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Friday, June 7, 2019

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.

Chirinos v Umanzor, 2019 WL 2287975 (N.D. Texas, 2019) [Honduras] [Habitual residence] [Grave risk of harm] [Petition granted]

          In Chirinos v Umanzor, 2019 WL 2287975 (N.D. Texas, 2019) the district court granted the Petition of Nahum Mendieta Chirinos for the return of his two children, Y.A. and I.N., to Honduras. 

          Petitioner was a resident of Honduras and resided there. Respondent and the children, Y.A. and I.N., initially resided in Honduras, but immigrated to the United States in late 2017. Respondent and the children resided in Irving, Texas.  Y.A. was born on March 29, 2012, and I.N. was born on October 8, 2015. Both children were born in Honduras and lived there until November 2017. In November 2017, Respondent and the children left Honduras and entered the United States in December 2017. [Petitioner did not give consent, written or otherwise, to Respondent’s removal of the children from Honduras. No court, in Honduras or elsewhere, had granted Respondent full custody of the children or has stripped Petitioner of his custody rights. Respondent and the children remained in the United States.  Petitioner commenced this action on October 9, 2018, seeking the return of the children to Honduras.

          The trial testimony revealed that Petitioner and Respondent met at a dance in Honduras in 2006 and began a relationship. The two were romantically involved until Petitioner illegally immigrated to the United States later that year. Petitioner remained in the United States until he was deported in 2010. After his deportation, Petitioner returned to Honduras and the romantic relationship between Petitioner and Respondent resumed. Respondent became pregnant with the couple’s daughter, Y.A., in 2011. After Respondent learned that she was pregnant, Petitioner and Respondent began living together at the home of Petitioner’s mother. Y.A. was born on March 29, 2012, and lived with Petitioner and Respondent at the home of Petitioner’s mother until at least April 2015. Petitioner testified that, on November 27, 2017, he borrowed a bicycle and went to see the children at Respondent’s grandparents’ home. Upon arriving, Petitioner allegedly heard Respondent speaking to a “coyote” with whom Respondent planned to travel to the United States. Petitioner testified that, after hearing this, he told Respondent the he did not want the children going to the United States. Petitioner testified that he returned the next day and found that Respondent and the children were gone.  Petitioner then sought legal help to secure return of the children.

          The Court found that Petitioner established a prima facie case for return under the Hague Convention and that Respondent had not shown that any defense to return applies. Therefore, the Court ordered the return of Y.A. and I.N. to Honduras. The court noted that to  establish a case for return under the Hague Convention, a petitioner must show that:  “the respondent removed or retained the child somewhere other than the child’s habitual residence”; “the removal or retention violated the petitioner’s ‘rights of custody’ under the habitual-residence nation’s laws”; and  “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been exercised but for the removal or retention.” Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012). A petitioner must prove each of these elements by a preponderance of the evidence. Id.

Here, the parties stipulated that, prior to November 2017, neither child resided in any country other than Honduras. The parties also agreed that Petitioner never gave consent or otherwise acquiesced to the removal of the children from Honduras. The last location of shared intent for the children’s residence was Honduras. The parties agreed that no Honduran court had entered an order granting Respondent full custody of the children, and there was no evidence that any other formal custody agreement between the parties exists.  Therefore, the Court looked to the custody rights provided by Honduran law. Article 187 of the Honduran Family Code provides that “parental authority belongs to both parents jointly.” “Parents in the exercise of parental authority have the right to exercise guidance, care and correction of their children, and provide them in line with the evolution of their physical and mental faculties, the direction and guidance that is appropriate for their development.” Additionally, parental authority includes the right to legally represent the child, “exercise their care and custody,” feed, assist, educate, and manage their assets. Finally, Honduran law provides that, when both parents exercise parental authority, each parent has a ne exeat right: a right to consent before the other parent can take the child out of the country. Article 101 of the Honduran Code of Childhood and Adolescence requires that “[i]f parental authority is exercised by both parents, the written authorization of the other is required if just one parent is traveling with the child during [a] trip [outside of Honduras].” The Supreme Court has held that a “ne exeat right is a right of custody under the Convention.” Abbott, 560 U.S. at 10. The Court found that Petitioner had custody rights in the children and that Respondent’s removal of the children violated these rights.

