In Velasquez v. Funes de Velasquez, 2015 WL 1565142 [E.D. Virginia ] [El Salvador] [Habitual Residence] [Grave Risk of Harm]

         In Velasquez v. Funes de Velasquez, 2015 WL 1565142 [E.D. Virginia ] on December 11, 2014, Oscar Edgardo Velasquez, an El Salvadorian citizen filed suit against his estranged wife Maria Teresa Funes de Velasquez, also an El Salvadorian citizen under the International Child Abduction Remedies Act. 

         On March 3, 2006, Oscar and Maria were married in El Salvador. Maria gave birth to their eldest daughter, M.D.F., approximately one year later on March 21, 2007 in San Salvador, El Salvador. Subsequently, Maria gave birth to their youngest daughter, M.A.F., on March 6, 2009 in San Salvador, El Salvador. At the time Oscar filed the Petition, the daughters were seven years old and five years old, respectively. Since his retirement in 2000 he had not worked. He invested in property, including property in the United States. Prior to November of 2013, Oscar and Maria lived with the daughters in their family residence in Santa Elena, El Salvador. The daughters were enrolled in the “Profesor Lisandro Arevalo” Educational Complex in Santa Elena, El Salvador; as of April of 2014, the eldest daughter was enrolled in second grade, while the youngest daughter was enrolled in kindergarten. 

          The court observed that the United States Department of State has identified El Salvador as one of the most violent countries in the world.  (“There are no areas within the city of San Salvador (or the country of El Salvador) that are deemed free of violent crime.”) Crime in El Salvador is unpredictable, gang-centric, and directed against both known victims and targets of opportunity. Extortion is “a very common and effective criminal enterprise” in El Salvador. “Recent progress in the reductions of homicides has not been accompanied by a significant reduction in the extortion that often leads to other violent crimes.” To combat the high incidence of extortion, in 2006, the police department formed an Anti–Extortion Task Force. On February 25, 2011, Oscar and Maria received a telephone call at the family residence. The caller attempted to extort money from Oscar by threatening to kidnap or otherwise harm Maria and their daughters. Later that day, Oscar reported this extortion and threat of violence to the Anti–Extortion Task Force of the National Civil Police Department. Three days after the filing of this report, on February 28, 2011, the police and the Attorney General of El Salvador granted “victim status” to Oscar and his family under the Special Law for the Protection of Victims and Witnesses. Under this statutory protection, only investigators, prosecutors, and judges would have access to the family members' personal information. In all administrative and judicial records, because he was a victim of extortion, Oscar would be known by the password “MILTON.”

In the fall of 2011, the family traveled to Kentucky to visit Oscar's brother and Maria's family. Maria testified that they inquired about political asylum during this stay in the United States, due to the violence in El Salvador, and specifically, the threatening telephone call.

         They traveled to the United States again in 2013 to visit family. On or around December 26, 2013, in El Salvador, Maria's sister received a threat from a gang of three people who came to her house while she was preparing to feed the cows. The gang specifically threatened to kill Maria if she ever returned to El Salvador from the United States. Maria's sister reported this threat to the police. Maria's mother contacted Oscar in the United States to tell him about this latest threat. On January 26, 2014, Oscar returned to El Salvador alone, without Maria and the daughters. At the same time, Maria and the daughters briefly stayed with her brother, Oscar Funes, in North Carolina. After a couple weeks in North Carolina, Oscar's nephew Llefren Velasquez picked up Maria and the daughters and drove them back to Manassas, Virginia.

