Mata-Cabello v . Thula, 2023 WL 3142323 (1st Cir., 2023) - [Puerto Rico][Petition granted][Attorneys fees and costs]

    In Mata-Cabello v . Thula, 2023 WL 3142323 (1^st Cir., 2023) Taili Tee Thula appealed the denial of her request for an award of attorney’s fees, pursuant to the inherent power of the United States District Court for the District of Puerto Rico, and the costs of translation services, pursuant to 28 U.S.C. § 1920(6).

 

    The challenges on appeal arose out of a pair of actions -- one filed by Thula in the Puerto Rico courts and one filed by her husband, Asdrúbal Simón Mata-Cabello (“Mata-Cabello”), in federal court. Thula’s action in the Puerto Rico courts began when she filed a complaint against Mata-Cabello, then residing in Colombia, in the Court of First Instance of the Commonwealth of Puerto Rico on February 20, 2020. The complaint alleged causes of action for divorce under Article 96 of Puerto Rico’s Civil Code, P.R. Laws Ann. tit. 31, § 321, custody of the couple’s two minor children, child support, alimony, and “the division of the marital estate,” as well as claims under Puerto Rico’s Domestic Abuse Prevention and Intervention Act, P.R. Laws Ann. tit. 8, § 601 et seq. Thula sought further relief under the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980 (“Hague Convention”), and its implementing legislation, the International Child Abduction Remedies Act (“ICARA”), 22 § U.S.C. 9001 et seq. In response, Mata-Cabello moved to dismiss Thula’s divorce and custody claims on the ground that the Court of First Instance lacked jurisdiction under Puerto Rico law to hear them because Thula had not been a resident of Puerto Rico for one full year prior to filing her complaint. Mata-Cabello also requested relief pursuant to ICARA and the Hague Convention. Specifically, he requested that the minor children be returned to their “habitual place of residence” in Colombia so that “the divorce and minor custody proceedings” could be resolved in accord with Colombia law. On October 30, 2020, the Court of First Instance granted the motion to dismiss, explaining that it lacked jurisdiction “to hear the merits of the divorce [c]omplaint filed by [Thula].” The Court of First Instance also dismissed Thula’s other claims. In doing so, the court did not address the parties’ requests for relief under ICARA and the Hague Convention. Thula filed a timely motion for reconsideration that was denied.

 

    On December 4, 2020, Mata-Cabello filed a petition under ICARA and the Hague Convention in the United States District Court for the District of Puerto Rico that named Thula as the respondent. The petition requested that the District Court order the return of the minor children to their “habitual residence” in Colombia for resolution of the custody proceedings under Colombia law. Mata-Cabello asserted in the petition that the District Court had jurisdiction over the Hague Convention petition under 22 U.S.C. § 9003. That provision grants “[t]he courts of the States and the United States district courts ... concurrent original jurisdiction of actions arising under the [Hague] Convention.”

  

    The Puerto Rico Court of Appeals, on March 12, 2021, decided Thula’s appeal from the Court of First Instance’s dismissal. It ruled that the Court of First Instance had erred by “dismissing [Thula’s] complaint in its totality, without having addressed and resolved all the claims under [its] consideration.” Accordingly, the Puerto Rico Court of Appeals ordered the Court of First Instance to: determine whether it has jurisdiction over the matter [or] the authority to address the whole matter under the protection of the Hague Convention [ ] and [ICARA]. If said forum were to determine that it has the authority over the above cited laws, it shall resolve: (1) whether Puerto Rico is the habitual resident of the minor children procreated by the parties, and (2) establish a provisional legal precedent related to custody, parent-child relationships, provisional child support and expenses. Following the Puerto Rico Court of Appeals’ ruling, the District Court entered the following order on April 23, 2021: It has come to the Court’s attention that the Puerto Rico Court of Appeals has entered its ruling on [Thula’s] appeal related to the instant matter. [Thula] is to file the resolution entered by the Puerto Rico Court of Appeals dated April 5, 2021 in case no. KLAN202001039 by April 28, 2021. A [c]ertified translation of said document is to be filed no later than May 3, 2021.

