus may not be returned to his or her country of habitual residence, courts in the Fifth Circuit consider: (1) the child’s age; (2) stability and duration of the child’s residence in new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child’s participation in community or extracurricular activities; (6) respondent’s employment and financial stability; and (7) the immigration status of respondent and child. Hernandez v. Garcia Pena, 820 F.3d 782, 788 (5th Cir. 2016). With respect to the last factor, the Fifth Circuit has joined the Second and Ninth Circuits in concluding that immigration status is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test: Like the other factors ... immigration status should not be considered in the abstract. In other words, proper application of the framework does not assign automatic treatment to any particular type of immigration status. Instead, we agree with the Second Circuit that an individualized, fact-specific inquiry is necessary in every case. Id. at 788–89 (citing Lozano v. Alvarez, 697 F.3d 41, 53 (2d Cir. 2012) and In re B. Del C.S.B., 559 F.3d 999, 1008 (9th Cir.2009)).

 

Giving due consideration to immigration status and the other relevant factors listed above, the Court concluded that M.S.O. had not formed significant connections to his new environment. First, the Court considered the child’s age.M.S.O. was barely two years old. In other words, he was a very young child not able to form the same level of attachments and connections to a new environment as an older child. Although M.S.O.’s residence in his mother’s apartment was stable, he lived in San Antonio less than a year. M.S.O. attends daycare six days a week while she is working. The fifth factor—the Child’s participation in community activities—does not appear to be relevant here. Erazo testified that she has been employed in construction clean-up since the third day after her arrival in San Antonio and works six days a week. Finally, the seventh factor to consider is immigration status. Erazo’s immigration status is uncertain.  Balancing the above factors, the Court was not persuaded that M.S.O. has formed significant connections to his new environment and thus concluded that he was not well-settled under the Convention such that he should remain in the United States.