Case Update (28 May 2024): Duran Abrego v. Guerra; Respondent presents insufficient evidence of child’s settlement in Tennessee, as compared to his connections to habitual residence
The parties are parents to one child, under the age of 16. The three lived as a family in El Salvador immediately before the child’s removal to the United States. The Petitioner Father argued that their life together was normal, with them “doing typical family things” while the Respondent Mother argued that the Petitioner was a “jealous and psychologically abusive alcoholic” whose mother had “connections” in the El Salvador government, so she feared leaving Petitioner. The parties agreed that they had an argument in July 2021, that shortly afterwards, the Respondent and child left the house and spent 3 days with her mother before using a coyote to enter the United States. Before entering the USA, the Respondent contacted Petitioner from Guatemala, and told him that “he would lose [the Child] if he filed a lawsuit against her.” On August 14, 2021, the Petitioner left El Salvador to locate his son, having been told that he needs the child’s address before he could take any action to seek the child’s return. After being detained at the USA border once, he eventually arrived in the USA on November 28, 2021. He delayed until August 16, 2023 in filing his petition to return the child to El Salvador under the Hague Abduction Convention. The Respondent argued it was because Petitioner’s goal was ultimately to reconcile with her, not seek the child’s return, whereas the Petitioner argued that he could not obtain an accurate address for the Child and “he did not have a lot of money or legal knowledge.” Petitioner proved his prima facie case. Respondent argued 2 separate exceptions to the child’s return.
The first exception was that the child was now settled. The Petitioner did, in fact, exceed one year from the date of the child’s wrongful removal from El Salvador before he filed his request to return the child. Therefore, the Court examined whether the child was now settled. The evidence that the Respondent Mother shared included: her assertion that the child is going to school and “has done quite well”, that he has two best friends, a lot of other friends at school, and good relationship with her new significant other. The new SO testified that the child had a “couple of best friends” and “several other friends”, and that his English skills have been improving. A few of the child’s friend’s parents confirmed the child’s relationships with their children. The court concluded that this evidence alone was insufficient to demonstrate the child is now settled in the USA. The court articulated that the child had “spent over half of his life in El Salvador” and almost all of his paternal and maternal family members lived in El Salvador. There was testimony about the child’s interests, including swimming and riding bikes with his friends, which the court opined he “can also do in El Salvador” and in fact had done before his removal. He furthermore attended school, did well in school, and played with friends in El Salvador. The Court further, in exercising its discretion, found that the Petitioner had been taking “measures to retrieve” the child since July 2021, believed he could not initiate legal proceedings until he discovered the child’s whereabouts, and that he did not know “until October 13, 2022 at the earliest that [Mother and child] were living in Memphis, Tennessee.”
The second exception was that returning the child would expose him to a grave risk of an “intolerable situation” because of the Petitioner Father’s “addiction to alcohol and previous inability to provide for his family due to this addiction.” The court seemed skeptical that the Father actually had an alcohol addiction, but even assuming he did, “the evidence in the record does not establish by clear and convincing evidence that he also neglected [the child], or that the neglect to which [Mother] alludes arises to the level of an ‘intolerable situation.’” There was some allusion to the fact that the child’s step-father was seeking a change of immigration status for the Mother and child, which, when granted, would permit them to travel to El Salvador, and returning the child now would forfeit that process. But the court, in referring to Salame Ajami v. Tescari Solano, said that “forfeiture of potential legal status in the U.S. has no bearing on whether the Court would be returning [the child] to an ‘intolerable situation’ when, as here, [Mother] has apparently not received asylum status.” The court also made note that the child’s life in El Salvador seemed quite good. There was apparently also some allusion to crime in El Salvador and a general sense that the child has better access to opportunities in the USA than in El Salvador. But, this was not persuasive to the court.
