Father and Mother are Venezuelan citizens with two children. Ms. Tescari, the children’s mother, removed them from their home in Venezuela and brought them to the United States in 2018. On February 20, 2019, Mr. Salame petitioned for their return under the Hague Abduction Convention. On June 10, 2019, Ms. Tescari, and her children as derivative family members, were granted asylum in the United States. The U.S. District Court held a bench trial in July-August 2019 and ordered the children returned to Venezuela. The U.S. Court of Appeals for the Sixth Circuit affirmed. The parties stipulated to Mr. Salame’s prima facie case. The only argument at trial was whether returning the children to Venezuela would expose them to a grave risk of harm/intolerable situation under Article 13(b). Her argument was based on the following assertions: Mr. Salame is verbally and physically abusive, Venezuela is a zone of war and famine, and the Venezuelan courts are unable to adjudicate their custody dispute. She further asked the court to consider that she and the children were granted asylum in the United States.
The trial court concluded that any abuse by Mr. Salame was minor and did not rise to the level of presenting a grave risk. Further, Venezuela is “not actively torn by civil war – it remains a single integrated country capable of signing international treaties. …” so returning a child there does not present an intolerable situation. Mr. Salame presented evidence that the political protests are easily avoidable, the grocery stores near his home are fully stocked with food and water, his home has a generator, the family has access to medical care, and the children would return to their school and soccer teams. Ms. Tescari for the first time on appeal raised that she is unable to travel to Venezuela to litigate a custody suit because of her grant of asylum, and therefore, that presents an intolerable situation. The court declined to consider this argument. She further argued that the Venezuelan courts are corrupt and unable to adjudicate a custody dispute fairly. However, her own Venezuelan lawyer testified and admitted that he has been able to review case files, file documents, and even secured a new judge after requesting the prior one be recused.
The most interesting part of this opinion are the arguments related to asylum. Ms. Tescari argued that an order returning the children usurps Congress’s authority and renders null the executive branch’s asylum determination. The Sixth Circuit cited the Fifth Circuit case of Sanchez v. RGL, saying that “the language of the INA indicates that the discretionary grant of asylum is binding on the Attorney General or Secretary of Homeland Security. … no authority was offered ‘that the discretionary grant of asylum confers a right to remain in the country despite judicial orders under this Convention.'” Factors relevant to an asylum claim may be relevant to exceptions to return under the Hague Abduction Convention. “[T]he asylum finding that the children have a well-founded fear of persecution does not substitute for or control a finding under Article 13(b) of the Convention about whether return ‘would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.'” The court made independent findings on a grave risk, considering all relevant evidence. It is not bound by a finding made by a different authority in an asylum matter. There are different burdens of proof and different opportunities for interested parties to participate.
In the dissenting opinion, the judge referenced a Canadian Hague Abduction case that concluded that Article 20 (the human rights exception) is “engaged in cases involving refugee children. …” further indicating that when dealing with a refugee, there is a rebuttable presumption that arises that if the child is returned, there is a risk of persecution, which “clearly implicates the type of harm contemplated by art. 13(b) of the Hague Convention.” The dissent argued that Article 13(b)’s intolerable situation exception is implicated in that Ms. Tescari is unable to return to Venezuela, particularly after being granted asylum. She is then left with the situation where she risks either losing her asylum status or risks being unable to litigate the custody of her children in Venezuela, and this places the children in an intolerable situation. The dissent also argued that Article 20 applies, citing to the 1951 Convention Relating to the Status of Refugees and the Universal Declaration of Human Rights (art. 14), citing, “[n]o Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his [protected status].”