Fernando Alcala v. Claudia Hernandez , 826 F.3d 161 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2471
FERNANDO CONTRERAS ALCALA,
Plaintiff - Appellant,
v.
CLAUDIA GARCIA HERNANDEZ,
Defendant - Appellee.
No. 15-2507
FERNANDO CONTRERAS ALCALA,
Plaintiff - Appellee,
v.
CLAUDIA GARCIA HERNANDEZ,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Florence. R. Bryan Harwell, District
Judge. (4:14-cv-04176-RBH)
Argued: March 22, 2016 Decided: June 15, 2016
Before KING, AGEE, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge King and Judge Agee joined.
ARGUED: Matthew Adams Abee, Thomas William McGee, III, NELSON
MULLINS RILEY & SCARBOROUGH LLP, Columbia, South Carolina, for
Appellant/Cross-Appellee. Kevin Roger Eberle, EBERLE LAW FIRM,
LLC, Charleston, South Carolina, for Appellee/Cross-Appellant.
ON BRIEF: Brendan P. Barth, Nicholas W. Lewis, BARTH, BALLENGER
& LEWIS, LLP, Florence, South Carolina, for Appellee/Cross-
Appellant.
2
FLOYD, Circuit Judge:
In June 2013, Appellee Claudia Garcia Hernandez (Mother)
removed her two minor children from their home in Mexico.
Mother crossed into the United States with the children and
arrived in South Carolina in August 2013. In October 2014, the
children’s biological father, Appellant Fernando Contreras
Alcala (Father), petitioned for return of the children to Mexico
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction (the “Hague Convention” or
“Convention”), Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M.
1501. The district court found that Mother’s removal of the
children was wrongful under the Convention, which would
ordinarily require the district court to order the children
returned to Mexico. The district court further found, however,
that the children were now settled in their new environment and
that the Convention did not require a return order under the
circumstances. The district court declined to order the
children returned, and Father appealed. We conclude that the
district court correctly applied the Convention and therefore
affirm.
I.
The underlying facts are drawn from the order of the
district court, which was entered subsequent to a bench trial.
3
A.
Father, Mother, and both minor children, F.C.G. and A.C.G.,
are Mexican nationals. Although Father and Mother were never
married, in early 2013 they were living together with the
children in Cosolapa, Oaxaca. At that time, the children were
approximately eight- and two-years old, respectively.
Mother began discussing with Father her desire to move with
the children to the United States. Father, however, did not
want to move to the United States. On June 17, 2013, Mother
took the children, without telling Father, and went to a
relative’s home in a neighboring town. The next day, Father
complained to the local authorities. He informed the
authorities that Mother had expressed a desire to move to the
United States and that Mother had family already living there.
Mother, with the assistance of family and friends, made her
way with the children to the border. She and the children
entered the United States without authorization around July 2,
2013. Mother and the children subsequently arrived in Florence,
South Carolina, on August 22, 2013. Mother’s mother and two
sisters had previously settled in Florence after entering the
United States without authorization sometime in 2004 or 2005.
The sisters completed schooling through high school in Florence.
Both sisters own and operate small businesses in the area, as
does their mother. The sisters participate in the Department of
4
Homeland Security’s Deferred Action for Childhood Arrivals
(DACA) program. 1
B.
Mother and the children initially lived with her mother in
Florence. Within a short time, Mother enrolled the older child,
F.C.G. (Son), in the third grade at Greenwood Elementary. The
younger child, A.C.G., was not old enough to attend school.
Neither Mother nor Son spoke English when they arrived, and one
of Mother’s sisters helped register Son for school. During this
time, Mother worked for her mother and sisters. Sometime in
2013, Mother met her current boyfriend, Jose Vasquez (Vasquez).
In January 2014, in order to have more space, Mother and
the children moved out of her mother’s home and into a mobile
home owned by one of Mother’s sisters. Their new home was in
neighboring Darlington County, South Carolina. Upon moving,
Mother withdrew Son from Greenwood Elementary and enrolled him
at Brockington Elementary in Darlington on February 4, 2014.
That same month, Vasquez moved in with Mother and the children.
