Immigration and Abduction:

The Relevance of U.S. Immigration

Status to Defenses Under the Hague
Convention on International
Child Abduction
Catherine Norrist

INTRODUCTION
In our increasingly mobile world, family relationships and problems often
span national borders. These transborder entanglements pose challenges both
for individuals and legal regimes. In the late 1970s, as a result of growing
awareness of the phenomenon of child abduction by a parent, nations sought to
address this issue through the creation of the 1980 Hague Convention on the
Civil Aspects of International Child Abduction (the "Hague Convention" or the
"Convention").I More than eighty nations are now parties to this treaty, which
aims to "protect children from the harmful effects of abduction and retention
across international boundaries by providing a procedure to bring about their
prompt return." 2 The Hague Convention deals exclusively with the unilateral,
wrongful removal or retention of children by parents, guardians, or close family
members.3 Specifically, the Hague Convention demands that a child abducted
by a parent from one signatory nation to another be returned to her home
country, where custody proceedings may take place, unless the abducting

Copyright © 2010 California Law Review, Inc. California Law Review, Inc. (CLR) is a
California nonprofit corporation. CLR and the authors are solely responsible for the content of
their publications.
t J.D. Candidate, University of California, Berkeley, School of Law, 2010. I thank
Professor Kate Jastram for her invaluable feedback and mentorship, as well as Allison Davenport
and Professor Merle Weiner for their guidance and expertise. I am grateful for the many insightful
contributions from members of the California Law Review, especially Sara Gerson and Tim
Byron. I also extend infinite thanks to my friends and family for their support.
1. PAUL R. BEAUMONT & PETER E. McELEAVY, THE HAGUE CONVENTION ON
INTERNATIONAL CHILD ABDUCTION 3 (1999).
2. Hague Conference on Private International Law, The Child Abduction Section,
http://hcch.e-vision.nl/index-en.php?act=text.display&tid=21 (last visited Jan. 18, 2010).
3. BEAUMONT & MCELEAVY, supra note 1,at 1.

159
160 CALIFORNIA LAW REVIEW [Vol. 98: 159

parent can successfully invoke one of the defenses set forth in the Convention. 4
Increasingly, however, advocates and practitioners are raising concerns
that the Hague Convention prioritizes expediency and the petitioning parent's
rights over the rights of the abducting parent and child, doing a disservice to the
mothers and children involved.5 Contrary to the assumptions of the drafters of
the Convention, 6 the vast majority of respondents ("abductors") in cases
brought pursuant to the Hague Convention are mothers.7 Many of these women
maintain that they fled across borders with their children due to domestic vio-
lence and the home state's inability to protect them.8 Unfortunately, many
courts apply the Hague Convention in a way that is unsympathetic to such
respondents' claims by insisting upon narrow constructions of the exceptions
allowed in the Convention text.9

4. Hague Convention on the Civil Aspects of International Child Abduction art. 12-13,
opened for signatureOct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (entered into force
Dec. 1, 1983) [hereinafter Hague Convention].
5. See, e.g., Sudha Shetty & Jeffrey L. Edleson, Adult Domestic Violence in Cases of
International Parental Child Abduction, in 11 VIOLENCE AGAINST WOMEN 115 (2005)
(discussing the prevalence of adult domestic violence in parental abductions and specific cases in
which battered mothers have objected to the return of their children to abusive partners); Merle H.
Weiner, InternationalChild Abduction and the Escapefrom Domestic Violence, 69 FORDHAM L.
REV. 593 (2000) [hereinafter Weiner, International Child Abduction] (highlighting the problems
inherent in applying the Hague Convention to primary caregivers, often women, who take their
children across international borders to escape domestic violence); Merle H. Weiner,
StrengtheningArticle 20, 38 U.S.F. L. REv. 701 (2004) (advocating for strengthening the Hague
Convention's Article 20 defense to achieve more just results for domestic violence victims who
flee their home countries with their children).
6. Weiner, InternationalChildAbduction, supra note 5, at 609-10.
7. A 2003 statistical report found that 68 percent of taking persons were mothers and 29
percent fathers, while 68 percent of taking persons were also primary or joint caregivers. NIGEL
LowE, A STATISTICAL ANALYSIS OF APPLICATIONS MADE IN 2003 UNDER THE HAGUE
CONVENTION OF 25 OCTOBER 1980 ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD
ABDUCTION 21-22 (2007 update), available at http://hcch.e-vision.nl/upload/wop/abd.pd03eL
2007.pdf [hereinafter 2003 STATISTICAL ANALYSIS].
8. See, e.g., Merle H. Weiner, Navigating the Road Between Uniformity and Progress: The
Need for PurposiveAnalysis of the Hague Convention on the Civil Aspects of InternationalChild
Abduction, 33 COLUM. HUM. RTS. L. REV. 275, 277 (2002) [hereinafter Weiner, Navigating the
Road] (noting that "[s]even of the nine cases decided by the United States courts of appeals
between July 2000 and January 2001 involved an abductor who alleged that she was a victim of
domestic violence"); Hague Conference on Private International Law, Collated Responses to the
QuestionnaireConcerning the PracticalOperation of the Hague Convention of 25 October 1980
on the Civil Aspects of International Child Abduction, at 309-19, Prel. Doc.
No. 2, (Oct. 2006) [hereinafter Collated Responses], available at http://www.hcch.net/upload/
wop/abd pd02efs2006.pdf (providing signatory states' replies to the following questions: "Is the
issue of domestic violence or abuse often raised as an exception to return in child abduction cases?
What is the general approach of your courts to such cases and, in particular, how far do they
investigate the merits of a claim that such violence or abuse has occurred?").
9. See Merle H. Weiner, Half-Truths, Mistakes, and Embarrassments: The United States
Goes to the Fifth Meeting of the Special Commission to Review the Operation of the Hague
Convention on the Civil Aspects of International Child Abduction, 2008 UTAH L. REV. 221,
284-85 (2008) [hereinafter Weiner, Half-Truths] (observing that narrowly construing the Article
13(b) exception, as U.S. courts often do, "can render irrelevant the domestic violence perpetrated
20 10] IMMIGRATION AND ABDUCTION 16 1

Viewing Hague Convention adjudications through the lens of the parent

fleeing domestic violence exposes a number of problems with Hague
Convention jurisprudence in U.S. courts. While scholars have detailed the
general challenges that domestic violence victims face in Hague proceedings,10
the role of immigration status in such cases has received little attention. Given
the inherent border-crossing nature of Hague cases, non-U.S. citizens often find
themselves in the respondent role before U.S. courts. The courts may choose
either to consider or ignore the respondents' (and their children's) immigration
status in several different ways during the course of the Hague petition
adjudication.
This Comment details the interaction of immigration status with two of
the Hague Convention's defenses to the return of a child: the Article 13(b)
grave-risk defense and the Article 12 well-settled defense. I assess this relation-
ship through the lens of the parent escaping domestic violence, given the
prevalence and severity of the problem. In particular, I focus on parents who
flee to the United States, because the United States receives more petitions for
the return of children than any other signatory to the Convention.' I argue that
most U.S. courts take immigration status into account when they should not-
in the consideration of the well-settled defense-and fail to weigh immigration
status when they should-when an asylum application or grant is relevant to
the assessment of the grave-risk defense. In order to comport with the object
and purpose of the Hague Convention, which is to "protect children inter-
nationally from the harmful effects of their wrongful removal,"1 2 and with other
international law norms, U.S. courts must weigh the status of asylum applicants
in grave-risk determinations, and they should not deem immigration status
dispositive in the well-settled inquiry unless there is an imminent threat of
removal.
I begin by providing an overview of the Hague Convention and its
application in the United States in Part I. Part II details the current role
immigration status plays in U.S. Hague Convention jurisprudence regarding the

against an abductor").
10. See, e.g., Carol S. Bruch, The Unmet Needs of Domestic Violence Victims and Their
Children in Hague Child Abduction Convention Cases, 38 FAM. L.Q. 529 (2004) [hereinafter
Bruch, Unmet Needs]; Miranda Kaye, The Hague Convention and the Flight from Domestic
Violence: How Women and Children Are Being Returned by Coach and Four, 13 INT'L J.L.
POL'Y & FAM. 191 (1999); Shetty & Edelson, supra note 5; Weiner, International Child
Abduction, supranote 5.
11. 2003 STATISTICAL ANALYSIS, supra note 7, at 14. In 2003, the United States received
23 percent of all return petitions submitted worldwide under the Convention. Id. Overall, the U.S.
Department of State has received inquiries for approximately sixteen thousand cases of
international child abduction since the late 1970s. Shetty & Edleson, supra note 5, at 118 (this
figure includes cases of abduction both into and out of the United States). In 2003, when the
statistical analysis was prepared, there were seventy-four total signatories to the Convention,
forty-five of which had received applications for return of a child that year. 2003 STATISTICAL
ANALYSIS, supranote 7, at 7, 8.
12. Hague Convention, supra note 4, at pmbl.
162 CALIFORNIA LA WREVIEW [Vol. 98: 159

grave-risk defense and the well-settled defense. In Part III, I rely on principles
of treaty interpretation and applicable international law to conclude that the
best interests of the child require courts to consider asylum claims in making
grave-risk determinations. I argue that if an asylum claim is pending at the time
of a Hague proceeding, the proceeding should be stayed until the asylum claim
is adjudicated. If the asylum application is approved, then courts should
consider the grant as compelling evidence that both the taking-parent and child
would face a grave risk of harm upon return to the home country. In
determining whether a child is well settled, I argue that courts should disregard
immigration status unless the child faces an imminent threat of removal.

I
BACKGROUND: THE HAGUE CONVENTION AND U.S. IMPLEMENTATION
This Part lays the statistical and legal foundations upon which later
analysis and argumentation build. I provide an overview of key statistics to
illustrate the scope of the problem and then explore the human dimensions of
the problem by sharing a respondent's story. With that foundation established, I
turn to the Hague Convention and its implementation in the United States.

