Hague Abduction Law for the Contemporary Immigrant Parent and Child

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 2 No. 2

Sarah J. Diaz^*

Abstract: The article discusses the intersection of Hague Abduction Law and Immigration as it relates to contemporary immigration policies. By walking through the elements of the Hague Convention as they interplay with, and sometimes conflict with, immigration law and practice, the reader learns about how the Hague impacts children's immigration cases. The piece seeks to highlight how parent-child border separation can violate U.S. obligations under the Hague, such that the Hague might be retooled to curb family separation at the U.S.-Mexico border.

Introduction

The Hague Convention on the Civil Aspects of International Child Abduction¹ entered into force on October 25, 1980. The document was designed to provide a forum to quickly remediate the unlawful taking or unlawful retention of a child from their country of last habitual residence. While the agreement is a product of private international law, it nonetheless creates ongoing state obligations to ensure the prompt return of children improperly taken under the Hague.² Though the document may have been created to address international parental kidnapping, it is, by operation, a document that serves to protect a parent from unlawful interference with their custodial rights. In light of the current immigration landscape, one in which custodial interests are routinely interfered with by the U.S. government, the Hague deserves to be re-evaluated with an eye toward the contemporary immigrant parent and child.

Increasingly, immigration practitioners are observing an intersection of family immigration and child custody issues. Forced family separation is one such example. These intersections can implicate U.S. obligations under the Hague. In certain circumstances, when children migrate to the United States with only one parent or where children are taken from their parents at the border, Hague considerations might be raised. Those considerations might intensify where separated parents are deported without their children. The spirit of the Hague may be breached when the Office of Refugee Resettlement releases a child to a parent in the United States without the permission of the parent exercising rights of guardianship and facing imminent deportation—often a de facto custody determination. Hague litigation is also complicated by children seeking asylum over the objection of a parent or where one parent is alleged to be the persecutor in the asylum case—an important intersection that deserves closer attention, but the details of which fall outside the scope of this particular piece.³ Current trends in parent-child migration and anti-migration policies are creating an intersection between Hague abduction law and immigration practice that requires a closer look and the development of appropriate cross-training to ensure the best possible protection for the custodial interests of parents and for the safety and protection of the child.

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Interpreting the Hague against the backdrop of contemporary immigration realities, nearly 40 years since its drafting, also requires consideration of the evolution of the rights of the child—the child being the object of the Hague litigation itself. The Hague, as originally conceived, was a document designed to protect a parent's interests or rights to the child. The result is that children are not party to Hague proceedings. The Hague was written before the completion of the Convention on the Rights of the Child (CRC) and its concomitant view that the child is a rights holder, not merely an extension of the parental interest. The child asylum seeker, for example, has a right to seek asylum under the Immigration and Nationality Act (INA) as a rights holder. Similarly, the paramount right enshrined in the CRC—the right of the child to have their best interests considered in any action affecting the child—is the single most universally adopted principle of the CRC.⁴ The Hague, however, does not, on its face, account for such rights of the child. As a result, tensions emerge between the CRC and the Hague that are worth exploring. Certain practices in immigration proceedings may help protect the role the child plays in decisions resulting in their return.

The sections that follow are designed to provide an overview of the interplay between the Hague Convention on the Civil Aspects of International Child Abduction with contemporary immigration realities, through the lens of unaccompanied or separated children who have been placed in removal proceedings or are otherwise presenting themselves for an immigration benefit pursuant to the INA.⁵ The purpose is to provide advocates and adjudicators with an understanding of the interplay between, and the framework behind, the various laws at play. Ideally, this information will help stakeholders think critically about decisions in any given case involving an immigrant child whose parent alleges an international abduction or whose parental rights have otherwise been interfered with, or where the child seeks permanency in the United States over the objection of a parent. As the intersection comes to the fore, practitioners are encouraged to seek out consultation and assistance in strategically moving these cases forward.⁶

What Is the Hague Convention on the Civil Aspects of International Child Abduction?

The Hague Convention on the Civil Aspects of International Child Abduction⁷ can be summarized as "a treaty that governs proceedings for the prompt return of children who have been wrongfully taken or kept away from their 'habitual residence.'"⁸ In the United States, these cases are brought before federal or state courts of appropriate jurisdiction pursuant to the United States implementing legislation, the International Child Abduction Remedies Act (ICARA).⁹ Juxtapose this setting with that of immigration proceedings, which are adjudicated in an administrative setting before the Department of Justice.¹⁰ Federal district courts and state courts have no jurisdiction to decide matters of immigration relief, even when they directly conflict with the Hague.¹¹

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Hague hearings are designed merely to determine the proper venue for the settlement of child custody disputes (i.e., the United States or a foreign jurisdiction). As a result, the only final remedy available under the Hague is to compel the return of a child to the appropriate foreign jurisdiction for resolution of the child custody dispute. Since there is no final adjudication of the underlying child custody case, Hague cases are often referred to as "provisional remedies."¹² Once a provisional remedy is issued, the individual or entity exercising actual, physical control over the child must comply with that order and return the child to the country of last habitual residence.

What Is the Purpose of the Hague Convention and ICARA?

Protecting the interests of children, including from the harmful effects of their wrongful removal from a custodial parent, is at the forefront of ICARA.¹³Among Congress's principal findings in passing ICARA was that "the international abduction or wrongful retention of children is harmful to [a child's] well-being."¹⁴ To prevent compounding the harm caused to children, the Hague and ICARA are intended to create an efficient remedy to quickly restore the status quo prior to the abduction or wrongful retention.

Instead of engaging the parties in a protracted custody dispute, these complimentary laws are designed to ensure that a child is reunited with the appropriate parent expeditiously, so that questions related to custody can be settled in a jurisdiction involving the least amount of disruption to the child. The result is that U.S. courts are merely empowered to determine whether the removal or retention was wrongful, whether a defense applies, and, thus, whether to issue the provisional remedy (i.e., the prompt return of the child to the country of last habitual residence).¹⁵ As we see below, however, the provisional remedy can become complicated by intersections with the immigration regime. In theory, the Hague Convention itself is designed intentionally as a vehicle to protect the interests of children while matters relating to their custody are being resolved. The preambulatory language explains:

The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence . . . Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions . . .¹⁶

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In light of the importance of protecting the well-being of the child, judicial supervision is imperative. Whether the case appears in federal or state court pursuant to a filing under the Hague or vis-à-vis immigration proceedings, it is critical to ensure the legal propriety of repatriating a child.¹⁷

How Provisional Is the Hague's Provisional Remedy?

In practice, particularly at the intersection of Hague and immigration cases post-relief, Hague cases can become extremely complicated, such that the transactional nature of the Hague is called into question. Take, for example, Sanchez v. R.G.L., a case of first impression that grappled with the legal question of how a grant of asylum to the child can impact Hague litigation.¹⁸ Here, the court held that a grant of asylum will not always foreclose return, but must be considered as part of the grave-risk assessment—a defense to return described in the section Defenses to Return & the Intersection of Immigration Law, infra.¹⁹ The case demonstrates the complicated intersection of the asylum statute—post-relief—and the Hague Convention. Namely, it demonstrates that the Hague can sometimes entail complicated questions of fact that must be answered by a court.

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