1 DACA does not confer formal immigration status. As
currently implemented, the program permits participants to defer
removal and remain in the United States if they meet certain
conditions. See, e.g., Arizona Dream Act Coalition v. Brewer,
No. 15-15307, __ F.3d __, 2016 WL 1358378, at *1-*2 (9th Cir.
Apr. 5, 2016).
5
Son completed the 2013-2014 school year at Brockington
Elementary. He was absent from school eight days during the
spring term. Son made decent grades and worked with the English
for Speakers of Other Languages (ESOL) program.
In November 2014, Mother, Vasquez, and the children moved
to their current home, a mobile home owned by Vasquez’s father
in Darlington County. The location of their new home required
Mother to transfer Son to another Darlington school, St. John’s
Elementary.
C.
On October 27, 2014, Father filed a petition in district
court, seeking the return of the children to Mexico under the
Hague Convention. Father argued that when children under the
age of 16 have been wrongfully removed from their country of
habitual residence, the Convention requires the country to which
the children have been brought to promptly order their return.
On January 5, 2015, Father and Mother filed a joint
stipulation of facts. The stipulated facts established that
Mother had wrongfully removed the children from Mexico, their
state of habitual residence. On February 4, 2015, Mother filed
an answer to Father’s petition. Mother asserted that certain
exceptions to the Convention’s general rule of return were
applicable here. Specifically, Mother argued that: (1) Son was
6
now settled in his new environment in South Carolina; (2) Son
was a mature child who objected to his return; and (3) the
children faced grave risk if returned.
The district court held a bench trial on May 11 and 12,
2015. The district court heard testimony from Father, Mother,
Mother’s mother and two sisters, Vasquez and his father, one of
Mother’s friends from church, and several of Son’s teachers and
school officials. Son also underwent a forensic interview,
which was reviewed by the district court. 2
Following trial, the district court issued an order
enumerating its factual findings relevant to the issue of
whether Son was now settled in South Carolina. The district
court noted that Son’s forensic interview indicated that Son can
speak, understand, and converse in English. The district court
characterized this fact as “significant evidence of his
acclimatization to his new environment given the fact that he
could not speak any English when he arrived in August of 2013.”
J.A. 442. With regard to Son’s academic performance, Son’s most
recent report card showed that he received all As and Bs except
2A.C.G. was not interviewed because of his young age. On
the second day of trial, the parties informed the district court
that they did not want the children to be separated. To that
end, the parties stipulated that whatever decision the court
made concerning one child would apply to the other. For a
variety of reasons, this resulted in the trial focusing on the
application of the Convention to Son’s circumstances.
7
for one C in his Science and Math class in the first term of the
year. Son’s English teacher testified that Son has a good grasp
of the language and was expected to receive an A at the end of
the current term in his English and Language Arts class. Son is
enrolled in the ESOL program, although Son’s English teacher
testified that Son does not receive any of the special
accommodations generally afforded to ESOL participants. The
district court described Son as “perform[ing] exceptionally well
in school.” J.A. 443.
The district court found that Son has substantial family
ties in his new environment, with a number of family members
living nearby including his grandmother, two aunts, and several
cousins. The district court found that Son has extensive
contact with those family members and attends numerous family
gatherings. The district court also found that the family has
strong ties to the local community through successful ownership
and operation of various local businesses. The district court
credited testimony that Mother and Vasquez are in a stable,
loving relationship and that they eventually plan to marry. Son
regularly attends church, and the district court credited
testimony that he gets along well with the other children and
has friends at the church. The district court also found that
Son has friends elsewhere in his new environment. One of Son’s
teachers testified that Son is well-liked by his peers and has a
8
number of friends in class. Evidence also showed that Son plays
with other children in his neighborhood.
The district court further found that despite Mother’s
admitted unauthorized presence in the United States, and her
concomitant lack of legal authorization to work, Mother has
remained gainfully employed and consistently earned an income
since her arrival. The district court found that Mother “is
clearly able to provide for the minor children” and that the
children were always provided adequate clothing, food, and
shelter. J.A. 444. Mother’s mother and sisters also testified
that they would be willing to help Mother and the children
financially if needed.