A. InternationalParentalChild Abduction and Domestic Violence

Who are the parents who abduct, and what motivates them to do so?
When the Hague Convention was drafted in the late 1970s, the prevailing
perception was that most acts of parental child abduction were committed by
fathers dissatisfied with actual or potential custody awards. 13 But analysis of
data drawn from subsequent Hague Convention cases reveals a different reality.
A study commissioned by the Permanent Bureau of the Hague Conference on
Private International Law found that of the 954 applications received in 1999
by signatories to the Convention, 69 percent of the taking parents were
female.14 A similar study of Hague Convention applications submitted during
2003 yielded virtually identical results.' 5 It is also increasingly recognized that
a significant portion of mothers who take their children across borders are
fleeing domestic violence. Some of these women may seek asylum to escape

13. BEAUMONT & McELEAVY, supra note 1, at 3.

14. NIGEL LOWE, SARAH ARMSTRONG & ANEST MATHIAS, A STATISTICAL ANALYSIS OF
APPLICATIONS MADE IN 1999 UNDER THE HAGUE CONVENTION OF 25 OCTOBER 1980 ON THE
CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 8, 10 (Nov. 2001), available at
http://hcch.e-vision.nl/upload/abd200lpd3e.pdf. The 954 applications sought the return of 1,394
children. Id. at 10.
15. Of the 1,259 applications made for the return of 1,784 children in 2003, fathers
constituted the taking person in 29 percent of cases and mothers in 68 percent of the cases. The
study further identified the primary or joint primary caretaker of the child as the taking person in
68 percent of the cases. 2003 STATISTICAL ANALYSIS, supra note 7, at 10-11, 21-22, 25.
16. See Shetty & Edleson, supra note 5, at 119-20; Weiner, Half-Truths, supra note 9, at
282. The University of Minnesota and the University of Washington Schools of Social Work have
also launched a joint project to better understand the challenges faced by mothers fleeing domestic
2010]1 IMMIGRATION AND ABDUCTION 163

the persecution that they fear they and their children will face if they are forced
to return to the child's home country.' 7
Consider the case of Rosa Gutierrez. Rosa and her children were born in
Mexico and lived there until February 2001. ' Rosa suffered from physical,
sexual, and emotional abuse at the hands of her spouse, Eduardo Gonzalez,
often in front of her children.19 In 1998, after six years of marriage, the couple
separated, but Eduardo continued to abuse Rosa both physically and verbally.20
In 2000, he assaulted her by "hitting her, throwing her to the ground, and
yelling profanities at her, all in the presence of' their two-year-old son.21 Rosa
sought assistance from an attorney and the police, but to no avail.22 The police
insisted she obtain a medical report documenting her injuries before assisting
her, but Rosa was unable to obtain such a report because she could not prove
that her husband was responsible.2 3 Rosa finally divorced Eduardo, but the
abuse did not abate.24 Rosa told Eduardo she was taking the children on a
weeklong vacation, and then she and the children fled to the home of her sister
in the United States. There, she applied for asylum, claiming she was a victim
of domestic violence whom Mexico was unwilling or unable to protect. 25
Eduardo then filed a petition seeking the return of the children to Mexico.26
While Rosa's asylum application was pending, a district court ordered the
children returned to Mexico, and Rosa appealed. 27 After the district court
issued its decision, an immigration judge granted Rosa's asylum application,
but the Immigration Service appealed that decision to the Board of Immigration
Appeals ("BIA"). 28 At the time of the Ninth Circuit's opinion in Rosa's case,
the BIA appeal remained pending.29

violence involved in Hague Convention cases so as to improve the legal system's response in such
cases. See The Hague Domestic Violence Project, http://www.haguedv.org/index.html (last visited
Jan. 18, 2010).
17. See, e.g., Gonzalez v. Gutierrez, 311 F.3d 942, 947 (9th Cir. 2002) (noting that the
respondent filed for and was granted asylum based on her status as a victim of domestic violence,
in the larger context of denying the availability of the remedy of return to a father who only
possessed access rights); Lopez v. Alcala, 547 F. Supp. 2d 1255 (M.D. Fla. 2008) (ordering the
return of several children, pursuant to the Hague Convention, to their allegedly abusive father in
Mexico, despite the respondent mother's pending asylum application).
18. Gonzalez, 311 F.3d at 945-46.
19. Id. at 946.
20. Id.
21. Id.
22. Id.
23. Id.
24. Id. at 947.
25. Id.
26. Id.
27. Id. Because the district court did not publish its opinion in this case and the case is not
available electronically, the only information available regarding the proceedings comes from the
Ninth Circuit opinion.
28. Id. at 947 n.9.
29. Id.
164 CALIFORNIA LAW REVIEW [Vol. 98: 159

Mothers escaping domestic violence are, of course, not the only parents
who abduct, and one should keep in mind that "[a]bductions occur for a variety
of reasons from the narcissistic to the heroic."3 0 Common explanations for
parental abductions include the desire to exact revenge on the other parent, the
desire to protect the child from harm, and the simple desire of one parent to
return to his or her own home country with the child.3 1 The drafters of the
Hague Convention did not seem to contemplate victims of domestic violence as
abductors, however, so it is important to "ensure that the Convention is not
another obstacle for women seeking to escape abusive situations." 32

B. The Hague Convention on the Civil Aspects

ofInternationalChildAbduction
As the title indicates, the Hague Convention on the Civil Aspects of
International Child Abduction only addresses abductions that reach across
borders and the civil-not criminal-remedies available.33 The primary
objectives of the Convention are (a) "to secure the prompt return of children
wrongfully removed to or retained in any Contracting State," and (b) "to ensure
that rights of custody and access under the law of one Contracting State are
effectively respected in other Contracting States." 34 Removal or retention of a
child is wrongful when such an action breaches the custody rights of a person,
institution, or body under the law of the home country, and when the child's
legal guardian was actually exercising those custody rights.35 If a child has
been wrongfully removed or retained and less than a year has passed from the
time of abduction to the date when court proceedings began, then the court
shall order the return of the child immediately. 36
The Convention also establishes that "the interests of children are of
paramount importance in matters relating to their custody." 37 The drafters
emphasized, however, that courts adjudicating Hague Convention petitions
should not decide the merits of what arrangement was in the child's best inter-
est, but rather whether the removal was wrongful. 38 Scholars have argued that a
textual reading of the Convention indicates the drafters' recognition that a

30. Geoffrey L. Greif & Rebecca L. Hegar, International Parental Abduction and Its
Implicationsfor Social Work Practice: Great Britain to the United States, 7 CHILD. & Soc'y 269,
270 (1993).
3 1. Id.
32. Weiner, InternationalChildAbduction, supra note 5, at 600.
33. See ELISA PtREZ-VERA, HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW,
EXPLANATORY REPORT (1981) [hereinafter PtREZ-VERA REPORT], available at http://hcch.e-
vision.nIlupload/exp128.pdf
34. Hague Convention, supra note 4, art. 1.
35. Id. art. 3.
36. Id. art. 12.
37. Id. at pmbl.
38. A.E. Anton, The Hague Convention on International Child Abduction, 30 INT'L &
COMP. L.Q. 537, 553 (1981).
2010] IMMIGRATION AND ABDUCTION 165

wrongful removal or retention may actually benefit the child, as the signatories
declared a desire to "protect children internationally from the harmful effects of
their wrongful removal or retention," not from the acts themselves. 39
Hague Convention proceedings typically unfold as follows: after the
taking parent removes a child from the home country (for this example,
Mexico), the left-behind parent seeks assistance from that country's "central
authority."4o The Mexican central authority transmits an application for the
return of the child to the central authority in the country to which the taking
parent has fled with the child (for this example, the United States). 41 The U.S.
Central Authority, which receives the application, identifies the child's location
and finds local counsel to represent the left-behind parent in judicial proceed-
* 42
ings. The left-behind parent then files a petition for the return of the child in
U.S. court.43 If the court determines that the removal was wrongful, it will
order the child returned to Mexico, where the merits of the underlying custody
dispute can be litigated.4 If, however, the taking parent establishes any one of
the Convention's affirmative defenses, "the State is not bound to order the
return of the child." 45
Although the general scheme of the Convention leaves the determination
of an individual child's best interests to the courts in the home country, the
exceptions to the Convention deviate from this rule. 46 The Convention sets
forth five affirmative defenses to the remedy of prompt return, two of which-
the Article 12 and Article 13(b) defenses-are the focus of this Comment. 47

39. Hague Convention, supra note 4, at pmbl. (emphasis added). See BEAUMONT &
McELEAVY, supra note 1, at 29.
40. See Hague Convention, supra note 4, art. 8. Each signatory is responsible for
designating a central authority, which is responsible for: locating children; preventing harm to
children through provisional measures; securing the voluntary return of children; initiating and
facilitating judicial proceedings to secure children's return; and providing or facilitating legal aid.
Id. art. 6. Left-behind parents (or other custody holders) can file one of two types of Hague cases
with their central authority: a return case, through which the return of the child to his or her
country of habitual residence is sought, or an access case, through which the left-behind parent
seeks to enforce visitation rights. NAT'L CTR. FOR MISSING & EXPLOITED CHILDREN, LITIGATING
INT'L CHILD ABDUCTION CASES UNDER THE HAGUE CONVENTION 4-5 (2007), available at
http://www.missingkids.com/enUS/training-manual/NCMEC-Training- Manual.pdf [hereinafter
NCMEC]. This Comment focuses on return cases, which constitute the bulk of Hague Convention
cases. 2003 STATISTICAL ANALYSIS, supra note 7, at 10-11 (estimating that in 2003, of a
maximum 1,610 Hague applications made, 1,355 were return applications, while 255 were access
applications).
41. See Hague Convention, supra note 4, art. 9.
42. See, e.g., NCMEC, supra note 40, at 3-4.
43. See id.; see, e.g., Gonzalez v. Gutierrez, 311 F.3d 942, 947 (9th Cir. 2002).
44. See Hague Convention, supra note 4, art. 12; NCMEC, supra note 40, at 5.
45. Hague Convention, supranote 4, art. 13.
46. Bruch, Unmet Needs, supra note 10, at 530.
47. Articles 13(a) and 20 also establish defenses. Article 13(a) essentially restates Article 3
in clarifying that return is not required if the child's caretaker did not, in fact, have custody of the
child at the time of removal or retention, or if the caretaker agreed to the removal or retention.
Hague Convention, supra note 4, art. 13. A child's return may also be refused if "fundamental
166 CALIFORNIA LAW REVIEW [Vol. 98:159

The Article 12 well-settled exception provides that

[t]he judicial or administrative authority, even where the proceedings
have been commenced after the expiration of the period of one year
referred to in the preceding paragraph, shall also order the return of the
child, unless it is demonstrated that the child is now settled in its new
environment.48
The Article 13(b) grave-risk exception sets forth that
the judicial or administrative authority of the requested State is not
bound to order the return of the child if the person, institution or other
body which opposes its return establishes that .. . [t]here is a grave
risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable
situation.
Signatories to the Convention do not interpret either of these exceptions
uniformly. In particular, states disagree as to whether the well-settled exception
should impose a heavy burden of proof on taking parents.50 Supporters of this
"policy" approach emphasize that the Convention's primary purpose is the
prompt return of the child to the home country, and as such, the exception
should be difficult to establish. Other states, however, interpret settlement
"literally," which involves taking a child-centric tact concerned with the child's
views on settlement.52 Interpretation of the grave-risk exception is less divisive,
as the drafters of the Convention specified that this exception should be
"interpreted in a restrictive fashion."53 In response to the plight of domestic
violence victims, however, Switzerland recently proposed amending the
Convention to promote a broader, more sympathetic interpretation of the grave-
risk exception.54 Despite the proposal's ultimate failure, it did spark debate
among signatories.

