he two minor children of an immigrant who were granted asylum in the United States must be returned to their father in Venezuela, the 6th U.S. Circuit Court of Appeals has ruled in a 2-1 decision.

The defendant-mother in Ajami v Solano (Docket No. No. 20-5283) was a member of the political party that opposed the regime of Venezuelan President Nicolás Maduro. In 2018, the defendant brought her two children to the United States because she feared the Maduro regime. In 2019, the plaintiff-father filed a petition in a Tennessee federal court, seeking the children’s return to Venezuela under the Hague Convention on Civil Aspects of International Kidnapping (the Hague Convention). In the meantime, the plaintiff and the children received asylum in the United States.

The U.S. District Court for the Middle District of Tennessee ordered that the children be returned to Venezuela. According to the federal district court, the defendant failed to establish, by clear and convincing evidence pursuant to Article 13(b) of the Hague Convention, that returning the children to Venezuela would expose them to a “grave risk” of physical or psychological harm, or place them in an “intolerable situation.”

The defendant appealed, arguing the federal district court’s ruling was erroneous because: 1) the plaintiff is physically and verbally abusive, 2) Venezuela is a zone of war and famine, and 3) the Venezuelan judicial system could not resolve the parties’ custody dispute. She also asserted the federal district court did not adequately consider the fact that she and the children had been granted asylum.

A 6th Circuit majority rejected the defendant’s arguments, finding that she did not present clear and convincing evidence that returning the children to Venezuela would be gravely harmful to them or otherwise subject them to an intolerable situation. “Because the abuse in this case is relatively minor, the district court had no discretion to refuse the petition nor to consider evidence of potential future harm,” the 6th Circuit said in an opinion written by Judge Julia Smith Gibbons, joined by Senior Judge Ralph B. Guy, Jr.

The 6th Circuit also held that the federal district court properly considered the asylum factor, noting that a grant of asylum does not substitute for the determination that the defendant failed to establish an Article 13(b) affirmative defense under the Hague Convention. “Nor does it substitute for our own de novo finding of the same,” the majority stated.

Judge Karen Nelson Moore dissented, saying she would remand the case for further proceedings because the federal district court did not address the grant of asylum and its impact, if any, on the Hague Convention’s affirmative defenses.

Hague Convention Arguments

According to the 6th Circuit majority, the defendant did not present clear and convincing evidence that an Article 13(b) exception applied. Whether a child might be exposed to a grave risk of harm or returned to an intolerable situation are “mixed” questions of law and fact that are reviewed de novo, the 6th Circuit explained. Here, the defendant alleged that returning the children would expose them to a grave risk of harm because of the plaintiff’s purported history of abuse.

The 6th Circuit examined the Hague Convention requirements, noting that case precedent has established three categories of abuse: 1) minor, 2) clearly grave and 3) cases in the middle (i.e., the abuse “is substantially more than minor, but is less obviously intolerable”). According to federal appeals court, a case involving minor abuse would likely not pose a grave risk to a child nor place a child in an intolerable situation and, in these cases, the court has discretion to refuse the petition to return because the Article 13(b) threshold has not been met. On the other hand, a case of clearly grave abuse involves “credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect.” Meanwhile, cases in the middle category require a fact-finding inquiry into “the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.”

The defendant argued the federal district court erroneously found that the alleged abuse toward her, which was purportedly witnessed by the children, fell under the category of minor abuse. “[T]he district court found one credible incident of abuse,” the 6th Circuit wrote. “This incident - even when considered alongside the other alleged and unproven conduct - is clearly less serious and less frequent than the middle-level abuse detailed in Simcox [v Simcox, 511 F.3d 594 (6th Cir. 2007)]. We agree with the district court’s conclusion that the one incident of abuse falls into the relatively minor category, and we echo its comment that calling such abuse ‘relatively minor’ does not mean we find any type, level, or frequency of abuse acceptable. Rather, the abuse does not rise to the level of a viable defense to the children’s return under Article 13(b).” 

In addition, the defendant claimed that, because Venezuela is a “zone of war and famine,” the federal district court erroneously found that the children did not face a grave risk of physical or psychological harm upon returning to Venezuela. The defendant maintained that returning to Venezuela would place herself and the children in an intolerable situation. Addressing this claim, the 6th Circuit noted that the difference between exposing a child to a “grave risk of harm” and to an “intolerable situation” is not clearly established in case precedent. However, an “intolerable situation” must be different from “physical or psychological harm,” the majority said, “but nevertheless serious,” therefore meaning “either it cannot be borne or endured, or it fails some minimum standard of acceptability.” An intolerable situation does not arise “merely when the child would be returned to a country ‘where money is in short supply, or where educational or other opportunities are more limited than in the requested State.’”

Specifically, the 6th Circuit pointed to a lack of case precedent finding that identifying a country as a zone of war is sufficient to trigger the Hague Convention’s grave risk or intolerable situation exception. The majority observed that Venezuela is not actively torn by civil war, is an integrated country capable of signing international treaties and is a signatory to the Hague Convention. “Ultimately, [the plaintiff and the defendant] paint very different pictures of family life in the children’s home country. Considering both parties’ evidence, the district court determined [the plaintiff] could provide the children with shelter, food, and medication in Venezuela. This factual finding is not clearly erroneous. … Although the conditions in Venezuela are less stable than those the children likely enjoyed in Murfreesboro, Tennessee, this does not mean they would face an intolerable situation or a grave risk of harm upon return. Despite Venezuela’s political schisms and civil unrest, [the defendant] failed to introduce sufficient evidence that it is a zone of war, famine, or disease warranting an Article 13(b) affirmative defense.”

