Case Update (1 May 2024): Figueredo v. Rojas; immigration status is only one factor to determine whether a child is now settled in their new country under the Abduction Convention

On April 18, 2023, the U.S. District Court for the Middle District of Florida denied Mr. Figueredo’s request to return the parties’ minor child to Venezuela. Ms. Rojas, who had been residing at the same location in Jacksonville, Florida since relocating the child to Florida argued that because Mr. Figueredo filed his request some 20 months after the cild was relocated, the child was now settled in Florida. The district court agreed. Mr. Figueredo appealed, and the U.S. Court of Appeals for the Eleventh Circuit analyzed the district court’s ruling for two primary issues. The first was whether and how the child’s and Mother’s immigration status affects the child’s settlement. The second was to clarify the standard of review for the settlement argument under the Hague Abduction Convention.

The Father had filed for, and secured, full custody of the child in a Venezuelan proceeding in late 2021.

In the 11th Circuit, the U.S. Court of Appeals noted that “[i]n making this determination [of whether a child is settled], courts must ‘carefully consider the totality of the circumstances,’ including evidence of the child’s ‘significant connections to the new country’ as well as evidence of continuing ‘contacts with and ties to his or her State of habitual residence.’ Id. (quoting State Dep’t Legal Analysis, 51 Fed. Reg. 10,494, 10,509 (March 26, 1986)).” There are seven different factors that a court will weigh in making this assessment. While the Father acknowledges that the vast majority of the factors lean towards the child being settled in Florida, he argued that “his son’s lack of permanent legal status” means that he cannot be considered settled under the Convention, and that “discrepancies between [the Mother’s] testimony at the evidentiary hearing and her application for asylum showed that the application was fraudulent and has no chance of success.” Further, the Father argued it was error for the judge to consider the Temporary Protected Status for Venezuelans, because the Mother and child were not eligible for that protection at the time of trial.

The 11th Circuit concluded that a child’s immigration status is one relevant factor to be evaluated in the context of the child’s individual circumstances. On this basis, the court will consider whether the child and respondent are “present illegally, whether they have a feasible path to permanent legal residence, and whether they are currently embroiled in removal proceedings”. The court noted that “an assessment of the facial validity of the application [for permanent legal status] may be helpful” in the court’s assessment. The 11th Circuit, however, cautioned that the judge should not prejudge what may actually happen with regard to an immigration petition. While the 11th Circuit acknowledged a district court’s discretion to nonetheless return a settled child, it noted that “returning a settled child is the exception rather than the rule” and while the court chastised the Mother for violating certain court orders, it also noted that the Mother had notified the Father of her whereabouts and had not moved from that location. The 11th Circuit affirmed the district court’s denial of a return order.

One note. The 11th Circuit states, “[a]nd although the district court’s denial of [Father]’s petition means that he will have to sue in Florida if he wishes to formalize a custody arrangement, the district court’s decision does not prevent the Florida court from awarding [Father] whatever custody and visitation rights it deems suitable.” This may be inaccurate. There appears, from the facts, an existing custody order obtained from the Venezuelan courts, and it also appears from the facts that the Father remained in Venezuela. Florida has enacted the Uniform Child-Custody Jurisdiction and Enforcement Act. Assuming the child-custody laws of Venezuela do not violate fundamental principles of human rights, then presumably Venezuela, under the UCCJEA is treated like a sister-state, and that order is either enforceable in Florida, and/or Venezuela would have continuing exclusive jurisdiction to modify it until the Father leaves Venezuela or the Venezuelan courts decline to exercise jurisdiction. It is an incorrect assumption that the Hague Abduction Convention confers custody jurisdiction.