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Friday, September 15, 2017

Ischiu v Garcia, 2017 WL 3500403 (D. Maryland, 2017)[Guatemala][Grave Risk of Harm][Petition denied]

          In Ischiu v Garcia, 2017 WL 3500403 (D. Maryland, 2017) Wiliam Estuardo Luis Ischiu (“Luis Ischiu”) filed a petition which alleged that his wife, Nely del Rosario Gomez Garcia (“Gomez Garcia”), wrongfully removed their minor child, W.M.L.G., from their native country of Guatemala to the United States. The Petition was denied.
       The district court found that Gomez Garcia met Luis Ischiu when she was 17 years old. They were married in 2009, when she was 19 and Luis Ischiu was 29. Gomez Garcia went to reside in a family compound with Luis Ischiu, his parents, and Luis Ischiu’s brothers, their wives, and their children. Gomez Garcia testified that from the time that she married Luis Ischiu and moved into the family compound, his attitude toward her changed. He did not allow her to sleep with him, except when he wanted to have sex with her, and instead required her to sleep in the living room. Her mother-in-law required her to wear the clothes of someone from the Mayan indigenous group to which Luis Ischiu belonged and did not allow her to wear the clothes that she, a member of the Ladina ethnic group, used to wear. Although all of the wives of Luis Ischiu’s brothers were also Ladina, Gomez Garcia’s mother-in-law disfavored W.M.L.G. because he was light-skinned and looked like Gomez Garcia. Gomez Garcia was required to work for the family cable business seven days a week, with a half day on Sunday; she had to attend church during the remaining half day. She brought W.M.L.G. to work with her and carried him on her back. Although she was technically paid a below minimum wage amount of 500 quetzales per month, the equivalent of $70, the money was spent by others on household needs, so she did not compile any savings of her own.  In 2016, Gomez Garcia was sexually assaulted by members of her husband’s family, specifically, Luis Ischiu’s father and brother. On multiple occasions, Luis Ischiu’s father tried to have sexual contact with her. Specifically, when no other adults were present, he went into the kitchen, came up to Gomez Garcia, held her tight to him, and touched her private parts. Luis Ischiu’s brother Carlos also sexually molested her in the same manner. “When Gomez Garcia told Luis Ischiu about the sexual abuse, he did nothing to defend her and instead threatened her that she must not speak to anyone about it. At other times, Luis Ischiu physically assaulted her. On one occasion, she discovered that he was having an affair and confronted him. He then hit her on her back, knocking her to the ground. He told her that his activities were none of her business and that her role was to be his servant and to take care of their son. In another incident, when she asked him about a message on his cell phone from another woman, he kicked her and she was unable to defend herself. Another time, Luis Ischiu struck Gomez Garcia in the face while W.M.L.G. watched. Both Luis Ischiu and his brothers verbally abused Gomez Garcia with profane language, including in front of W.M.L.G. According to Gomez Garcia, W.M.L.G. was aware when Luis Ischiu assaulted her. She testified that as a result of that exposure, and his disfavored treatment within the family compound, he generally appeared sad and troubled. Although Garcia Gomez believed that everyone in the household knew she was being assaulted, no one in the family came to her aid. She had nowhere else to go. Gomez Garcia’s parents and other relatives lived a 30-minute drive away, and she did not have access to a car. On one of the few occasions when Gomez Garcia saw her relatives, her sister observed that she had bruises on her arms. On multiple occasions, Luis Ischiu and his family members threatened to kill her if she tried to leave the home and to take W.M.L.G. away. On two occasions, Gomez Garcia attempted to commit suicide. The first time, she drank rat poison. When she told Luis Ischiu, he offered to take her to the doctor, but she declined because she had already vomited the poison. The second time, she tried to overdose on pills. He suggested that she drink a lot of water and try to vomit. After she vomited, he offered to take her to the doctor, but she again declined. Other than searching the house for poison and pills, Luis Ischiu took no steps to prevent any future suicide attempts. Neither he nor any of the members of his family sought any medical or mental health treatment for Gomez Garcia as a result of these suicide attempts. Rather, Luis Ischiu’s reaction was that she must not love him and W.M.L.G. if she wanted to kill herself. When she finally gathered up the courage to leave in November 2016, she fled to her parents’ home. She then applied for and received a Security Measures Order against Luis Ischiu from a Guatemalan court. The November 23, 2016 Order, effective for a period of six months, prohibited Luis Ischiu from contacting Gomez Garcia at home or work and from harassing or intimidating any member of her family; ordered that he pay provisional child support; and provisionally suspended Luis Ischiu’s guardianship and custody rights over W.M.L.G. The Order also warned that Luis Ischiu would be charged with disobedience if he continued to attack and mistreat Gomez Garcia or her family.

