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FAMILY LAW--MULTIFACTOR TEST APPLIES TO DETERMINE WELL-SETTLED DEFENSE UNDER HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION.

FAMILY LAW--Multifactor Test Applies to Determine Well-Settled Defense Under Hague Convention on International Child Abduction--Hernandez v. Pena, 820 F.3d 782 (5th Cir. 2016).

Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Convention), the highest priority is to protect the interests of those children who were taken by one of their parents from their habitual residence to another country. (1) If a parent abducts his or her child to another country, there are certain defenses under the Convention, like Article 12, that may allow the child to remain in the residing country. (2) In Hernandez v. Pena, (3) the Fifth Circuit Court of Appeals of the United States, in a case of first impression, dealt with the issue of whether a child who was abducted from his home and taken to the United States can use the "well-settled" defense claim under Article 12 of the Convention. (4) The Fifth Circuit vacated the district court's order due to the fact that the child was not "well-settled" in the United States under Article 12 of the Convention because he did not meet the multifactor test used for children who have been in the United States for more than a year. (5)

D.A.P.G. was born in Honduras to Reina Leticia Garcia Pena and Franklin Pleites Hernandez on September 17, 2009. (6) Hernandez and Garcia Pena got married in 2012, but stopped living together after two years due to their deteriorating relationship. (7) On May 20, 2014, D.A.P.G., who was four-and-a-half years-old at the time, left Honduras with Garcia Pena to enter the United States without informing Hernandez. (8) Immigration authorities arrested Garcia Pena and D.A.P.G. after Garcia Pena hired smugglers to get them illegally into the United States through Texas. (9)

Once the immigration authorities released Garcia Pena and D.A.P.G. into the United States, they lived with Garcia Pena's brother in Nashville, Tennessee for five months until they moved to New Orleans, Louisiana in October of 2014. (10) Garcia Pena and her boyfriend had a child together in May 2015. (11) D.A.P.G. was six-years-old in 2015 and was consistently attending kindergarten and accompanying his mother to church a couple times a week. (12) While D.A.P.G. was in school, Garcia Pena had a stable job working for the housekeeping department in a hotel. (13)

On August 4, 2015, Hernandez filed a petition in the United States District Court for the Eastern District of Louisiana arguing that his son was wrongfully removed under the Convention from Honduras and needed to be returned to him immediately. (14) Garcia Pena admitted that her son was "wrongfully removed under the Convention," but that he should not be sent back to Honduras because he was "well-settled" in the United States. (15) During the lower court proceeding, exhibits were entered regarding notices to appear for removal hearings in front of the New Orleans Immigration Court that were sent to Garcia Pena and D.A.P.G. (16) The Eastern District of Louisiana denied Hernandez's petition for the return of D.A.P.G. to Honduras under the Hague Convention because D.A.P.G. was "well-settled" in his new environment based on the multifactor test. (17)

Immediately following the lower court's decision, Hernandez filed an appeal in the Fifth Circuit Court of Appeals, who vacated the district court's order and rendered a decision in favor of Hernandez due to the fact that Garcia Pena and D.A.P.G.'s status in active removal proceedings was an important factor in the multifactor test to determine whether D.A.P.G. was "well-settled" in the United States. (18)

Under the Hague Convention on International Child Abduction, the drafters set out to protect children from wrongful removal and enacted rules to enable them to return to their home country. (19) The Convention was not implemented to settle legal custody battles, which were left for the courts in the country of habitual residence. (20) The Convention's drafters never defined the meaning of "well-settled" under Article 12, affording discretion to the courts to ultimately decide if a child is "well-settled." (21) Many courts use a multifactor test to determine whether the child is "well-settled" in his or her new environment if a petition was filed more than a year after the child was taken from his or her home country. (22) Moreover, studies have shown that mothers are more likely to remove their child from the home country. (23) In addition, the United States is the leading destination to receive the most petitions for the return of children out of any other member to the Convention. (24)

In order for a child to reside in the country that he or she was abducted to, the child has to be able to pass the multifactor test that courts use to determine whether children are "well-settled" under Article 12 of the Convention. (25) Most courts take into account the same six factors that include: (1) the child's age; (2) the stability and length of the child's new residence; (3) whether the child attends school on a daily basis; (4) whether the child has friends and relatives in the new environment; (5) the child's involvement in community or extracurricular activities; and (6) whether the respondent is employed and financially stable; however, courts give varying weight to the immigration status of the child. (26) An important case that analyzed how much weight immigration status should bear in Article 12 "well-settled" disputes was In re B. Del C.S.B., (27) in which the Ninth Circuit Court of Appeals had to decide whether a child was not "well-settled" simply because she was not a lawful resident (28) The Ninth Circuit, in looking at the text of the Convention, case law, and the reality of undocumented status, ultimately decided that the child was "well-settled." (29) If a child has met all the factors under the "well-settled" analysis, but is an undocumented immigrant who has not faced the threat of deportation, In re B. Del C.S.B. illustrates that immigration status should be given lit tie weight as long as the child is "well-settled" under the other factors of the Article 12 test. (30)

