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Case Name
Ischiu v. Garcia, 274 F. Supp. 3d 339
INCADAT reference
HC/E/US 1568
Court
UNITED STATES OF AMERICA
United States District Court for the District of Maryland
First Instance
THEODORE D. CHUANG, United States District Judge.
States involved
GUATEMALA
UNITED STATES OF AMERICA
Decision
14 August 2017
Final
Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b)
Return refused
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Friedrich v. Friedrich, 78 F.3d 1060, 1068 (6th Cir. 1996) ; Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000) ; Simcox, 511 F.3d at 606 ; Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir. 2005) ; Baran v. Beaty, 526 F.3d 1340, 1345-46 (11th Cir. 2008) ; Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995)
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SUMMARY
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Facts
The parties lived in Guatemala and married in 2009 when the mother was 19 and the father was 29. They had a child together. The mother moved in with the father’s family and was physically, sexually and emotionally abused by them. On multiple occasions, the father and his family members threatened to kill the mother if she tried to leave the home and take the child away. The mother attempted suicide twice.
In November 2016 the mother fled to her parents’ home in Guatemala. She then applied for and received a Security Measures Order against the father from a Guatemalan court. Despite the order, the father came to the mother’s family home and threatened to kill them. After this incident the mother’s family decided to send her to the United States. The mother and child travelled through Mexico and requested asylum. At the time of the decision the asylum application was pending a hearing in November 2017.
The father made an application under the 1980 Convention for the return of the child to Guatemala.
Ruling
Return refused.
Grounds
Removal and Retention - Arts 3 and 12
Despite the Security Measures Order, the court found that the father retained custody of the child and so the removal was wrongful.
Grave Risk - Art. 13(1)(b)
The abuse of the mother was significant enough to establish a grave risk of harm to the child upon return. The combination of physical abuse by the father, sexual abuse by his family members, verbal abuse, and multiple, specific threats to kill the mother, coupled with the child’s awareness and witnessing of some of the abuse, established a grave risk of harm to the child.
The mother ’s testimony was found to be credible and she was diagnosed with PTSD. The father made several inconsistent if not false statements to the Court.
The father did not request undertakings but even if he had they would be inappropriate in the circumstances. Even if the Security Measures Order were reinstated, the father and his relatives have shown a disregard for orders of Guatemalan courts.