In
Hernandez v Erazo, 2023
WL 3175471 (5th Cir.,2023) the Fifth Circuit denied
the motion by Respondent-Appellant Ruth Sarai
Erazo to stay pending appeal the district court order granting the petition for
the return of her minor child to his father in Mexico pursuant to the Hague
Convention.
On September
29, 2022, Petitioner-Appellee Luis Ortiz Hernandez submitted a petition in the
United States District for the return of his minor son, M.S.O., to Mexico. In
his petition, Ortiz asserted that M.S.O.’s mother, Respondent-Appellant Ruth
Sarai Erazo, wrongfully removed M.S.O. from Mexico and crossed with him
unlawfully into the United States. Mother and son now resided with her aunt,
Telma Marilu Chinchilla Reyes, in San Antonio. On January 5, 2023, the district
court held a hearing on Ortiz’s motion, at which Ortiz, Erazo, and Reyes
testified. On February 28, 2023, the district court issued an order granting
Ortiz’s petition. The court began its analysis by determining that M.S.O. had
been wrongfully removed under the Hague Convention. Erazo, asserted two
affirmative defenses—consent and M.S.O. being well-settled—Ortiz and Erazo had
met and began dating in August 2019 while working in Cancun; the two were
eventually engaged in December 2019. They both lost their jobs in the spring of
2020 due to the COVID-19 pandemic and learned that Erazo was pregnant with
M.S.O. in June. After learning of the pregnancy, Ortiz and Erazo decided to
move to Mexico City to live with Ortiz’s parents. M.S.O. was born on January
25, 2021.
Ortiz
testified that Erazo, who is a Honduran citizen, had initially expressed that
her “ultimate intention” was to move to the United States but had later ceased
speaking of such intentions once the engagement and pregnancy had occurred.
According to Ortiz, Erazo had stopped expressing interest in her earlier plans
because Ortiz, who is a Mexican citizen, is barred from returning to the United
States after he was deported for overstaying his visa in 2016.
Erazo
testified that the birth of M.S.O. only increased the urgency she felt to come
to the United States and that she and Ortiz had jointly agreed on a plan where
they could all resettle there. According to Erazo, she and Ortiz agreed that
she and M.S.O. would leave first; Ortiz would join them later once Erazo
managed to secure an apartment for them in San Antonio. On October 3, 2021,
Ortiz, Erazo, and M.S.O. left for Monterrey, Nuevo Leon, Mexico, where they
arrived the next day and stayed with Ortiz’s aunt. Meanwhile, Erazo and M.S.O.
met with a Honduran coyote on October 5. Erazo paid the coyote $2,000, which
she borrowed from Reyes, for her and M.S.O.’s passage to the United States.
Erazo testified that Ortiz helped her and M.S.O. into the car for the first leg
of their journey, purchased a phone for her in preparation for the crossing,
and that the two were in daily contact throughout her journey.
Ortiz disputed
that he was involved in or aware of Erazo’s crossing into the United States. He
returned to Mexico City alone on October 6. On October 11, Erazo and M.S.O.
surrendered to the United States Border Patrol and after a few days were
released to Reyes in San Antonio. Erazo ended her relationship with Ortiz on
October 31 after it deteriorated upon her arrival in the United States.
The district court found that M.S.O. had not been
removed from Mexico without Ortiz’s permission. Instead, based on Erazo’s
testimony, the court found that Ortiz had consented to M.S.O.’s removal, but on
the condition that Ortiz would be reunited with both mother and son in the
United States. The court held that Erazo had failed to show that Ortiz had
consented to M.S.O.’s removal notwithstanding the status of the couple’s
relationship or his ability to join M.S.O. in the United States. The court also
ruled that Erazo failed to adequately prove her second affirmative defense:
that M.S.O. was well-settled in his new environment. The court ordered that
M.S.O. “be promptly and safely returned to Ortiz’s custody in Mexico.”
Erazo now
appealed the Final Order. Erazo now moved for a stay of the Final Order pending
the resolution of her appeal.
The
Court observed that in deciding whether to issue a stay pending an appeal, it considers
four factors: (1) whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and (4)
where the public interest lies. The first two factors of the traditional
standard are the most critical.” If, however, (1) the latter three factors are
“heavily tilted in the movant’s favor”—i.e., “the balance of the
equities weighs heavily in favor of granting the stay”—and (2) a “serious legal
question is involved,” an applicant “need only present a substantial case on
the merits.” Ruiz v. Estelle, 650 F.2d 555,
565–66 (5th Cir. Unit A June 26, 1981) The Court
found that Erazo could not satisfy any of the requirements under Ruiz.