          Although Luis Ischiu was given two days to respond to the Order and did so, the court left the Order in place without alteration. Shortly after the Security Measures Order was issued, Luis Ischiu, his father, mother, and brothers went to Gomez Garcia’s parents’ home in search of Gomez Garcia and W.M.L.G. When Gomez Garcia’s father refused to allow them to enter, Luis Ischiu shouted that he would look for her wherever she went and would kill her or her family if they did not tell them where she was. Gomez Garcia and her family then gathered and decided that they should send Gomez Garcia and W.M.L.G. to the United States, where they had arranged through extended family for a place for them to stay. They borrowed the equivalent of $4,000, secured by a lien on their farming plot, and she and W.M.L.G. traveled by bus through Mexico to the United States. Gomez Garcia requested asylum and was paroled into the United States. She now resided in Maryland and had an upcoming asylum hearing date in November 2017. Meanwhile, on May 23, 2017, the Guatemalan court extended the Security Measures Order for another six months. Then on July 7, 2017, the court terminated the order as to Gomez Garcia and W.M.L.G. because they were now in the United States, but left the protection order in place as to Gomez Garcia’s family in Guatemala.

          Since arriving in the United States, Gomez Garcia was evaluated by Dr. Lorna Sanchez, a clinical psychologist with a specialty in cross-cultural and bilingual clinical psychology. Dr. Sanchez has diagnosed Gomez Garcia with post-traumatic stress disorder (“PTSD”) and clinical depression with anxiety, with the stressors in her life including abuse by her husband and the sexual abuse by her husband’s relatives, as well as an incident during which she was raped by a relative at age nine. Based on the testing, Dr. Sanchez did not believe that Gomez Garcia is fabricating the abuse and concludes that Gomez Garcia fled to the United States out of fear for her life and the need to survive. Since arriving in the United States, her risk for suicide has diminished. Dr. Sanchez concluded, however, that if forced to return to Guatemala, Gomez Garcia would be in a state of terror and fearful for her life, which would cause serious deterioration in her mental state. Dr. Sanchez believed that under those circumstances, the distress of his mother would affect W.M.L.G., because psychological distress experienced by the primary caregiver always has a corresponding impact on the child. As a result, W.M.L.G. could develop PTSD, depression, and anxiety, and he could suffer developmental delays.

          In his in camera interview with the Court W.M.LG., who was six and a half years old, was reserved but displayed sufficient intelligence and maturity to understand the Court’s questions and to provide responsive answers candidly, without signs that he had been coached. He did not, however, appear to be able to provide as much detail in his answers as an older child without a language barrier would have been able to provide. W.M.L.G expressed a preference to be with his mother, who treated him well, and stated that he did not miss living in Guatemala and would not want to live with his father. He described his father as bad for causing harm to his mother. He has heard his father verbally abuse his mother, using terms like “piece of shit,” and he has witnessed his father physically assault her, on one occasion, when his father “smashed” his mother’s face. W.M.L.G. said his parents fought every day in Guatemala such that he did not feel safe living in Guatemala. His uncles, Luis Ischiu’s brothers, also argued with and used “bad words” towards Gomez Garcia. W.M.L.G. also stated that he did not like living in the family compound and that his grandmother, Luis Ischiu’s mother, treated his cousins better than she treated him, such as when she would go out with the other children but leave him behind. He reported that his cousins would sometimes fight with him. W.M.L.G. told the Court that he would be afraid that his parents would fight and that his mother would get hurt if they were all together again. He also expressed a belief that if he returned to Guatemala with his mother, his father and grandfather would come to get him and make him live with them.