principles of the requested State relating to the protection of human rights and fundamental
freedoms" would not permit her return. Id. art. 20.
48. Id. art. 12. Although the text of the Convention is concerned only with whether the
child is "settled," jurisprudence often refers to Article 12 as the "well-settled" defense.
49. Id. art. 13.
50. See Hague Conference on Private International Law, Comments on Settlement (Mar.
18, 2008) [hereinafter Comments on Settlement], available at http://www.incadat.com/
index.cfm?fuseaction-convtext.showFull&code=598&lng-l.
51. The Hague Conference identifies England, Scotland, and the United States as examples
ofjurisdictions where courts have taken this approach. See id.
52. Examples include Australia, Austria, France, and Hong Kong. See id.
53. PEREZ-VERA REPORT, supranote 33, at 434.
54. Weiner, Half-Truths, supra note 9, at 290-91.
55. Id. at 292.
2010] IMMIGRATION AND ABDUCTION 167

C. U.S. Implementation and Application of the Hague Convention

The United States signed the Hague Convention in 1981 and ratified it in
1988.56 Congress then enacted the International Child Abduction Remedies Act
("ICARA") to implement the Convention domestically.57 Under ICARA, both
state and federal district courts have concurrent original jurisdiction over Hague
Convention cases for the return of a child; as such, thousands of judges have
the potential to hear Hague cases. ICARA also sets forth burdens of proof; the
Hague Convention itself does not offer guidance about such burdens.
Petitioners must establish a prima facie case of wrongful removal by a
preponderance of the evidence. 59 Respondents then must establish the well-
settled defense by a preponderance of the evidence, and the grave-risk
exception by the higher clear and convincing evidence standard.60
The U.S. Department of State's Office of Children's Issues serves as the
U.S. Central Authority ("USCA") for the Hague Convention.61 In its 2008
compliance report, which the USCA must submit to Congress annually, the
USCA stated that 355 Hague Convention applications for the return of 518
children abducted to the United States were filed between October 1, 2006 and
September 30, 2007.62
Hundreds of the cases received by the USCA have made their way into
U.S. state and federal courts.63 Nonetheless, only a handful of decisions are

56. Hague Conference on Private International Law, Status Table for the Hague
Convention on International Child Abduction, http://www.hcch.net/index-en.php?act-
conventions.status&cid=24 (last visited Jan. 18, 2010).
57. International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601-11610
(2006). Congress later passed the International Parental Kidnapping Crime Act to make
international parental child abduction a federal crime. 18 U.S.C. § 1204 (2006).
58. ICARA, 42 U.S.C. § 11603(a) (2006). While theoretically ICARA should be applied
similarly in state and federal courts, some practitioners have found that federal courts are "more
likely to adhere to the Hague Convention's mandate." NCMEC, supra note 40, at 5. Federal
Hague proceedings are also characterized by the use of full civil litigation trial procedure, which
often leads to delays. Id. State courts, in contrast, are more efficient as a result of their familiarity
with family and child custody issues, but "may blur the lines by addressing the underlying merits
of the custody action instead of returning the child to the country of habitual residence for a
custody determination." Id.
59. ICARA, 42 U.S.C. § 11603(e) (2006).
60. Id.
61. Hague Conference on Private International Law, Authorities: United States of America:
Central Authority, http://hcch.e-vision.nl/index-en.php?act-authorities.details& aid= 133 (last
visited Sept. 22, 2009). Previously, the National Center for Missing and Exploited Children-a
private, nonprofit organization-handled incoming cases (abductions to the United States), but the
State Department reassumed those duties in April 2008. Nat'l Ctr. for Missing & Exploited
Children, Bringing Return Proceedings in the United States, http://www.missingkids.com/
missingkids/servlet/PageServlet?LanguageCountry-enUS&Pageld=213 (last visited Jan. 18,
2010).
62. U.S. DEPT. OF STATE, REPORT ON COMPLIANCE WITH THE HAGUE CONVENTION ON
THE CIVIL ASPECTS OF INT'L CHILD ABDUCTION 5 (April 2008), available at
http://travel.state.gov/pdf/2008HagueAbductionConventionComplianceReport.pdf.
63. The International Child Abduction Database (INCADAT), which aims to make leading
168 CALIFORNIA LAW REVIEW [Vol. 98: 159

relevant to this Comment's inquiry. The Supreme Court thus far has refused to
hear a Hague Convention case,6 and only one federal court of appeals, the U.S.
Court of Appeals for the Ninth Circuit, has spoken to the role that immigration
status should play in adjudicating Hague petitions.65 Thus, it is not surprising
that the USCA reported in 2006 that there is no "settled law of the land"
regarding Hague Convention jurisprudence in the United States. 66 The follow-
ing Part details the different approaches courts have taken in considering the
interaction of immigration status-including pending asylum applications-
with Hague petitions for the return of a child.

II
ADJUDICATING HAGUE PETITIONS IN U.S. COURTS:
DOES IMMIGRATION STATUS MATTER?
Like Rosa Gutierrez and her children, who fled from Mexico to the United
States in order to escape domestic violence,67 many respondents and children
involved in Hague Convention cases in the United States are not U.S. citizens,
and some of these individuals find themselves in the United States without
documentation. It is important to note that state and federal trial courts, where
left-behind parents file Hague petitions, typically do not hear immigration
matters. Immigration claims-such as applications for asylum or withholding
of removal-are adjudicated by asylum officers or immigration judges. Thus,
it is not uncommon for Hague petitions and asylum claims to overlap, and for
taking parents to have concurrent matters before both a federal judge and an
immigration judge or asylum officer.

Hague Convention decisions issued by national courts widely available, contains decisions from
120 cases in which state and federal U.S. courts heard Hague petitions for the return of a child
between 1989 and 2008. See Hague Conference on Private International Law, International Child
Abduction Database (INCADAT), http://www.incadat.com/index.cfm (last visited Jan. 18, 2010).
A LexisNexis search conducted on September 22, 2009 for "Hague Convention on Civil Aspects
of International Child Abduction" returned results indicating mention of the Convention (but not
necessarily adjudication of Hague petitions) in 465 opinions by U.S. state and federal courts.
64. See, e.g., Furnes v. Reeves, 362 F.3d 702 (lth Cir. 2004), cert. denied, 543 U.S. 978
(2004).
65. See In re B. del C.S.B., 559 F.3d 999 (9th Cir. 2009). Circuit courts of appeal have,
however, addressed a range of other questions pertaining to the Hague Convention. See, e.g.,
Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (affirming a judgment denying petitioner father's
request for the return of his children to France because returning the children would subject them
to post-traumatic stress disorder and thus create a grave risk of psychological harm); Mozes v.
Mozes, 239 F.3d 1067 (9th Cir. 2001) (concluding that the district court's determination regarding
habitual residence did not sufficiently weigh the import of shared parental intent under the
Convention and remanding for reconsideration); England v. England, 234 F.3d 268 (5th Cir. 2000)
(reversing and remanding the district court's denial of petitioner father's application requesting
the return of his children to Australia, because there was no clear and convincing evidence that the
children would face a grave risk of psychological harm upon return to Australia).
66. Collated Responses, supra note 8, at 215.
67. See Gonzalez v. Gutierrez, 311 F.3d 942, 947 (9th Cir. 2002).
68. See 8 C.F.R. §§ 208.2, 208.4 (2009).
2010] IMMIGRATION AND ABDUCTION 169

In light of this reality, as well as increasingly restrictive U.S. immigration

policy in the wake of the September 11 attacks, the role of immigration status
in Hague Convention cases is ripe for analysis.69 Generally, questions of immi-
gration status do not arise in a court's adjudication of the case-in-chief, likely
because most judges find it irrelevant to the question of whether a wrongful
removal has occurred. But courts have found immigration status relevant in
determining if the grave-risk and well-settled defenses apply. This Part focuses
on how U.S. courts treat the immigration status of respondent parents and their
children in considering these defenses.
The following review of case law reveals a surprising dichotomy. While
federal courts and the USCA do not consider status as an asylum applicant
relevant to the Article 13(b) grave-risk exception, federal district courts are
increasingly looking to immigration status in determining whether a child is
"settled" in the United States (under the Article 12 well-settled exception).70 A
recent Ninth Circuit decision holding that immigration status is only pertinent
in the face of an imminent threat of deportation, however, provides fodder for
reversing at least this well-settled exception trend.7 1

A. Asylum Claims and the Article 13(b) Grave-Risk Exception

U.S. courts generally have not taken into account the immigration status-
specifically, asylum applicant or asylee status-of respondents and children
when determining if a child will face a grave risk of harm upon return to her
country of habitual residence. In order to successfully raise the grave-risk
defense in a U.S. court, the respondent must establish by clear and convincing
evidence that the child's return would expose the child to a grave risk of (1)
physical harm, (2) psychological harm, or (3) an otherwise intolerable situa-
72
tion. While many of the drafters of the Convention, as well as the U.S.
Department of State's legal analysis of the Convention, have emphasized the
need to narrowly interpret the grave-risk exception, 73 an increasing number of

69. See, e.g., Barbara Hines, An Overview of U.S. Immigration Law and Policy Since 9/I,
12 TEX. Hisp. J.L. & POL'Y 9 (2006) (describing how legislation enacted since September 11,
2001 has eroded the rights of immigrants, as growing numbers of migrants continue to enter the
United States without documentation).
70. Although it is beyond the scope of this Comment to address, U.S. courts have also
found immigration status relevant to the determination of the child's place of habitual residence
(which is a term from Article 3 of the Convention, not a defense to return). The leading U.S. case,
Mozes v. Mozes, states that "[w]hile an unlawful or precarious immigration status does not
preclude one from becoming a habitual resident under the Convention, it prevents one from doing
so rapidly." 239 F.3d 1067, 1082 (9th Cir. 2001).
71. See In re B. del C.S.B., 559 F.3d 999 (9th Cir. 2009).
72. See ICARA, 42 U.S.C. § 11603(e) (2006); BEAUMONT & McELEAVY, supra note 1, at
139.
73. Department of State Public Notice 957, 51 Fed. Reg. 10,494, 10,509, § III(I)(2)(a)
(Mar. 26, 1986) [hereinafter Department of State Public Notice 957] (observing that the
Convention drafters "generally believed that courts would understand and fulfill the objectives of
the Convention by narrowly interpreting the exceptions and allowing their use only in clearly
170 CALIFORNIA LAW REVIEW [Vol. 98:159

U.S. and foreign courts are recognizing the viability of this defense for
domestic violence victims. 74
Questions of U.S. immigration status are most relevant to the grave-risk
defense when the taking parent has filed an asylum claim. An asylum officer or
immigration judge may grant asylum to an individual who has fled her country
of nationality if she "is unable or unwilling to return to, and is unable or
unwilling to avail . . . herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion."
Courts have recognized domestic violence as a possible ground for asylum,
although whether victims of abuse constitute members of a "particular social
76
group" remains an unsettled question. Anyone seeking asylum may include
children under the age of twenty-one on the application; if asylum is granted,
those children will receive derivative asylee status.
In at least three of the four known U.S. Hague Convention cases involving
asylum claims, respondent mothers have applied for asylum on the basis of
their status as domestic violence victims.7 8 Three of these four courts did not
acknowledge or consider the asylum claims in the context of the grave-risk
inquiry. The following paragraphs detail these cases, as well as the USCA's
endorsement of this narrow approach.
Recall the story of Rosa Gutierrez and her children, Maria and Eduardo. 79
To date, the petition for Maria's and Eduardo's return to Mexico is the only
case mentioning a respondent's asylum claim that has reached a federal circuit
court.80 A district court concluded that Rosa had wrongfully removed her
children to the United States in violation of their father's custody rights.81 The
court found that she had not successfully established any of the affirmative
defenses under the Convention and, presumably disregarding her pending asy-
lum claim, ordered that Maria and Eduardo be returned to Mexico. 82 Rosa
appealed the decision on the grounds that the children's father did not have
rights of custody when she fled to the United States and that the district court
improperly denied her grave-risk defense.83
In considering these issues, the Ninth Circuit's opinion noted that an
immigration judge granted asylum to Rosa and her children several months

meritorious cases"); BEAUMONT & MCELEAVY, supra note 1, at 138-39.