         The parties agreed that one purpose for Oscar's solo trip to El Salvador was to investigate the latest threat made against Maria's life. But Oscar also traveled to El Salvador to retrieve money so that he could purchase a house in the United States upon his return. The court found that between December of 2013 and February of 2014, when visiting relatives on the East Coast, Oscar's statements and conduct reflected his intent to purchase a home and settle his family in the United States.  Oscar voiced  dual intentions of buying a house and immigrating to the United States to others, who testified at trial.  Additionally, Oscar went to the office of immigration attorney Luis Gonzalez in Arlington, Virginia, where Oscar inquired about acquiring an “investor's visa” and that his older daughter from his first marriage was assisting him in acquiring green cards for the family. Oscar admitted that one of the reasons he went back to El Salvador in January of 2014 was to get money to buy a house in the United States. Oscar also acknowledged meeting with an immigration attorney, where he explored the possibility of green cards for himself, Maria, and the daughters. Oscar returned to the United States on February 20, 2014, after he investigated the threat from December.  Notably, Oscar entered the United States without a return flight to El Salvador for himself, Maria, or the daughters. Oscar was reunited with Maria and the daughters at Llefren and Jenny's townhouse in Manassas, Virginia, where they had been staying since their return from North Carolina; indeed, Oscar stayed there as well. The very next day, on February 21, 2014, Oscar and Maria took the daughters to get various immunizations for the purpose of enrolling them in the Prince William, Virginia public schools. Both Oscar and Maria visited the school that the daughters would attend.

          However, only four days later, on February 25, 2014, Oscar booked a nonstop flight from Washington, D.C. to San Salvador for himself, Maria, and the daughters, which was to depart three days later, on February 28, 2014. There was no direct evidence in the record to suggest what prompted Oscar to book this flight. The evidence did show, however, that at some point between February 21, when the daughters were vaccinated, and February 25, when Oscar bought tickets for the flight to El Salvador, Oscar discovered that Maria was involved in a romantic relationship with another man, Stanley Mejia. Subsequently, on February 27, 2014, Maria told Oscar that she and the daughters would not be returning to El Salvador and instead were staying in Manassas, Virginia. The same day, Maria called the police alleging that Oscar was attempting to kidnap the daughters. The next day, Oscar returned to El Salvador alone. Maria and the daughters did not travel back to El Salvador with Oscar on February 28, 2014, but instead, stayed in the United States. Subsequently, in Prince William County, Virginia, the oldest daughter enrolled in elementary school on March 6, 2014, and the youngest daughter enrolled in pre-kindergarten activities on September 2, 2014. The daughters socialized with friends and attended birthday parties on the weekends.  Maria and the daughters attend church on Sundays. Maria's sister lived in Maryland and she had uncles in the area. Maria and the daughters still residde at Llefren and Jenny's house in Manassas, Virginia with their three children and Stanley Mejia.  In January or February of 2015, Maria met with an immigration attorney to discuss and pursue asylum for her and the daughters because she did not want to return to El Salvador due to the threats and instability. Maria  filed for divorce in Prince William County, and Oscar filed for divorce in El Salvador.

          The district court found that Maria's retention of the daughters was not wrongful because the daughters' habitual residence at the time of retention was the United States. Alternatively, even if the Court found in Oscar's favor on the first issue, the Court held that it  would also find that returning the daughters to El Salvador posed a grave risk of physical harm. Accordingly, Oscar's petition was  denied and dismissed. 