 

    After the District Court received the translated resolution, it ruled on May 4, 2021, that it would abstain because the ICARA and Hague Convention remedies “ha[d] been raised by both parties, [were] currently being litigated in the Puerto Rico [c]ourts for the past fourteen (14) months and [were] included in the [r]esolution of the Puerto Rico Court of Appeals.” Accordingly, the District Court dismissed Mata-Cabello’s action without prejudice on abstention grounds. Following the District Court’s order dismissing Mata-Cabello’s action, on May 18, 2021, Thula filed a “Motion for an Award of Attorney Fees and Costs to Prevailing Party Pursuant to Rule 54 of the Federal Rules of Civil Procedure and Applicable Law.” The motion sought an award of $28,937.50 in attorney’s fees and costs totaling $5,480.20 for “[i]nterpreter [s]ervices to translate Spanish [d]ocuments and copies” under 28 U.S.C. § 1920(6). Thula identified 22 U.S.C. § 9007(b) as the statute “entitling [her] to the award [of attorney’s fees].” Thula also moved, in the alternative, for the attorney’s fees to be awarded based on the inherent power of the District Court. She did so due to what she contended was Mata-Cabello’s “bad faith” filing of the action against her in the District Court, given that a district court has the inherent power to order a losing party to pay the “prevailing party” attorney’s fees, even in the absence of a statutory provision, when the losing party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons,” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258-59 (1975).

 

    As to the costs of translation services, Thula moved for them pursuant to 28 U.S.C. § 1920(6). That statute provides that “[a] judge or clerk of any court of the United States may tax as costs the following: ... Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.”

 

    On June 8, 2021, the District Court denied Thula’s request for the award of attorney’s fees because: (1) 22 U.S.C. § 9007(b) “provides for fees only to a prevailing petitioner; the section does not provide for fees to a prevailing respondent, and indeed, does not even mention prevailing respondents”; and (2) Mata-Cabello’s action in federal court was “brought in good  The District Court at that same time also denied Thula’s request for the costs of translation services. It did so based on Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560 (2012), in which the Supreme Court of the United States held that “costs stemming from the translation of written documents do not qualify as [’]compensation of interpreters,[’] as that term is used in 28 U.S.C. § 1920(6), and, therefore, may not be taxed as costs against a non-prevailing party. The First  Circuit affirmed for the same reasons.

 

 

Braude v. Zierler, 2023 WL 3012269 (2d Cir.,2023) - [Canada][Petiiton denied][Grave risk of Harm]

    In Braude v. Zierler, 2023 WL 3012269 (2d Cir.,2023) Gadi Braude, appealed the district court’s denial of his petition pursuant to the Hague Convention to return his two children – who resided with their mother, Dorona Mia Zierler, in the United States, to Canada. He also moved to expand the record on appeal. The Court affirmed. It observed that  “[W]hen a child has been wrongfully removed or retained from his country of habitual residence, Article 12 of the Hague Convention generally requires the deciding authority (here, a district court) to order the return of the child.” Golan v. Saada, 142 S. Ct. 1880, 1891 (2022). However, “[u]nder Article 13(b) of the Convention, ... a court is not bound to order the return of the child if the court finds that the party opposing return has established that return would expose the child to a grave risk of physical or psychological harm.” By providing that a court is not bound to order return upon making a grave-risk finding, Article 13(b) lifts the Convention’s return requirement, leaving a court with the discretion to grant or deny return. Moreover, a district court’s “discretion to determine whether to return a child where doing so would pose a grave risk to the child includes the discretion whether to consider ameliorative measures that could ensure the child’s safe return.” Id. at 1893.

 

    Here, the district court denied Braude’s request for relief under the Hague Convention. Citing Braude’s “long and serious history of untreated mental[-]health issues,” his “concerning history of angry and manipulative behavior,” and his “arrest for access and possession of child pornography,” the district court found that “[t]he record reflects [the] existence of factors in combination that create[d] a grave risk of harm if the children were returned to Canada.” Furthermore, the district court found that Braude’s proposed ameliorative measures would not adequately “prioritize the children’s physical and psychological safety.” Braude appealed, asking the Court to exand the record on appeal and, on the basis of the new evidence, hold that the district court erred in its grave-risk and ameliorative-measures findings. His motions to expand the record to include two categories of documents was denied. Ordinarily, review is limited to the record on appeal, meaning the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the district clerk, see Fed. R. App. P. 10(a)(1), unless a litigant can show “extraordinary circumstances,”. Braude has not shown any such extraordinary circumstances here.