74. Weiner, Half-Truths, supra note 9, at 283-84.
75. Immigration & Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (2006).
76. See Matter of R-A-, 24 I.& N. Dec. 629 (A.G. 2008).
77. 8 C.F.R. § 208.21 (2009).
78. Three of these opinions are published. The fourth opinion was not published but is
described in another published source.
79. See supra Part I.A.
80. See Gonzalez v. Gutierrez, 311 F.3d 942, 947 (9th Cir. 2002).
81. Id.
82. Id.
83. Id. at 947-48.
2010] IMMIGRATION AND ABDUCTION 171

before the Hague Convention case was argued before the Ninth Circuit, but
subsequently the Immigration Service appealed the asylum decision (and the
appeal remained pending at the time the court wrote its opinion).84 Because the
Ninth Circuit reversed the district court's decision on the issue of whether the
father had custodial rights under the Convention, however, the court did not
enter into analysis of the adequacy of Rosa's grave-risk defense, nor did it
discuss the impact of her asylum claim on the proceedings.85 Thus, this case did
not present an opportunity for the Ninth Circuit to provide guidance to lower
courts faced with such overlapping claims.
Two federal district court cases also involved the intersection of a Hague
petition with a respondent's asylum claim. In Lopez v. Alcala,86 Guadalupe
Rios Alcala and two of her three children moved from Mexico to Florida after
Guadalupe had separated from her abusive husband. 87 Guadalupe applied for
asylum in the United States on an unknown ground. 88 After more than a year,
the children's father filed a petition for their return. 89 In the Hague petition
proceedings, Guadalupe raised several affirmative defenses, including the
children's wishes to remain in the United States with their mother, the
children's settlement in their new environment, and the grave risk of harm or
other intolerable situation that the children would face if they were returned to
Mexico. 90 Guadalupe's asylum claim remained pending at the time of the
proceedings.91
While the court mentioned Guadalupe's status as an asylum applicant in
the factual background of the opinion and in a footnote pertaining to the sepa-
rate well-settled defense, the court did not discuss the application in its grave-
risk analysis.92 The court asserted that "Alcala has applied for asylum status on
behalf of herself and the children, however these applications have not been
approved and do not appear meritorious." 93 The court did not elaborate upon its
conclusion that Guadalupe's asylum application did not appear to be meri-
torious, nor did it assert any authority for doing so. Under U.S. immigration
law, U.S. federal district courts play no role in hearing or reviewing asylum
claims. 94 As such, the district court lacked the expertise to assess the merits of

84. Id. at 947 n.9.

85. Id. at 948 n.11.
86. 547 F. Supp. 2d 1255 (M.D. Fla. 2008).
87. Id. at 1257.
88. Id.
89. Id.
90. Id. at 1259-60.
91. Id. at 1260.
92. Id. at 1257, 1260 n.6.
93. Id.
94. See 8 U.S.C. § 1252(b)(2) (2006) (establishing that any petition for review from the
BIA "shall be filed with the court of appeals for the judicial circuit in which the immigration judge
completed the proceedings"); 8 C.F.R. §§ 208.2, 208.4 (2009); see also Press Release, U.S. Dep't
of Justice, Executive Office of Immigration Review, Asylum Protection in the United States (Apr.
172 CALIFORNIA LAW REVIEW [Vol. 98: 159

Guadalupe's asylum claim. Furthermore, in weighing the grave-risk defense,

the court ignored the asylum claim completely and concluded that "the alleged
abuse in this case is not so severe that it rises to the level of an intolerable
situation." 95 With the asylum application still pending, the court ordered the
return of the children to Mexico. 96
The second district court opinion that mentioned a respondent's asylum
claim in the context of a Hague petition adjudication is Arguelles v. Vasquez.97
Erika Gaspar Vazquez and Carlos Almaguer Arguelles married in 1999 and had
a daughter, "T.A.G.," in 2001; all three are Mexican citizens. 9 8 Several years
after T.A.G.'s birth, Erika and Carlos separated. 99 Erika alleged that Carlos
"made [Erika's] living situation intolerable," and she feared for her daughter's
safety.100 After Carlos assaulted Erika while T.A.G. was in the house, Erika and
T.A.G. moved from Mexico to Wichita, Kansas, in October 2005.101 In
September 2007, Carlos learned of Erika's and T.A.G.'s whereabouts, and he
filed a Hague petition in January 2008 for T.A.G.'s return to Mexico. 102 Erika,
in turn, raised the following affirmative defenses: T.A.G. would face a grave
risk of harm or intolerable situation upon return to Mexico; T.A.G. was well
settled in her new environment; Carlos consented to or acquiesced in T.A.G.'s
removal; and T.A.G.'s return would violate public policy (Article 20).103
Concurrently, Erika filed for asylum for both herself and T.A.G. as a derivative
based on the domestic violence Erika experienced in Mexico.104
The Arguelles court addressed Erika's asylum claim in much the same
manner that the Lopez court approached Guadalupe's claim. 05 First, the
Arguelles findings of fact mention that Erika applied for domestic-violence-
based asylum.106 As in Lopez, from that point forward, the court only consid-

28, 2005), available at http://www.usdoj.gov/eoir/press/05/AsylunProtectionFactsheetQAApr05.

htm (describing how an asylum applicant may appeal an immigration judge's denial of asylum
eligibility to the BIA, and if the BIA affirms the immigration judge's decision, the applicant may
appeal to the federal court system).
95. Lopez, 547 F. Supp. 2d at 1262; see also id. at 1257 (describing allegations that the
petitioner was an alcoholic who was verbally and physically abusive to the respondent and
children, including testimony that the petitioner hit the children with his hand and belt and hit and
kicked the respondent).
96. See id.
97. In re Hague Child Abduction Application, No. 08-2030-CM, 2008 U.S. Dist. LEXIS
97048 (D. Kan. Mar. 17, 2008). Although the case is officially titled "In re Hague Child
Abduction Application," I will refer to it by the parties' names for clarity: Arguelles v. Vazquez.
98. Id. at *4-5.
99. Id. at *8.
100. Id. at *6, *8.
101. Id. at *11, *14.
102. Id. at *2, *16.
103. See id. at *3.
104. See id. at *17.
105. See supra text accompanying notes 92-96.
106. Arguelles, 2008 U.S. Dist. LEXIS 97048, at *17.
2010] IMMIGRATION AND ABDUCTION 173

ered the asylum application as relevant to Erika's well-settled defense.' 0 7 In

analyzing Erika's grave-risk defense, the court did not even acknowledge the
pending asylum claim and concluded that T.A.G.'s return to Mexico would
expose her to minimal risk of harm, because "any instances of physical abuse
by Petitioner were limited incidents aimed at persons other than the child at
issue . . .. " Without further regard to the pending asylum claim, the
magistrate judge recommended that T.A.G. be returned to Mexico.1 09
In contrast to the approach taken by the federal courts in the previous
cases, a California state court denied the return of a child in a Hague
Convention proceeding on grave-risk grounds because the mother had been
granted asylum in the United States and her child had received derivative
asylee status.' 10 As in Gonzalez v. Gutierrez, the respondent had not just
applied for asylum but had already received a grant."' Unfortunately, because
the court did not publish its opinion, the only information regarding the
decision comes from the U.S. responses to a 2006 Hague Conference
questionnaire concerning the practical operation of the Convention. There, the
USCA described the California case, in which the respondent mother and her
child fled Hungary and received domestic-violence-based asylum in the United
States.' 12 The father subsequently filed a petition for the child's return to
Hungary, and in response, the mother raised the grave-risk defense, which the
court found persuasive in light of the asylum grant. " In reporting this decision,
the USCA noted its disagreement with the outcome on the grounds that "the
standard for asylum is much lower than the 13(b) standard, and ... asylum
hearings are not contested hearings." 1 4
The USCA did not confine its displeasure with the California state
decision to its questionnaire responses. At the Fifth Meeting of the Special
Commission to Review the Operation of the Hague Convention on the Civil
Aspects of International Child Abduction in 2006,s15 the USCA opposed all

107. Id. at *32-35.

108. Id. at *47.
109. Id. at *51.
110. Collated Responses, supra note 8, at 243.
111. In Gonzalez v. Gutierrez, however, the Immigration Service appealed the respondent's
grant of asylum to the Board of Immigration Appeals. 311 F.3d 942, 947, n.9 (9th Cir. 2002).
112. Collated Responses, supra note 8, at 243.
113. See id.
114. Id.
115. The Hague Conference typically assigns the term "Special Commission" to
preparatory meetings on a particular topic that take place between regular Diplomatic Sessions of
the Conference, which are held every four years. The Secretary General of the Hague Conference
may also convene a Special Commission to review a Convention's operation, to which all member
states of the Hague Conference on Private International Law are invited, as well as
nongovernmental and intergovernmental organizations interested in the operation of the treaty.
Meetings of the Special Commission to review the child abduction convention took place in 1989,
1993, 1997, 2001, and 2006. See BEAUMONT & MCELEAVY, supra note 1, at 24; Hague
Conference on Private International Law, The Child Abduction Section, Practical Operation
174 CALIFORNIA LAW REVIEW [Vol. 98:159

attempts to encourage broader interpretation of the grave-risk defense,

including proposals from Switzerland and nongovernmental organizations.116
The United States maintained that in order to establish the grave-risk defense,
the respondent must demonstrate that the court in the country of habitual
residence is unwilling or unable to protect that parent and child.117 Article 13(b)
of the Hague Convention, however, imposes no such requirement; the United
States derived this rule, which echoes the asylum standard, from Friedrich v.
Friedrich, a Sixth Circuit Hague Convention decision." 8 The United States
went on to insist that--contrary to the California state court holding-a
respondent's grant of asylum in the United States should not itself establish that
there is a grave risk that the child's return would expose that child to harm or
an intolerable situation. 119
Thus, U.S. federal courts and the USCA have not recognized the
relevance of asylum applications and actual asylum grants to Hague
Convention cases. Rather than considering asylum applications and their
underlying facts in weighing what type of harm a child might face upon return
to her country of habitual residence, federal courts have interpreted the grave-
risk defense excessively narrowly, in accordance with the U.S. position at the
Fifth Meeting. As I detail in Part III, international law norms and the best
interests of the child require U.S. courts to change course and recognize the
pertinence of domestic-violence-based asylum applications and grants to the
grave-risk defense.