In Lozano v. Alvarez, (31) the Second Circuit Court of Appeals dealt with an issue of first impression where the Court was tasked with determining whether a child was "well-settled" under Article 12 of the Convention if she lacked legal immigration status. (32) The Second Circuit used a very fact-based approach to determine if the child was "well-settled" under the multifactor test and ultimately came to the conclusion that the child was "well-settled" in her new environment. (33) By using a very individualized, fact-specific approach to immigration status and the "well-settled" multifactor test, the Second Circuit was able to balance many factors to make a well-rounded determination as to the child's "well-settled" defense. (34)

In Hernandez v. Pena, (35) the Fifth Circuit Court of Appeals, in a case of first impression, determined whether D.A.P.G. was "well-settled" under the Convention based on a multifactor approach. (36) The Fifth Circuit Court of Appeals joined the Second and Ninth Circuits regarding the fact that immigration status "is one relevant factor in a multifactor test." (37) It also agreed with the Second Circuit that each case should be viewed in an individualized, fact-specific analysis. (38) However, the Court made it a priority to distinguish itself from the Ninth Circuit because Garcia Pena and D.A.P.G. were facing active removal proceedings. (39) Thus, the Court ruled that the district court's analysis and ruling that D.A.P.G. was "well-settled" was not correct because it failed to take into account Garcia Pena's and D.A.P.G.'s specific immigration situation, such as the undocumented nature of their immigration status and the fact that they failed to appear at their removal proceedings. (40)

Not only did the Fifth Circuit factor in D.A.P.G.'s immigration status to the multifactor test, but it also weighed the other factors in order to determine whether D.A.P.G. was "well-settled" in the United States. (41) The other factors that the Court weighed were: the child's age; the stability and duration of the child's new residence; the child's attendance at school and amount of relatives in the new environment; the child's participation in community activities; and the mother's employment stability. (42) After factoring in all of these factors, as well as the immigration status of D.A.P.G., the Fifth Circuit ultimately came to the conclusion that the child did not form a significant connection to his new environment in the United States and thus was not "well-settled" under the Convention. (43)

The Fifth Circuit Court of Appeals correctly vacated the district court's order and rendered a decision in Hernandez's favor because it accurately applied the immigration status precedent from the Second and Ninth Circuits to the unique facts of D.A.P.G.'s situation. (44) The Fifth Circuit correctly ruled that immigration status is just one factor in a multifactor test to determine whether a child is "well-settled" under the Hague Convention. (45) However, it is important to note that the Fifth Circuit had to distinguish itself properly from the Ninth Circuit because D.A.P.G. was facing active removal proceedings (46) Therefore, the Fifth Circuit accurately factored in Garcia Pena and D.A.P.G's failure to attend the removal proceedings into the multifactor test of the "well-settled" analysis. (47)

Furthermore, the Fifth Circuit properly balanced the other factors of the "well-settled" analysis in order to come to the ultimate conclusion that D.A.P.G. was not "well-settled" in the United States. (48) Not only did the Fifth Circuit consider the immigration status of D.A.P.G. when determining whether he was "well-settled," but the Court also factored in the "child's age, stability and duration of the child's residence in the new environment, whether the child attends school consistently, whether the child has friends and relatives in the new area, the child's participation in community or extracurricular activities, [and] the respondent's employment and financial stability." (49) The Fifth Circuit accurately used a totality of the circumstances approach by weighing these other factors in order to make the final determination that D.A.P.G. was not "well-settled" under the Hague Convention on the Civil Aspects of International Child Abduction. (50)

The Fifth Circuit Court of Appeals might be relying more frequently on the holding from Hernandez in the foreseeable future due to the high volume of unauthorized immigrants in the states that comprise the Fifth Circuit. (51) Furthermore, there is an increased percentage of non-U.S. citizens abducting their children to the United States in violation of the Convention. (52) Therefore, the volume of unauthorized immigrants living in the Fifth Circuit and the amount of non-U.S. citizens abducting their children to the United States in general might cause an increase in "well-settled" cases in this jurisdiction, and the Fifth Circuit's ruling in Hernandez will set a precedent for future Fifth Circuit cases involving the "well-settled" defense because the Court will consider whether the child is involved in active removal proceedings as part of the multifactor test when weighing whether the child is "well-settled" in the United States. (53)