 

    First, Braude sought consideration of a Canadian child-welfare agency’s records spanning from October 2020 to August 2022 regarding Braude, Zierler, and their children (the “Agency Records”), which he allegedly requested months before the July 2022 evidentiary hearing but were not produced to him until September 2022. But the fact that the Agency Records were not available until after the district court issued its judgment is not in and of itself an extraordinary circumstance.

 

    Second, Braude sought consideration of Zierler’s family offense petition filed in New York Family Court months after the July 2022 evidentiary hearing arguing that it undermined Zierler’s prior sworn testimony regarding abuse. But the fact that post-judgment evidence, had it existed at the time of the hearing, could have been relevant, or, in this case, could have been used to impeach the credibility of an adverse witness, is not enough to justify an expansion of the record on appeal.

 

    Because Braude’s only arguments on appeal rested on the new evidence it may not consider, he abandoned all other challenges to the district court’s decision, and the Court affirmed.

 

Rosasen v Rosasen, 2023 WL 128617, Not Reported in Fed. Rptr. (9th Circuit, 2023) - [Norway][Habitual residence][Petition granted]

    In Rosasen v Rosasen, 2023 WL 128617 Not Reported in Fed. Rptr.,  (9^th Circuit, 2023) Marlon Abraham Rosasen appealed the district court’s judgment in favor of Thea Marie Rosasen on her petition under the Hague Convention.

 

    The Ninth Circuit held that the district court properly exercised its broad discretion in deciding that an evidentiary hearing was not necessary because the parties presented evidence and argument and received a meaningful opportunity to be heard. Colchester v. Lazaro, 16 F.4th 712, 729 (9th Cir. 2021) (courts “are accordingly vested with broad discretion to fashion appropriate procedures”). It held that the district court did not clearly err in finding that Norway was the habitual residence of the parties’ children. See Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020) (habitual residence determination is reviewed for clear error). Any agreement between the parents to raise the children in the United States was not dispositive. The district court properly found that the children were “at home” in Norway because they attended daycare there, the majority of their close relatives lived there, and they had close relationships with Thea Rosasen’s parents and other family members in Norway who helped to care for them. It also held that the district court properly found that the exception to the remedy of return set forth in Hague Convention Article 13(a) did not apply because Thea Rosasen did not consent to the children’s relocation to the United States. See Asvesta v. Petroutsas, 580 F.3d 1000, 1004 (9th Cir. 2009) (itemizing consent or subsequent acquiescence as one exception to the Hague Convention’s “rule of return”). It also held that arlon Rosasen did not establish that the district court’s grant of the petition violated his fundamental rights under Hague Convention Article 20. See Hague International Child Abduction Convention; Text and Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986) (advising that the Article 20 exception is to be “invoked only on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process”).

 

Radu v Shon, 2023 WL 2470014 (9th Cir., 2023) - [Germany][Petition granted][ grave risk of psychological harm] [ameliorative measures] [affirmed]

    In Radu v Shon, 2023 WL 2470014 (9^th Cir., 2023) while the family was residing in Germany, Shon took the children to the United States and refused to return them. Because the Supreme Court issued its decision in Golan while it was considering Shon’s appeal of the second return order, it also remanded that order for the district court’s reconsideration. The district court then granted the petition a third time. The Ninth Circuit affirmed.

 

    Radu and Shon married in 2011 in the United States. Their older child, O.S.R., was born in the United States in 2013, and their younger child, M.S.R., was born in Germany in 2016. Both children were citizens of the United States. From 2016 to 2019, Radu, Shon, and their children lived in Germany. Shon took O.S.R. and M.S.R. from Germany to the United States in June 2019. Shon and the children have since lived with Shon’s parents in Arizona, despite Radu’s wishes for the children to be brought back to Germany.