B. Immigration Status and the Article 12 Well-Settled Exception

In contrast to the grave-risk approach just described, U.S. courts have
identified immigration status as a relevant factor in analyzing whether a child is
well settled under Article 12. In order to raise a successful defense to the return
of a child under Article 12 of the Hague Convention, more than one year must
have passed between the wrongful removal of the child and the commencement
of the Hague proceedings.120 Moreover, the respondent must demonstrate by a

Documents, http://www.hcch.net/index-en.php?act=conventions.publications&dtid=2&cid=24
(last visited Sept. 23, 2009).
116. Weiner, Half-Truths,supra note 9, at 286, 289-90.
117. Id. at 286.
118. Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996) (concluding that a grave
risk of harm exists only "when return of the child puts the child in imminent danger prior to the
resolution of the custody dispute--e.g., returning the child to a zone of war, famine, or disease" or
"in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in
the country of habitual residence, for whatever reason, may be incapable or unwilling to give the
child adequate protection"). But see Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008) (holding that
a parent defending his or her wrongful removal of a child from the child's country of habitual
residence by claiming that the child would be exposed to a grave risk of harm if returned does not
have to show that the country's legal and social services systems are unable to protect the child).
119. Weiner, Half-Truths, supra note 9, at 288.
120. Hague Convention, supranote 4, art. 12.
2010]1 IMMIGRATION AND ABDUCTION 175

preponderance of the evidence that the child is now settled in her new environ-
ment.121 In its legal analysis of the Convention, the State Department specifies
that this burden of proof requires "substantial evidence of the child's significant
connections to the new country."l 22
Although neither the Hague Convention nor ICARA detail what it means
to be "settled," U.S. jurisprudence has generated a list of factors that courts
should weigh in assessing the extent of a child's connections to the United
States. The standard factors a court typically examines include: (1) the child's
age; (2) "the stability of the child's [new] residence"; (3) "whether the child
attends school or daycare consistently"; (4) "whether the child attends church
regularly"; (5) "the stability of the [parent's] employment"; and (6) "whether
the child has friends and relatives in the new area."1 23 Beginning with In re Koc
in 2002, six district courts have also considered uncertain or undocumented
immigration status as a significant factor that suggests a child is not settled in
his or her new environment.124
To date, courts have treated lack of immigration status as pertinent to the
well-settled inquiry in one of three ways: (1) one relevant factor among
many;125 (2) the sole or dispositive factor accorded more weight than others;126
or (3) not relevant unless there is an immediate threat of deportation. 127
discuss the merits and implications of each approach below.

1. Immigration Status as One Relevant FactorAmong Many

Thus far, three federal district courts have considered the child's and
respondent's immigration status as one factor among six to eight total factors in
determining whether a child is well settled in her new environment. For courts
that have taken this totality-of-the-circumstances approach, no single factor has
been dispositive.
In re Koc was the first case in which a district court stated that uncertain
immigration status is relevant to the well-settled inquiry.12 8 The respondent
mother, Krystyna, and her daughter, Paulina, traveled from Poland to the

121. Id.; ICARA, 42 U.S.C. § 11603(e)(2)(B) (2006).

122. Department of State Public Notice 957, supra note 73, at 10,509.
123. In re Koc, 181 F. Supp. 2d 136, 152 (E.D.N.Y. 2002); see also Wojcik v. Wojcik, 959
F. Supp. 413, 421 (E.D. Mich. 1997).
124. See In re Koc, 181 F. Supp. 2d at 154; In re Ahumada Cabrera, 323 F. Supp.2d 1303,
1314 (S.D. Fla. 2004); Giampaolo v. Erneta, 390 F. Supp. 2d 1269, 1282 (N.D. Ga. 2004); Lopez
v. Alcala, 547 F. Supp. 2d 1255, 1260 (M.D. Fla. 2008); Valverde v. Rivas, No. CV-08-1404-
PHX-FJM, 2008 U.S. Dist. LEXIS 80855, at *4 (D. Ariz. 2008); Arguelles v. Vasquez, No. 08-
2030-CM, 2008 U.S. Dist. LEXIS 97048, at *32-35 (D. Kan. Mar. 17, 2008).
125. See In re Koc, 181 F. Supp. 2d 136; Giampaolo, 390 F. Supp. 2d 1269; Lopez, 547 F.
Supp. 2d 1255.
126. See In re Ahumada Cabrera, 323 F. Supp.2d 1303; Valverde, 2008 U.S. Dist. LEXIS
80855; Arguelles, 2008 U.S. Dist. LEXIS 97048.
127. See In re B. del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009).
128. In re Koc, 181 F. Supp. 2d at 154.
176 CALIFORNIA LAW REVIEW [Vol. 98: 159

United States on a six-month visa in May 1998 but remained in the United
States with Krystyna's motherl 29 well beyond that time.' 3 0 After more than a
year had passed, Paulina's father petitioned for her return to Poland.131 The
court found that her father successfully established a prima facie case of
wrongful removal by a preponderance of the evidence.132 In response, Krystyna
raised the well-settled defense.' 33
Considering whether Paulina was settled in her new environment, the
court noted that Paulina had lived in several different homes and attended
several different schools, did not participate in extracurricular activities, and
was missed by friends and relatives in Poland.13 4 On the other hand, she spoke
excellent English, performed well academically, had recently began attending
religious classes, made a best friend at school, and enjoyed contact with her
mother's relatives in the United States.135 Balancing these factors, the court
found that Krystyna had not established that Paulina was well settled in New
York.136
The court went on to note that other factors-notably, Paulina's and
Krystyna's uncertain immigration status in the United States-also suggested
that Paulina was not settled.13 7 The court highlighted that both mother and
daughter had overstayed their visas and thus were in the country illegally. 38
Unpersuaded by testimony that a friend of Krystyna's was willing to hire her
and sponsor her for a work permit, or by the legal immigration status of family
members in the United States, the court observed that "[t]he fact that the
Immigration Service may not be looking to deport them at this time does not, in
any way, guarantee that that position will not change in the future or that
Paulina and her mother will ultimately become legal permanent residents of
this country."'39 In this way, Paulina's and Krystyna's uncertain immigration
future further convinced the court that Paulina was not settled in United States.
The court decided that Krystyna did not carry the necessary burden to demon-
strate that any of the other exceptions to the Convention applied, and ordered
Paulina returned to Poland.140

129. According to the court's opinion, Krystyna's mother had also overstayed her visa and
was waiting for papers to remain in the United States, but one of Krystyna's sister-in-laws had
permanent residence. Id. at 143.
130. Id. at 140.
131. Id. at 142, 147.
132. See id. at 148.
133. Krystyna also raised the Article 13(a) acquiescence defense. Id. at 147, 149.
134. Id. at 153-54.
135. Id.
136. Id. at 154.
137. Id.
138. Id.
139. Id.
140. Id. at 156.
2010]1 IMMIGRATION AND ABDUCTION 177

In August 2004, another district court cited illegal immigration status as

one factor among many in its analysis of the well-settled defense in the case of
Macarena Sol Giampaolo.141 Following the separation of Macarena's parents,
Evelina and Roberto, Evelina filed a report with the Argentinean police stating
that Roberto had threatened to kill her and to set Macarena on fire.142 In
November 2001, the police talked with Roberto but did not arrest him; 143in
February 2002, Evelina and Macarena left for the United States to stay with
Evelina's brother.144
Although Roberto did not file a Hague petition for more than a year, he
was still able to successfully obtain an order for Macarena's return. 145 The
National Center for Missing and Exploited Children helped Macarena's father
locate an attorney to file his petition before a U.S. court, which Roberto did in
May 2004.146 Because Evelina concealed Macarena's location from Roberto,
however, the court tolled the beginning of the one-year period until Roberto
located Macarena,147 and thus concluded that the father filed his petition in a
timely fashion. 148 The court went on to hold that even if the father had failed to
file within the required one-year period, Evelina had not demonstrated by a
preponderance of the evidence that Macarena was well settled in Georgia. 149
The court analyzed Evelina's and Macarena's immigration status along-
side a number of the other standard factors.' 50 The court noted that Macarena
attended school regularly and performed well, participated in extracurricular
activities, was fluent in English, made friends, and enjoyed living with her
mother and new stepfather.' 5 ' At the same time, Macarena had lived in three
different homes and attended three different schools in two-and-a-half years,
did not have legal status in the United States, lacked family in the United States
beyond her mother, stepfather, and uncle, and had lived in Argentina for eight
of the ten years of her life.152 The court also took note of the fact that Evelina
had applied for citizenship,153 but did not discuss this fact further.
As in In re Koc, the court viewed immigration status as just one of the
many factors to consider in determining whether Macarena was well settled.154

141. Giampaolo v. Erneta, 390 F. Supp. 2d 1269,1282 (N.D. Ga. 2004).

142. Id. at 1274.
143. Id.
144. Id.
145. Id. at 1281, 1285.
146. Id. at 1275, 1281.
147. Id. at 1281.
148. Id.
149. Id.
150. Id. at 1281-82.
151. Id. at 1282.
152. Id.
153. It is not clear from the court's opinion how Evelina could have applied for citizenship
if she was not a legal permanent resident. See id.
154. Id. at 1282-83; see In re Koc, 181 F. Supp. 2d 136, 153-54 (E.D.N.Y. 2001).
178 CALIFORNIA LAW REVIEW [Vol. 98:159

After weighing the above factors, the court found that Macarena was not settled
in the United States. 155 Because Evelina did not carry the burden of proof in
raising any of the other affirmative defenses, the court ordered that Macarena
be returned to Argentina.' 56
Similarly, in Lopez v. Alcala, another district court treated immigration
status as one factor among many relevant to the well-settled inquiry.157 As
mentioned above in the context of her asylum claim,158 Guadalupe Rios Alcala
moved from Mexico to Florida with two of her three children to escape abuse
by her children's father.' 59 The children's father was aware of their
whereabouts for at least a year before he filed a petition for their return, so
Guadalupe raised the defense that Suri and Sinai had settled into life in
Florida. 160 The court observed that the children were doing well in their new
environment, because they had adjusted to their school, had made friends,
spoke English, and had established close relationships with Guadalupe's
mother and brother.' 6 ' Other factors, however, indicated that Suri and Sinai
were not well settled, including multiple changes in residence; lost
relationships with their father, sister, and other relatives in Mexico; and lack of
legal immigration status.162 The court highlighted the import of immigration
status by stating that, "their residence in this country is not stable because
neither Alcala nor the children have legal alien status and, as such, are subject
to deportation at anytime."1 63 The court came to this conclusion even though
Guadalupe had applied for asylum and was awaiting the outcome of her
application.164 Because the court found that Guadalupe had not established the
well-settled defense-or any other exception-by the requisite burden of proof,
it ordered Suri's and Sinai's return to their father in Mexico.165

2. Immigration Status as the Dispositive or Sole Factor

In contrast to the totality-of-the-circumstances approach detailed above,
three district courts have treated immigration status as either a dispositive
factor that undermines all positive indications of being well settled or the sole
factor relevant to determining if a child is settled in the United States. In these
cases, undocumented status precludes a finding that a child is well settled,
regardless of whether the court considers positive indications of stability or not.