To conclude, the Fifth Circuit Court of Appeals considered for the first time how to determine whether a child is "well-settled" under the Convention in Hernandez v. Pena. The Court accurately reasoned that a multifactor, fact-specific approach should be used and immigration status is one relevant factor to that analysis. The Fifth Circuit correctly came to the conclusion that D.A.P.G. was not "well-settled" in the United States due to the fact that he and his mother failed to appear for their removal proceedings and D.A.P.G. did not form enough connections to his new environment under the multifactor test. In the future, the Fifth Circuit Court of Appeals could be relying on the decision in Hernandez v. Pena more often because of the volume of unauthorized immigrants living in the Fifth Circuit and the amount of non-U.S. citizens abducting their children to the United States.

(1.) See Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343 U.N.T.S. 49 [hereinafter Convention] (highlighting goals of Convention). Under Article 1 of the Convention:

The objects of the present Convention are

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

Id. The Convention describes what makes a removal of a child from one state to another wrongful under Article 3. Id. According to Article 3:

The removal or the retention of a child is to be considered wrongful where--

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Id. See also 22 U.S.C. [section] 9003(b) (1988) (describing steps to initiate judicial claim in United States under Convention). When the United States became a part of the Convention in 1988, Congress enacted the International Child Abduction Remedies Act (22 U.S.C. [section][section] 9001-11) in order to codify the implementation of the Convention. Id. As 22 U.S.C. [section] 9003(b) states about those seeking a return of his or her child from the United States:
   Any person seeking to initiate judicial proceedings under the
   Convention for the return of a child or for arrangements for
   organizing or securing the effective exercise of rights of access
   to a child may do so by commencing a civil action by filing a
   petition for the relief sought in any court which has jurisdiction
   of such action and which is authorized to exercise its jurisdiction
   in the place where the child is located at the time the petition is
   filed.


Id. See also Feder v. Evans-Feder, 63 F.3d 217, 224 (3rd Cir. 1995) (defining "habitual residence"). According to the Third Circuit Court of Appeals, "a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Id.

(2.) See Convention, supra note 1, art. 12 (explaining "well-settled" defense). Article 12 of the Convention states:
   Where a child has been wrongfully removed or retained in terms of
   Article 3 and, at the date of the commencement of the proceedings
   before the judicial or administrative authority of the Contracting
   State where the child is, a period of less than one year has
   elapsed from the date of the wrongful removal or retention, the
   authority concerned shall order the return of the child forthwith.
   The judicial or administrative authority, even where the
   proceedings have been commenced after the expiration of the period
   of one year referred to in the preceding paragraph, shall also
   order the return of the child, unless it is demonstrated that the
   child is now settled in its new environment.


Id. See also Julia A. Todd, Note, The Hague Convention on the Civil Aspects of International Child Abduction: Are the Convention's Goals Being Achieved?, 2 Ind. J. of Global Legal Studies 553, 565 (1995) (discussing reasons for "one-year statute of limitations" under Article 12). The first reason why the drafters of the Convention put in a one-year statute of limitations is because they feared that if a petitioner did not file a swift application, then he or she had mixed emotions about the abduction. Id. Secondly, the drafters were concerned that ordering a child to return at such a late date could cause additional "psychological damage to the child." Id.

(3.) 820 F.3d 782 (5th Cir. 2016).

(4.) See id. at 783-84 (articulating issue considered).

(5.) See id. at 790 (stating holding of case). The Court took into account the unauthorized immigrant status of the child when going through the multifactor test for a "well-settled" defense. Id. at 789. See also Lozano v. Alvarez, 697 F.3d 41, 45 (2nd Cir. 2012) (holding immigration status not given controlling weight under multifactor test). See also In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009) (outlining only concrete threat of deportation included in multifactor test).

(6.) See Hernandez, 820 F.3d at 784 (describing D.A.P.G.'s background). D.A.P.G. grew up in Honduras where twenty-seven to forty-five of his extended family members also lived. Id.

(7.) See id. (commenting on Hernandez and Garcia Pena's fractured marriage). Even though Hernandez and Garcia Pena stopped living together, they never got a divorce and Hernandez regularly saw his son. Id.

(8.) See id. (stating lack of communication between Garcia Pena and Hernandez regarding move to United States).

(9.) See Hernandez v. Pena, 820 F.3d 782, 784 (5th Cir. 2016) (discussing circumstances around Garcia Pena and D.A.P.G.'s entry into United States). After their arrest, Garcia Pena and D.A.P.G. were "placed in removal proceedings and released into the United States with instructions to report at a later date." Id.

