Case Update (27 June 2023): Jose Junior v. Ferreira de Sousa; asylum application may overlap in terms of evidence with Articles 13b and 20, but are different and a return can still be ordered

The parties are parents to a daughter, born in Brazil in 2015. On July 3, 2020, the Brazilian Family Court granted Respondent Mother full custody and Petitioner Father visitation. Both parents retained parental responsibility, including the right to make decisions to change the child's habitual residence and the power to deny consent for the other parent to remove the child from Brazil. On October 28, 2020, the Respondent removed the child from Brazil. By December 2020, she was residing in Ohio. After being unable to locate the child for visitation, Petitioner reported the Respondent to the Brazilian Federal Police on January 4, 2021, and learned that the Respondent had forged the minor child's passport, for which she was subsequently sentenced to four years in prison. On October 25, 2021, Petitioner filed his petition to return the child in the District Court in Maryland. A month later, it was transferred to the District Court in Ohio. On July 13, 2021, the Respondent applied for asylum, based on domestic violence, and included her new husband and child as derivatives on her application. Her application is pending. In September 2022, the Brazil Family Court granted the Petitioner sole custody of the child. On December 15, 2022, the Brazilian Federal Court issued an order requiring the mother to return the child to Brazil. Since ICARA mandates a decision on a child's return to be made by the court with jurisdiction where the child is sitting post-abduction, the Ohio District Court reviewed all evidence and reached its own conclusion.

The court concluded that Respondent did not meet her burden to prove that the child would be at grave risk of harm if returned to Brazil, nor that the child's return would be prohibited by human rights under Article 20. In 2017, the Petitioner threatened by WhatsApp to kill Respondent after she mislead him when she took the child on a trip to ultimately visit her then-boyfriend, now-husband, in the United States. The child returned and spent significant time with Petitioner and his family after the threat. In 2018, apparently the Petitioner also threatened to kill Respondent again, and Respondent sought a domestic violence protective order in Brazil, but it was ultimately dismissed due to lack of evidence. While those charges were pending for the better part of 22 months, the child continued seeing Petitioner. Finally, the court noted that the Respondent "has not shown that Brazil would be incapable or unwilling to give ASC adequate protection" upon the child's return.

Respondent argues that her pending asylum application should require the Court to stay its proceeding until the asylum application's disposition. The court, however, disagreed. It cited to Salame v. Tescari from the Sixth Circuit and noted that staying the proceeding would cut against the Convention's requirement of a prompt return. It further referenced that while the information to be shared with the government in an asylum proceeding and with the court in a Hague proceeding may overlap, there are different evidentiary burdens, making it more difficult to prove an exception under Article 13(b) or Article 20. It is not persuaded that there will be different information that Respondent could present to the court if it waited until after the asylum application is decided. The child is ordered returned within 30 days.