With respect to Son’s home life, the district court found
that Mother had maintained a stable residence in Son’s new
environment. Although the evidence established that she had
lived with the children in three different homes in roughly
fourteen months, each home was in the same general area in South
Carolina and the moves did not disrupt the children’s daily
lives. The district court found that Mother’s reasons for
moving each time were reasonable, and did “not reflect an
unstable existence” for Son or an attempt to conceal his
whereabouts. Id. The district court found that Son “ha[s] a
stable home life in [his] new environment.” Id.
9
Both Mother and Vasquez are present in the United States
without authorization. They have both been arrested for traffic
violations. Mother lacks legal authorization to work in the
United States, and she conceded that she pays no taxes on the
income she earns. Neither Mother nor Vasquez has ever been
subject to deportation proceedings. The district court found
Son’s own immigration status a “cause for concern,” but noted
that “as a practical matter, it is highly unlikely that [he]
will face deportation anytime soon.” Id. The district court
further noted that several of Son’s relatives had lived in the
area without legal authorization for an extended period of time;
despite the lack of authorization, they “operate local
businesses and make positive contributions to the community.”
J.A. 445. The district court concluded that there is nothing
to suggest that Son’s immigration status “is likely to upset the
stability of [his] life in [his] new environment” and further
found that there was no indication that Son was “likely to
suffer any harm from [an] inability to receive certain
government benefits.” Id.
The district court found that the children “are well-cared
for, have access to medical care, and are supported by a network
of family and friends.” Id. The district court characterized
the factual record as containing “strong evidence that the minor
10
children are well-settled in their new environment” and, “by all
accounts, are thriving.” J.A. 453.
The district court then addressed Mother’s argument that
the Hague Convention did not require it to order Son’s return
because he was now settled in his new environment. The district
court agreed that the Convention did not require it to order Son
returned if Mother established that Son was settled. The
district court noted that the Convention does not define what it
means for a child to be “settled.” The district court therefore
looked to the totality of the circumstances to determine whether
Son was connected to his new environment such that an order to
return him would be harmfully disruptive. The district court
ultimately concluded that a preponderance of the evidence
established that Son was now settled in his new environment.
Consistent with that conclusion, the district court declined to
order the children returned to Mexico. 3 Father now appeals.
3 With respect to Mother’s other arguments against return,
the district court concluded that Son was not sufficiently
mature such that his objection to return should be taken into
account, and further concluded that Mother had failed to
establish that the children would face grave risk if returned.
Mother has cross-appealed the district court’s decision on Son’s
maturity. Because we affirm the district court’s decision not
to order Son’s return under the Convention’s “now settled”
exception, we need not address Mother’s alternative argument and
we dismiss her cross-appeal as moot.
11
II.
We review the district court’s findings of fact for clear
error and review its construction and application of the Hague
Convention de novo. Maxwell v. Maxwell, 588 F.3d 245, 250 (4th
Cir. 2009); Miller v. Miller, 240 F.3d 392, 399 (4th Cir. 2001).
III.
A.
“To address ‘the problem of international child abductions
during domestic disputes,’ in 1980 the Hague Conference on
Private International Law adopted the [Hague Convention].”
Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1228 (2014) (quoting
Abbott v. Abbott, 560 U.S. 1, 8 (2010)). “The United States
ratified the Hague Convention in 1988, and Congress implemented
the Convention that same year through the International Child
Abduction Remedies Act (ICARA).” Id. at 1229 (citing
102 Stat. 437, codified at 22 U.S.C. §§ 9001-9011).
A primary aim of the Convention is to deter parents from
taking children across international boundaries in search of a
more sympathetic court to resolve custody disputes. See Miller,
240 F.3d at 398. To that end, the Convention’s central
operating feature is the “return remedy”: when a child under
the age of 16 has been wrongfully removed from his or her
country of habitual residence, the country to which the child
12
has been brought generally must order the prompt return of the
child. Abbott, 560 U.S. at 9.