155. Giampaolo, 390 F. Supp. 2d at 1283.

156. Id. at 1283, 1285.
157. Lopez v. Alcala, 547 F. Supp. 2d 1255, 1260 (M.D. Fla. 2008).
158. See supra text accompanying notes 86-96.
159. Lopez, 547 F. Supp. 2d at 1256-57.
160. Id. at 1259.
161. Id.
162. Id. at 1260.
163. Id.
164. See id. Guadalupe's asylum claim is discussed in greater detail supra Part III.A.
165. Lopez, 547 F. Supp. 2d at 1262.
20 10] IMMIGRATION AND ABDUCTION 179

For example, in its Article 12 well-settled analysis, the In re Ahumada

Cabrera court treated lack of legal immigration status as a dispositive factor
and disregarded all other aspects of the child's life.16 6 In 2001, after receiving
written permission from her child's father, Nancy Carina Lozano and her
daughter Ailin flew from Argentina to the United States under the pretext of
visiting Disney World and remained with Nancy's sister in Florida.' 67 Nancy
registered Ailin for school and informed the father that she planned to stay with
Ailin in the United States, after which he filed a petition for Ailin's return to
Argentina.168 Satisfied with the petitioner's prima facie case of wrongful reten-
tion, the court focused on Nancy's central affirmative defense that more than a
year had passed and Ailin was now well settled in Florida.169 Because the
petitioning father was unaware of Nancy's intent not to return Ailin until June
2003, the court concluded that his petition was timely.' 70 The court alternative-
ly held that even if the petition had not been filed within the one-year window,
Ailin could not be deemed well settled in the United States because of her
immigration status.171
Determining that "a court is permitted to consider any relevant factor
surrounding the child's living arrangement," the question of immigration status
dominated the court's analysis of the well-settled question.17 2 The court
dismissed both Ailin's regular school attendance and Nancy's employment
because Nancy's uncertain immigration status "significantly undermined" any
stability Ailin enjoyed and made the prospects of her long-term job stability
"not strong.'73 Reasoning that it would be preferable for Ailin to return to
Argentina right then, as opposed to being deported in the future, the court
found that Ailin was not well settled and ordered her return to Argentina.' 74
Thus, although the court purported to consider a variety of factors in its
analysis, the child's and respondent's uncertain immigration statuses singularly
undermined a finding that Ailin was well settled in the United States.
Likewise, the court in Arguelles v. Vasquez deemed the well-settled
question moot-because it extended the one-year deadline due to equitable
tolling-but went on to find that the child was not well settled in the United
Status due to her "questionable legal status."175 As discussed previously, Erika

166. See In re Ahumada Cabrera, 323 F. Supp.2d 1303, 1314-15 (S.D. Fla. 2004).
167. Id. at 1308-09.
168. Id.
169. Id. at 1312.
170. Id. at 1313.
171. Id.
172. Id. at 1313-14.
173. Id. at 1314.
174. Id. at 1314-15.
175. Arguelles v. Vasquez, No. 08-2030-CM, 2008 U.S. Dist. LEXIS 97048, *31-32, *35
(D. Kan. Mar. 17, 2008). Her immigration status was "questionable" because she had entered the
United States without legal status and her derivative asylum application was pending. Id. at * 17-
18.
180 CALIFORNIA LAW REVIEW [Vol. 98: 159

Gaspar Vasquez and her daughter T.A.G. moved from Mexico to Kansas to
escape T.A.G.'s abusive father, Carlos.176 In determining whether T.A.G. was
settled in the United States after living there for several years, the court
observed that "[e]ven when significant connections to the United States are
proven, the child's connections are undermined if neither the abducting parent
nor the child are legal residents of the United States."' 77 As such, although the
court took note of T.A.G.'s valuable relationships in Kansas, consistent school
attendance, and occasional presence at church, it concluded that Erika's and
T.A.G.'s living situation was "inherently unstable" because of their uncertain
immigration status.'7 To support this conclusion, the court highlighted that
Erika's employment prospects were unknown based on her immigration status,
and this lack of legal status left Erika without a driver's license or health
insurance for T.A.G.' 79 The court failed to identify any factors indicating lack
of settlement independent of undocumented status. 80
Lastly, a district court considered lack of legal immigration status as the
only factor relevant to the well-settled inquiry in Valverde v. Rivas." Silvia
Rivas brought her son, Lucas, to the United States in 2005 to escape Lucas's
father, who she claimed "was violent towards her and her two children by
another relationship (but not Lucas)."' 82 The court found Lucas's father's
petition to be timely and Silvia's removal of Lucas wrongful. 83
In the alternative, the court ruled that Lucas was not well settled in the
United States because "[t]he child is an illegal alien and the evidence is
undisputed that (1) he has no visa to be in the United States, (2) no petition for
citizenship has been filed, and (3) he has no 1-94 form."l 84 The court
considered no other factors in its well-settled calculus. Furthermore, the
court determined that despite Silvia's "substantial evidence" of Lucas's father's
past violence, she had not met the burden of establishing the grave-risk defense
by clear and convincing evidence. 186 Thus, with little discussion, the court
ordered Lucas returned to his father in Mexico. 87

176. Id. at * 1, * 14. For additional factual background and information regarding Erika's
asylum claim and grave risk defense, see supra text accompanying notes 97-109.
177. Id. at *32.
178. Id. at *34-35.
179. Id.
180. See id. at *32-35.
181. Valverde v. Rivas, No. CV-08-1404-PHX-FJM, 2008 U.S. Dist. LEXIS 80855, *4 (D.
Ariz. Sept. 5, 2008).
182. See id. at *1-2. It is unclear from the opinion whether Silvia also brought her other
children to the United States, as they were not named in the Hague petition.
183. Id. at *2, *4.
184. Id. at *4.
185. See id.
186. Id. at *3-4.
187. Id. at *4.
2010] IMMIGRATION AND ABDUCTION 18 1

3. Immigration Status as Irrelevant Unless Immediate Threat ofDeportation

Exists
In 2009, the Ninth Circuit became the first circuit court of appeals to
articulate a rule regarding the role of immigration status in the well-settled
inquiry. In In re B. del C.S.B., it announced that immigration status of the child
and respondent is pertinent to the well-settled determination "only if there is an
immediate, concrete threat of deportation." 88
In re B. del C.S.B. involved three Mexican citizens: petitioner-father Ivan
Salmeron Mendoza, respondent-mother Geremias Brito Miranda, and eleven-
year-old Brianna, their daughter. 89 Brianna spent the first several years of her
life in Mexico with both parents.190 Ivan and Geremias were not married, and
both described their relationship as abusive.191 Shortly before Brianna's fourth
birthday, Geremias and Brianna traveled to the United States, where much of
Geremias's extended family lived.192 After several months in California,
Brianna returned to her father in Mexico, with whom she lived for a year.1 93
She again reunited with her mother in 2002, permanently moving to California,
where she learned English and excelled in school. 194
Although Brianna originally maintained phone contact with her father,
communication between the two eventually ceased. 195 When he was unable to
renew contact with Brianna, Ivan began the Hague process, filing his petition in
the U.S. District Court for the Central District of California in 2007.196
Geremias, in turn, opposed the application for Brianna's return to Mexico on
several grounds, including the well-settled defense.1 97 In granting Ivan's
petition for Brianna's return, the district court treated immigration status as the
dispositive factor in its analysis, holding that Brianna was not well settled in the
United States because her lack of legal status precluded such a finding. 198 On
appeal to the Ninth Circuit, Geremias argued that the district judge erred in
finding that Brianna's lack of legal status "undermine[s] each and every
connection to her community that she has developed in the past five years." 99

188. In re B. del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009).
189. Id. at 1003.
190. Id
191. Id.
192. Id. at 1003-04.
193. Id. at 1004.
194. Id. at 1005.
195. Id.
196. Id. at 1006-07.
197. Geremias also maintained that the removal was not wrongful because the United
States was Brianna's habitual residence and Ivan had acquiesced to Brianna's move to California.
Id. at 1007.
198. In re B. del C.S.B., 525 F. Supp. 2d 1182, 1195 (C.D. Cal. 2007).
199. Id.
182 CALIFORNIA LAW REVIEW [Vol. 98:159

The Ninth Circuit agreed, concluding that "Brianna's current immigration

status ... cannot undermine all of the other considerations which uniformly
support a finding that she is 'settled."' 200 In doing so, the Ninth Circuit looked
to the Hague Convention's text and history, case law, and the practical
reality. 201 The court was unable to find in the Convention's text any basis for
holding that a child was not settled just because she was undocumented. 202
Moving on to subsequent interpretations of the text, the court noted that no
district court decision had found that a child was not settled based solely on
immigration status.203 Lastly, the court highlighted that "on a practical level, it
makes little sense to permit immigration status to serve as a determinative
factor in the Article 12 'settled' analysis." 204 To substantiate this point, the
court cited the presence of 11.6 million undocumented immigrants in the
United States, many of whom permanently reside here; the low likelihood of
deportation for law-abiding people; and the existence of "significant
protections under state and federal law" for undocumented immigrants, such as
access to public education and services like emergency Medicaid, school lunch
programs, and the Special Supplemental Nutrition Program for Women, Infants
and Children. 205
Because the Hague Convention "is concerned with the present, and not
with determining the best interests of the child in the long term," the Ninth
Circuit concluded that the district court's preoccupation with the future specter
of deportation was an inappropriate basis for finding that Brianna was not well
settled in the United States. 206 As such, in a significant departure from the dis-
trict court approach, the Ninth Circuit held that "[i]mmigration status cannot be
determinative for purposes of the 'settled' inquiry if, as here, there is no
imminent threat of removal."20 7
In sum, the seven cases discussed above reflect three different views of
immigration status in the well-settled calculus. Two of those approaches-and
six of the seven cases-led to the conclusion that the children were not settled
and resulted in their return to the countries of habitual residence. The Ninth
Circuit's approach led to the opposite outcome. Courts have either considered
immigration status as (1) just one of several factors a court should weigh (In re
Koc, Giampaolo, and Lopez); (2) the sole or dispositive factor (In re Ahumada
Cabrera, Arguelles, and Valverde); or (3) not relevant unless there is an
immediate threat of deportation (In re B. del C.S.B.). As I discuss in detail in
Part III, the second approach violates the prohibition of the International

200. In re B. del C.S.B., 559 F.3d 999, 1010 (9th Cir. 2009).
201. Id.; see also id. at 1010-14.
202. Id at 1011.
203. Id
204. Id at 12.
205. Id at 1012-13.
206. Id. at 1013.
207. Id, at 1014.
2010] IMMIGRA TION AND ABDUCTION 183

Covenant on Civil and Political Rights on discrimination. In order to comport

with U.S. obligations under international law and the object and purpose of the
Hague Convention, courts should follow the lead of the Ninth Circuit and only
consider immigration status relevant when there is an immediate threat of
removal, and only as one factor among many.