The Court concluded that the daughters were habitually resident in the United States immediately prior to their retention under the two-part framework that has been adopted by the Fourth Circuit. Maxwell, 588 F.3d at 251. Because minor children like the daughters “normally lack the material and psychological wherewithal to decide where they will reside,” the Court looks to the shared parental intent of Oscar and Maria as the “persons entitled to fix the place of the child[ren]'s residence.” Mozes, 239 F.3d at 1076 ( As the court in Mozes recognized, in cases such as this where “the persons entitled to fix the child[ren]'s residence no longer agree on where it has been fixed ... [the Court] must determine from all available evidence whether the parent petitioning for return of [the] child[ren] has already agreed to the child[ren]'s taking up habitual residence where it is.” Based on the findings of fact, the Court concluded that this was a case “where the petitioning parent had earlier consented to let the child stay abroad for some period of ambiguous duration ... [and that] despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely.” This finding supported the ultimate conclusion of “a mutual abandonment of the child's prior habitual residence. Oscar and Maria intended to abandon El Salvador and settle in the United States immediately prior to February 27, 2014, the date of retention. First, Oscar and Maria both had employment opportunities in the United States, the new country of residence.Second, even though Oscar had not yet purchased a home in the United States at the time of retention, nor had he sold his home in El Salvador, his actions, when viewed objectively, show that he intended to do so. Third, immediately prior to February 27, 2014, the date of retention, Oscar and Maria's marriage was stable.Fourth, there was no evidence in the record regarding “the retention of close ties to the former country [El Salvador],” or “the storage and shipment of family possessions.” Accordingly, these factors weighed neither in favor of El Salvador or the United States as the country of habitual residence.Fifth, Oscar, Maria, and the daughters had no legal status in the United States immediately prior to February 27, 2014. This weighs against the conclusion that the United States was the country of habitual residence. However, this factor is mitigated by the evidence in the record that shows both Oscar and Maria sought counsel from an immigration attorney regarding their status in the United States, and that Maria has subsequently taken steps to obtain asylum for her and the daughters. Lastly, the home environment in the United States was relatively stable immediately prior to the date of retention. Until Oscar discovered Maria's involvement with another man, the evidence in the record suggested that this home environment for the daughters was stable. This stands in stark contrast to the home environment in El Salvador, which was visited in December of 2013 by an armed gang that threatened the life of Maria and her daughters, should they ever return to El Salvador. Accordingly, this factor also supported a finding of parental intent to settle in the United States. Maxwell, 588 F.3d at 252. Ultimately, the objective evidence in the record, when viewed in light of the factors utilized by the Fourth Circuit, established by a preponderance of the evidence that Oscar and Maria shared parental intent for the daughters to habitually reside in the United States.

The court pointed out that the second question under the Mozes test is “whether there was an actual change in geography coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment.” Maxwell, 588 F.3d at 251. After turning to the objective factors announced in Maxwell, the Court concluded  the daughters had acclimatized to the United States. First, the daughters were  enrolled in Prince William County Public Schools. The daughters had been enrolled in school in the United States for a longer period of time than their enrollment in El Salvadorian schools.The youngest daughter was only eligible to be enrolled in pre-school activities the past fall at the age of five years old. And the eldest daughter was previously enrolled in school in Kentucky around 2011 for a period of time. Conversely, the only evidence of the daughters' schooling in El Salvador was a letter from the school that acknowledged their enrollment as of April of 2014. Thus, the daughters' lengthier period of schooling in the United States supported the conclusion that the daughters had acclimatized to the United States. Second, the daughters participated in social activities in their community and through school. Third, the relative stay of the daughters in the United States was shorter than the time they had spent in El Salvador, which counseled against acclimatization. Lastly, both daughters were still very young, which weighed in favor of their acclimatization to the United States.  There was no evidence in the record about the daughters' familial or societal connections to El Salvador. Conversely, the daughters traveled to the United States at least once per year and had been in the United States close to one and a half years. They were both attending school and learning English. Moreover, Maria and the daughters had extended family in the United States. Thus, the young age of the daughters suggested that they had not yet acclimatized to El Salvador, but instead have started to acclimatize to the United States. The Court found that ordering the daughters return to El Salvador would not be tantamount to returning them home. Instead, ordering such a return would be tantamount to ripping the daughters out of a familial and social environment to which they have started to acclimatize, for the reasons discussed above. The Court therefore found that “there  was an actual change in geography coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment.” Accordingly, the second factor also supported the conclusion that the daughters were habitually resident in the United States at the time of retention. For these reasons, the Court concluded that Maria's retention of the daughters in the United States was not wrongful. 