Importantly, the return remedy does not alter the
pre-existing allocation of custody rights between parents; the
Convention generally leaves ultimate custodial decisions to the
courts of the country of habitual residence. Id. “The
Convention is based on the principle that the best interests of
the child are well served when decisions regarding custody
rights are made in the country of habitual residence.” Id.
at 20. The return remedy, in effect, “lays venue for the
ultimate custody determination in the child’s country of
habitual residence rather than the country to which the child is
abducted.” Lozano, 134 S. Ct. at 1228.
However, “[t]he return remedy is not absolute.” Id.
at 1229. The Convention provides a limited number of narrow
exceptions to the general rule of return. Miller, 240 F.3d at
398-99, 402. One such exception is found in Article 12 of the
Convention. Article 12 states the general rule that where
appropriate proceedings are commenced within one year of a child
being wrongfully removed, a court “shall order the return of the
child forthwith.” Convention, art. 12, 19 I.L.M. at 1502.
Article 12 further provides that even if this one-year period
has expired, a court shall nevertheless order return “unless it
is demonstrated that the child is now settled in its new
13
environment.” Id. In other words, the Convention does not
require a court to order a child returned if the action under
the Convention was not commenced within one year of the
abduction and the child is now settled in her or his new
environment. See Miller, 240 F.3d at 402 n.14.
B.
Father does not dispute that the one-year period elapsed
before he commenced this action. Whether the Convention
requires that Son be ordered returned to Mexico thus turns on
whether Son is now settled in his new environment. Under ICARA,
Mother bears the burden of establishing that Son is settled by a
preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B).
1.
ICARA mandates that courts “shall decide” cases “in
accordance with the Convention.” 22 U.S.C. § 9003(d). The
Hague Convention, however, does not define what it means for a
child to be “settled.” See Lozano v. Alvarez, 697 F.3d 41, 56
(2d Cir. 2012), aff’d in part sub nom. Lozano v. Montoya
Alvarez, 134 S. Ct. 1224 (2014). We have not yet construed the
term “settled” in the Convention, although other courts have had
occasion to do so.
14
In Lozano, the Second Circuit began by noting that the
natural meaning of the term “suggests a stable and permanent
relocation of the child.” 697 F.3d at 56. The court also noted
that a report prepared by the official Hague Conference reporter
for the Convention, Elisa Perez-Vera, cautioned against allowing
Convention exceptions to swallow the basic rule of return:
“[exceptions] are to be interpreted in a restrictive fashion if
the Convention is not to become a dead letter.” 697 F.3d at 52,
56 (quoting Perez-Vera Report ¶ 34). Accord, e.g., Miller, 240
F.3d at 402 (explaining that the exceptions to return under the
Convention are “narrow”). 4 Consistent with this principle, the
Department of State has interpreted “settled” to require
“substantial evidence of the child’s significant connections to
the new country.” Lozano, 697 F.3d at 56 (quoting Department of
State, Hague International Child Abduction Convention; Text and
Legal Analysis, 51 Fed. Reg. 10,494, 10,509 (Mar. 26, 1986)).
In light of these various considerations, the Second Circuit
concluded that “settled” in this context means “that the child
4 The Supreme Court has noted that the Perez-Vera Report is
often cited by courts interpreting the Hague Convention, but
that it remains an open question whether the Report is entitled
to any greater weight than general scholarly commentary.
Abbott, 560 U.S. at 19. We need not answer that question now,
as we accord no special weight to the Report. The Report is
consistent with a variety of sources all counseling the same
construction of the “settled” exception.
15
has significant emotional and physical connections demonstrating
security, stability, and permanence in its new environment.”
Lozano, 697 F.3d at 56.
