Intersecting Issues Involving Asylum in the United States and Cases Arising Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction

Published date01 April 2019
Date01 April 2019
Hon. James D. Garbolino
The issue of immigration status has become the focal point in some cases arising under the 1980 Hague Convention on Child
Abduction. Asylum claims affect both substantive and procedural issues that are presented to state and federal courts. A
nexus has developed between undocumented immigrants who are parties to a Hague case, and issues of habitual residence,
acclimatization, and grave risk. Asylum claims have forced courts to consider the viability of such claims, requests for stay
of Hague cases pending the outcome of asylum claims, the likelihood of deportation, and the effect of grants of asylum on
the particular issues in the case. Where asylum has been granted to either a parent or child, substantial consideration has been
given to the asylum determination by the court hearing the Hague case.
The impact of immigration status on the claim that a child is settledin the newenvironment.
The likelihood that a stay of a Hague casewill be granted if an asylum claim is pending.
The impact of the strength of the asylum case.
Differences among federal circuits on the signicance of immigration status on questions of habitual residence and
settlement of a child under Article 12.
The weight to be given to a grant of asylum in a Hague case.
The precedence of Orders in Hague Convention cases over immigration decisions.
Keywords: 1980 Hague Convention; Asylum; Deportation; Habitual;Immigration; Settled; Stays.
For 30 years, federal and state case law has rened the margins of the essential principles that
apply to cases arising under the 1980 Hague Convention
the elements of a prima facie case for
return, defenses of delay, grave risks, and the objections of the child. Save the existence of circuit
splits among the federal circuits on a handful of issues, it may be gainsaid that this body of Ameri-
can law is stable and proceeding on an ordered path.
The same cannot be said with regard to the law and the implementation of U.S. immigration pol-
icies. Recent executive branch decisions, and the adoption of changing immigration policies, show
that this area of the law is in a state of ux. This brings a particular uncertainty to the approaches
that courts might take in their view of critical Hague Convention issuesstability of families as
those issues bear on the acquisition of a habitual residence, a childs degree of acclimatization, the
extent of the childs settlement in a new environment, and the signicance of parallel asylum claims
based upon the types of persecution that mirror grave riskissues.
Asylum issues that exist within the context of petitions for return of a child pursuant to the 1980
Hague Convention are on the rise.
While some courts merely note the existence of parallel asylum
claims in passing,others give considerable attention to the status of the claims themselves as bear-
ing on issues in the case, as well as the relevance of the facts underlying those claims. From an evi-
dentiary standpoint, facts underlying an asylum application may be relevant to the issue of habitual
residence insofar as the concept of determining whether a settled purposeexists in the new loca-
tion. Similarly, the issue of whether the child is settledwithin the meaning of Article 12s delay
defense may depend on the immigration status of the child or the childs parent, and how immigra-
tion status is viewed among the various federal circuits. Courts have also noted the similarity
between asylum applications and 13(b) defenses under the Convention that are based upon threats
to personal safety, including gang activities and domestic violence. Procedurally, the existence of
FAMILY COURT REVIEW, Vol. 57 No. 2, April 2019 159174
© 2019 Association of Family and Conciliation Courts
parallel asylum and Hague Convention cases may highlight tensions between compliance with
immigration law and the conduct of Hague Convention proceedings, particularly given the length of
time it may take to resolve an asylum claim contrasted with the Hague Conventions demands for
expedited hearings.
It is acknowledged by a majority of U.S. jurisdictions that the starting point for determining a
childs habitual residence is the examination of parental intent.
Most courts have found guidance in
the Ninth Circuits decision in Mozes v. Mozes.
In that case, the court held that the rst step
toward acquiring a new habitual residence is forming a settled intention to abandon the residence
left behind.From an evidentiary standpoint, asylum applications may provide substance to argu-
ments that parents harbored the intent to abandon the previous country of habitual residence. This
type of evidence could bulk large in those jurisdictions that principally look to the Mozes criteria to
determine whether there has been a change in habitual residence.
The issue of abandonment of a prior habitual residence was critical to the decision in Delgado
v. Osuna,
a 2016 case arising in the United States Fifth Circuit. In Delgado, the entire family, con-
sisting of father, mother, and two sons, left Venezuela so that they could relocate to a safer country.
They packed their important documents and valuables, jointly intending to relocate to one of an
unspecied number of countries that included Spain, Panama, Ecuador, or the United States. Upon
arrival in Miami, Florida, they met with an individual who assisted them in preparing their applica-
tions for political asylum in the United States. When the father, a physician, learned that many addi-
tional years of medical training were required for him to be able to practice medicine in the United
States, he abandoned his request for asylum and returned to Venezuela. The mother and her two
sons resettled in Texas. The father subsequently led for divorce in Venezuela and led a petition
for return of his two children pursuant to the Hague Convention. The fathers petition for return of
the children was denied by the district court.
On appeal, the father argued that a previous Fifth Circuit decision, Berezowsky,
required not
only an abandonment of a prior habitual residence, but also an agreement as to the location of
where the child will be raised. Here, no such joint decision on a future habitual residence was in
evidence. The circuit court distinguished their prior decision in Berezowsky, noting that in the case
of the Delgado family, both parents shared the intent to abandon Venezuela as the family residence,
and the lack of agreement on the location of a new habitual residence was not required for abandon-
ment to occur.
The asylum issue was highlighted by the fathers contention that the evidence was insufcient to
show that the family relocated with the intention of seeking political asylum. The Fifth Circuit dis-
agreed, nding that,
There is at least some evidence that supports this nding, namely that he attended the meeting ...where
he learned that he would be unable to practice medicine in the United States without multiple years of
additional schooling and training. Regardless, Dr. Delgados intentions concerning his seeking political
asylum are largely irrelevant for purposes of his petition. The important nding is that Dr. Delgado and
Osuna agreed that she would seek political asylum for the children because this nding establishes the
conclusion that Osuna and Dr. Delgado intended to abandon Venezuela as the childrens habitual

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