The 6th Circuit then turned to the defendant’s argument that the federal district court erroneously concluded that the Venezuelan court system could not adjudicate the parties’ custody dispute. In particular, the defendant contended the parties’ custody dispute could not be adjudicated in Venezuela because she “cannot travel to Venezuela to participate in custody proceedings, nor will the Venezuelan court system meaningfully adjudicate custody,” and that this constitutes an “intolerable situation.”

The defendant “points to testimony about general corruption in the Venezuelan judiciary, testimony about persecution of political opposition leaders, and her attorney’s testimony about proceedings being biased in favor of [the plaintiff] due to his political connections,” the 6th Circuit observed. “However, there was also evidence that [the defendant’s] attorney has been able to file documents, review case files, and even secured a new judge to oversee the parties’ custody dispute after requesting recusal of the previous judge. Ultimately, the district court found that delays in court proceedings among the parties and other examples of purported corruption ‘are not so severe as to indicate the Venezuelan courts are corrupt or that they would be unable to fairly adjudicate the custody dispute.’ … This factual finding is not clearly erroneous, and any defects in the Venezuelan court system fall short of what is required for an intolerable situation.”

Asylum Factor

Next, the 6th Circuit addressed the defendant’s argument that the federal district court did not properly consider the grant of asylum. She claimed the order effectuating the children’s return, despite their asylum status, usurped Congressional authority and rendered null the executive branch’s asylum determination.

Citing Sanchez v RGL, 761 F.3d 495 (5th Cir. 2014), the 6th Circuit said the defendant’s argument was without merit because a federal district court has the authority to order the return of wrongfully removed children, regardless of whether the children were previously granted asylum. “The case before us is slightly different in that [the defendant] and, derivatively, the children were granted asylum before the district court ordered return of the children. But, as in Sanchez, she and the children were granted asylum under 8 U.S.C. § 1158, and we adopt the Fifth Circuit’s reasoning here.”

In the present case, the federal district court “made independent findings on whether the children would face an intolerable situation or a grave risk of harm in Venezuela, considering all offered, admissible, and relevant evidence,” the 6th Circuit explained. “[A] grant of asylum does not strip the district court of its authority to make controlling findings regarding circumstances the children may face upon return. … We also note the difference in evidentiary burdens between asylum proceedings and those under the [Hague] Convention’s framework. To be granted asylum, eligibility must be shown by a preponderance of the evidence. … But for an Article 13(b) affirmative defense to apply, the respondent must establish the exception by clear and convincing evidence. … Additionally, the opportunity for participation by interested parties may be different – here, [the plaintiff] did not participate in the asylum proceedings.”

Although the factors that are considered in a grant of asylum may be relevant to determinations under the Hague Convention, the federal district court “has a separate and exclusive responsibility to assess the applicability of an Article 13(b) affirmative defense,” the 6th Circuit said. “We reject [the defendant’s] argument that a grant of asylum deprives federal courts of authority to enforce the Hague Convention.”

Therefore, “[w]e affirm the district court’s order that [the children] be returned to their habitual residence in Venezuela,” the 6th Circuit majority concluded.

Dissenting Opinion

In her dissent, Judge Karen Nelson Moore emphasized the federal district court “did not analyze” whether the defendant could return to Venezuela. “It did not consider the grant of asylum,” she said.

“This oversight is significant,” Judge Moore wrote. “Even apart from the risks that an asylee faces in their home country, an asylum grant impacts that person’s ability to return. Individuals who are granted asylum in the United States may be unable to return to their home country without facing a substantial risk that their asylum will be revoked. … Children are placed in an intolerable situation when their parent is forced to choose between the risk that the parent will lose their asylum status in the United States and the risk that the parent will lose custody of the children if the parent fails to return to the country in which custody will be adjudicated. … At the very least, the situation that the family in this case confronts is akin to a situation in which a parent cannot return the country of residence - a situation that our court has recognized as intolerable in Pliego [v Hayes, 843 F.3d 226 (6th Cir. 2016)] and that other signatories have likewise recognized as intolerable.”

The intolerableness of the situation “is further heightened in the asylum context because a child’s parent must choose between living in the same country as the child and avoiding the parent’s own well-founded fear of persecution,” Judge Moore said. “It cannot be the case that the Hague Convention was intended to require the removal of children in such circumstances.”

According to Judge Moore, the majority’s holding relied “almost exclusively” on Sanchez but was “irreconcilable” with the ruling in that case. “[T]he majority extrapolates that a district court need not consider an asylum grant at all. This all-or-nothing dichotomy stretches Sanchez past its breaking point and is inconsistent with both the Hague Convention and the United States’s asylum obligations. An asylum grant is not dispositive. … For this reason, the district court must consider a grant of asylum when deciding whether to order the return of a child pursuant to the Hague Convention.”

Consistent with international human rights obligations, “Congress has enacted laws that protect refugees against being returned to the country from which they fled,” Judge Moore observed. “Federal asylum laws prohibit the executive branch from removing such persons. … I do not disagree with the majority that this provision directly applies to only the executive branch and not the judiciary. But ordering the return of children, when our country’s asylum laws would prohibit the executive from enforcing such an order, cannot be consistent with the protection of human rights and fundamental freedoms. Such a return goes against the broad principles espoused by both domestic and international law.”

Here, the defendant was a member of the political party that opposes the Maduro regime and was granted asylum in the United States, Judge Moore explained. “The children were granted asylum as well. … Yet, the district court’s opinion did not discuss whether the asylum grants implicate the Hague Convention’s affirmative defenses. Because the district court abused its discretion in failing to consider the asylum grants, I would remand this case for further proceedings.”