The Second Circuit’s approach to treaty interpretation in
Lozano is consistent with our own. 5 We find the analysis in
Lozano to be persuasive, and thus agree that for a child to be
settled within the meaning of the Convention, the child must
have significant connections demonstrating a secure, stable, and
permanent life in his or her new environment. Accord, e.g.,
Hernandez v. Garcia Pena, No. 15-30993, __ F.3d __, 2016 WL
1719955, at *4 (5th Cir. Apr. 28, 2016) (citing with approval to
the Lozano analysis). 6
5 When a treaty does not define an operative term, we turn
to other sources for guidance, including judicial constructions,
history, and the purpose of the treaty, as well as the meaning
attributed to the term by government agencies charged with the
treaty’s negotiation and enforcement. See Ordinola v. Hackman,
478 F.3d 588, 595 (4th Cir. 2007); United States v. Al-Hamdi,
356 F.3d 564, 570 (4th Cir. 2004).
6 Some courts have characterized the “settled” analysis as
asking whether, “at least inferentially, return would be
disruptive with likely harmful effects.” In re D.T.J., 956 F.
Supp. 2d 523, 534 (S.D.N.Y. 2013) (citations omitted). This is
functionally the same standard as we articulated above.
Ordering a child’s return will generally sever whatever
immediate connections a child has to his or her new environment.
If those connections are significant enough that the child’s
life is secure, stable, and permanent, a return order is likely
to be harmfully disruptive.
16
2.
The Convention and ICARA are also silent regarding what
facts a court should consider in making a “settled”
determination. See Lozano, 697 F.3d at 56. The text of the
Convention does not place any limits on the categories of
evidence that a hearing court may consider. Given the lack of
any textual limitation, courts should consider any relevant
circumstance that demonstrates security, stability, or
permanence—or the lack thereof—in a child’s new environment.
Such a totality-of-the-circumstances analysis serves the purpose
of the “settled” exception and is consistent with the analytic
approach in decisions of our sister circuits. See, e.g.,
Hernandez, __ F.3d __, 2016 WL 1719955, at *4; Lozano, 697 F.3d
at 56-57; In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir.
2009); Lops v. Lops, 140 F.3d 927, 946 (11th Cir. 1998).
We note that the more recent of these decisions have tended
to enumerate various factors a court should consider in making a
“settled” determination. The district court here looked to the
factors articulated by the Second Circuit in Lozano:
(1) the age of the child; (2) the stability of the
child’s residence in the new environment; (3) whether
the child attends school or day care consistently;
(4) whether the child attends church [or participates
in other community or extracurricular school
activities] regularly; (5) the respondent’s employment
and financial stability; (6) whether the child has
friends and relatives in the new area; and (7) the
immigration status of the child and the respondent.
17
697 F.3d at 57. The district court correctly recognized that
such factors are non-exhaustive, and in a particular case some
of these considerations may not apply and additional
considerations may be relevant. Additionally, there is no
formulaic way to tabulate or weigh any particular factor or
circumstance. Thus, while we agree that the use of such factors
may be helpful in guiding factual development and analysis,
their use should not obscure the ultimate purpose of the court’s
inquiry. This inquiry is, as explained above, a holistic
determination of whether a child has significant connections
demonstrating a secure, stable, and permanent life in his or her
new environment. 7
Before turning to consider whether Son’s circumstances
establish that he is now settled, we stress that the “settled”
7In her brief, Mother argues that “the trial court’s
findings on the presence of each factor should be reviewed for
clear error.” Appellee’s Br. 11. This is not correct. We need
not independently review such “findings,” because the “presence”
or “absence” of a factor does not have a meaningful, independent
effect. Likewise, a district court does not err if it declines
to assign each underlying fact to a specific factor or factors.
There is at bottom here a single legal question for the district
court to answer, and for us to review: “Is Son now settled?”
We review this ultimate issue de novo. See Miller, 240 F.3d at
399; In re B. Del C.S.B., 559 F.3d at 1008 (“[A] conclusion as
to whether a child is ‘settled’ in her new environment, though
fact-specific, ultimately rests on a legal determination of
whether the discrete facts add up to a showing that she is
‘settled’ within the meaning of Article 12.” (quotation
omitted)).
