Mota v. Castillo

Decision Date15 August 2012
Docket NumberDocket No. 12–180.
Citation692 F.3d 108
PartiesAngelica Asuncion MOTA, Plaintiff–Appellee, v. Jose Luis Rivera CASTILLO, Defendant–Appellant.
CourtU.S. Court of Appeals — Second Circuit


Carolyn A. Kubitschek, Lansner & Kubitschek, New York, NY, for DefendantAppellant.

Christopher M. Strongosky (Leeanne S. Neri, on the brief), DLA Piper US LLP, New York, NY, for PlaintiffAppellee.

Before: HALL, CARNEY, Circuit Judges, and BERMAN, District Judge. *

SUSAN L. CARNEY, Circuit Judge:

Elena Michelle Asuncion Rivera is the five-year-old daughter of PlaintiffAppellee Angelica Asuncion Mota and DefendantAppellant Jose Luis Rivera Castillo. Like her parents, Elena is a citizen of Mexico, the country of her birth. In 2007, when Elena was six months old, her father traveled from Mexico to New York to find work, and Elena remained in Mexico in her mother's sole care. Three years later, in April 2010, her parents arranged for Elena to be smuggled into the United States and taken to New York, where she began to live in her father's household. During the following months, her mother tried repeatedly and unsuccessfully to cross the border and join Elena and Rivera Castillo in the United States.

Having failed in those attempts, on November 22, 2011, Asuncion Mota filed a petition in the United States District Court for the Eastern District of New York, seeking Elena's return to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,494 (Mar. 26, 1986) (the “Hague Convention” or “Convention”), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. (“ICARA”). The district court (Jack B. Weinstein, Judge ) concluded that Rivera Castillo wrongfully retained Elena in the United States and that the Convention required the court to order that Elena be returned to Mexico for custody proceedings there. A.A.M. v. J.L.R.C., 840 F.Supp.2d 624 (E.D.N.Y.2012). Rivera Castillo appeals.

We affirm the district court's findings of fact and its application of the Convention and ICARA to those facts, and we remand this matter with instructions that the district court enter such orders as may be necessary to effect Elena's prompt and safe return to Mexico.

A. Factual History

The district court found that the following facts were established by a preponderance of the evidence.

Asuncion Mota and Rivera Castillo married in Puebla, Mexico in March 2006. Later that year, in September, Asuncion Mota gave birth to their daughter, Elena. For the first six months of her life, Elena lived in Puebla with both of her parents. Then, in March 2007, when Elena was six months old, Rivera Castillo left Puebla and entered the United States illegally. He traveled to Queens, New York, where he obtained full-time employment, and began sending financial support to his wife and daughter. Meanwhile, in Mexico, Asuncion Mota assumed sole responsibility for Elena's day-to-day care, and she and Rivera Castillo maintained regular communication via telephone.

In the spring of 2010, Asuncion Mota and Rivera Castillo decided to reunite their family: mother and child would move to New York, where the three would again live together. Toward that end, mother and father agreed to the following arrangements. Asuncion Mota, her uncle, and Elena would travel from Puebla to Nogales, a Mexican city close to the Arizona border. There, using funds provided by Rivera Castillo, Mota would hire a person or persons to smuggle Elena across the border. After Elena had entered the United States, Asuncion Mota and her uncle would cross the border themselves, and travel with Elena to New York.

The plan was successful only in part. Asuncion Mota was able to arrange for smugglers to take Elena across the border, but the repeated attempts of Asuncion Mota and her uncle to follow Elena into the United States were blocked by American border guards, and the two were returned in each instance to Mexico. Meanwhile, the smugglers had transported Elena on her own to New York, where she began living with her father.

After living for some months more in a house in Nogales, Asuncion Mota procured for herself and her uncle certain false identification, which they used in a renewed attempt to cross the border. This attempt, too, failed, but with more disastrous consequences: the pair were arrested and prosecuted for use of false identification. Each pleaded guilty and served a seventy-five-day prison term in the United States before being deported to Mexico.

