Ordonez v. Benitez-Guillen, 2019 WL 2289831 (SD, Ohio, 2019)[Honduras] [Federal & State Judicial Remedies] [Subject Matter Jurisdiction] [Asylum]

          In Ordonez v. Benitez-Guillen, 2019 WL 2289831 (SD, Ohio, 2019) the Court denied Respondent’s Motion to Dismiss.

           F.O. was a minor child from Honduras. Benitez-Guillen was his mother; Ordonez was his father. All three were Honduran citizens. Ordonez and Benitez-Guillen never married but lived together in Honduras at the time of F.O.’s birth. They separated in June of 2016 but shared parental authority and custody rights over F.O. In December of 2017, Benitez-Guillen fled from Honduras with F.O. On December 22, 2017, Benitez-Guillen and F.O. reached the United States border in El Paso, Texas. The Department of Homeland Security (“DHS”) determined that Benitez-Guillen and F.O. were inadmissible to the U.S. because they lacked the necessary documents. Nevertheless, the DHS did not immediately remove Benitez-Guillen and F.O., presumably because Benitez-Guillen intended to apply for asylum in the United States. The DHS then issued Benitez-Guillen and F.O. notices to appear, paroled them, and, on December 26, 2017, released Benitez-Guillen and F.O. from custody and into the United States. On October 5, 2018, Ordonez filed a petition for the return of an abducted child under the Hague Convention. On December 3, 2018, Benitez-Guillen applied for asylum under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. Benitez-Guillen and F.O. were scheduled to appear for a preliminary hearing before the Cleveland Immigration Court in June of 2019. On February 12, 2019, Benitez-Guillen filed a Motion to Dismiss under Rule 12(b)(1), arguing that the Court lacked subject matter jurisdiction over this action because the ICARA and the INA irreconcilably conflict.

          The Court observed INA provides the foundation for immigration law in the United States, including asylum. Asylum is a form of discretionary relief under section 208 of the INA, 8 U.S.C. § 1158, that precludes an alien from being subject to removal by the Attorney General, creates a path to lawful permanent resident status and citizenship, and affords a variety of other benefits. See R-S-C v. Sessions, 869 F.3d 1176, 1180 (10th Cir. 2017). The INA provides the Attorney General and the Secretary of the Homeland Security with discretion to grant asylum, 8 U.S.C. § 1158(b)(1)(A). Because asylum is a discretionary form of relief from removal, the applicant bears the burden of showing both eligibility for asylum and why the Attorney General or Secretary should exercise discretion to grant this relief. 8 U.S.C. § 1158(b)(1). To qualify for asylum under the INA, an applicant must either have suffered past persecution or have a “well-founded fear of persecution on account of race, religion, nationality, membership, in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), incorporated by 8 U.S.C. § 1158(b)(1)(B)(i). A grant of asylum “does not convey a right to remain permanently in the United States....” 8 U.S.C. § 1158(c)(2). The Court indicated that it had not yet analyzed the merits of Ordonez’s petition. Further, neither the Secretary of Homeland Security nor the Attorney General had determined whether Benitez-Guillen and F.O. qualified for asylum under the INA.

          The Court rejected Benítez-Guillen’s argument that the Court had to dismiss Ordonez’s Hague petition because the potential grant of asylum conferred a right to remain in the country regardless of any potential judicial orders under the Hague Convention.  It also rejected her argument that the Court lacked subject matter jurisdiction because the INA and the ICARA irreconcilably conflict. The ICARA, however, grants this Court original jurisdiction over Hague Convention petitions. ICARA, 22 U.S.C. § 9003(a). The INA does not strip this Court of that jurisdiction. While Benitez-Guillen correctly pointed out that the INA drastically limits judicial review of asylum determinations, see 8 U.S.C. § 1252(a)(2)(A), she did not explain how a court presiding over a Hague petition constituted judicial review of one’s asylum status. When reviewing a return of child petition, courts only determine the proper country to review the custody dispute related to an allegedly abducted child. Courts analyzing these petitions do not consider the asylum status of the parties.

          Finally, the court rejected the argument that the Court lacked jurisdiction to order the return of the child based on the pending applications for asylum. Although not ripe in this case, the only federal court to address the issue of whether a grant of asylum (under the INA) bars a district court’s order to return a child (under the ICARA) explicitly held that it does not. See Sanchez v. R.G.L., 761 F.3d 495, 510 (5th Cir. 2014) (“[t]he asylum grant does not superceded the enforceability of a district court’s order that the children should be returned to their mother, as that order does not affect the responsibilities of either the Attorney General or the Secretary of Homeland Security under the INA.”). In Sanchez, the Fifth Circuit also found that “[n]o authority has been offered to support the argument that the discretionary grant of asylum confers a right to remain in the country despite judicial orders under this Convention.”

          All the case law that the Court  found suggested that courts maintain subject matter jurisdiction over ICARA claims regardless of the asylum status of a respondent and/or minor child. That is because no federal court has found a lack of subject matter jurisdiction when presiding over a Hague petition case that also involved asylum applications. See Sanchez v. R.G.L., 761 F.3d at 510–11; Lopez v. Alcala, 547 F. Supp. 2d 1255 (M.D. Fla. 2008); In re Hague Child Abduction Appl., No. 08-2030, 2008 U.S. Dist. LEXIS 97048 (D. Kan. Mar. 17. 2008); Gonzalez v. Gutierrez, 311 F.3d 942, 947 (9th Cir. 2002); Hernandez v. Pena, No. 15-3235, 2016 WL 8275092 (E.D. La. July 20, 2016). The Court could assume that the courts in those cases had subject matter jurisdiction over the Hague petitions since “federal courts have a continuing obligation to inquire into the basis of subject-matter jurisdiction to satisfy themselves that jurisdiction to entertain an action exists.” Campanella v. Commerce Exchange Bank, 137 F.3d 885, 890 (6th Cir. 1998); see Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 593 (2004) (“by whatever route a case arrives in federal court, it is the obligation of both district court and counsel to be alert to jurisdictional requirements.”); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986) (“every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.”).

          The Court held that it had original jurisdiction over Ordonez’s return of child petition under 22 U.S.C. § 9003(a). The INA does not strip the Court of that jurisdiction. Therefore, the Court had subject matter jurisdiction over this case.