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Wednesday, March 21, 2018

Peralta v Garay, 2018 WL 396329 (S.D. Texas, 2018) [El Salvador] [Habitual Residence] [Petition dismissed]

In Peralta v Garay, 2018 WL 396329 (S.D. Texas, 2018) the Court granted the Respondents motion to dismiss the petition for return of the child to El Salvador.

Petitioner Noemy Elizabeth MembreƱo Peralta was the mother of a ten-year-old child, GM. GM’s father, Eli Escobar Garay was not a party to this dispute. The Parents resided in El Salvador. Respondent Guadelupe del Carmen Escobar Garay was GM’s paternal aunt. Respondent resided in the United States. GM was born in El Salvador on January 14, 2007, and lived with Petitioner in El Salvador until 2016. In early 2016, the Parents agreed to leave El Salvador and travel to the United States with GM and Son. The Parents intended for Garay and GM to travel separately from Petitioner and Son. On approximately March 14, 2016, Garay and GM left El Salvador and traveled to the United States. Approximately one month later, Petitioner and Son left El Salvador, intending to travel to the United States. On approximately March 25, 2016, after Garay and GM entered the United States, United States immigration officials detained Garay and GM for traveling illegally. While Garay and GM were being detained in the United States, Petitioner and Son were stopped in Mexico (in route to the United States) and deported to El Salvador. Petitioner alleges that, because of Garay and GM’s detention, Petitioner gave Respondent—who was residing in the United States—temporary authorization to retain GM so that United States immigration officials would release GM to Respondent. Following GM’s release to Respondent, Garay was deported to El Salvador. GM has since resided with Respondent in the United States.  On April 26, 2016, Petitioner filed a lawsuit contending Respondent was wrongfully retaining GM in the United States and asking the Court to order the return of GM to El Salvador.  Respondent moved to dismiss Petitioner’s lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(1). After an evidentiary hearing the court granted the motion.

The district court found that Petitioner’s admission that the Parents intended the family to remain in the United States indefinitely strongly indicated the Parents had a shared intent to abandon El Salvador as GM’s habitual residence and relocate GM to the United States. See Mozes, 239 F.3d at 1077 (recognizing a court can find mutual abandonment based on the settled mutual intent to stay in a separate country indefinitely). The Parents testified to bringing their passports, personal identification, and other documents with them as they traveled from El Salvador to the United States. Petitioner testified that she and Garay each quit their respective jobs in anticipation of leaving El Salvador. This testimony also indicated a shared intent to abandon El Salvador as GM’s habitual residence and relocate GM to the United States. See Delgado v. Osuna, 837 F.3d 571, 579 (5th Cir. 2016); see also Berezowsky v. Ojeda, 765 F.3d 456, 474 (5th Cir. 2014). The Court found the evidence conclusively established the Parents’ shared intent to abandon El Salvador and permanently relocate GM to the United States.

Petitioner alleged that, regardless of the Parents’ previous intentions, after the Parents were deported to El Salvador, their shared intention shifted to reestablishing GM’s permanent residence in El Salvador. However, by that time, GM had already been relocated to the United States and retained by Respondent. See Friedrich v. Friedrich, 983 F.2d 1396, 1402 (6th Cir. 1993) (finding there must be a change in geography to establish a new habitual residence). Thus, at the time Respondent retained GM, El Salvador had been abandoned as GM’s country of habitual residence. Petitioner has therefore failed to meet her burden of showing that GM’s retention was wrongful. Accordingly, the Court lacked subject matter jurisdiction over Petitioner’s lawsuit, and Respondent’s motion to dismiss was granted.

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