In Summer 2020, in Bejarno v. Jimenez, the U.S. District Court for the District of NJ denied a Father’s request to have his son returned to Honduras on the basis that the Father had filed his Hague abduction return petition in the courts more than one year after the wrongful removal, and the child was now settled. The trial judge analyzed ten factors, and concluded that the totality of the circumstances led the court to believe the child was now settled. Only two of the ten factors weighed against finding the child was settled, and it is on one of those two factors that Mr. Bejarno appeals.
On appeal to the Third Circuit, Mr. Bejarno argued that the trial judge erred in declining to hear additional testimony concerning the child and his mother’s immigration status, and that the trial judge should have treated that one of the ten factors as dispositive, thereby concluding that the child was not settled because the child was not in status in the U.S. The District Court found that the child and his mother’s “immigration status remains uncertain” and concluded this weighed against the child being settled. On that basis, additional evidence would not have changed the outcome of the ten-factor analysis. “Immigration status ‘is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test.'” The trial judge analyzed all factors and “immigration status ‘cannot undermine all of the other considerations which uniformly support a finding that the child is ‘settled’ in the United States’.”