 

    Radu petitioned for the children to be returned to Germany in federal district court in Arizona in June 2020. The district court held an evidentiary hearing and granted Radu’s petition. The court found a grave risk of psychological harm if the children were returned to Germany in the custody of Radu. The court determined, however, that those risks would be mitigated if the children returned to Germany in Shon’s temporary custody. So the court ordered Shon to return with the children and retain full custody until the German courts resolved the merits of the custody dispute. At that time, Gaudin v. Remis made the consideration of ameliorative measures mandatory. See 415 F.3d 1028, 1035 (9th Cir. 2005). Shon appealed. The Ninth Circuit vacated and remanded for the district court to determine whether the sole-custody measure would be enforceable in Germany.

 

    On remand, the district court held a second hearing at which Shon presented expert testimony and the parties testified. Shon’s expert, a German-licensed attorney, stated that the temporary sole-custody order would not be enforceable because Germany does not recognize ameliorative measures. He also testified that a German court may take up to six months to decide custody because the children would not be considered habitually resident in Germany until then. Furthermore, because the children are not German citizens, he testified that neither Shon nor Radu could initiate German custody proceedings or obtain protective measures from abroad. Shon testified that her savings would not cover travel or living expenses in Germany but conceded that her parents, who had assisted her financially during this case, had paid for her plane tickets for her previous return from Germany. She was also afraid of being arrested upon returning to Germany but did not know of any pending legal matters at that time. Radu testified that he would pay for airfare and housing for Shon and their children pending the custody determination. He promised to maintain a separate household and cooperate with Shon. He also testified that Germany has a child-protection agency that could ensure the children’s safety if Shon became unavailable.

 

    The district court then contacted the State Department, Office of Children’s Issues’ country officer for Germany, who contacted the German Central Authority for the court. The court did not receive a binding statement on the time needed for a German court to determine custody. But the German Central Authority cited Section 155 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction, which provides for handling of custody issues “in an expedited manner.” The German Central Authority also confirmed that Germany has youth welfare offices that may conduct home visits or take custody of children if necessary.

 

    In a second return order, the district court concluded that the enforceability of the sole-custody remedy was uncertain. But that was no longer necessary because the district court had considered the risk of psychological harm over too long of a time period. Based on the new evidence that a German court would take months to resolve custody, the court held that ordering Shon to return with the children to Germany—where the default rule was joint custody—sufficiently ameliorated the risk of psychological harm. Shon again appealed. The Ninth Circuit stayed the appeal pending the Supreme Court’s resolution of Golan and eventually remanded for reconsideration in light of Golan’s clarification that consideration of ameliorative measures is discretionary rather than mandatory. See 142 S. Ct. at 1892–93.

 

    The district court did not hold another hearing on the second remand but ordered return based on the existing record. Following Golan, the district court exercised discretion to consider ameliorative measures. Relying on the second return order’s analysis, the district court again stated that ordering Shon to return to Germany with the children would ameliorate the risk of psychological harm. It denied Shon’s request for a new evidentiary hearing, partially because there was no new evidence about Radu’s interactions with the children and partially because a hearing would contravene the Convention’s directive for expeditious resolution.

 

    This appeal arose from the third return order. Given the parties’ uncertainty about aspects of the ordered remedy, and unresolved logistical issues, the court ordered a limited remand while retaining jurisdiction to avoid further delay. See Friery v. L.A. Unified Sch. Dist., 448 F.3d 1146, 1150 (9th Cir. 2006) (ordering “a limited remand to the district court”). it directed the district court to clarify (1) its current Article 13(b) grave-risk finding and ameliorative measure(s) ordered, (2) whether Radu must pay for airfare, (3) whether Radu must pay for separate living arrangements, (4) the custody arrangements (sole or joint) while Shon was temporarily residing in Germany, (5) the custody arrangements if Shon is no longer able to legally reside in Germany before a German court decides custody, (6) the need to notify German child protective services upon the children’s arrival, and (7) whether, if necessary, German child protective services have jurisdiction to oversee the children’s wellbeing.