In the alternative the court found by clear and convincing evidence that the daughters faced a grave risk of exposure to physical harm if the Court were to order their return to El Salvador with Oscar. The Court could not order their return for at least three specific reasons. First, El Salvador is one of the most dangerous and violent countries in the world. Even though homicides have decreased in recent years, extortion has not decreased and is more prevalent than ever. Second, this violence has specifically manifested itself in the form of at least two known threats of physical violence to Oscar's wife and daughters. In the most recent threat of December of 2013, three armed gang members confronted Maria's sister in person, held a machete to her throat, and threatened the life of Maria if she ever returned. This is a specific threat of violence that represents a grave risk of physical harm to Maria and her daughters should they return to El Salvador. Stated differently, it is not merely a possibility, but an actual, physical threat. Third, the Court found that these threats were  credible because Oscar's daughter from a previous marriage was kidnapped and held for ransom over multiple days. This daughter was rescued and brought to safety only after an armed raid by the El Salvadorian military and a $30,000 payment by Oscar. Even though both extortion threats in this case had been reported to the police, there was no evidence in the record that any arrest was made, that either threat was not credible, and that additional threats or kidnap attempts would not happen in the future. The Court was not willing to order the return of two minor children to such a dangerous environment given the grave risk of physical harm they face in the form of extortion and kidnapping.

In re ALC, --- Fed.Appx. ----, Not for publication, 2015 WL 1742347 (C.A.9 (Cal.)) [Sweden] [Habitual Residence]

In re ALC, --- Fed.Appx. ----, Not for publication, 2015 WL 1742347 (C.A.9 (Cal.)) Sarodjiny "Sarah" Carlwig appealed  the decision and order of the district court sending A.L.C. and E.R.S.C., her dual-national American and Swedish children, to Sweden.

The Ninth Circuit affirmed that part of the judgment of the district court that found A.L.C. was a habitual resident of Sweden, where he now resided with his father, Andreas Carlwig. It observed that when a child moves between nations and a parent files a Convention petition revealing a dispute over habitual residence, we first "look for the last shared, settled intent of the parents." Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir.2013).  When an examination of shared intent does not resolve a dispute between two potential habitual residences, a child's newer residence can be found to be the child's habitual residence when "the objective facts point unequivocally" to "the child's relative attachments to the two countries [changing] to the point where requiring return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed," a process known as acclimatization.  Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001). The court is mindful that it must be "slow to infer from contacts with a new country that an earlier habitual residence has been abandoned, both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purpose of the Convention."

It found that when the Carlwig family moved to Sweden in 2012, the Carlwigs abandoned any habitual residence that the family shared in Dubai, A.L.C.'s 2008 birthplace, and they established a regular household together, enrolled A.L.C. in local pre-school, and supported A.L.C.'s participation in soccer, swimming, and martial arts. A.L.C. spent time with his father's relatives and demonstrated fluency in the Swedish language. Over thirteen months, A.L.C.'s circumstances and activities demonstrated that he acclimatized to Sweden and that country became the primary locus of his life. It agreed with the district court that A.L.C. became a habitual resident of Sweden.

  In February 2013, A.L.C. traveled to Los Angeles with his pregnant mother, leaving his father behind in Sweden. During several month in Los Angeles, A.L.C.
did develop contacts in the United States. Ms. Carlwig enrolled A.L.C. in summer camp, pre-school, and extracurricular activities. However, A.L.C.'s contacts developed in the shadow of disagreement between his parents over the trip's purpose. Ms. Carlwig argued that she intended to move permanently to the United States with A.L.C. The district court found that Mr. Carlwig believed the trip's purpose was for Ms. Carlwig to give birth and recover before returning with the children to Sweden. The district court did not err in holding that Mr. Carlwig intended A.L.C.'s trip to last approximately six months. During A.L.C.'s time in the United States, Mr. Carlwig maintained active involvement in his son's life, arranging regular communication with A.L.C. from Sweden, visiting A.L.C. in Los Angeles, and making preparations for A.L.C.'s return to Sweden. There was no evidence in the record of a shared parental intent for A.L.C. to move permanently to the United States and there was significant evidence of Mr. Carlwig actively objecting to A.L.C.'s time in Los Angeles lasting more than six months.