          The district court found that the petitioner established a prima facie case for return.  

          The Court pointed out that where wrongful removal has been established, under Article 13(b) of the Hague Convention, the Court “is not bound to order the return of the child” if the respondent can establish by clear and convincing evidence that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention art. 13(b); 22 U.S.C. § 9003(e) (2) (A).  Domestic abuse can provide a basis for a finding of grave risk. Courts have found grave risk based on domestic abuse of the spouse in the presence of the children, even without abuse directed at the children themselves. In Walsh, the court found grave risk based on a long history of the father physically beating the mother, including in front of the children, as well as a history of fighting others, threatening to kill another, and a history of violating court orders. Walsh, 221 F.3d at 211, 219-20. In Baran v. Beaty, 526 F.3d 1340, 1345-46 (11th Cir. 2008), the United States Court of Appeals for the Eleventh Circuit found grave risk where the father had verbally and physically abused the mother in the child’s presence, and threatened to harm the child, but did not physically abuse the child. In such cases, courts have noted the psychological harm inflicted on the child witnessing the abuse of the parent and the increased risk that the child would be similarly abused. See, e.g., Walsh, 221 F.3d at 220 (“[C]hildren are at an increased risk of physical and psychological injury themselves when they are in contact with a spousal abuser.”).

          The assessment of the evidence relating to grave risk depends significantly on the credibility of the witnesses. Having heard and observed her testimony, the Court found Gomez Garcia to be highly credible. She expressed sincere fear of Luis Ischiu and his family. Notably, many key parts of her testimony were unrebutted, including her testimony that Luis Ischiu’s brother Carlos sexually assaulted her; that when she reported the sexual abuse by Luis Ischiu’s father and brother, Luis Ischiu took no action and threatened her into silence; that Luis Ischiu and others threatened to kill her if she fled the compound; and that she fears the family because Carlos Luis Ischiu is a member of a gang in Guatemala. Gomez Garcia’s testimony was corroborated by the expert testimony of Dr. Sanchez, who found no sign that Gomez Garcia was fabricating the abuse and diagnosed her with PTSD, depression, and anxiety caused by the abuse; the testimony of her sister, who observed bruises on Gomez Garcia; the interview of W.M.L.G., who was present for physical and verbal abuse; and the fact that the Guatemalan court not only issued the Security Measures Order, but renewed it in full in May 2017 and affirmed it again in July 2017 with respect to Gomez Garcia’s family.

