Ajami v Solano, 2022 WL 909413 (Sixth Circuit, 2022) - [Venezuela][Grave risk of harm][ Asylum ][Petition granted]

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.

J.C.C. v. L.C., 2022 WL 985873, (3rd Circuit, 2022) (NOT PRECEDENTIAL) - [El Salvador][ Wishes of the child][Petition granted]

In J.C.C. v. L.C., 2022 WL 985873, (3rd Circuit, 2022) (NOT PRECEDENTIAL) the district court granted the petition of J.C.C. to return his minor children to El Salvador. The Third Circuit affirmed.

J.C.C. was a citizen and resident of El Salvador, and L.C. was a citizen of El Salvador and resident of the United States. J.C.C. and L.C. had wo children together: I.M.C. and V.I.C. I.M.C. was fifteen years old at the time of the District Court proceedings.  V.I.C. was nine years old. In December 2016, J.C.C. and L.C. obtained a mutual divorce. At the time, both lived in El Salvador. L.C. testified that J.C.C. had been violent toward her during their marriage. Pursuant to the divorce, the parties agreed that J.C.C. would maintain physical custody of the children and L.C. would pay child support and have open visitation rights. In 2017, L.C. moved to the United States. On October 22, 2018, J.C.C. signed a notarized travel authorization allowing the children to visit L.C. in the United States over their school break. The children arrived in the United States on October 31, 2018 and were scheduled to return to El Salvador on January 21, 2019. L.C. alleges that the children informed her that J.C.C. had physically abused them. In January 2019, L.C. called J.C.C. to inform him that she would not return the children. J.C.C. travelled to the United States to convince L.C. to return the children. After L.C. refused, J.C.C. filed a petition under the Hague Convention with the Central Authority in El Salvador on March 5, 2019. Between the time J.C.C. filed his petition in El Salvador and this lawsuit, J.C.C. continued to visit the children in the United States, and the children often stayed with him on these visits.

 

The District Court held an evidentiary hearing and heard testimony from six witnesses: four called by L.C. (L.C., L.C.’s boyfriend, L.C.’s attorney, and I.M.C.’s counselor), and two called by J.C.C. (J.C.C. and his attorney). The court declined to hear testimony from the children on the ground that “it would have been redundant, needlessly harmful to the [c]hildren, and potentially influenced by [L.C.].” Following the hearing, the District Court granted J.C.C.’s petition to return the children to El Salvador. The District Court held that J.C.C. had established a prima facie case under the Hague Convention and that L.C. had not sufficiently established an affirmative defense or exception. L.C. appealed.

 

The Court observed that District courts have discretion, inter alia, to consider the wishes of the child in determining whether to return a child to her country of residence. Hague Convention, art. 13. L.C. presented a narrow issue on appeal: whether the District Court erred by refusing to interview the children and precluding their testimony at the hearing. The Court pointed out that it has not held,  nor had L.C. pointed to any cases holding that a district court is required to conduct an interview with the child when adjudicating a claim brought under the Hague Convention. It reviewed this case pursuant to an abuse of discretion standard. The Court held that a arty arguing that a district court abused its discretion in connection with an evidentiary ruling must demonstrate that the District Court’s decision was “arbitrary, fanciful or clearly unreasonable” and that “no reasonable person would adopt the district court’s view.” United States v. Bailey, 840 F.3d 99, 125 n.118 (3d Cir. 2016). The District Court heard from four witnesses called by L.C. It then determined that allowing the children to testify at the evidentiary hearing would be “redundant, needlessly harmful to the [c]hildren, and potentially influenced by [L.C.].” App. 8a. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3d Cir. 2007) (noting that where “a child’s desire to remain or return to a place is ‘the product of undue influence,’ ... the ‘child’s wishes’ should not be considered.”). Applying the abuse of discretion standard to this determination and considering that the District Court heard testimony from several other witnesses in making this determination, it held  that the decision not to interview the children or permit their testimony did not meet the standard to establish an abuse of discretion.

 

Recent Hague Convention District Court Cases - Gabriel v Lavison, 2022 WL 952195 ( W.D. Washington, 2022)

 

[Mexico] [Petition granted]

 In Gabriel v Lavison, 2022 WL 952195 ( W.D. Washington, 2022) the Court granted the Petition and ordered the return of J.E.L.R. to Mexico.