Finally, the Court found that Petitioner was actually exercising his custody rights at the time of the removal or would have exercised those rights but for the removal. Larbie, 690 F.3d at 307. The leading case setting out the standard under which courts are to consider this element is Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (“Friedrich II”). The court held, “[t]he only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find “exercise” whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Id. The Friedrich II court continued: [I]f a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to “exercise” those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. The Fifth Circuit has adopted the standard articulated in Friedrich II and has emphasized that “even occasional contact with [a] child constitutes ‘exercise’ of [custody] rights.” Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 345 (5th Cir. 2004).  The testimony of the parties was directly conflicting on this point. Petitioner testified that Respondent left his mother’s home in mid-to-late 2016 and that he visited the children almost daily thereafter. Respondent testified that she moved out in April 2015 and that Petitioner only saw the children two or three times after this date. In resolving this disagreement, the Court finds convincing and credible the accounts of the witnesses supporting Petitioner. In weighing the testimony, the Court also noted significant inconsistencies in Respondent’s version of the relevant events. The documentary evidence also supported a conclusion that Petitioner kept some contact with the children after the time that Respondent alleged that he did not. Petitioner provided a photograph showing Petitioner, Respondent, and both children together. Respondent countered that this was taken during one of the very few instances in which Petitioner saw the children after she left. Petitioner, however, introduced other photographs that show Y.A. standing in front of the distinctly colored walls of Petitioner’s mother’s home. One such photograph, posted on Respondent’s Facebook page one day after Y. A’s fourth birthday, which was March 29, 2016, clearly suggested that Petitioner remained in contact with the children—contrary to the testimony of Respondent. Petitioner also offered photographs showing I.N. in front of the same distinctly colored walls of his mother’s home, and in a distinctly colored hammock which appeared in photographs of his mother’s home. This evidence strongly contradicted Respondent’s testimony regarding the extremely limited number of times that Petitioner allegedly saw I.N.
With the above directive in mind, the Court found that Petitioner established that he was actually exercising his custody rights prior to the removal of the children. He kept at least the required occasional contact with the children that is necessary to find that he was actually exercising his custodial rights. Sealed Appellant, 394 F.3d at 345. And the evidence did not suggest that Petitioner took acts that constitute clear and unequivocal abandonment of the children. Freidrich II, 78 F.3d at 1066. Additionally, the evidence suggested that Petitioner was exercising his ne exeat right prior to the removal by withholding permission for the children to leave the country.
          Respondent raised the grave risk defense. Under this defense, return may be excused where there is a “grave risk” that return would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Lozano, 572 U.S. at 5. A party opposing a child’s return must prove the existence of “grave risk” by clear and convincing evidence. Madrigal v. Tellez, 848 F.3d 669, 676 (5th Cir. 2017). The alleged harm “must be a great deal more than minimal” and “greater than would normally be expected on taking a child away from one parent and passing him to another. “Domestic violence can satisfy the defense when the respondent shows by clear and convincing evidence a “sustained pattern of physical abuse and/or a propensity for violent abuse.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014). Sustained spousal abuse can, in some instances, also create such a risk. Soto v. Contreras, 880 F.3d 706, 713 (5th Cir. 2018). The Court found that Respondent had not shown by clear and convincing evidence that return to Honduras would expose the children to a grave risk of harm. Respondent testified that Petitioner abused her physically and psychologically. However, Respondent identified only one specific instance in which Petitioner allegedly abused her physically—when Petitioner allegedly pushed her after she confronted him about his involvement with another woman. This unsupported testimony, even if taken as true, did not establish a pattern of sustained spousal abuse by clear and convincing evidence. And Respondent presents no evidence that Petitioner ever abused either of the children.

