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Wednesday, May 26, 2021

Alvarez Romero v Gajardo Bahamonde, --- Fed.Appx. ----, 2021 WL 2104855 ( Eleventh Circuit, 2021)[Chile] [Petition denied][Mature Child][Well-Settled][Grave Risk of Harm]

 In Alvarez Romero v Gajardo Bahamonde, --- Fed.Appx. ----, 2021 WL 2104855 ( Eleventh Circuit, 2021) Rodrigo Andres Alvarez Romero appealed the district court’s denial of his petition for return of his minor children to Chile. The Eleventh Circuit affirmed.  

ABB and PDCB were Alvarez Romero and Maria Eugenia Gajardo Bahamonde’s minor daughters. ABB was born in 2006 and PDCB was born in 2013. Alvarez Romero and Gajardo Bahamonde were citizens of Chile and had never been married. Their children were born in Chile. Gajardo Bahamonde, ABB, and Mauricio Loyola (Gajardo Bahamonde’s son from a prior relationship) testified that Alvarez Romero frequently abused Gajardo Bahamonde emotionally and physically, including beating her so severely she had a miscarriage. Because ABB and PDCB witnessed the abuse, the Chilean Family Court ordered them to undergo mental health treatment. In the treatment program, both children were diagnosed with “mild psycho-affective damage” due to the abuse they saw their father inflict on their mother. This abuse included an incident when Alvarez Romero broke her nose and another when he knocked her unconscious while the children were lying beside her in bed. Loyola testified that Alvarez Romero was often verbally and physically abusive to Gajardo Bahamonde in front of the children. He said that Alvarez Romero would hit his mother, call her “a whore,” and say she was worth less than him because “he was an engineer and she was nothing.” Loyola witnessed one occasion when Alvarez Romero beat Gajardo Bahamonde so severely that he broke her ribs. Loyola recounted at least one incident where ABB witnessed Alvarez Romero severely beat their mother. And both daughters often heard their father verbally abuse their mother. Alvarez Romero would beat Loyola as well, including by hitting him with a belt. ABB witnessed several other incidents, including one when Alvarez Romero almost ran into ABB while trying to hit her mother. ABB also described Alvarez Romero’s disturbing behavior toward ABB and PDCB. For example, he forced ABB to stay up for hours past her bedtime as punishment for doing poorly on a school assignment; he locked PDCB in the car while shopping when she wouldn’t stop crying that she wanted her mother; and he took the children with him to buy drugs (which he used in their presence) and drove with the children while under the influence.  Alvarez Romero denied all allegations of abuse. The district court found Alvarez Romero’s claims that he never abused the mother of his children and that she falsified the allegations of abuse not to be credible.


Following the separation, Gajardo Bahamonde lived with the children in abject poverty. In December 2017, Alvarez Romero told Gajardo Bahamonde he wanted to take the children to visit his mother in the United States, during which time they would also have the opportunity to visit Disney World. Gajardo Bahamonde consented to the trip, based on her belief that the children would be under the care of their grandmother. She signed a travel authorization form allowing the children to travel to the United States from December 2017 to March 2018.  

Gajardo Bahamonde testified that in January 2018, Alvarez Romero told her he would not be returning the children to Chile and that if she ever wanted to see them again, she would have to come join them in the United States. Alvarez Romero denied ever saying this. But that month, he got a full-time job in the United States, bought a car, and enrolled ABB in school and PDCB in daycare. After she learned that Alvarez Romero enrolled the daughters in school and daycare in the United States, Gajardo Bahamonde left her job in Chile and sold possessions in order to pay for a ticket to travel to Alvarez Romero’s mother’s home in Florida in February 2018 to be with the children. Two months later, Gajardo Bahamonde moved out and took PDCB with her because, she said, Alvarez Romero began sexually harassing her and verbally and physically abusing her in front of the children. ABB testified that she saw Alvarez Romero abuse Gajardo Bahamonde while she was living with them in Florida. Gajardo Bahamonde also described an incident when Alvarez Romero pushed her while she was at work, prompting a co-worker to call the police. Gajardo Bahamonde’s testimony about that incident is supported by a police report. Gajardo Bahamonde filed for a domestic violence protection order in Florida after that incident.  Initially, ABB stayed with her grandmother and father. But after her grandmother went back to Chile, ABB’s living situation worsened. ABB testified that she started missing a lot of school, there was almost no furniture in the home they stayed in, she was alone in the home for most of the day, and was left without food or a phone. Her mother came and took ABB to live with her after ABB called upset that she was stuck alone in the house with no food while Alvarez Romero was at work. The Florida court scheduled two hearings about Gajardo Bahamonde’s petition for a protective order. Alvarez Romero did not appear and instead returned to Chile. After Alvarez Romero failed to appear at the first hearing and returned to Chile, Gajardo Bahamonde moved to Georgia. The petition was dismissed for failure to appear. Gajardo Bahamonde did not further pursue the protective order after Alvarez Romero left the United States because she knew he could not return. When Alvarez Romero returned to Chile, he took the children’s passports with him. Initially, he remained in contact with ABB. They spoke about planning a trip for the children to return to Chile. Gajardo Bahamonde repeatedly asked Alvarez Romero to return the passports but he never did. Gajardo Bahamonde and the children moved to Georgia in November 2018. Since then, the children had lived in one home and attended the appropriate schools. In June 2020, Alvarez Romero filed an ICARA petition, claiming that, as of November 2018, Gajardo Bahamonde wrongfully retained the couple’s two minor children, ABB and PDCB, in the United States, at the time 14 and 7 years old, respectively.