By the time Asuncion Mota was deported after her release from prison, it had become “apparent” (as the district court described) that “the plan for the mother to enter the United States and travel to New York had been, and would continue to be, frustrated.” A.A.M., 840 F.Supp.2d at 627. Further attempts by Asuncion Mota to enter the United States would expose her to the risk of progressively longer prison sentences. Rivera Castillo, moreover, had begun living with another woman.1 It became evident that Rivera Castillo would no longer send financial support to Asuncion Mota. And, in response to Asuncion Mota's repeated demands that Elena be returned to her in Mexico, Rivera Castillo declared that he would keep Elena with him in New York.

B. Procedural History

In October 2010, Asuncion Mota contacted the Mexican government to request legal assistance in her effort to secure Elena's return to Mexico. Mexican authorities soon thereafter applied to the United States government for the child's return. The United States Department of State forwarded the application to Rivera Castillo in April 2011, and asked that he consider returning the child to Mexico “voluntarily” to avoid the initiation of proceedings under the Convention. Within two weeks of being contacted by the State Department, Rivera Castillo instituted custody proceedings in New York Family Court, seeking sole custody of Elena. (Those proceedings are now being held in abeyance, pending resolution of this suit.)

Having obtained no relief through official diplomatic channels, in November 2011 Asuncion Mota filed a petition in federal district court seeking an order requiring Rivera Castillo to return Elena to her in Mexico. See A.A.M., 840 F.Supp.2d 624. Rivera Castillo opposed the petition. The court permitted the parties limited discovery, and then held a two-day bench trial in which Asuncion Mota, her parents, and her uncle testified via telephone with the aid of interpreters, and Rivera Castillo testified in person. After conducting these proceedings and receiving post-trial briefing from the parties, the court promptly issued a thoughtful decision concluding that Elena's country of “habitual residence” under the Convention was Mexico; that Rivera Castillo had “wrongfully retained” Elena in contravention of Asuncion Mota's custody rights under Mexican law; and that the Hague Convention and ICARA therefore required that Elena be returned to Mexico forthwith. Id. at 635, 639. The court then entered judgment and a detailed order designed to effect Elena's return. This appeal followed.

A. Standard of Review

In cases arising under the Hague Convention and ICARA, we review a district court's factual determinations for clear error. Gitter v. Gitter, 396 F.3d 124, 129 (2d Cir.2005). We review de novo a district court's interpretation of the Convention and its application of the Convention to the facts. Id.

B. Applicable Law

As we discussed in depth in our 2005 decision in Gitter, the Hague Convention was enacted “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” Id. (quoting Hague Convention, Preamble). The Convention's drafters were particularly concerned by the practice in which a family member would remove a child “to jurisdictions more favorable to [his or her] custody claims in order to obtain a right of custody from the authorities of the country to which the child ha[d] been taken.” Id. (internal quotation marks omitted). To deprive such disfavored conduct of any “practical or juridical consequences,” the Convention “places at the head of its objectives the restoration of the status quo, by means of the prompt return of children wrongfully removed to or retained in any Contracting State.” Id. at 130 (quotation marks omitted); see also Hague Convention, art. 1 (“The objects of the ... 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.”). 2

The Convention does not establish substantive standards for resolving the merits of any underlying custody dispute. Hague Convention, art. 19. Rather, the Convention's focus is simply upon whether a child should be returned to her country of habitual residence for custody proceedings. In re B. Del C.S.B., 559 F.3d 999, 1002 (9th Cir.2009). To that end, ICARA provides that [a]ny person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for ... securing the effective exercise of rights of access to a child may do so by commencing a civil action” in a state or federal court “in the place where the child is located at the time the petition is filed.” 42 U.S.C. § 11603(b).

The Convention places two substantive provisions at the core of any petition seeking relief. A petitioner must demonstrate: (a) the child in question was “habitually resident” in a Contracting State before the child's removal to or retention in a different state, and (b) removal or retention of the...

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