Undocumented and Unsettled? The Impact of Immigration Status on the Well-Settled Defense of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

• Author: Cass, Brenna

"They [mother and child] have both admittedly overstayed their visas and are now here illegally. The fact that the Immigration Service may not be looking to deport them at this time does not, in any way, guarantee that that position will not change in the future or that Paulina and her mother will ultimately become legal permanent residents of this country." (1)

1. INTRODUCTION

   Though the ability to establish immigration laws rests with Congress, the President, as the enforcer of the law and through prosecutorial discretion, can ultimately decide the priorities of the United States regarding deportation. (2) Because executive orders and memoranda regarding prosecutorial discretion are not law, a new President may rescind them when they take office. (3) For example, under President Obama's 2014 memorandum (Johnson Memorandum), aliens who posed a threat to national security, border security, and public safety were the first priority for deportation, habitual offenders and recently arrived immigrants were second, and aliens with a final order of removal were third. (4) When President Trump took office in January 2017, he issued an executive order rescinding the Johnson Memorandum and prioritizing the deportation of immigrants who have committed or been charged with criminal acts, have a final order of removal, or pose a risk to public safety or national security, in no specific order. (5) Overnight, certain undocumented immigrants became priorities for removal though they had not been before. (6)

   Courts consider this constantly changing threat of deportation in their assessment of the "well-settled defense," an affirmative defense to the wrongful removal of a child under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). (7) Unexpectedly, following the adoption of the Hague Convention, many respondents who wrongfully--i.e., unilaterally and without the other parent's consent--removed their children from their countries of habitual residence were fleeing domestic violence and left their home countries in search of a better life. (8) As a result, they were without legal status, and their Hague Convention cases became further complicated because they were undocumented, seeking asylum, or in removal proceedings. (9) The question for the court becomes how much weight it should give a child's immigration status when deciding if the child is well-settled in their new country. (10) A lack of immigration status could undermine a well-settled defense, while a parent with a permanent legal status tends to support a finding that the child is well-settled. (11)

   Circuits are split about the impact of immigration status on the well-settled defense. (12) Under the Ninth Circuit's test, immigration status is only relevant if there is an immediate, concrete threat of deportation. (13) In contrast, under the Second Circuit's test--which the First, Fourth, and Fifth Circuits adopted-courts may consider immigration status more broadly in relation to the well-settled defense, even if there is no immediate threat of deportation. (14) District courts throughout the country have used both tests when considering the well-settled defense. (15)

   This Note will examine the circuit split between how courts consider immigration status vis-a-vis the well-settled defense. (16) Part II will further describe the adoption of the Hague Convention, the elements of a Hague Convention claim and defense, and the status of the circuit split as well as its application across district courts. (17) Then, Part III will analyze the inherent problems with federal judges trying to ascertain what constitutes an immediate, concrete threat of deportation and recommend a better test when considering immigration status as part of the well-settled defense. (18) Ultimately, Part IV will conclude that courts need a uniform test for the treatment of immigration status to avoid undue influence by the public perception of immigration policies. (19)

2. HISTORY

   1. Adoption of the Hague Convention and Implementation into U.S. Law

      The Hague Convention concluded on October 25, 1980.20 The stated goal of the Hague Convention is to "protect children internationally from the harmful effects of their wrongful removal ... and to establish procedures to ensure their prompt return." (21) Rather than envisioning a stranger abducting a child and fleeing the country, the framers wrote to address the problem of a parent wrongfully removing a child from their home country and obtaining custody in a new country. (22) Before the enactment of the Hague Convention, it was difficult to coordinate between international jurisdictions to recover a child that a parent removed unilaterally. (23) Meanwhile, during the difficult process of locating and eventually returning the child, the child would become accustomed to their new country while the abducting parent would reap the benefits of the wrongful removal by having custody decided in a favorable forum. (24)

      The Hague Convention sought to simplify this process and return children promptly to their home countries while also respecting each country's process of determining custody rights. (25) To facilitate the return of children across international borders, the Hague Convention requires that each contracting state establish a central authority that processes applications for return. (26) The Hague Convention aims to return children quickly and envisions that the process will be completed within six weeks of the commencement of proceedings. (27) The preference for return seeks to restore the family to the "factual status quo[,]" so the home country can then determine custody. (28)

      Congress enacted the Hague Convention into U.S. law in 1988 as the International Child Abduction Remedies Act (ICARA). (29) ICARA grants state and federal courts concurrent, original jurisdiction over Hague Convention cases. (30) Although Congress enacted the treaty into U.S. law, courts must still look to the text of the Hague Convention and its objectives when interpreting its meaning. (31)

   2. Elements of a Hague Convention Case and Affirmative Defenses

      Article 3 of the Hague Convention lays out the elements the petitioner must prove to establish a wrongful removal. (32) The petitioner, or the left-behind parent, must establish that there was a breach of their custody rights under the laws of the country where the child was a habitual resident and that the left-behind parent was exercising said custody rights at the time of removal. (33) The Hague Convention prohibits judges from making custody determinations when deciding whether to return the child, stating that the decision on the merits of custody should take place in the country of habitual residence. (34)

      Articles 12, 13, and 20 of the Hague Convention describe the affirmative defenses that the respondent, or the removing parent, can assert to oppose the return of a wrongfully removed child. (35) When the petitioner takes more than one year from removal to initiate proceedings, the court may deny the return of the child if the respondent demonstrates that the child is well-settled in their new country. (36) The court may also deny return if the petitioner consented to the removal or was not exercising custody at the time of removal; if return poses a grave risk that the child will be exposed to harm or placed in an "intolerable situation"; or if a mature child objects to the return. (37) Finally, the court may deny return if it would violate "human rights and fundamental freedoms." (38) Despite their expansive definitions, courts construe these defenses narrowly, as the Hague Convention's main purpose is to ensure the prompt return of wrongfully removed children. (39) Article 18 allows the judge to order the child returned notwithstanding the finding of an applicable defense, underscoring that return to the child's home country is the Hague Convention's preferred remedy. (40)

   3. Changing Profile of Respondents and Effect on Defenses

      The Hague Convention originally envisioned noncustodial parents removing their children to have a more favorable forum that would then grant them custody following an actual or likely loss of custody. (41) Since the enactment of the Hague Convention in 1980, however, an increasing number of removing parents are custodial parents--specifically, domestic violence victims fleeing with their children. (42) Correspondingly, the number of Hague Convention cases in the United States implicating the respondent's immigration status has also increased, as many victims of violence in their home countries are also seeking asylum. (43)

      Due to the Hague Convention's preference for return, the parent that removed the child must meet a high burden to prove the affirmative defenses. (44) Courts are concerned that the exceptions will swallow the Hague Convention's predisposition for return, but this presumption can lead judges to disregard a legitimate defense in favor of a speedy return. (45) This problem is linked to the changing profile of respondents, as seen when respondents without immigration status raise affirmative defenses: The Hague Convention's preference for prompt return cannot accommodate the time it takes to receive a final decision about an immigration benefit. (46) The inability of the removing parent to secure immigration status within the Hague Convention's time frame for returning children may negatively impact the court's evaluation of their affirmative defense. (47)

   4. The Well-Settled Defense

      The "well-settled" defense becomes available to the respondent when more than one year passes between the child's removal and when the left-behind parent files a petition for return in the child's new country. (48) The Hague Convention does not define "settled" or how it is proven, but the official commentary to the Hague Convention, the Perez-Vera Report, notes the logic in placing the burden of proof on the removing parent while...