 *4 Because Gajardo Bahamonde sought to rely on the mature child exception as to ABB, the district court interviewed ABB in chambers. The district court first spoke to ABB alone and provided a summary to the parties. Next, the district court asked ABB questions the parties submitted in advance. The parties could not directly cross-examine ABB, but they listened to the district court interview her over the phone and were permitted to submit follow-up questions. Neither party submitted any follow-up questions.

 During that hearing, ABB objected to returning to Chile. At the time of the hearing, ABB was 14 years old. She was doing well at school and the record does not indicate that she had any kind of difficulties adjusting to life in the United States. She stated that she wanted to stay in the United States because her life in Chile was unstable. In Chile, she lived in poverty, frequently moved, and was constantly in fear that Alvarez Romero would find them and hurt her mother. Without prompting, ABB described a number of instances where she saw her father beat her mother, including some incidents her mother did not know ABB witnessed. For example, she described an incident when her father threw boiling water on her mother while she was cooking, at which point ABB called the police. ABB, her mother, her sister, and her half-brother then had to live in a hotel to stay safe from her father. She recalled watching her father purchase and consume drugs in her presence. She also recalled several interactions with the police in Chile when they responded to Alvarez Romero’s violent outbursts. ABB also testified that she witnessed her father hit her half-brother, giving him a black eye.

 The Eleventh Circuit rejected Alvarez Romero argument that ABB could only testify about her objections to returning to Chile because “the Hague Convention does not authorize the Court to interview a child or any other witness in chambers, without the opportunity for cross-examination, on substantive issues in the case.” Instead, he said  a court may only interview a child to determine whether the mature child exception applies. The court held that contrary to Alvarez Romero’s contentions, courts regularly rely on the child’s testimony in Hague Convention cases for issues besides the mature child exception

 The Eleventh Circuit rejected the argument that the district court improperly applied the mature child exception to ABB. Courts have relied primarily on three considerations in determining when this exception applies: (1) whether the child is sufficiently mature; (2) whether the child has a particularized objection to being repatriated; and (3) whether the objection is the product of undue influence. See Colon v. Mejia Montufar, 470 F. Supp. 3d 1280, 1295 (S.D. Fla. 2020) (citing Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3d Cir. 2007)).  As to the first factor, courts have looked to the child’s age, ability to express mixed feelings, and to plan past obstacles as indications of maturity. Alvarez Romero said the district court relied solely on ABB’s age in finding that she was sufficiently mature, but that assertion wass not supported by the record. The district court considered ABB’s age (she was fourteen years old at the time), the fact that she was able to express some positive feelings about life in Chile, her ability to provide detailed answers demonstrating an understanding of her situation, and the testimony of her teacher in finding that she was sufficiently mature. In determining whether a child has particular objections to repatriation, courts consider whether the child is expressing merely a preference against return or is “affirmatively objecting to returning to one country—when living in that country would be unacceptable.” Rodriguez v. Yanez, 817 F.3d 466, 477 (5th Cir. 2016). Alvarez Romero claimed that ABB expressed a mere preference to stay in the United States, but he did not support this claim with references to the record. An actual review of the record showed that ABB provided lengthy and detailed particularized objections to being repatriated to Chile based on her father’s constant verbal and physical abuse of her mother. Alvarez Romero also insisted that ABB’s testimony could only be the product of Gajardo Bahamonde’s undue influence. When considering whether a child’s objection is the product of undue influence, courts place great weight on whether the objection is based on the child’s firsthand experiences. Colon, 470 F. Supp. 3d at 1298 (collecting cases). Unquestionably, ABB’s objections were based on her firsthand experiences. She described witnessing numerous incidents of Alvarez Romero physically and verbally abusing her mother, going hungry and homeless when Alvarez Romero cut off her mother financially, observing Alvarez Romero take drugs, and being subject to his harsh discipline. The district court did not err in applying the mature child exception to ABB.