 Respondent conceded that  Ms. Rivera had established a prima facie case for the return of J.E.L.R. to his habitual residence in Mexico. At the outset of the hearing, Mr. Lavison clarified that he no longer intended to assert consent and acquiescence as a defense and that he would only be proceeding with the defense of grave risk. The Court then asked Mr. Lavison if he understood that he would bear the burden of proving the grave risk defense by clear and convincing evidence. Upon acknowledging that he understood the required burden of proof, Mr. Lavison admitted that he was not prepared to present sufficient evidence to establish the defense and affirmatively abandoned all of his available defenses under the Hague Convention. The Court confirmed that Mr. Lavison understood that because of his concessions, the Court would be required to order the return of J.E.L.R. to Mexico.

 

Recent Hague Convention District Court Cases - Argueta v Lemus, 2022 WL 880039 (N.D. Mississippi, (2022))

Argueta v Lemus,  2022 WL 880039 (N.D. Mississippi, (2022))

[Honduras][ Parties stipulated Father established a prima facia case] [Mother had not established that Father consented or acquiesced to permanent removal of his minor son from Honduras. Mother failed to prove by clear and convincing evidence that the parties’ child would be subject to a grave risk of physical or psychological harm if the child were returned to Honduras. Mother’s assertions that Father was abusive toward her, including bruising her shoulder by grabbing it on one occasion and pushing her on to the bed, and pulling her hair on another, did not rise to the level of a grave risk of harm.  Mother failed to prove that returning the child to Honduras would place the child in an “intolerable situation.” Well-Settled defense not established. (Report and Recommendation that the petition be granted] 

  

Recent Hague Convention District Court Cases - Galli v Marques, 2021 WL 7451915 (M.D. Florida, 2021)

 

Galli v Marques, 2021 WL 7451915 (M.D. Florida, 2021)

[Brazil][Habitual residence][Well-Settled][Petition granted] [Respondent stipulated that the Petition, coupled with the exhibits submitted, established Petitioner’s prima facie case that a wrongful retention of D.L.M.G. occurred.  Respondent did not demonstrate by a preponderance of the evidence that D.L.M.G. was now “well settled” in the United States for purposes of the Convention. (Report & Recommendation)

Recent Hague Convention District Court Cases - Soto v Garcia, 2022 WL 780701 (N.D. Texas, 2022)

 

Soto v Garcia, 2022 WL 780701 (N.D. Texas, 2022)

[Mexico][Habitual residence][Petition granted] [ Child’s habitual residence was Torreón, Coahuila, Mexico; Respondent wrongfully retained the Child in the United States, in violation of Petitioner’s custodial rights. Petitioner did not consent or acquiesce to the Child’s retention in the United States. The Child’s return to Mexico would not place her at grave risk of psychological or physical harm.

Jacquety v Baptista, 549 F.Supp.3d 293 ( S.D. N.Y., 2021) [France][Petition denied][Costs]

In Jacquety v Baptista, 549 F.Supp.3d 293 ( S.D. N.Y., 2021)  following the denial of the father’s petition for return of the child ( 2021 WL 1885263) Respondent  moved for an award of costs pursuant to 28 U.S.C. §§ 1920 and 1923, Rule 54 of the Federal Rules Of Civil Procedure, and Southern District Of New York Local Civil Rule 54.1. 

Respondent requested total costs in the amount of f $87,305.06. Petitioner contests the amount sought and argues that an award of costs should be limited to $18,105.34.

The district court observed that Federal Rule Of Civil Procedure 54 provides that, “unless a federal statute, these rules, or a court order provides otherwise, costs – other than attorney’s fees – should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1) (“Rule 54”)). The items that may be included in a cost award pursuant to Rule 54 are defined by statute, specifically 28 U.S.C. § 1920 (“Section 1920”). Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct. 2494, 2497, 96 L.Ed.2d 385 (1987). 28 U.S.C. § 1920  lists six categories of recoverable costs: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under [28 U.S.C. § 1923]; and (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C. § 1828].  A court does not have discretion to tax costs beyond what is set forth in Section 1920. Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497. “Rather, absent a contract or statute that authorizes a court to award additional costs to the prevailing party, only those costs that are set out in Section 1920 are properly taxable.” Endo Pharmaceuticals, Inc. v. Amneal Pharmaceuticals, LLC, 331 F.R.D. 575, 579 (S.D.N.Y. 2019) (citing Crawford Fitting, 482 U.S. at 445, 107 S. Ct. at 2499). The party seeking costs thus “bears the burden of establishing that each expense it seeks to recover ‘falls within an allowable category of taxable costs.’ ”Endo Pharmaceuticals, 331 F.R.D. at 578-79 (quoting National Organics, Inc. v. Nutraceutical Corp., No. 01-CV-384, 2009 WL 2424188, at *2 (S.D.N.Y. Aug. 6, 2009))  Although the Court does not have discretion to award costs falling outside the statute’s enumerated categories, the Court may exercise its discretion to not award costs that fall within those categories. See Taniguchi, 566 U.S. at 572-73, 132 S. Ct. at 2006. Section 1920 thus does not direct that the court “must” or “shall” award costs, but rather that a judge or clerk of court “may” tax costs as set forth in the statute. 28 U.S.C. § 1920; see Endo Pharmaceuticals, 331 F.R.D. at 580. Similarly, Rule 54 provides that although certain costs “should” be awarded, a court may order “otherwise.” Fed. R. Civ. P. 54(d)(1).

