Case Update (2 June 2025): Brito Guevara v. Castro; child awaiting asylum interview in U.S. was not settled, and trial court is reversed
This case involves a minor child, brought into the United States from Venezuela by her mother, and without her father’s permission or consent. By the time of trial, the child was age 5, and the child is now age 7. The father filed his petition to seek the child’s return from Texas to Venezuela more than one year from the child’s removal, and so the district court examined whether the child was now settled in the United States, concluding she was. By all reports, the child was in school, had maternal extended family in the U.S., was living with her mother’s boyfriend, her mother had employment, and they were in the process to seek legal asylum, waiting for their interviews. When a court is assessing whether a child is settled under the Hague Abduction Convention, it looks at seven factors that come from caselaw. In this case, the district court found the child to be settled, and denied the father’s petition to return her to Venezuela. The father appealed.
The U.S. Court of Appeals for the Fifth Circuit saw the seven caselaw factors differently from the district court. The 5th Circuit stated, “[o]ur precedent has long treated the balancing of factors under the well-settled defense as a legal question subject to de novo review.” While the mother argued that the district court’s findings were factual (or a mix of fact and law), and therefore should be analyzed for clear error, the 5th Circuit disagreed, saying, “the well-settled factors are a judicially crafted framework designed to inform a legal judgment… [w]e do not conduct a ‘head-to-head’ weighing’ of the factors favoring one party versus the other. Our review is holistic and guided - but not dictated - by the factors. Our task is to assess whether, taken together, the evidence supports the district court’s legal conclusion.” The seven factors are essentially “useful aids”. On that basis, the 5th Circuit re-examined, de novo, each of the 7 factors and concluded as follows:
the child’s age - she is seven and was five at the time of the bench trial. “At age seven, A.F. is not yet capable of forming the kind of enduring attachments that the Convention deems sufficient to override its default return remedy.”
stability and duration - the child and mother had moved multiple times, and they rely, at least in part, on the mother’s boyfriend’s income, which if their relationship dissolves, leaves them in a less-than-stable situation
the child’s schooling - while the child is enrolled and performing well, “[a]t her young age, A.F. has ample time and opportunity to integrate into a new school community in Venezuela.” Further, because of her immigration status, her mother’s transient employment, and her reliance of her boyfriend for housing, her school may be disrupted regardless
meaningful relationships - most of the child’s extended family remain in Venezuela, and most notably her father cannot see her in the USA, as he had his visa denied. The child’s “unsettled immigration status of A.F.’s family here [in the USA] casts doubt on durability of those relationships and weighs against a finding that they are well-settled.”
community activities - the child had a doctor, attends church, goes on vacation, has playdates, goes swimming, has friends, but the court noted “she could engage in many of these same activities there [in Venezuela].”
employment stability - the precariousness of the mother’s relationship with her boyfriend, and reliance on his car and apartment, made this less stable
immigration status - “Castro presented no evidence suggesting their asylum claims are likely to succeed. Indeed, the court found no evidence that A.F. would face a ‘grave risk of harm’ if returned to Venezuela - a finding that undercuts any suggestion that her asylum claim will succeed.” The Convention “requires ‘an individualized, fact-specific inquiry’” into the child’s immigration status, and how it interacts and undermines the other well-settled factors, and the “uncertainty surrounding Castro’s and A.F.’s immigration status permeates every aspect of their life in the United States rendering it fundamentally unstable.”
There was a dissenting opinion that described the opinion as one that “bleeds various factors together in violation of established law, and assumes imminent failure of an undecided asylum claim.”
The Mother sought a rehearing from the Court of Appeals. It was denied, but a new opinion was issued and is found here.