First,
Erazo had not shown that she wouldl present a substantial case on the merits. Ruiz, 650 F.2d at
565. Erazo argued that the record was devoid of evidence
demonstrating that Ortiz only provided her with his conditional consent to
cross with M.S.O. into the United States. But the district court relied on
Erazo’s own testimony in finding that “Ortiz eventually planned to join his
family in the United States.” Indeed, Erazo testified that she and Ortiz had
discussed and eventually decided to come to the United States as a family. She
also testified that “the plan was that by the time he [Ortiz] got here [to San
Antonio] I would already have an apartment for the two of us.” The court relied
on Erazo’s testimony concerning Ortiz’s conduct in determining that he had only
provided his conditional consent. Furthermore, the court’s analysis below was
consistent with the applicable standard: that courts “liberally find ‘exercise’
” in such situations. Sealed Appellant, 394 F.3d at
344. Erazo’s argument that the district court
erred in relying on analogous caselaw involving conditional consent was thus
misplaced. See Hofmann v.
Sender,
716 F.3d 282, 293 (2d Cir. 2013); Mota v. Castillo, 692 F.3d 108,
117 (2d Cir. 2012); Baxter, 423 F.3d at
372–73.
“Article
12 of the Convention provides, in relevant part, that when return proceedings
are commenced more than one year after the date of wrongful removal, the court
must ‘order the return of the child, unless it is demonstrated that the child
is now settled in its new environment.’ ” Hernandez, 820 F.3d at
787 (quoting Hague Convention, art. 12). The Court considers seven
factors when evaluating this defense: (1) the child’s age; (2) the stability
and duration of the child’s residence in the new environment; (3) whether the
child attends school or day care consistently; (4) whether the child has
friends and relatives in the new area; (5) the child’s participation in
community or extracurricular activities; (6) the respondent’s employment and
financial stability; and (7) the immigration status of the respondent and
child. The immigration status of the respondent
or child “is neither dispositive nor subject to categorical rules, but instead
is one relevant factor in [this] multifactor test.” Id. at 788. A
respondent must establish that her child is well-settled by a preponderance of
the evidence. 22 U.S.C. §
9003(e)(2)(B).
Erazo contended
that the district court incorrectly weighed these seven factors. Erazo also
argued that “the weight the district court applied to her pending immigration
status was dispositive and against this Court’s instruction in Hernandez. M.S.O. was currently two years old. The Court
noted that it has held that a child who was six years old was “not able to form
the same level of attachments and connections to a new environment as an older
child.” Hernandez, 820 F.3d at
789. Although M.S.O. had been in a stable home
for over a year and attended daycare six days a week, his young age discounted
the detrimental effect of being relocated. Additionally, M.S.O.’s social
interactions were largely confined to Erazo and Reyes outside of daycare. There
was no testimony provided as to M.S.O.’s participation in community or
extracurricular activities. Considering M.S.O.’s young age, lack of robust
connections to the broader community, and Erazo’s uncertain immigration status,
it was not obvious to us that the district court incorrectly weighed the Hernandez
factors. Second, it was clear that neither Erazo’s nor M.S.O.’s immigration
status was dispositive to the district court’s analysis. Erazo had not shown
that she will bring a substantial case on the merits regarding either of her
affirmative defenses.
Even assuming
that she had demonstrated a substantial case on the merits, Erazo could not
show that the remaining three stay factors—the balance of the equities—heavily
tilted in her favor. Ruiz, 650 F.2d at
565–66. The Supreme Court has cautioned against
routinely granting stays pending appeal in cases involving the Hague
Convention. See Chafin v. Chafin, 568 U.S. 165,
178–80 (2013). Indeed, the Court has explained that “[i]f
losing parents were effectively guaranteed a stay, it seems likely that more
would appeal, a scenario that would undermine the goal of prompt return and the
best interests of children who should in fact be returned.” Erazo argued that
both she and M.S.O. will suffer irreparable harm if he is returned to Mexico.
She emphasizes the “physical and emotional disruption to M.S.O.’s life” and the
further risk to his stability if she is successful in her appeal and M.S.O.
must then return to the United States. But these are the risks facing many of
the children and parents litigating under the Hague Convention; granting stay
applications such as these would become routine if Erazo’s arguments, without
more, were sufficient. Finally, Erazo’s appeal did not raise a serious
legal question. Ruiz, 650 F.2d at
565. Even under a traditional analysis, a stay
would not be warranted here. The probability of Erazo succeeding on the merits
of her appeal was far from certain. Meanwhile, the harm faced by Erazo, if her
stay application is denied, is similar to what Ortiz would encounter if it was
granted. Lastly, there was no strong public interest favoring a stay.
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