(10.) See id. (providing insight into Garcia Pena and D.A.P.G.'s living arrangements in United States). Garcia Pena and D.A.P.G. moved to New Orleans so that they could live with Garcia Pena's boyfriend, who was also a Honduran citizen. Id.

(11.) See id. (describing D.A.P.G.'s and Garcia Pena's living arrangements in their home in New Orleans). D.A.P.G.'s "four-month-old-half-sister" lives with him and Garcia Pena in New Orleans. Id. See also Hernandez v. Pena, No. 15-3235, 2015 U.S. Dist. LEXIS 130865, at * 12-13 (E.D. La. Sept. 25, 2015) (outlining reasons for move from one house in New Orleans to another). Garcia Pena and her boyfriend moved from one house in New Orleans to another after their daughter was born because they needed more space. Id. Moreover, the new home in New Orleans "was in the same neighborhood as the old one" so that D.A.P.G. could be close to his friends. Id. at 13.

(12.) See Hernandez, 2015 U.S. Dist. LEXIS 130865, at 13 (finding D.A.P.G. seemed connected to new environment). According to the lower court:
   The court conducted an in camera interview with the child, in the
   presence of an interpreter and the court reporter. It was clear
   during the interview that the child understands English very well.
   The interview revealed that D.A.P.G. is a friendly, well-adjusted
   six-year-old, who is happy with his environment. D.A.P.G. did not
   demonstrate any fear of his father, and was easily able to
   articulate things he liked to do with him. D.A.P.G.'s demeanor and
   openness clearly bolster the substantial evidence that he has
   significant connections to his current environment to assist in
   meeting respondent's burden of proof.


Id. at 12.

(13.) See Hernandez, 820 F.3d at 784 (providing information on Garcia Pena's job status).

(14.) See id. at 785 (asserting charge in lower court).

(15.) See Hernandez v. Pena, 820 F.3d 782, 785 (5th Cir. 2016) (portraying Garcia Pena's argument). See also Hernandez, 2015 U.S. Dist. LEXIS 130865, at 10-11 (discussing D.A.P.G.'s interview to determine his connection in his new environment). But see id. at 13-14 (pointing out Hernandez's argument for why D.A.P.G. is not "well-settled" in United States). Hernandez argued during the lower court proceeding that D.A.P.G. had many family members in Honduras, and Garcia Pena's status as an undocumented immigrant will cause her employment to be unstable. Id.

(16.) See Hernandez, 820 F.3d at 785 (indicating removal notices entered as exhibits). "Garcia Pena testified that although she received the notices, she intentionally did not attend the immigration court hearings because she feared she would be deported." Id.

(17.) See id. (articulating lower court's holding). See also Hernandez v. Pena, No. 15-3235, 2015 U.S. Dist. LEXIS 130865, at *9 (E.D. La. Sept. 25, 2015) (providing multifactor test used by lower court). In order to determine whether D.A.P.G. was "well-settled" in the United States under Article 12 of the Convention, the lower court considered the following factors as part of the multifactor test: (1) the child's age; (2) the stability and length of the child's new residence; (3) whether the child attends school on a daily basis; (4) whether the child has friends and relatives in the new environment; (5) the child's involvement in community or extracurricular activities; (6) whether the respondent is employed and financially stable; and (7) the immigration status of both the child and the respondent. Id. The lower court believed D.A.P.G.'s "age, stability of new residence, school attendance, friendships in the new area, participation in the community and the respondent's employment and financial stability" made him "well-settled" in the United States. Id. at 9-12. Furthermore, the lower court did not believe that Garcia Pena and D.A.P.G.'s "questionable immigration status" could "outweigh all of the substantial connections D.A.P.G. has with his new environment in the well-settled analysis." Id. at 15.

(18.) See Hernandez, 820 F.3d at 788-90 (pointing to immigration status as factor in multifactor test).

(19.) See Linda Silberman, Hague International Child Abduction Convention: A Progress Report, 57 Law and Contemporary Problems 209, 210 (1994) (discussing goals and objectives of Convention). The Convention was adopted on October 25, 1980 by unanimous vote. Id. The United States became a part of the Convention on December 23, 1981. Id. The Convention was enforced in the United States once Congress ratified the International Child Abduction Remedies Act on April 29, 1988. Id.

