Case Update (6 May 2024): Rodriguez v. Noriega; organized crime in the child’s habitual residence is difficult to connect to a grave risk argument
The parties are parents to one child. In May 2021, the Mother removed the child from Mexico and ultimately settled in Minnesota (after residing in Texas for some time). The Father attempted to file his Hague Abduction Convention return petition in federal court in Texas right around 1 year from the removal, but it was at that time that he learned the child had already moved to Minnesota. The Father proved his prima facie case. The Mother raised one exception - a grave risk of harm - and then referenced the child being “well adapted” in Minnesota, which the court understood to also raise the exception that the child is now settled.
When arguing the grave risk of harm exception, the Mother argued a high level of risk in organized crime and that the child would suffer when separated from her Mother. The court looked at several cases that had addressed arguments of organized crime in the past. It cited cases like Colon v. MejiaMontufar (470 F.Supp.3d 1280) regarding gang activity in Guatemala. The child, in Colon, had been threatened by gangs twice. The gangs threatened him and told him they would kill his family if he did not join their gang. They forced the child’s brother to join the gang in his place. The court did not find a grave risk of harm to that child - the brother’s involvement did not pose a grave risk or create a zone of danger to expose the child to harm. There also had been no ongoing threats over the past year. Essentially, the events were isolated and the harm was not likely to resurface. The court cited Bernal v. Gonzalez (923 F.Supp.2d 907) regarding ongoing cartel violence in Sinaloa, Mexico, which included the Respondent observing dead bodies in a river, the children being stopped by cartel members, and witnessing an armed man pointing a gun at a driver of a vehicle. The court, in Bernal, did not find a grave risk.
In this case, the Mother argued she lost 2 brothers in a violent way, but did not provide details. She said she was personally threatened in connection with robberies at the service station where she worked in Sinaloa, Mexico, and witnessed a murder in its parking lot. She said she suffered armed robberies about once a week, including when pregnant or when the child was at work with her. She said that five families, including their children, had been kidnapped from the community, and her own brother-in-law and nephew were kidnapped in 2019. The district court here, however, concluded that the Mother had not met her burden. The child was never threatened or harmed, and three years had passed since their lives in Sinaloa, with no indication that they would be targeted if returned.
The court further construed the Mother’s argument that the child was “well adapted” as a now settled argument, but, in weighing the factors, found that the child had an absence of community connections, absence of family in the community, and both Mother and child had no lawful immigration status. The court stated that, even if it had found the child settled in St. Paul, the court would have still ordered the child returned. The Father had acted diligently to seek the child’s return, but encountered bureaucratic delays, a pandemic, and the Mother’s efforts to conceal the child.