 

    The district court answered those questions. First, it explained that the grave risk of psychological harm arose only if the children remained in Radu’s sole custody for a longer time, and that no harm would arise if Shon and Radu had joint custody or if Radu had sole custody for a limited duration. Radu v. Shon, No. CV-20-00246-TUC-RM, 2023 WL 142908, at *2 (D. Ariz. Jan. 10, 2023). Second, Shon must pay for her and the children’s airfare back to Germany. Third, Radu must pay for separate living arrangements because Shon would take unpaid leave and could not work in Germany. Fourth, the parties would have joint custody, as German law provides, pending a final custody determination. Fifth, in the event Shon could not remain until the merits decision, the children would enter Radu’s physical custody.  Sixth, the court determined that notifying German child protective services was unnecessary. Seventh, the court judicially noticed the existence of jugendamt, the German child protective services agency, and explained that the record suggests that the agency would have authority over the children once they arrive in Germany.

 

    The issues currently before it were whether the district court should have conducted an evidentiary hearing during the second remand or the limited remand, refrained from contacting the State Department, or ultimately determined that the record supported its ameliorative measure.

 

    Shon contended that the district court should have held a new evidentiary hearing during the second remand or the limited remand. She relies on Gaudin’s instruction that “[t]he questions before the district court on remand will be whether a grave risk of harm now exists, and if so, whether that risk can be minimized through an alternative remedy,” 415 F.3d at 1036, for her position that a new hearing is necessary to determine the current conditions.

 

    Neither ICARA nor the Convention specify when a court must hold an evidentiary hearing. ICARA instructs courts to “decide the case in accordance with the Convention.” 22 U.S.C. § 9003(d). And the Convention directs courts to “act expeditiously in proceedings for the return of children.” Convention Art. 11. It also permits a court to “order the return of the child at any time” notwithstanding the other provisions. Convention Art. 18. It reviewed the district court’s decision not to hold a new evidentiary hearing for abuse of discretion. Under that standard, it affirms the district court unless it commits a legal error in interpreting the Convention, or clearly errs in determining the facts from the record. See United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc).

 

    Any categorical rule requiring new hearings would contravene the Convention’s directive for expeditious resolution. The district court is far better situated to determine the exact procedures necessary to aid its resolution of the case. A per se rule would impede that flexibility with minimal upside. Under some circumstances, a refusal to hold a new hearing could constitute an abuse of discretion. But the district court here declined a third evidentiary hearing because the evidence of Radu’s treatment of the children—on which the court based its ameliorative measure and grave-risk finding—had not changed; Radu had not had contact with the children since the earlier hearings. Sister circuits agree. In March v. Levine, the question presented was whether the district court improperly granted summary judgment to a father petitioning for his children’s return without allowing discovery or a hearing on the merits. See 249 F.3d 462, 468 (6th Cir. 2001). The Sixth Circuit affirmed. Recognizing that Convention cases are unique, the court explained that “neither [the Convention nor ICARA] expressly requires a hearing or discovery”; instead they require “expeditious action.” The court also found persuasive that “courts in other Contracting States to the treaty have also upheld summary proceedings on review.” The Tenth Circuit reached the same conclusion in West v. Dobrev, reasoning that Article 18’s permission to order return at any time provides trial courts “a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention and ICARA.” 735 F.3d 921, 929 (10th Cir. 2013).

 

    The court concluded that Gaudin did not require otherwise. It held that, in cases governed by the Convention, the district court has discretion as to whether to conduct an evidentiary hearing following remand and must exercise that discretion consistent with the Convention. The district court did not abuse its discretion in declining to hold a third evidentiary hearing when the factual record was fully developed.

 

    Shon asserted that the district court’s communications with the State Department and the German Central Authority were ex parte, resulted in hearsay evidence, and violated Shon’s due process rights. Federal Rule of Civil Procedure 44.1 clarified that an interpretation of foreign law “must be treated as a ruling on a question of law.” Accordingly, like any legal issue, “the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.” Fed. R. Civ. P. 44.1. Moreover, “the court is not limited by material presented by the parties; it may engage in its own research and consider any relevant material thus found.” That said, “expert testimony accompanied by extracts from foreign legal materials has been and will likely continue to be the basic mode of proving foreign law.” Courts nonetheless have an “independent obligation to adequately ascertain relevant foreign law, even if the parties’ submissions are lacking.” de Fontbrune, 838 F.3d at 997. Though international comity requires American courts to “carefully consider a foreign state’s views about the meaning of its own laws,” that deference has its limits. “The appropriate weight in each case ... will depend upon the circumstances; a federal court is neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials.” Id.