(20.) See Todd,supra note 2, at 554 (detailing Convention does not decide custody disputes). As President Ronald Reagan stated about the goals of the Convention:
   The Convention is designed promptly to restore the factual
   situation that existed prior to a child's removal or retention. It
   does not seek to settle disputes about legal custody rights, nor
   does it depend upon the existence of court orders as a condition
   for returning children. The international abductor is denied legal
   advantage from the abduction ... as resort to the Convention is to
   affect [sic] the child's swift return to his or her circumstances
   before the abduction .... In most cases this will mean return to
   the country of the child's habitual residence where any dispute
   about custody rights can be heard and settled.


Id. at 554-55. See also Abbott v. Abbott, 560 U.S. 1, 20 (2010) (summarizing need to make custody determination in home country). See also England v. England, 234 F.3d 268, 271 (5th Cir. 2000) ("deterring parents from crossing borders in search of more sympathetic court").

(21.) See Michael Singer, Across the Border and Back Again: Immigration Status and the Article 12 "Well-Settled" Defense, 81 Fordham L. Rev. 3693, 3702 (2013) (illustrating courts' interpretation of "well-settled" defense). "The U.S. State Department has declared that a 'settled' finding is appropriate where 'nothing less than substantial evidence of the child's significant connections to the new country is intended to suffice to meet the respondent's burden of proof.'" Id.

(22.) See id. (describing certain elements courts take into account). See also Catherine Norris, Immigration and Abduction: The Relevance of U.S. Immigration Status to Defenses under the Hague Convention on International Child Abduction, 98 Calif. L. Rev. 159, 169 (2010) (asserting immigration status as part of "well-settled" defense analysis).

(23.) See Norris, supra note 22, at 162 (finding certain abduction statistics). "Of the 1,259 applications made for the return of 1,784 children in 2003, fathers constituted the taking person in 29 percent of cases and mothers in 68 percent of the cases." Id.

(24.) See Singer, supra note 21, at 3701 (discussing United States as most common destination for child abduction under Convention). See also Hon. James D. Garbolino, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide forjudges, Federal Judicial Center (2015) available at https:/ /www.fjc.gov/sites/default/files/ 2015/Hague%20Convention%20Guide.pdf (describing total applications from Signatory Nations from 2008-2014). The U.S. State Department has calculated that it has received the following amount of applications from Signatory Nations for return: 343 in 2008, 243 in 2009, 299 in 2010, 256 in 2011, 305 in 2012, 334 in 2013, and 352 in 2014. Id. See also A Statistical Analysis of Applications Made in 2008 Under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Hague Conference on Private International Law (2011) available at https://assets.hcch.net/upload/wop/abduct2011pd 08c.pdf (illustrating high percentage of non-U.S. citizens abducting their children to United States); U.S. Unauthorized Immigration Population Estimates, Pew Research Center Hispanic Trends (2016) available at http://www.pewhispanic.org/interactives/unauthorized-immigrants/ (documenting statistics of unauthorized immigrants by state in 2014).

(25.) See Lozano v. Alvarez, 697 F.3d 41, 56-57 (2nd Cir. 2012) (articulating factors taken into account). See also In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009) (outlining multifactor test).

(26.) See In re B. Del C.S.B., 559 F.3d at 1009 (explaining multifactor test and when immigration status considered).

(27.) 559 F.3d 999 (9th Cir. 2009).

(28.) See id. at 1001-02 (addressing when immigration status can deny child from "well-settled" defense). Geremias Brito Miranda gave birth to Brianna in Mexico on April 17, 1997. Id. at 1003. In 2001, after a deteriorating relationship with Brianna's father Salmeron, Brito and Brianna illegally entered the United States to stay in California. Id. at 1003-04. After more than four years of not seeing or hearing from Brianna, Salmeron filed a Hague petition in the United States District Court for the Central District of California in 2007. Id. at 1007. The district court ruled in favor of Salmeron and ordered Brianna returned to Mexico because her "unlawful immigration status precluded her from being settled in the United States" even though she met the other factors. Id. Brito appealed and the Ninth Circuit held that Brianna was "well-settled" under Article 12 of the Convention even though she was not a lawful immigrant. Id. at 1010. The Ninth Circuit reasoned that just like the status of millions of undocumented immigrants in the United Slates, Brianna's immigration status should not devalue the other factors that show she is "well-settled" in the United States. Id. The court ruled that only when an undocumented immigrant is facing imminent deportation can immigration status be considered a significant factor to the "well-settled" analysis. Id.

