In Ajami v Solano, 2022 WL 909413 (Sixth Circuit, 2022) the district court granted the petition of Pierre Salame Ajami (“Salame”) for the return of his two minor children to Venezuela, their country of habitual residence, The Sixth Circuit affirmed
Tescari and Salame were Venezuelan citizens and had two minor children together, EAST and PGST. In 2018, Tescari removed the children from their home in Barquisimeto, Venezuela, and brought them with her to the United States. Salame filed a petition under the Hague Convention seeking the children’s return on February 20, 2019. Tescari and, as derivative family members, the children were granted asylum in the United States on June 10, 2019. The parties stipulated to the applicability of the Convention and established Salame’s prima facie case of wrongful removal, so the only issue before the district court was whether Tescari established an affirmative defense under Article 13(b) of the Hague Convention. The district court concluded Tescari failed to establish, by clear and convincing evidence, her affirmative defense that returning the children to Venezuela would subject them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation. It therefore granted Salame’s petition and ordered that the children be returned to Venezuela. The Sixth Circuit affirmed the district court’s conclusion that Tescari failed to present clear and convincing evidence that an Article 13(b) exception applied. She failed to demonstrate that returning the children to Venezuela would expose them to a grave risk of physical or psychological harm or otherwise subject them to an intolerable situation.
The Court observed that whether a child would be exposed to a “grave risk” of harm or returned to an “intolerable situation” are mixed questions of law and fact that are reviewed de novo. Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001)
Tescari claimed that returning the children to Venezuela would expose them to a grave risk of harm due to Salame’s alleged history of domestic violence. In a Hague Convention case, precedent establishes three broad categories of abuse: minor, clearly grave, and cases in the middle, in which the abuse “is substantially more than minor, but is less obviously intolerable.” Simcox, 511 F.3d at 607−08. A case involving relatively minor abuse would likely not pose a grave risk to the child nor place the child in an intolerable situation.. In such cases, the district court has no discretion to refuse the petition to return because the Article 13(b) threshold has not been met. A case in which the abuse is clearly grave typically involves “credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect.” Cases in the middle category call for a fact-intensive inquiry into “the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.”
First, Tescari contended the district court erred in finding that the claimed abuse towards her, which was allegedly witnessed by the children, fell into the category of minor abuse. The district court found that Tescari established one incident of physical abuse by Salame towards her in 2013, although it did not conclusively determine what happened. It also determined that the parties “have a tumultuous relationship that negatively affects EAST and PGST.”. The district court was unable to find that Salame ever abused the children. The district court made credibility determinations, and its factual conclusions regarding Tescari’s allegations of abuse were not clearly erroneous. The district court found one credible incident of abuse. This incident, even when considered alongside the other alleged and unproven conduct, was clearly less serious and less frequent than the middle-level abuse detailed in Simcox. It agreed with the district court’s conclusion that the one incident of abuse fell into the relatively minor category. The abuse did not rise to the level of a viable defense to the children’s return under Article 13(b). Because the abuse in this case was relatively minor, the district court had no discretion to refuse the petition nor to consider evidence of potential future harm.
Tescari claimed the district court “erred in finding that the children did not face a grave risk of physical or psychological harm from a return to Venezuela, a zone of war and famine”; thereby placing herself and the children in an intolerable situation. The Court noted that the difference between exposing a child to a “grave risk of harm” and subjecting a child to an “intolerable situation” is not clearly established in the court’s precedent. But an “ ‘intolerable situation’ must be different from ‘physical or psychological harm,’ but nevertheless serious,” meaning “either it cannot be borne or endured, or it fails some minimum standard of acceptability.” Pliego v. Hayes, 843 F.3d 226, 233 (6th Cir. 2016). An “intolerable situation” can arise when the state of habitual residence is experiencing civil instability. Similarly, a grave risk of harm exists when “return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease.” Friedrich, 78 F.3d at 1069. But an intolerable situation does not arise merely when the child would be returned to a country “where money is in short supply, or where educational or other opportunities are more limited than in the requested State.” Whether reviewed for grave risk of harm or intolerable situation, this is an inquiry that evaluates both Venezuela’s overall dangerousness and the particular circumstances the children would face if returned to Venezuela. See Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1364 (M.D. Fla. 2002); see also Pliego, 843 F.3d at 232 (citing id. at 1364−65).