18
analysis should not be transmuted into a consideration of a
child’s best interests. Courts often use a “best interests of
the child” standard in custody disputes, but we are not
resolving a custody dispute. “The Convention and [ICARA]
empower courts in the United States to determine only rights
under the Convention and not the merits of any underlying child
custody claims.” 22 U.S.C. § 9001(b)(4); see also, e.g.,
Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996)
(“[The Convention’s exceptions] are not a basis for avoiding
return of a child merely because an American court believes it
can better or more quickly resolve a [custody] dispute.”). A
court determining whether a child is settled must focus on the
significance of the child’s connections to her or his new
environment; it should not compare the child’s current situation
with her or his prior situation or expected situation if
returned. 8
8
The Convention elsewhere contemplates that, in limited
circumstances, a court may consider conditions of life in the
country of habitual residence. For example, Article 13 provides
an exception to return where “there is a grave risk that his or
her return would expose the child to physical or psychological
harm or otherwise place the child in an intolerable situation.”
Convention, art. 13, 19 I.L.M. at 1502.
19
3.
We now turn to the district court’s application of the
Convention to Son’s circumstances. Father’s overarching
argument on appeal is that the district court erroneously
concluded that the totality of the circumstances established
that Son was “settled.” Father suggests that the district court
reached the wrong conclusion by: (1) overstating the stability
of Son’s living arrangements and schooling, (2) overstating
Mother’s financial security and the robustness of her support
structure, and (3) ignoring the destabilizing effect of Son’s
immigration status. We disagree.
a.
With regard to Son’s living arrangements and schooling, it
is undisputed that he has lived in three different homes since
arriving in the United States in 2013. Although each home was
in the same geographic area in South Carolina, Son was required
to enroll at a new school with each move. One consequence was
that Son was absent from school a non-trivial number of days.
Father suggests that such moves are inherently destabilizing and
contends that Mother “presented no evidence establishing that
[Son] could adjust to those new environments.” Appellant’s
Br. 24.
20
In general, when all other things are equal, moving to a
new home might reasonably be expected to destabilize a child’s
life for some period of time. But all other things are rarely
equal. The record does not indicate that either of Mother’s two
moves after arriving in South Carolina was compelled by
instability at the former residence. She was not, for example,
evicted or forced from a condemned apartment. Rather, each move
appears to represent part of a natural progression to an
improved living situation. Upon arriving in South Carolina,
Mother first lived with the children in her mother’s house.
J.A. 444. Within a few months she moved herself and the
children into a bigger home. Id. She ultimately moved once
more to share a home with Vasquez. Id. The district court
found that the final move “was within the same community and
school district in Darlington County,” id., and that Vasquez and
Mother “are involved in a stable, loving relationship and . . .
eventually plan to marry.” J.A. 432. On the whole, the record
suggests that each move broadly represented an overall
improvement in living conditions for the family.
Regardless, however, of the reasons behind each move, the
question is whether Son is “now settled.” Father is correct
that even if Mother’s reasons for moving are unimpeachable, if
Son could not adjust to his environment because of them, he will
not be settled. However, the record indicates that Son has
21
adjusted quite well. The district court found that Son had
rapidly learned English such that he was earning As in his
English classes without any accommodations and that Son had
“consistently attended elementary school and done above-average,
if not well.” J.A. 445. Nothing in the record indicates these
findings are clearly erroneous. Father argues that Son’s
academic performance is not suggestive of a stable home life or
an ability to adjust to his environment, but we think otherwise.
It is not impossible for a child with an unstable home life to
do quite well in school, but it is certainly more difficult. It
was reasonable for the district court to infer that Son’s strong
academic development suggests a baseline stability to his life.
Additionally, Son’s language acquisition and report cards are
only part of the evidence of a successful adjustment to his
environment. For example, the district court also found that
Son had established friendships at school, church, and in his
neighborhood, and that Son was “well-liked by his peers.” J.A.
443. These findings are not clearly erroneous and are
additional evidence of Son’s successful adjustment. We thus
reject Father’s contention that Mother has not presented
evidence of Son’s ability to adjust to his new environment, or
that the moves necessarily prevent Son from having stability and
permanence in his life.
22
b.
We next turn to Father’s contention that Mother and Son
lack a financial or social support network, such that Son leads
an insecure life in his new environment. This contention is not
supported by the record. In fact, the record strongly suggests
the opposite.