(29.) See id. at 1010 (stressing text of Convention, case law, and practical reality when determining immigration status under Article 12). The Ninth Circuit found nothing in the text or history of the Convention to suggest that lawful immigration status should be of great significance in determining whether a child is "well-settled" in the new environment. Id. The court also reasoned that it would be odd for a child to be living in a new country for such a long time that any ordinary person would say the child is settled in the new country, no matter the immigration status. Id. at 1011. Moreover, the court found that case law has shown courts look to immigration status as part of a whole multifactor test as to whether a child is "well-settled" or not. Id. Lastly, the court reasoned that the likelihood of Brianna and her mother getting deported is small because of the amount of undocumented immigrants in the United States and the fact that immigration authorities seek to deport those with criminal records. Id. at 1012. As the court stated, "[ajlthough there are undoubtedly real risks posed by illegal status, the reality is that millions of undocumented immigrants are presently living in the United States, many of whom will remain here permanently without ever having any contact with immigration authorities." Id.

(30.) See id. at 1013-14 (discussing holding of case). The Ninth Circuit discussed that the other factors to the multifactor test were met because the child "lived in the same apartment and regularly attended school for the past five years, has 'achieved academic and interpersonal success at every grade level,' is active in extra-curricular activities, has many friends, and regularly visits with her mother's family." Id. at 1009-10. See also id. at 1012-13 (citing Plyler v. Doe, 457 U.S. 202, 227 n.22 (1982)) (articulating Supreme Court's view on undocumented children and deportation). According to the Supreme Court:
   [t]o be sure, like all persons who have entered the United States
   unlawfully, [undocumented] children are subject to deportation. But
   there is no assurance that a child subject to deportation will ever
   be deported. An illegal entrant might be granted federal permission
   to continue to reside in this country, or even to become a citizen.
   In light of the discretionary federal power to grant relief from
   deportation, a State cannot realistically determine that any
   particular undocumented child will in fact be deported until after
   deportation proceedings have been completed. It would of course be
   most difficult for the State to justify a denial of education to a
   child enjoying an inchoate federal permission to remain.


Id. But see 8 U.S.C. [section] 1229a(b)(5)(A) (2017) (describing consequences for failing to appear at removal proceedings). According to 8 U.S.C. [section] 1229a(b)(5)(A):
   Any alien who, after written notice required under paragraph (1) or
   (2) of section 1229(a) of this title has been provided to the alien
   or the alien's counsel of record, does not attend a proceeding
   under this section, shall be ordered removed in absentia if the
   Service establishes by clear, unequivocal, and convincing evidence
   that the written notice was so provided and that the alien is
   removable....


Id.

(31.) 697 F.3d 41 (2nd Cir. 2012).

(32.) See id. at 45 (discussing case of first impression for Second Circuit). Diana Lucia Montoya Alvarez and Manuel Jose Lozano lived in the United Kingdom and had a child together in London on October 21, 2005. Id. Due to the abusive relationship that Lozano had with Alvarez during the child's early years, the child would be silent at the nursey, cry, and wet the bed often. Id. at 45-46. In July of 2009, Alvarez and her daughter left the United Kingdom for New York in order to live with Alvarez's sister. Id. at 46. Alvarez and her daughter were able to enter the United States legally at first because they had British passports and were able to stay for ninety days; however, this time period eventually expired without Alvarez obtaining any other form of visa. Id. During the child's time in New York, she stopped wetting the bed, made friends at school, and was able to talk freely about her feelings. Id. The district court denied Lozano's petition for return of his daughter under the Convention because the child met the factors of the "well-settled" test and even though the child was not legally in the United States, there was nothing imminent with regards to her immigration status that would upset her stability in New York. Id. at 47-48. Lozano timely appealed the district court's judgment on May 27, 2011. Id. at 49.

(33.) See id. at 57-58 (describing immigration status not singularly dispositive).

(34.) See id. at 57 (focusing on fact-specific, balanced approach to Article 12 "wellsettled" defense).
   The importance of a child's immigration status will inevitably vary
   for innumerable reasons, including: the likelihood that the child
   will be able to acquire legal status or otherwise remain in the
   United States, the child's age, and the extent to which the child
   will be harmed by her inability to receive certain government
   benefits.


Id. The Second Circuit agreed with the district court that the child has lived in the same location throughout her stay in the United States and has been improving both socially and academically. Id. at 48. The Second Circuit also reasoned that there was nothing to suggest that the undocumented immigration status that the child has will upset her stability in the United States either in the present or in the future. Id. at 58.

(35.) 820 F.3d 782 (5th Cir. 2016).

(36.) See id. at 784 (providing issue of case).

(37.) See id. at 788 (articulating immigration status as pertinent to multifactor test). The Fifth Circuit agreed with the Second and Ninth Circuits that a child is not impeded from establishing significant connections in his or her new environment just from immigration status. Id.