The court noted the lack of precedent identifying any country as a zone of war sufficient to trigger the grave risk or intolerable situation exception. Turning to Venezuela, it noted that Venezuela is not actively torn by civil war, it remains a single integrated country capable of signing international treaties. As such, it remains a fellow signatory to the Hague Convention. The parties presented evidence of the humanitarian and political crises unfolding in Venezuela and evidence of the particular circumstances the children would face if returned. Considering both parties’ evidence, the district court determined Salame could provide the children with shelter, food, and medication in Venezuela. This factual finding was not clearly erroneous. Although the conditions in Venezuela were less stable than those the children likely enjoyed in Murfreesboro, Tennessee, this does not mean they would face an intolerable situation or a grave risk of harm upon return. Despite Venezuela’s political schisms and civil unrest, Tescari failed to introduce sufficient evidence that it was a zone of war, famine, or disease warranting an Article 13(b) affirmative defense.
Tescari argued that the district court erred in concluding that she failed to prove the corruption of the Venezuelan courts and the undue influence of Salame. Tescari pointed to testimony about general corruption in the Venezuelan judiciary, testimony about persecution of political opposition leaders, and her attorney’s testimony about proceedings being biased in favor of Salame due to his political connections. However, there was also evidence that Tescari’s attorney had been able to file documents, review case files, and even secured a new judge to oversee the parties’ custody dispute after requesting recusal of the previous judge. Ultimately, the district court found that delays in court proceedings among the parties and other examples of purported corruption “are not so severe as to indicate the Venezuelan courts are corrupt or that they would be unable to fairly adjudicate the custody dispute.” Ajami, 2020 WL 996813, at *19. This factual finding was not clearly erroneous, and any defects in the Venezuelan court system fell short of what is required for an intolerable situation. Pliego, 843 F.3d at 235.
Lastly, Tescari argued the district court failed to properly consider her grant of asylum, thereby “threaten[ing] the sovereignty of the executive branch. She claimed the district court’s order effectuating return, despite the children’s asylee status, usurped Congress’s authority and renders null the executive branch’s asylum determination. This argument was without merit because the district court has the authority to order the return of wrongfully removed children, regardless of whether the children were previously granted asylum. It noted that the Fifth Circuit considered a similar question in Sanchez v. R.G.L., 761 F.3d 495 (5th Cir. 2014). In Sanchez, while their appeal was pending, the children were granted asylum in the United States pursuant to 8 U.S.C. § 1158, which states “the Attorney General ... shall not remove or return the alien to the alien’s country of nationality.” On appeal, the children argued that the grant of asylum superseded the district court’s order. Sanchez, 761 F.3d at 509. The Fifth Circuit rejected this argument, refusing to hold that the grant of asylum must be revoked before the children could be returned to Mexico. Tescari and, derivatively, the children were granted asylum before the district court ordered return of the children. But, as in Sanchez, she and the children were granted asylum under 8 U.S.C. § 1158, and the court adopted the Fifth Circuit’s reasoning here. “The judicial procedures under the Convention do not give to others, even a governmental agency, authority to determine [the] risks” children may face upon return to their country of habitual residence. Sanchez, 761 F.3d at 510. Thus, “an asylum grant does not remove from the district court the authority to make controlling findings on the potential harm to the child.” The district court made independent findings on whether the children would face an intolerable situation or a grave risk of harm in Venezuela, considering all offered, admissible, and relevant evidence. “The prior consideration of similar concerns in a different forum” may be relevant, but a grant of asylum does not strip the district court of its authority to make controlling findings regarding circumstances the children may face upon return. To be granted asylum, eligibility must be shown by a preponderance of the evidence. See 8 C.F.R. § 1208.13(a), (b)(1)(i). But for an Article 13(b) affirmative defense to apply, the respondent must establish the exception by clear and convincing evidence. 22 U.S.C. § 9003(e)(2). Additionally, the opportunity for participation by interested parties may be different—here, Salame did not participate in the asylum proceedings.
Although the Fifth Circuit vacated the district court’s return order and remanded the matter to the district court to consider the newly “available evidence from the asylum proceedings,” the Sixth Circuit did not find remand necessary here. Sanchez, 761 F.3d at 511. Here, the district court did not explicitly mention the grant of asylum in its Order. But the grant of asylum was discussed at trial, and the district court admitted into evidence Tescari’s “Asylum Approval” document. Tescari had the opportunity to present evidence from the asylum proceedings, which may have also been relevant to the instant proceedings, to the district court but failed to do so. Now, on appeal, she failed to point to any evidence that would have been elicited from the asylum proceedings that the district court failed to cover over the course of the four-day trial. Her argument rested solely on the district court’s lack of a discussion of the effect of the grant of asylum itself in its Order. But a grant of asylum does not substitute for the district court’s determination that Tescari failed to establish an Article 13(b) affirmative defense based on grave risk of harm or intolerable situation. Nor does it substitute for our own de novo finding of the same. While the factors that go into a grant of asylum may be relevant to determinations under the Hague Convention, the district court has a separate and exclusive responsibility to assess the applicability of an Article 13(b) affirmative defense. It rejected Tescari’s argument that a grant of asylum deprives federal courts of authority to enforce the Hague Convention.