III
RETHINKING THE ROLE OF IMMIGRATION STATUS
IN LIGHT OF INTERNATIONAL LAW NORMS
The preceding review of case law illustrates why the U.S. Central
Authority has stated that there is no "settled law of the land" regarding applica-
tion of the Hague Convention in the United States. 208 This is particularly true
with respect to questions of immigration status in Hague cases. To date, no
federal circuit court has addressed what an application for or grant of asylum
means for the grave-risk defense, while only one circuit court of appeals has
analyzed the role that immigration status plays in well-settled determinations.
Consequently, U.S. courts and the USCA are in a position to rethink their
present approaches to the relevance of immigration status. Below, I detail
several suggestions that would bring U.S. adjudication of Hague petitions in
line with more general international law norms.
First, I argue that principles of treaty interpretation mandate that courts
utilize the best interests of the child as the central criterion in making decisions
regarding the grave-risk and well-settled defenses.209 From this "best interests"
perspective, international law norms urge courts to consider any asylum claim
as part of their grave-risk analysis.2o Second, I argue that the international
human rights law norm of nondiscrimination suggests that courts should only
consider the immigration status of a respondent and her child as part of a
totality-of-the-circumstances approach to the well-settled inquiry, and only
211
when an imminent threat of deportation exists.

A. Treaty Interpretation
Because the Hague Convention does not define what constitutes an intol-
erable situation under the grave-risk exception, nor what it means for a child to
be "settled" under the well-settled exception, U.S. courts hearing cases in
which respondents raise these defenses necessarily engage in treaty interpreta-
212
tion. The Vienna Convention on the Law of Treaties ("Vienna Convention")
obliges courts and legislators to interpret treaties in light of their object and

208. Collated Responses, supra note 8, at 215.

209. See Vienna Convention on the Law of Treaties art. 31(1), May 23, 1969, 1155
U.N.T.S. 331 [hereinafter Vienna Convention]; PfREZ-VERA REPORT, supra note 33, at 432.
210. See infra Part IV.B.
211. See infra Part IV.C.
212. See Hague Convention, supra note 4, at arts. 12-13.
184 CALIFORNIA LAW REVIEW [Vol. 98:159

purpose.213 This requirement means that courts should consider the best inter-
ests of the child when deciding whether the Hague Convention's exceptions
apply. 214
The Vienna Convention, which the U.S. Department of State has
characterized as the "authoritative guide to current treaty law and practice," 215
requires that the object and purpose of a treaty be considered in treaty
interpretation.216 Although the United States has not ratified the Vienna
Convention, the Supreme Court has cited the treaty as persuasive authority.217
Furthermore, the Restatement (Third) of Foreign Relations Law incorporates
the Convention's key principles, including the rule that a treaty should be
"interpreted in good faith in accordance with the ordinary meaning to be given
to its terms in their context and in the light of its object and purpose."2 18 When
ordinary meaning is "ambiguous or obscure," or "[1]eads to a result which is
manifestly absurd or unreasonable," the Vienna Convention permits
consultation of supplementary materials, such as travaux prdparatoires
(preparatory works).219
In the case of the Hague Convention, the meanings of both "intolerable
situation" in Article 13(b) and "settled" in Article 12 are ambiguous. All that
can be gleaned from the text of Article 13(b) is that an intolerable situation is
something akin to, but distinct from, physical or psychological harm. The U.S.
Department of State's legal analysis of the Convention notes that return to a
home country where opportunities, money, and education are in shorter supply

213. See Vienna Convention, supra note 209, art. 31(1).

214. Id.; PREZ-VERA REPORT, supra note 33, at 432.
215. Weiner, Navigating the Road, supra note 8, at 297 (quoting S. Comm. on Foreign
Relations, Vienna Convention on the Law of Treaties, S. Exec. Doc. No. 92-1, at 1 (1971)). See
also U.S. Department of State, Office of the Legal Adviser, Treaty Affairs, Frequently Asked
Questions-Vienna Convention on the Law of Treaties, http://www.state.gov/s/l/treaty/faqs/
70139.htm (last visited Jan. 18, 2010) (stating that "[tihe United States considers many of the
provisions of the Vienna Convention on the Law of Treaties to constitute customary international
law on the law of treaties").
216. See id.; Vienna Convention, supra note 209, art. 31(1).
217. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 391 (2006) (Breyer, J., dissenting)
(citing the Vienna Convention for the proposition that "treaty parties may not invoke domestic law
as an excuse for failing to conform to their treaty obligations"); Sale v. Haitian Ctrs. Council, 509
U.S. 155, 191 (1993) (Blackmun, J., dissenting) (citing the Vienna Convention to assert that "a
treaty must first be construed according to its 'ordinary meaning'); Weinberger v. Rossi, 456 U.S.
25, 29 n.5 (1982) (citing the Vienna Convention in support of the assertion that "the word [treaty]
ordinarily refers to an international agreement concluded between sovereigns, regardless of the
manner in which the agreement is brought into force").
218. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 325(1) (1987). Although the
Restatement is not primary authority, courts usually accord such restatements greater weight than
other secondary materials because they are drafted by eminent scholars in a specific field of law.
The Supreme Court has cited this specific provision of the RESTATEMENT OF FOREIGN RELATIONS
LAW as authority. See, e.g., Sanchez-Llamas, 548 U.S. at 346 (quoting with approval the statement
in § 325(1) that a treaty should be interpreted "in the light of its object and purpose"); see also
Vienna Convention, supra note 209, art. 31(1).
219. Vienna Convention, supra note 209, art. 32.
2010] IMMIGRATION AND ABDUCTION 185

or more limited than in the requested state does not constitute an intolerable
situation, but return to a parent who sexually abuses the child does. 220 Such
parameters leave a great deal of gray area in between the poles of tolerable and
intolerable. Likewise, the text of the Hague Convention offers no guidance
about the concept of settlement under Article 12, and parties to the Convention
disagree about whether the inquiry into whether a child is settled should be
child-centric or undertaken in light of the Convention's purpose as a prompt
return mechanism. 221
Accordingly, the "intolerable" and "settled" language should be informed
by the preparatory work of the treaty drafters. The Explanatory Report of the
Convention's rapporteur, Elisa P6rez-Vera ("Perez-Vera Report") details the
general Convention aims of restoring the preabduction status quo by returning
wrongfully removed or retained children to their habitual residence and deter-
ring abduction by depriving taking persons of any hoped-for advantages.222 The
rapporteur goes on to note that these
two objects of the Convention-the one preventive, the other designed
to secure the immediate reintegration of the child into its habitual
environment-both correspond to a specific idea of what constitutes
the 'best interests of the child'. [sic] However, even when viewing
from this perspective, it has to be admitted that the removal of the
child can sometimes be justified by objective reasons which have to do
either with its person, or with the environment with which it is most
closely connected. Therefore the Convention recognizes the need for
certain exceptions to the general obligations assumed by States to
secure the prompt return of children who have been unlawfully
removed or retained. For the most part, these exceptions are only
concrete illustrations of the overly vague principle whereby the inter-
ests of the child are stated to be the guiding criterion in this area. 223
Thus, P6rez-Vera indicates that the exceptions should be considered
"illustrations" of the drafters' concern for the best interests of the child. It
follows that although the primary purpose of the Convention as a whole is to
promptly return children to their home countries, the purpose of the grave-risk
and well-settled exceptions is to accommodate the child's best interests. The
Convention establishes that returning a child to an environment where there is a
grave risk of physical or psychological harm or which is otherwise intolerable
is not in the child's best interest. Likewise, returning a child to her habitual

220. Department of State Public Notice 957, supra note 73, at Sec. III(I)(2)(c).
221. Comments on Settlement, supra note 50 (explaining that in jurisdictions favoring a
policy-based approach-such as Scotland, the United States, and some English courts-the
abductor's burden of proof is higher and thus the settlement exception more difficult to establish,
while in jurisdictions taking a literal or child-centric approach-such as Australia, Hong Kong,
and other English courts-the exception is less difficult to establish).
222. PiREZ-VERA REPORT, supra note 33, at 429-30.
223. Id. at 432.
186 CALIFORNIA LAW REVIEW [Vol. 98:159

residence is not in her best interest if more than a year has passed since her
removal and she is now well settled in her new environment. According to the
P6rez-Vera Report, to determine whether a child faces such a risk or whether a
child is settled in her new environment, the court should apply the best interests
of the child as its guiding criterion, rather than the need for prompt return. 224
In the following sections, I develop two arguments that stem from this
conclusion. First, I elaborate how and why the best interests of the child gener-
ally require that the court take any asylum claim into account when considering
the grave-risk defense. Second, I maintain that utilizing a totality-of-the-
circumstances approach to determine if a child is settled in a new environment
is in the child's best interest.

B. InternationalLaw and the Import ofAsylum Claims

Asylum claims may interact with the Article 13(b) defense during one of
two stages: (1) when the respondent has been granted asylum and is therefore
an asylee; and (2) when the respondent has applied for asylum and is awaiting
the result. Below, I address how each of these situations should impact the
adjudication of a Hague petition.
Weighing the grave-risk defense from the perspective of what is best for
the child-rather than the perspective of prompt return-demands the
consideration of a respondent parent's grant of asylum or pending asylum claim
in the United States. This is especially true when the asylum claim is based on
domestic violence in the child's country of habitual residence. The court should
first determine whether the respondent's asylum claim has been granted or is
pending. If the respondent has been granted domestic-violence-based asylum,
the court adjudicating the Hague petition should deem the grant compelling
evidence that the child's habitual residence is unable or unwilling to protect the
respondent and her child. In light of international law norms, which are part of
U.S. asylum law, 225 the court should also give significant weight to the grant in
determining if there is a grave risk that return would expose the child to an
intolerable situation. If the respondent's asylum application is still pending,
these same principles call for the court to stay the Hague proceeding until the
asylum application can be adjudicated on an expedited basis.

