There Was Not Sufficient Evidence that Returning Children to Venezuela Would Subject Them to a Grave Risk of Physical or Psychological Harm or Otherwise Place Them in an Intolerable Situation under the Hague Convention – Published Opinion from United States Court of Appeals for the Sixth Circuit

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Salame Ajami v. Tescari Solano

No. 20-5283

Mother removed the Children from Venezuela to the United States. Father petitioned to have the Children returned to Venezuela under the Hague Convention. Prior to the petition, Mother and the Children were granted asylum in the United States. In the District Court, the parties entered stipulations that Venezuela was the Children’s habitual residence and Mother wrongfully removed the Children from Venezuela. The issue in the District Court was whether Mother could establish an affirmative defense under Article 13(b) of the Hague Convention, such that returning the Children to Venezuela would subject them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation. The District Court concluded that mother failed to establish the affirmative defense, granted Father’s petition, and ordered that the Children be returned to Venezuela. Mother appealed.

Mother argued that returning the Children to Venezuela would expose them to a grave risk of harm due to Father’s history of domestic violence. The District Court found one credible instance of abuse upon Mother, and found that Father never abused the Children. It concluded that the incident of abuse fell into the “relatively minor” category of abuse, which would likely not pose a grave risk to the Children nor place them in an intolerable situation. In the “relatively minor” category, the Court has no discretion and must return the Children. The Court of Appeals found the District Court’s finding not clearly erroneous and affirmed that the District Court was required to return the Children under that analysis.

Mother argued that the District Court erred in finding that the Children do not face a grave risk of physical or psychological harm from a return to Venezuela and puts her in an intolerable situation because Venezuela is a zone of war and famine. Father presented evidence that protests are avoidable by not traveling on certain streets, the grocery near Father’s home has food and water, Father’s home has a generator, the family would have access to medical card and medication, and the Children would return to their school and soccer teams. The District Court found that Father could provide the Children with shelter, food, and water, which the Court of Appeals found not to be clearly erroneous. It noted that although the conditions in Venezuela are less stable than in the United States, that does not mean the Children would face an intolerable situation or grave risk of harm.

Mother argued that the District Court erred by concluding that the Venezuela court system can adjudicate the parties’ custody dispute because she cannot travel to Venezuela to participate in custody proceedings. However, the Circuit Court noted that she never raised this argument in the District Court, and it refused to address the issue for that reason.

Mother argued that the District Court erred by concluding that the Venezuela court system can adjudicate the parties’ custody dispute because of corruption in the Venezuelan courts and the undue influence of Father. There was evidence that Mother’s attorney was able to file documents, review case files, and secured a new judge to hear the custody dispute after asking the former judge to recuse. The District Court found that the purported corruption was not so severe that the Venezuelan courts could not property adjudicate the custody dispute. The Circuit Court found the finding not clearly erroneous and found that any defects in the Venezuelan court system fall short of what is required for an intolerable situation.

Mother argued that the District Court failed to properly consider her grant of asylum, thereby threatening the sovereignty of the executive branch. Once a person is granted asylum, the Attorney General is not permitted to return the person to the person’s country of nationality. It does not forbid the judiciary from finding that the Children may be returned to their country of habitual residence under the Hague Convention, and it does not require the Attorney General to go against the finding of asylum. Thus, it does not threaten the sovereignty of the executive branch. The Circuit Court affirmed the District Court’s grant of Father’s petition.

Digested by Nathan R. Hardymon

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