The district court’s bottom line findings were that Mother
“is clearly able to provide for the minor children,” J.A. 444,
that they “are provided with adequate clothing, food, and
shelter,” id., and “that the minor children are well-cared for,
have access to medical care, and are supported by a network of
family and friends.” J.A. 445. The district court additionally
found that Son has “a significant number of family members in
the area . . . . [and has] extensive contact with those family
members and attend[s] numerous family gatherings.” J.A. 443.
These findings are not clearly erroneous. Father repeatedly
suggests that Mother’s immigration status—which we discuss
below—should have prevented her from developing a support system
and providing for Son’s needs. Whether or not that is a useful
expectation a priori, the record makes plain that Mother has
more than provided for Son’s needs. As the district court
found, “[the children,] by all accounts, are thriving. Since
their arrival, both children have gained weight and are happy
23
and healthy. [Son] is doing well in school and has many
friends.” J.A. 453.
c.
We now turn to Father’s main argument concerning Son’s
immigration status. Father argues that the lack of any lawful
immigration status for Mother or Son (and to a lesser extent for
Vasquez and various family members), is inherently destabilizing
in a way that necessarily prevents Son from being settled.
Father provides an extensive accounting of services and benefits
that are legally unavailable to individuals lacking lawful
status and describes various potential adverse legal
consequences to Mother’s and Son’s continued unauthorized
residence in the United States. Father argues that the district
court “ignore[d] the destabilizing effect” of Son’s immigration
status, Appellant’s Br. 25, and that it misinterpreted the role
immigration status plays in the “settled” analysis.
As an initial matter, the district court clearly did not
ignore the fact that Mother and Son lack a lawful immigration
status. The district court’s opinion includes a lengthy and
thoughtful discussion grappling with the facts and consequences
of their status. In any event, as explained below, the district
court’s ultimate conclusion as to the role of immigration status
in the analysis was correct.
24
Neither the Hague Convention nor ICARA makes a lack of
immigration status a bar to finding that a child is settled.
Indeed, it runs counter to the purpose of the exception to read
such a categorical bar into the treaty. If a child is
functionally settled, such that ordering his or her return would
be harmfully disruptive, it would be odd to nevertheless order
that disruption based on a formal categorization. Cf. Lozano,
697 F.3d at 56-57 (“[T]he Convention’s overarching focus [is] on
a child’s practical well-being.”). The three other circuits to
have considered the issue have each concluded “that immigration
status is neither dispositive nor subject to categorical rules,”
but should instead be considered in the totality of the child’s
circumstances. Hernandez, __ F.3d __, 2016 WL 1719955, at * 5;
see also, Lozano, 697 F.3d at 57; In re B. Del C.S.B., 559 F.3d
at 1010. We agree.
In considering the impact of Mother’s and Son’s immigration
status on the totality of Son’s circumstances, the district
court properly focused on the manifested practical impact on the
security, stability, and permanence of Son’s life. As discussed
earlier, the district court made numerous factual findings
concerning Son’s assimilation into his new environment and the
overall stability of his academic, social, religious, and family
life. After carefully reviewing the record, these underlying
factual findings do not appear clearly erroneous to us and we
25
will not disturb them. In considering the impact of immigration
status, the district found that “there is nothing to suggest
that, at this moment, or in the near future, the immigration
status of the minor children is likely to upset the stability of
their life in their new environment.” J.A. 445. The district
court further found that there was no indication that Son was
“likely to suffer any harm from [his] inability to receive
certain government benefits” due to his status. Id. As before,
none of the record facts the district court points to in support
of these conclusions is clearly erroneous.
Even if we assume that Son’s immigration status made it
more difficult for him to settle into his new environment, or
makes him relatively less settled than he would otherwise be,
neither assumption precludes Son from being settled as a
practical matter. As explained above, a court’s proper task
here is to consider Son’s overall situation. As in all lives,
there may be destabilizing influences that are compensated for
by other stabilizing ones. The record facts as a whole
establish that Son has developed significant connections to his
new environment such that his life is stable, secure, and
26
permanent; if his immigration status is destabilizing, something
else is apparently compensating. 9
d.
