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Sunday, March 7, 2021

Bejarno v Jimeniz, --- Fed.Appx. ----, 2021 WL 796404 (Mem) (3rd Cir., 2021)[Honduras][Now-settled] [petition denied]


     In Bejarno v Jimeniz, --- Fed.Appx. ----, 2021 WL 796404 (Mem) (3rd Cir., 2021) [Not Selected for Publication] Kevin Daniel Sauceda Bejarno appealed from the District Court’s denial of his petition to return his son, L.S., to Honduras. The Third Circuit affirmed. It held that although Appellant established a prima facie case that Appellee, L.S.’s mother, had wrongfully removed L.S. from Honduras to the United States, the District Court denied the return request because a petition filed more than one year after removal “is subject to certain affirmative defenses, including Appellee’s demonstration [by a preponderance of the evidence] that ‘the child is now settled in its new environment.’ ” Monzon v. De La Roca, 910 F.3d 92, 96 (3d Cir. 2018) The District Court determined that Appellee met this burden. [This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.]


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.