When a Hague Convention petition is filed more than a year after a child is retained, the retaining parent can assert the well-settled defense. Hague Convention Art. 12 (noting that the child must still be returned if the petition is filed after one year “unless it is demonstrated that the child is now settled in its new environment.”) The retaining parent must establish that the child is well-settled by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B). Alvarez Romero filed the  petition more than one year after Gajardo Bahamonde and the children remained in the United States. But Alvarez Romero complained that the district court should not have considered the well-settled defense because he says Gajardo Bahamonde concealed the children’s location from him. Alvarez Romero’s argument failed on both the facts and the law. As a factual matter, the district court determined that Gajardo Bahamonde did not conceal the children’s whereabouts from Alvarez Romero.  And even if the record indicated that Gajardo Bahamonde had concealed the location of her children, that alone would not prevent her from asserting the well-settled defense. As the Supreme Court held in Lozano v. Montoya Alvarez, 572 U.S. 1, 134 S. Ct. 1224 (2014), concealment does not equitably toll the one-year deadline for a parent to file a petition and preclude the retaining parent from asserting the well-settled defense. Id. at 4, 134 S. Ct. at 1228. Therefore, the district court properly considered the well-settled defense here.

The Eleventh Circuit rejected the argument that the district court’s factual findings did not support its ruling that the children were well-settled in the United States. In this circuit, a child is well settled for purposes of the Hague Convention “when a preponderance of the evidence shows that the child has significant connections to their new home that indicate that the child has developed a stable, permanent, and nontransitory life in their new country to such a degree that return would be to the child’s detriment.” Fernandez v. Bailey, 909 F.3d 353, 361 (11th Cir. 2018). The district court’s application of the well-settled defense is reviewed for abuse of discretion. Courts look to how frequently children move around within their new country, whether they attend extracurricular and community activities, and whether they regularly attend school when determining whether they are well-settled. Lozano, 572 U.S. at 17, 134 S. Ct. at 1236 (collecting cases). The children had been living in the United States since December 2017, when Alvarez Romero brought them here. They had been enrolled in school in the United States since January 2018, when he first enrolled them. They changed school districts only once—when they moved to Georgia in November 2018. Both children were doing well in school. Before the onset of the Covid-19 pandemic, both children were involved in numerous extracurricular activities, including music lessons, skating, swimming, and soccer. They had close friendships at school and in their neighborhood. The children get along with each other. They were also close with their half-brother, who visited from Alabama every few weeks. Gajardo Bahamonde and the children’s visas were expired. An immigration attorney, who presented expert testimony as to immigration law matters, advised that Gajardo Bahamonde was not under any threat of removal and that she had three options for regularizing her status.

 The Court found that record clearly established that ABB and PDCB would face a grave risk of harm if returned to Chile. For years, Alvarez Romero physically and verbally abused Gajardo Bahamonde, including beating her so severely that she miscarried and breaking her ribs and nose. The children witnessed numerous incidents of abuse, to the extent that they underwent court-mandated mental health treatment. And when Gajardo Bahamonde was finally able to leave this abusive relationship, Alvarez Romero left her and their children homeless and hungry. Alvarez Romero abused drugs while caring for his children, including in their presence. Alvarez Romero challenged the district court’s factual findings. He argues that the district court should have credited his and his mother’s testimony denying abuse instead of crediting Gajardo Bahamonde, ABB, and Loyola’s testimony describing his abuse and other disturbing behavior. But Alvarez Romero again fails to show that the district court’s credibility determinations were clearly erroneous. The Court saw no basis for displacing the district court’s findings that the testimony that Alvarez Romero abused Gajardo Bahamonde for years was credible and his denials were not credible.