(38.) See id. at 789 (adopting view of Second Circuit). The Fifth Circuit reasoned that it would not look at a certain immigration status and give it automatic treatment when trying to determine whether a child is "well-settled" under the multifactor test. Id. at 788. However, instead of focusing on a fact-specific approach like the Second Circuit, the Ninth Circuit ruled that immigration status is insignificant if there is no concrete threat of deportation. Id.

(39.) See id. (discussing how current case differs from Ninth Circuit case). The Ninth Circuit did not view undocumented immigration status in In re B. Del C.S.B. as a problem because the child was not facing active removal hearings, and undocumented aliens face a low-risk of deportation due to the sheer amount of unauthorized immigrants in the United States. Id. at 788. However, the Fifth Circuit reasoned that "D.A.P.G. and Garcia Pena's involvement in active removal proceedings must be considered when balancing the factors." Id. at 789.

(40.) See Hernandez v. Pena, 820 F.3d 782, 789 (5th Cir. 2016) (summarizing reason why district court ruled incorrectly). The district court relied on the Ninth Circuit's ruling that there is a low-risk that undocumented immigrants would be deported due to the amount of undocumented immigrants in the United States. Id. However, the Fifth Circuit ruled that this reasoning by the district court was in error because Garcia Pena admitted that she and her son received "notice of, but did not attend, scheduled final removal hearings in July 2015." Id. Therefore, the Fifth Circuit made it a priority to distinguish itself from the undocumented immigrants described by the Ninth Circuit because Garcia Pena and D.A.P.G. were facing active removal proceedings due to their immigration status. Id.

(41.) See id. at 789-90 (pointing to other factors of "well-settled" test). The Court realized that it had to give "due consideration" to not only D.A.P.G.'s immigration status, but also to the other factors as well. Id. at 789.

(42.) See id. (illustrating other factors to "well-settled" defense argument). According to the Fifth Circuit regarding whether D.A.P.G. met the other factors:
   The first factor we consider is the child's age. Here, D.A.P.G.
   turned six years old the day before the bench trial. In other
   words, he is a very young child not able to form the same level of
   attachments and connections to a new environment as an older child.
   The second factor is the stability and duration of the child's new
   residence. With regard to this factor, although D.A.P.G.'s
   residence is stable, he has lived in New Orleans less than a year.
   The third and fourth factors we look to are whether the child
   attends school consistently and has friends and relatives in the
   new environment. At the time of the bench trial, D.A.P.G. had
   regularly attended kindergarten for three weeks. D.A.P.G.'s
   acquaintances in the community are dependent on his mother. He has
   an infant half-sister who is one of two relatives in New Orleans.
   In comparison, he has a large extended family through both his
   mother and father in Honduras. The fifth factor we consider is
   participation in community activities. With respect to this factor,
   D.A.P.G. attends church regularly with his mother. As to the sixth
   factor, the respondent's economic and employment stability, Garcia
   Pena is employed in a hotel housekeeping department and is able to
   provide for D.A.P.G.'s needs.


Id.

(43.) See id. at 790 (detailing Court's holding). The Fifth Circuit came to the conclusion that the district court's order was vacated and rendered a decision in Hernandez's favor. Id. The Court also ruled that D.A.P.G had to go back to Honduras without delay. Id.

(44.) See id. at 788-90 (citing to holding of case).

(45.) See Hernandez v. Pena, 820 F.3d 782, 788 (5th Cir. 2016) (stating precedent Fifth Circuit relied on regarding immigration status). See also Norris, supra note 22, at 183 (describing how to factor in immigration status to multifactor test). According to Norris, "[i]n order to comport with U.S. obligations under international law and the object and purpose of the Hague Convention, courts should follow the lead of the Ninth Circuit and only consider immigration status relevant when there is an immediate threat of removal, and only as one factor among many." Id. See also Hernandez, 820 F.3d at 789 (discussing Fifth Circuit's agreement with Second Circuit's use of individualized, fact-specific analysis).

(46.) See Hernandez, 820 F.3d at 789 (articulating difference between D.A.P.G.'s immigration status and those individuals described in Ninth Circuit). Since Garcia Pena and D.A.P.G. purposely failed to attend active removal proceedings, they faced the real threat of being removed from the United States. Id. See also 8 U.S.C. [section] 1229a(b)(5)(A) (2017) (asserting federal rule to remove individuals for failing to attend removal proceedings). But see In re B. Del C.S.B., 559 F.3d 999, 1014 (9th Cir. 2009) (stressing immigration status not determinative if no threat of imminent removal). The Ninth Circuit made the ruling that undocumented immigration status should not be weighed against a child in the "well-settled" analysis if that child has not faced active removal proceedings. Id. at 1012. The Ninth Circuit reasoned that there are millions of undocumented immigrants in the United States and the likelihood that an undocumented child will face deportation proceedings is very small. Id. Thus, unlike D.A.P.G., the child in the In re B. Del C.S.B. case was not sent notices to attend removal proceedings. Id.