  Without a shared parental intent for a permanent change of habitual residence, the court found that A.L.C.'s contacts and relative attachments in Los Angeles were insufficient to prove unequivocally that he had acclimatized to United States or that his habitual residence in Sweden had been abandoned. The district court was correct to order A.L.C. returned to his habitual residence, Sweden.

  The Court vacated the judgment of the district court that E.R.S.C. was a habitual resident of Sweden. The district court clearly erred in finding E.R.S.C. could be a habitual resident of a nation in which she never resided. It held that it "interpret[s] the expression 'habitual residence' according to the ordinary and natural meaning of the two words it contains." "Habitual residence" describes "a factual state of affairs"
and [we] recognize[d] the obvious truth that "habitual residence cannot be acquired without physical presence." E.R.S.C. had never been to Sweden prior to the execution of the district court's order. The district court's effort to sift through the past intentions of Sarah and Andreas Carlwig to find a moment of settled, shared intent for E.R.S.C. to someday reside in Sweden was erroneous. It rejected the other rationales cited by the district court in deciding E.R.S.C. was a habitual resident of Sweden. The district court's explanations that it would be untenable to split up the siblings for custody determinations and that Mr. Carlwig was employed in Sweden while Ms. Carlwig "is unemployed here in the U.S. and rel[ies] on financial support from [the] Father as well as governmental assistance," because they go to the merits of the custody claims and are not relevant to the Convention's required analysis. See 22 U.S.C. s 9001(b)(4). It held that the  district court clearly erred in finding E.R.S.C. was a habitual resident of Sweden and it vacated its decision.

   The Ninth Circuit agreed with the district court's determination that E.R.S.C. was not a habitual resident of the United States. It observed that a  child's "place of birth is not automatically the child's habitual residence." Holder, 392 F.3d at 1020. The court has found that when "a child is born where the parents have their habitual residence, the child normally should be regarded as a habitual resident of that country."E.R.S.C. was not born into that simple situation. Nor was E.R.S.C.'s habitual residence derived automatically from her mother's location and caregiving. See  Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 379 (8th Cir.1995);  Friedrich v. Friedrich, 983 F.2d 1396, 1401-02 (6th Cir.1993) .    Justifying E.R.S.C.'s habitual residence as the United States based on her contacts in Los Angeles was ineffective as "it is practically impossible for a newborn child, who is entirely dependent on its parents, to acclimatize independent of the immediate home environment." When a child is born under a cloud of disagreement between parents over the child's habitual residence, and a child remains of a tender age in which contacts outside the immediate home cannot practically develop into deep-rooted ties, a child remains without a habitual residence because if an attachment to a State does not exist, it should hardly be invented. The Court found that E.R.S.C.'s nine months as an infant in Los Angeles did not result in E.R.S.C. acquiring habitual residence in the United States when E.R.S.C.'s parents never shared an intent for her to reside in the United States beyond Ms. Carlwig's period of recovery after giving birth.
Thus when Mr. Carlwig filed his Convention petition in February 2014, E.R.S.C. did not have a habitual residence. E.R.S.C.'s retention by her mother in the United States was not wrongful under the Convention and the district court erred in ordering E.R.S.C.'s return to Sweden. Further, E.R.S.C. was not wrongfully retained by her father in Sweden under the Convention now as she was not removed from her country of habitual residence to Sweden.    Because E.R.S.C. had no habitual residence, no further analysis of this matter under the Convention and its implementing legislation was possible, as the Convention does not apply to a child who was never wrongfully removed or retained.

The Curt recognized that while it did have the equitable power to undo the district court's action by issuing a re-return order, see  Chafin v. Chafin, 133 S.Ct. 1017, 1024 (2013), but it declined to do so.
   
   The district court's decision is was affirmed in relation to A.L.C. and vacated in relation to E.R.S.C.