The Court reviewed
the factual findings for clear error and any conclusions of law de novo.
See Yang v. Tsui, 499 F.3d 259, 270
(3d Cir. 2007). It found that in a careful and thorough analysis of
the ten factors specified in Monzon, the District Court determined
that only two weighed against L.S. being well-settled in his New Jersey home
and community: “the stability of [Appellee’s] employment or other means of
support” and “the immigration status of the child and parent.” These factors
are: “(1) the age of the child; (2) the stability of the child’s new residence;
(3) whether the child attends school ... consistently; (4) whether the child
attends church regularly [or participates in other extracurricular and
community activities]; (5) the stability of the parent’s employment or other
means of support; (6) whether the child has friends and relatives in the area;
(7) to what extent the child has maintained ties to [Honduras]; (8) the level of
parental involvement in the child’s life; (9) active measures to conceal the
child’s whereabouts ... ; and, (10) the immigration status of the child and
parent.” A16 & n.14; see Monzon, 910 F.3d at 105,
106 n.88. As to those
factors, the District Court reasoned that L.S. and Appellee were not citizens,
so “their immigration status remains uncertain,” while their asylum application is pending, and
that without a work permit, Appellee haf only “worked sporadically in a
restaurant,” Nonetheless, it concluded that these considerations were greatly
outweighed by the remaining considerations, including L.S.’s “stable” family
life with his stepfather and half-brother, with whom he has “grown very close,”;
his involvement in school, extracurricular activities, and community activities;
and his memories of and ties to America, formed from ages four to six.
The Court rejected Appellants
argument the District Court erred in declining to hear additional testimony
concerning L.S.’s and Appellee’s immigration status and in refusing to treat
this factor as dispositive of whether L.S. was well-settled. Appellee’s
immigration status would not change the outcome of the ten-factor analysis nor
would it be independently dispositive. Immigration status “is neither
dispositive nor subject to categorical rules, but instead is one relevant
factor in a multifactor test.” Hernandez v. Garcia
Pena, 820 F.3d 782, 788 (5th Cir. 2016). The Court held that the District
Court’s ultimate evaluation of the totality of the circumstances was consistent
with Article 12 of the Hague Convention and the implementing statute, the
Courts precedent, and the case law of other circuits that immigration status “cannot
undermine all of the other considerations which uniformly support a finding
that [the child] is ‘settled’ in the United States.” In re B. del C.S.B., 559 F.3d 999,
1010 (9th Cir. 2009); see Lozano v. Alvarez, 697 F.3d 41, 57
(2d Cir. 2012) (noting that “no court has held [immigration status]
to be singularly dispositive”), aff’d sub nom. Lozano v. Montoya
Alvarez, 572 U.S. 1 (2014); Alcala v. Hernandez, 826 F.3d 161, 174
(4th Cir. 2016) (same). It agreed with
the District Court’s conclusion that Appellant met her burden of showing L.S. was
well-settled in the United States.
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