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Case Name
Hernandez v. Erazo 2023 U.S. Dist. LEXIS 58876
INCADAT reference
HC/E/US 1565
Court
UNITED STATES OF AMERICA
United States Court of Appeals for the Fifth Circuit
Appellate Court
King, Jones, and Smith, Circuit Judges
States involved
MEXICO
UNITED STATES OF AMERICA
Decision
1 May 2023
Final
Settlement of the Child - Art. 12(2)
Appeal dismissed, return ordered
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Abbott v. Abbott, 560 U.S. 1, 8, 130 S. Ct. 1983, 176 L. Ed. 2d 789 (2013); Hernandez v. Garcia Pena, 820 F.3d 782, 786 (5th Cir. 2016) ; Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 343 (5th Cir. 2004) ; Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005)) ; Smith v. Smith, 976 F.3d 558, 561 (5th Cir. 2020) ; Chafin v. Chafin, 568 U.S. 165, 178-80, 133 S. Ct. 1017, 185 L. Ed. 2d 1 (2013)
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SUMMARY
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Facts
The mother and father met in 2019 and had a son in January 2021. The mother is a Honduran citizen and the father a Mexican citizen. The father is barred from returning to the United States after he was deported for overstaying his visa in 2016.
In October 2021, the mother, father and the child travelled to Mexico. The mother and child then went on to the United States. In September 2022 the father submitted a petition in the United States District Court for the Western District of Texas for the return the child to Mexico. The mother argued that the child was settled in the United States.
In February 2023, the district court issued an order for the return of the child, which was subsequently amended and restated in April 2023. The district court did not find that the child was settled within the meaning of Article 12(2) of the 1980 Hague Convention, despite the fact that he had a stable place of residence and attended daycare regularly, because his immigration status was "uncertain." The mother was neither a citizen of the United States nor Mexico, and she has not filed an application for asylum while her immigration status was pending in the United States.
The district court ordered the return of the child. The mother appealed this decision.
Ruling
Appeal dismissed, return ordered.
Grounds
Settlement of the Child - Art. 12(2)
The Court agreed with the first instance finding that the child was not settled in the United States within the meaning of Article 12(2), considering the child’s young age, lack of robust connections to the broader community, and the mother’s uncertain immigration status.
The Court noted that the Supreme Court has cautioned against routinely granting stays pending appeal in cases involving the Hague Convention. Granting stay applications such as these would become routine if the mother’s arguments, without more, were sufficient. Furthermore, the Court said it could not ignore the "precious months" that the child might lose readjusting to life in his country of habitual residence.