          The Court did not find Luis Ischiu and his family members to be credible witnesses. Luis Ischiu made several inconsistent if not false statements to the Court. His denials of physically abusing his wife rang hollow when he acknowledged that he would hit his wife if he discovered that she was having an affair with another man. His demeanor was also troubling. The Court concluded that Gomez Garcia has presented clear and convincing evidence that she was subjected to physical and sexual abuse by Luis Ischiu and his family, and that as a result there would be a grave risk of psychological harm to W.M.L.G., and he would be placed in an intolerable situation, if he were returned to Guatemala. Gomez Garcia was the victim of abuse at the hands of not only her husband, but also members of his family. Most egregiously, her father-in-law Alberto Luis Escobar and her husband’s brother Carlos Luis Ischiu sexually abused her on multiple occasions. Specifically, when alone with her, Alberto Luis Escobar pulled her tight and grabbed her “private parts.” Carlos Luis Ischiu engaged in similar activity. When Gomez Garcia reported the molestation to her husband, Luis Ischiu did nothing to stop it but instead warned her not to speak of it to anyone else. Notably, the vast majority of this testimony was undisputed. Although Carlos Luis Ischiu was listed as a witness, he did not testify. And Luis Ischiu never disputed Gomez Garcia’s testimony that she had told him about the sexual abuse by his father and brother, or that he had refused to do anything to stop it. In addition to this sexual abuse by Luis Ischiu’s relatives, Gomez Garcia also suffered physical abuse at the hands of her husband. On at least three occasions, Gomez Garcia physically assaulted her, attacks which included smashing her in the face and knocking her to the ground. Her sister later observed bruises on Gomez Garcia. She was also verbally abused by her husband and his brothers. Faced with such abuse, Gomez Garcia had no place to turn. No one in the family compound came to her aid. According to Gomez Garcia, the wives of Luis Ischiu’s brothers also suffered abuse and “live in fear.” Her parents lived 30 minutes away by car, and she had no access to a vehicle. Her husband and his family members also threatened, on multiple occasions, to kill her if she fled the family compound, and she gave unrebutted testimony that Carlos Luis Ischiu is a member of a gang. When she then attempted suicide on two occasions, Luis Ischiu did nothing other than offer to take her to the doctor and look for poison or pills in the house. There was no effort by anyone in the family to get help for Gomez Garcia to prevent another attempt. When she finally fled and obtained the Security Measures Order, Luis Ischiu immediately violated that order when, accompanied by his parents and brother, he appeared at the home of Gomez Garcia’s parents, demanded to see Gomez Garcia and W.M.L.G., and threatened to find her and kill her.

          Significantly, W.M.L.G. was aware of the abuse directed at his mother. He witnessed at least one of these physical attacks against his mother and heard verbal, profane abuse by his father and uncles against his mother. He was aware of the threat that, if he were returned to his mother’s family home in Guatemala, his father and grandfather would likely come to take him away. Dr. Sanchez concluded that Gomez Garcia had PTSD and clinical depression with anxiety as a result of the abuse, and that if forced to return to Guatemala, she would be in a state of terror and fear for her life. According to Dr. Sanchez, the likely deterioration in Gomez Garcia’s mental state would put W.M.L.G. at risk for PTSD, depression, anxiety, and even developmental delay, because psychological stress on the primary caregiver always has a corresponding impact on the child.

          The combination of physical abuse by Luis Ischiu, sexual abuse by his father and brother, verbal abuse, and multiple, specific threats to kill Garcia Gomez, coupled with W.M.L.G.’s awareness and witnessing of some of the abuse, established a similar grave risk of harm to W.M.L.G. In particular, the perverse sexual abuse by Gomez Garcia’s father-in-law and brother-in-law, implicitly condoned by her husband, presented a unique harm not present in other cases. The repeated threats to kill Gomez Garcia also heighten the risk. See Gomez v. Fuenmayor, 812 F.3d 1005, 1013 (11th Cir. 2016) (holding that a pattern of death threats and violence again a father, including a shooting, established a grave risk of harm even though the threats were not specifically directed against the child). Finally, the fact that Luis Ischiu and his family were undeterred by a Guatemalan restraining order and brazenly went to Gomez Garcia’s parents’ home to find her and threaten to kill her raises serious concerns whether both Gomez Garcia and W.M.L.G. would be safe in Guatemala. See Walsh, 221 F.3d at 221 (considering the father’s history of violating court orders as a factor in concluding that return of the child would impose a grave risk of harm). Between the potential psychological harm to W.M.L.G. that would derive from Gomez Garcia’s legitimate fear for her safety if they were to return to Guatemala, and the physical risk that W.M.L.G. would be caught up in potential violence directed at his mother, the Court found that returning W.M.L.G. to Guatemala would create a grave risk of harm to the child and place him in an intolerable situation.

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