(47.) See Norris, supra note 22, at 193 (detailing totality of circumstances approach if imminent deportation threat exists). Immigration status is a relevant factor in the "well-settled" analysis if a child is facing active removal proceedings. Id. Courts shall follow "a totality-of-the-circumstances approach" if an imminent threat of deportation exists in order to determine whether a child is "well-settled" in his or her new environment and should not allow a certain factor to be dispositive. Id.

(48.) See Hernandez, 820 F.3d at 789-90 (balancing other factors to "well-settled" test).

(49.) See id. at 787-88 (addressing other factors to multifactor test). See also Singer, supra note 21, at 3696 (highlighting weight given to immigration status in analysis). Courts give differing amounts of significance to immigration status when determining whether to incorporate the other factors to the "well-settled" analysis. Id. For instance, some courts give a great amount of weight if a child has an uncertain immigration status, while other courts consider immigration status as one factor out "of a number of equally weighted factors." Id. Moreover, some courts do not even consider an uncertain immigration status to the analysis. Id.

(50.) See Hernandez, 820 F.3d at 789-90 (listing other factors making D.A.P.G. not "well-settled"). Even though D.A.P.G. and Garcia Pena met some of the other factors to the "well-settled" analysis like D.A.P.G.'s participation in community activities and Garcia Pena's stable employment, they did not outweigh the negative factors to the analysis. Id. For instance, D.A.P.G. is still very young and not able to create attachments to a new environment like an older child would. Id. at 789. Moreover, D.A.P.G. has only two relatives in New Orleans, whereas he has a very large extended family on both his mom and dad's side in Honduras. Id. See also Lozano v. Alvarez, 697 F.3d 41, 48 (2nd Cir. 2012) (balancing factors to determine whether child "well-settled"). The Second Circuit affirmed that the child met three of the "well-settled" factors but also failed to meet the other three factors. Id. However, the Second Circuit ultimately came to the conclusion that the careful balancing of the fact-based analysis demonstrated that the child was "well-settled" in the new environment. Id. at 58. See also In re B. Del C.S.B., 559 F.3d 999, 1009-10 (9th Cir. 2009) (demonstrating factors to "well-settled" analysis met). Even though the child was an undocumented immigrant who was not in active removal proceedings, the Ninth Circuit found the child "well-settled" because she met all the other factors to the "well-settled" analysis. Id.

(51.) See Pew Research Center Hispanic Trends, supra note 24 (discussing statistics related to unauthorized immigrants in United States in 2014). The Fifth Circuit consists of states that are home to a large volume of unauthorized immigrants such as Texas and Louisiana. Id. For example, in 2014, Texas had 1,650,000 unauthorized immigrants, which was the second highest unauthorized immigrant population in the country. Id. Moreover, Texas also had 13.4% share of K-12 students with unauthorized immigrant parents in 2014, which was also the second highest in the United States as well. Id. Furthermore, even though Louisiana only had an unauthorized immigrant population of 70,000 in 2014, the population had a 15,000 increase from 2009 to 2014, which was the sixth highest increase by state in 2014. Id.

(52.) See HCCH, supra note 24 (observing different nationalities of taking person to United States over years). In 1999, 68% of those individuals abducting their children to the United States were not U.S. citizens. Id. at 200. In 2003, it was 63% and in 2008, it was 64%. Id. "In 2008, 36% of applications received involved a taking person who was a U.S. citizen (including 14 taking persons with dual nationality). This is a low proportion compared with the global 49% of taking persons who went to a state of which they were a national." Id. at 199. The percentage of taking person who was a U.S. citizen in 2003 remained the same at 36%, while it dropped to 32% in 1999. Id. The percentage of taking person who is a U.S. citizen is drastically "lower than the global average of 51% in 2008, 55% in 2003 and 52% in 1999." Id.

(53.) See Pew Research Center Hispanic Trends, supra note 24 (describing size of unauthorized immigration population in Fifth Circuit). See also HCCH, supra note 24 (stating percentage of non-U.S. citizen abductions). See Hernandez v. Pena, 820 F.3d 782, 789-90 (5th Cir. 2016) (declaring active removal proceedings factored into "well-settled" analysis).
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Author:DiMauro, Michael
Publication:Suffolk Transnational Law Review
Article Type:Case note
Date:Jan 1, 2018
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