 

Respondent requested payment for the following categories of costs, among others: trial transcripts; printing, copying, and exemplification; fees paid to interpreters; and the fees paid for remote trial services. Petitioner contended that much of what Respondent requests is not taxable as costs and should not be awarded. The Court addressed each disputed category in turn.

 

Trial Transcripts. The court held that fairness dictated that Petitioner pay for the costs only of (1) any real-time feeds provided to Petitioner’s counsel, (2) no more than that same number with respect to feeds provided to Respondent’s counsel, and (3) the feed provided to the Court. The cost of any additional feeds should be borne by Respondent. The Court could not determine that amount from the invoices provided by counsel and required Respondent to provide a revised bill of costs that makes the appropriate adjustment.

 

Printing, Copying, and Exemplification. The Court agreed with Petitioner that Respondent had not sufficiently delineated what costs were attributed to exemplification as distinct from those that fall under other printing or copies of materials “necessarily obtained” for use in the case. See 28 U.S.C. § 1920(3), (4). The Court also agreed that the extent of copying by Respondent exceeded what may be recovered. Pursuant to Local Rule 54.1(c)(5), “[t]he cost of copies used for the convenience of counsel or the Court are not taxable,” and Respondent had not identified which copying costs were necessary and not merely for the convenience of counsel or the court. Nonetheless, separate exhibit books were required for each witness. And while exhibits were exchanged and displayed digitally, paper copies could not be avoided.  The Court found that the total amount sought by Respondent for printing and exemplification should be reduced to the amount expended for copies of one set of the exhibit books provided to each witness for examination or cross-examination at trial and for one set of exhibits officially received into evidence.

 

Interpreters. Interpreters were employed for trial because the parties’ native language is French. Respondent testified primarily in French; Petitioner testified primarily in English but occasionally benefitted from use of the interpreter. One non-party, who testified for Petitioner, testified entirely in French. The interpreter also occasionally assisted during trial with correcting or confirming translations of documents. Although the Court did not appoint an interpreter, it found the interpreters’ services invaluable for trial. Respondent claimed $7,515.00 for fees paid to interpreters solely in connection with the testimony of Respondent herself. Petitioner contended that no interpreter fees are awardable based on this District’s local rules, because the costs sought are those associated with the testimony of Respondent who is a party, and not a non-party witness. Pursuant to Local Rule 54.1(c)(3), parties are not entitled to witness fees, and pursuant to Local Rule 54.1(c)(4), “the reasonable fee of a competent interpreter is taxable if the fee of the witness involved is taxable.” Local Rule 54.1(c)(3), (4). Section 1920 expressly identifies costs that “may” be awarded, thus permitting courts to award less than what “may” otherwise be allowed. Rule 54 does exactly that. See Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497 (“Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d). It is phrased permissively because Rule 54(d) generally grants a federal court discretion to refuse to tax costs in favor of the prevailing party.”). Respondent’s argument was premised on the incorrect assumption that all costs contemplated  by Section 1920 are mandatory. The Court was not aware of any authority so holding. Accordingly, costs for Respondent’s interpreter were not awarded.

 

Remote Trial Expenses. Trial of this case was conducted remotely as a result of the COVID-19 pandemic. Respondent sought $15,108.25 in costs paid to the service provider, Trial Graphix, which provided technology for and facilitated trial. Petitioner contends that Respondent was not entitled to any remote trial costs because they are not included in any category under 28 U.S.C. § 1920. Petitioner is correct. The Court noted that remote trial costs are not mentioned in any category of costs under 28 U.S.C. § 1920 or Local Rule 54.1. Another court in this District recently confronted the very issue presented here: whether the costs of retaining Trial Graphix to facilitate a remote trial fall within the ambit of recoverable costs. Chain v. North East Freightways, Inc., 16-CV-3371, 2021 WL 1611953 (S.D.N.Y. April 26, 2021). The Chain court held that they do not, distinguishing between the costs of preparing demonstrative exhibits, which may be recoverable, and costs for remote trial hosting, the service provided by Trial Graphix both there and here.  Even a generous reading of the cost categories identified in both of 28 U.S.C. § 1920 and Local Rule 54.1 does not include the costs of remote trial hosting.  Accordingly, costs of conducting the trial remotely were not awarded.