Respondent also testified that she found cocaine in Petitioner’s pocket three times, and that she worried that Y.A. would find the drugs and accidently consume them. Petitioner testified that he has never used drugs. Petitioner would take both children on rides on his motorcycle. Petitioner’s supporting witnesses all testified that, in their opinion, Petitioner was a good father. Petitioner’s girlfriend, also testified that she trusts Petitioner to be around her 13 and 10-year-old children. The Court held that the conflicting evidence regarding alleged past drug use or rides on a motorcycle did not establish the existence of such a future harm by clear and convincing evidence. Respondent did not meet her burden to prove the grave risk defense.

Djeric v Djeric, 2019 WL 2374070 (S.D. Ohio, 2019)[Serbia] [Necessary Costs and expenses] [Clearly inappropriate]

          In Djeric v Djeric, 2019 WL 2374070 (S.D. Ohio, 2019) after the Court ordered Mr. Djeric to return the parties’ child to Ms. Djeric in accordance with the Hague Convention, Ms. Djeric’s attorneys applied for attorneys’ fees and costs. The Court pointed out that Yazan Ashrawi and Zackary Stillings, attorneys with the law firm Frost Brown Todd LLC, represented Ms. Djeric in the matter on a pro bono basis and that their work was exceptional. Over approximately three months, Mr. Ashrawi worked more than 87 hours; Mr. Stillings worked 176 hours. They collectively requested $69,095.50 in attorneys’ fees and $1,059.59 in expenses, including court costs and the costs of travel, deposition transcripts, and printing.     

          Mr. Djeric argued any award of fees would be inequitable because Ms. Djeric was represented pro bono, while Mr. Djeric paid $18,000 for his attorney by emptying his savings account and exhausting his credit limits on two credit cards. He claimed he relied on a relative’s financial help to purchase the airfare to return his child to Ms. Djeric. Mr. Djeric offered his tax return to show his income last year was under $25,000. He also asserted that he had no personal property available to obtain another loan or a second mortgage. Additionally, Mr. Djeric argued that any award would be inequitable because it would significantly hinder his ability to provide for his newborn baby. Next, Mr. Djeric argued that any award of fees would be inappropriate and unnecessary since the purposes of ICARA’s fee-shifting mechanism are to restore Ms. Djeric to her original financial position and to deter Mr. Djeric from wrongfully retaining the child in the first place, neither of which applied here. The Court agreed in large part. It held that based on the purposes of ICARA’s fee-shifting mechanism and Mr. Djeric’s financial circumstances, it would be “clearly inappropriate” to require him to pay $70,155.09. See Montero-Garcia, 2013 WL 6048992, at *4–6; Mendoza v. Silva, 987 F. Supp. 2d 910, 917 (N.D. Iowa 2014); East Sussex Children Servs. v. Morris, 919 F. Supp. 2d 721, 734 (N.D. W.V. 2013). Mr. Djeric had a mistaken, but nevertheless good faith belief that the parties had agreed that he would take their child to the United States to attend school. Moreover, Mr. Djeric’s financial condition was such that it was “clearly inappropriate” to award significant legal fees against him, because he would be unable to pay $69,095.50 and still provide support to his children, and because an award would simply convert Ms. Djeric’s pro bono representation into a marital debt. Regarding the expenses and costs resulting from this case, however, the Court concluded that it was reasonable for Mr. Djeric to pay those, as a matter of equity. See Mendoza, 987 F. Supp. 2d at 917. The Court denied Ms. Djeric’s request for an award of attorney’s fees, and granted Ms, Djeric’s request for court costs and expenses. The Court ordered Mr. Djeric to pay $100.00 each month to Frost Brown Todd LLC, for a total amount of $1,059.59.