 

    The State Department and foreign Central Authorities are proper and useful resources when evaluating a foreign legal landscape. See Convention Art. 7. A sister circuit, for instance, has directed a district court “to make any appropriate or necessary inquiries of the [foreign government] ... and to do so, inter alia, by requesting the aid of the United States Department of State, which can communicate directly with that foreign government.” Blondin v. Dubois, 189 F.3d 240, 249 (2d Cir. 1999). The Court said it contemplated the district court’s ability to seek assistance from the State Department when it remanded the first return order. See Radu I, 11 F.4th at 1090–91.

 

    Shon did not contest any foreign legal conclusion but challenged the methods the court used to determine German procedural issues. Though a legal conclusion on foreign law is reviewed de novo, a district court’s selection of methods to evaluate foreign law is discretionary. Accordingly, it reviewed the district court’s methods of foreign law research for abuse of discretion.

 

    The district court neither abused its discretion nor violated Shon’s due process rights by communicating with the State Department and, through it, the German Central Authority. “[I]ndependent judicial research” on a legal question “does not implicate the judicial notice and ex parte issues spawned by independent factual research.” de Fontbrune, 838 F.3d at 999; see also G&G Prods. LLC v. Rusic, 902 F.3d 940, 948 (9th Cir. 2018) (“formal notice” of court’s intent to research foreign law not required). Nor do the Federal Rules of Evidence and its hearsay rules apply to foreign law materials, much as legal research on domestic law cannot trigger evidentiary objections.

 

    Here the district court did not view itself bound by information received from the State Department; it properly considered and weighed that information alongside the testimony of the parties and Shon’s expert. Shon failed to persuade that the district court abused its discretion in the way it reached them.

 

     Shon challenged several factual findings underlying the district court’s third return order and asserted that the law-of-the-case doctrine prohibited the court from revisiting its grave-risk finding. The Court reviews factual findings for clear error, which occurs if “the finding is illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” “While a district court has no obligation under the Convention to consider ameliorative measures that have not been raised by the parties, it ordinarily should address ameliorative measures raised by the parties or suggested by the circumstances of the case ....” Golan, 142 S. Ct. at 1893.

 

    On remand, the district court clarified that the minor children would be at a grave risk of psychological harm only if they returned to Germany and remained in Radu’s sole custody for years due to the cumulative nature of psychological harm. If Shon could not remain in Germany past the expiration of her tourist visa (around ninety days), then the court found no issue with Radu taking physical custody of the children for a short time until the final custody determination is made by German authorities. Because no exception to return would apply under those circumstances, the court ordered the children’s return.

 

    The record supported the district court’s determination that the time frame in which a German court would determine custody would be a few months rather than years. The hearing testimony supported the court’s determination that Shon could return with the children. Based on the lack of any evidence or testimony about pending criminal charges in Germany, the court drew the supported inference that none existed. Finally, the law-of-the-case doctrine did not prevent the district court from revisiting its prior ruling on grave risk. “[T]he law-of-the-case doctrine ‘merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.’ It “applies most clearly where an issue has been decided by a higher court.”. Even though the district court found grave risk in its first return order, it was free to revisit this ruling based on updated evidence about the likely time frame for German courts to decide the merits of the custody dispute. See Radu, 2023 WL 142908, at *2. Gaudin instructs district courts to decide whether grave risk exists based on the current circumstances. 415 F.3d at 1036.

 

    The district court did not err in refusing to hold a new evidentiary hearing or in consulting the State Department. Adequate evidence supported the factual findings that Shon challenged. It thus affirmed.

 

 

Hernandez v Erazo, 2023 WL 3175471 (5th Cir.,2023) - [Mexico] [Petition Granted] Motion for Stay Pending appeal denied]

In Hernandez v Erazo, 2023 WL 3175471 (5^th 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.