In sum, we do not think that the district court made any
essential factual findings that were clearly erroneous. The
district court applied those facts to the correct legal standard
under the Convention. Reviewing the record facts as a whole, we
agree with the district court that a preponderance of those
facts establishes that Son has significant connections
demonstrating a secure, stable, and permanent life in his new
environment. Son is therefore “settled” within the meaning of
the Convention.
IV.
Father makes one additional argument on appeal that merits
consideration. He argues that even if a child is “settled,”
courts nevertheless retain discretion to order the child
returned and that the district court erred in failing to do so.
9 Some of Father’s arguments concerning the impact of Son’s
immigration status on his future well-being may have more
salience in a custody determination. As we noted earlier, we do
not undertake any determination about whether Son’s interests
are better served residing with his mother or his father. A
court that ultimately makes such a determination will need to
consider a variety of historical facts and circumstances that
are not relevant to our decision here.
27
We agree that a “settled” determination does not preclude a
court from ordering a child returned. We disagree, however,
that the district court erred in declining to do so.
We have previously held that under the Hague Convention
courts retain the discretion to order return even if one of the
exceptions is proven. Miller, 240 F.3d at 402. This retained
discretion flows from the fact that although Article 12 permits
a court to decline to order the return of a settled child, it
does not require the court to so decline. Consistent with this
structure, Article 18 specifically provides that provisions of
the Convention such as Article 12 “do not limit the power of a
judicial or administrative authority to order the return of the
child at any time.” Convention, art. 18, 19 I.L.M. at 1503.
However, the Convention provides no explicit guidance as to
when a court should exercise such discretion. In a concurring
opinion in Lozano, Justice Alito suggested several
considerations that might counsel in favor of ordering return
notwithstanding an applicable Convention exception. 134 S. Ct.
at 1237 (Alito, J., concurring). Father urges us to adopt these
considerations as an operative legal standard, but we see no
need to do so at this time. 10
10The district court in fact considered Justice Alito’s
suggested factors as part of its analysis and concluded that
they weighed against discretionary return.
28
It is sufficient for present purposes to note that the
discretion to order return is grounded in principles of equity.
See, e.g., Yaman v. Yaman, 730 F.3d 1, 4, 21 (1st Cir. 2013).
Here, we are not persuaded that equitable considerations warrant
ordering Son’s return. 11 Father stresses the inequity of
Mother’s wrongful removal of the children and the need to deter
such abductions. The Convention “of course . . . reflects a
design to discourage child abduction.” Lozano, 134 S. Ct. at
1235. “But the Convention does not pursue that goal at any
cost.” Id.
If we were to hold that wrongful removal in itself should
lead courts to exercise their retained discretion in the face of
an established Convention exception, we would render that
exception a nullity: a necessary predicate to considering
whether a child is “settled” is a determination that the child
was wrongfully removed; if the latter were sufficient to warrant
ordering return, the settled determination would be meaningless.
Just as we were mindful that the Convention’s “[exceptions] are
to be interpreted in a restrictive fashion if the Convention is
not to become a dead letter,” Lozano, 697 F.3d at 56 (quoting
11 Father suggests there is debate as to whether such a
“non-return” decision should be reviewed de novo or for abuse of
discretion. Appellant’s Br. 17-18 (citing Yaman, 730 F.3d at 4,
and In re B. Del C.S.B., 559 F.3d at 1008-09). We need not
decide the issue here, as we do not think the district court
reversibly erred under either standard.
29
Perez-Vera Report ¶ 34), we are also mindful that the
Convention’s signatories did not intend the exceptions to be
dead letters either.
As the district court noted, beyond the fact of the
wrongful removal, “[t]here was no inequitable conduct such as
concealment on [Mother’s] part.” J.A. 453. Father’s arguments
to the contrary are not persuasive. We conclude that equitable
principles do not weigh in favor of ordering Son’s return.
V.
For the foregoing reasons, we affirm the district court’s
determination that Son is “settled” within the meaning of the
Hague Convention and affirm its decision not to exercise its
discretion to order Son returned.
AFFIRMED
30