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 date: 01 April 2019
• DOI: http://doi.org/10.1111/fcre.12409
• Date: 01 April 2019

INTERSECTING ISSUES INVOLVING ASYLUM IN THE UNITED

STATES AND CASES ARISING UNDER THE 1980 HAGUE

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL

CHILD ABDUCTION

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.

Practitioner’sKeypoints:

The impact of immigration status on the claim that a child is “settled”in 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 significance 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 refined the margins of the essential principles that

apply to cases arising under the 1980 Hague Convention

1

—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 flux. This brings a particular uncertainty to the approaches

that courts might take in their view of critical Hague Convention issues—stability of families as

those issues bear on the acquisition of a habitual residence, a child’s degree of acclimatization, the

extent of the child’s settlement in a new environment, and the significance of parallel asylum claims

based upon the types of persecution that mirror ‘grave risk’issues.

Asylum issues that exist within the context of petitions for return of a child pursuant to the 1980

Hague Convention are on the rise.

2

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 purpose’exists in the new loca-

tion. Similarly, the issue of whether the child is ‘settled’within the meaning of Article 12’s delay

defense may depend on the immigration status of the child or the child’s 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 159–174

© 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 Convention’s demands for

expedited hearings.

I. THE IMPACT OF ASYLUM AND IMMIGRATION ISSUES ON SUBSTANTIVE

MATTERS

A. HABITUAL RESIDENCE AND SETTLED INTENT

It is acknowledged by a majority of U.S. jurisdictions that the starting point for determining a

child’s habitual residence is the examination of parental intent.

3

Most courts have found guidance in

the Ninth Circuit’s decision in Mozes v. Mozes.

4

In that case, the court held that “the first 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,

5

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

unspecified 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 filed for divorce in Venezuela and filed a petition

for return of his two children pursuant to the Hague Convention. The father’s petition for return of

the children was denied by the district court.

On appeal, the father argued that a previous Fifth Circuit decision, Berezowsky,

6

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.

7

The asylum issue was highlighted by the father’s contention that the evidence was insufficient to

show that the family relocated with the intention of seeking political asylum. The Fifth Circuit dis-

agreed, finding that,

There is at least some evidence that supports this finding, 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. Delgado’s intentions concerning his seeking political

asylum are largely irrelevant for purposes of his petition. The important finding is that Dr. Delgado and

Osuna agreed that she would seek political asylum for the children because this finding establishes the

conclusion that Osuna and Dr. Delgado intended to abandon Venezuela as the children’s habitual

residence.

*****

160 FAMILY COURT REVIEW