224. PtREZ-VERA REPORT, supra note 33, at 432. That said, the U.S. Department of State
rightfully warns against defendants utilizing the grave-risk defense, in particular, as a vehicle to
litigate or relitigate the child's best interests in a custody arrangement. See Department of State
Public Notice 957, supra note 73, at 10,510, § II1(I)(2)(c). The court should constrain its inquiry
into what is in the child's best interests to evidence that establishes or fails to establish one of the
enumerated defenses. In doing so, the court can uphold both the general scheme of the
Convention, which privileges prompt return, and honor the spirit of the exceptions, which centers
around the best interests of the child.
225. See INS v. Cardoza-Fonseca, 480 U.S. 421, 424 (1987) (holding that the Immigration
and Nationality Act provisions regarding asylum mirror provisions of the U.N. Protocol Relating
to the Status of Refugees).
2010] IMMIGRATION AND ABDUCTION 187

In the United States, a grant of asylum based on domestic violence

establishes that (1) the asylee has suffered domestic violence that constitutes
persecution; (2) the persecution was on account of one of the required statutory
grounds (typically membership in a particular social group or political opinion);
and (3) the State from which she fled is unwilling or unable to protect her.226 In
general, obtaining asylum in the United States is a challenging process. A
recent U.S. Government Accountability Office study of nineteen immigration
courts between October 1994 and April 2007 found that judges granted asylum
in 37 percent of affirmative cases and 26 percent of defensive cases.227 Asylum
claims based on domestic violence are even more difficult to advance than
traditional asylum claims stemming from racial or religious persecution
because the Board of Immigration Appeals has yet to provide guidance to
immigration judges and asylum officers regarding if and how victims of abuse
constitute members of a "particular social group." 228
Thus, an asylee who has received asylum based on domestic violence has
already met a very high standard. A domestic-violence-based asylum grant
presumes that the asylee's home country is unwilling or unable to protect her;
therefore, U.S. courts should treat such grants as evidence of that country's
inability to protect the asylee's child, as well, for purposes of the grave-risk
defense. U.S. federal courts disagree over whether the respondent in a Hague
case even needs to make such a showing as part of the grave-risk defense,
given that the Hague Convention establishes no such requirement.229 Even if
the court is bound by the Sixth Circuit's approach in Friedrich, however, the

226. See, e.g., Brief of Respondent at 1, Matter of R-A-, 24 I. & N. Dec. 629 (A.G. 2008)
(Interim Decision #3624), available at http://cgrs.uchastings.edu/documents/legal/ra brief
final.pdf (summarizing the grounds for the Immigration Judge's grant of domestic-violence based
asylum to Ms. Alvarado Peila). See generally Immigration & Nationality Act, 8 U.S.C. § 1101
(a)(42)(A) (2006) (defining refugee as "any person who is outside any country of such person's
nationality or, in the case of a person having no nationality, is outside any country in which such
person last habitually resided, and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion").
227. U.S. Gov'T ACCOUNTABILITY OFFICE, U.S. ASYLUM SYSTEM: SIGNIFICANT
VARIATION EXISTED IN ASYLUM OUTCOMES ACROSS IMMIGRATION COURTS AND JUDGES 28
(2008), available at http://www.gao.gov/new.items/d08940.pdf. These nineteen courts handled
almost 90 percent of asylum cases over this time period. Id. Filing affirmatively means the
applicant applied for asylum of her own initiative with the Department of Homeland Security's
asylum office, while filing defensively means the applicant applied for asylum through the
Department of Justice after being placed in removal proceedings.
228. See Matter of R-A-, 24 I. & N. Dec. 629 (A.G. 2008) (lifting the stay previously
imposed on the BIA and remanding the case of Rodi Alvarado for reconsideration of the issues
presented with respect to asylum claims based on domestic violence).
229. See Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996) (requiring the
respondent to demonstrate that the court in the child's country of habitual residence is incapable or
unwilling to adequately protect the child); Baran v. Beaty, 526 F.3d 1340, 1348 (11th Cir. 2008)
(holding that a respondent does not have to show that the country's legal and social services
systems are unable to protect the child in order to establish the grave risk defense).
188 CALIFORNIA LAW REVIEW [Vol. 98: 159

asylee's grant should serve as sufficient evidence of the state's inability or

unwillingness to protect the child, as well as the mother. After all, if the state
cannot protect a parent-an adult capable of contacting the pertinent
authorities-from persecution, it is certainly unable to protect a child, who is
likely too young or afraid to even attempt to seek out such assistance.
The respondent's asylum grant should also indicate to the court adjudicat-
ing the Hague petition the likelihood that upon return to the country of habitual
residence, the child will face a grave risk of physical or psychological harm or
an otherwise intolerable situation. The fact that the mother-and not the
child-has been the target of abuse in the past does not make the asylum grant
any less relevant. Based on the best interests of the child and U.S. obligations
under the Convention Relating to the Status of Refugees and its 1967 Protocol
("Refugee Convention and Protocol"), the court should give significant weight
to the asylum grant in determining whether the respondent meets the require-
ments of the Article 13(b) grave-risk exception. 2 30
Domestic violence is both physically and psychologically harmful to chil-
dren, and those from homes in which domestic violence takes place are fifteen
times more likely to be physically or sexually abused or seriously neglected.
Many such children also experience clinical levels of anxiety or post-traumatic
stress disorder, which places them "at significant risk for delinquency, sub-
stance abuse, school drop-out, and difficulties in their own relationships." 232 In
light of this, the international community has increasingly recognized domestic
violence as a children's rights issue.233 The Convention on the Rights of the
Child ("CRC") provides that signatories "shall take all appropriate legislative,
administrative, social and educational measures to protect the child from all
forms of physical or mental violence, injury or abuse, neglect or negligent
treatment . . . while in the care of parent(s) ... 234 Because the United States
is one of only two countries that has not ratified the CRC, 231 it is not binding on

230. Although the United States has not ratified the Refugee Convention, it has ratified the
Protocol, which provides that States Parties to the Protocol will "undertake to apply articles 2 to
34 inclusive of the Convention." Protocol Relating to the Status of Refugees art. 1, Oct. 4, 1967,
606 U.N.T.S. 267, 19 U.S.T. 6223.
231. Mary McKernan McKay, The Link Between Domestic Violence and Child Abuse:
Assessment and Treatment Considerations,73 CHILD WELFARE 29 (1994).
232. Joseph S. Volpe, Effects of Domestic Violence on Children and Adolescents: An
Overview, AM. ACADEMY OF EXPERTS IN TRAUMATIC STRESS, 1996, http://www.aaets.org/
article8.htm.
233. See Weiner, Strengthening Article 20, supra note 5, at 734. See also Shetty &
Edelson, supra note 5, at 115 (noting that "children exposed to domestic violence may experience
subsequent negative developmental outcomes" and "that almost half of the families in which adult
domestic violence occurs also show evidence of child maltreatment").
234. Convention on the Rights of the Child art. 19(1), Nov. 20, 1989, 1577 U.N.T.S. 3, 28
I.L.M. 1456 [hereinafter CRC].
235. According to the U.N. High Commissioner for Human Rights treaty body database,
only the United States and Somalia have not ratified the CRC. See Office of the High Comm'r for
Human Rights, Treaty Body Database, http://www.unhchr.ch/tbs/doc.nsf/Statusfrset?
2010] IMMIGRATION AND ABDUCTION 189

the United States. However, the treaty's almost universal ratification signals
that many, if not most, of its principles are emerging as norms of customary
international law. 2 3 6 U.S. courts considering the grave-risk defense should not
contravene international law norms by ordering a child returned to the habitual
residence where the respondent and her child have been harmed by domestic
violence.
Ordering the return of a child of a domestic-violence-based asylee would
also likely violate the international norm of nonrefoulement. 237 U.S. obligations
under the Refugee Convention and Protocol prohibit the return of a refugee to
territory where her life or freedom would be threatened.23 s Consequently, a
respondent who has been granted asylum based on domestic violence suffered
at the hands of the abuser-petitioner in the child's habitual residence cannot be
forced to return to that country. If the court orders the child returned, the
respondent must make the impossible choice between returning to the country
that has proven it cannot protect her from persecution or living apart from her
child. Ordering the return of the asylee's child amounts to a coercive act that
would compel the asylee-respondent to return to the place of persecution in
violation of the norm of nonrefoulement. 239
Furthermore, separating a child from a primary caregiver parent is
antithetical to the best interests of the child. The importance of family unity is
recognized in U.S. immigration law and in the international norms enshrined in
the Convention on the Rights of the Child and the Final Act of the 1951 United
Nations Conference on the Status of Refugees and Stateless Persons. 240
Ordering a child returned to a state to which a parent cannot return due to fear
of persecution eliminates the possibility of the child maintaining regular
personal contact with both parents and should therefore constitute an

OpenFrameSet (last visited Jan. 18, 2010).

236. See Beharry v. Reno, 183 F. Supp. 2d 584, 600-01 (E.D.N.Y. 2002) (citing provisions
of the Convention on the Rights of the Child as customary international law). But see Beharry v.
Ashcroft, 329 F.3d 51, 63-64 (2d Cir. 2003) (reversing the district court's decision and remanding
the case). See also Roper v. Simmons, 543 U.S. 551, 575-78 (2005) (citing the Convention on the
Rights of the Child as a key part of the "overwhelming weight of international opinion against the
juvenile death penalty").
237. See U.N. Convention Relating to the Status of Refugees art. 33, July 28, 1951, 189
U.N.T.S. 150.
238. Id.
239. Weiner, Strengthening Article 20, supra note 5, at 728.
240. See CRC, supra note 234, art. 9(3) (providing that "States Parties shall respect the
right of the child who is separated from one or both parents to maintain personal relations and
direct contact with both parents on a regular basis, except if it is contrary to the child's best
interests"); Final Act of the United Nations Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons, Recommendation B, available at http://www.unhcr.org/protect/
PROTECTION/3b66c2aal0.pdf (recommending "[g]overnments to take the necessary measures
for the protection of the refugee's family); see generally, Cynthia S. Anderfuhren-Wayne, Family
Unity in Immigration and Refugee Matters: United States and European Approaches, 8 INT'L J.
REFUGEE L. 347 (1996).
190 CALIFORNIA LAW REVIEW [Vol. 98:159

241
intolerable situation from the perspective of the best interests of the child.
Although the taking parent disrupted family unity by fleeing the child's country
of habitual residence, if she is an asylee, she presumably did so out of
necessity. Even where a court denies the left-behind parent's petition for the
return of the child, that left-behind parent may still seek custody of or access to
the child in the United States.
The USCA objects to the idea that a grant of domestic-violence-based
asylum should automatically establish the grave-risk defense, out of concern
for the different standards of proof required in asylum and Hague proceedings
and the nonadversarial nature of affirmative asylum hearings. 242 Because of the
circumstances under which many refugees flee, credible testimony by the appli-
cant may be sufficient to substantiate that she is a refugee.243 In contrast, the
Hague Convention requires the respondent to produce clear and convincing
evidence of the grave risk of harm the child would face upon return in order to
establish the grave-risk exception.244
Because these standards differ, I do not recommend that the United States
adopt the approach taken by the California state court discussed above, which
equated a grant of asylum with satisfaction of the grave-risk exception. 245 U.S.
federal courts hearing Hague petitions should, however, give considerable
weight to the asylum grant in the grave-risk determination. Asylum officers
receive guidelines and special training regarding the consideration of gender-
246
based claims and claims by children. The Department of Justice also
provides immigration judges with guidelines for adjudicating contested immi-
gration cases in which the respondent is an unaccompanied minor child.24 7 On
the other hand, many federal judges who hear Hague petition cases have little
to no experience with asylum or domestic violence claims, or interviewing
children.248 This disparity further suggests that courts should positively weigh,

241. The child could, of course, return to visit the asylee, but the asylee would not be able
to litigate the custody dispute in the courts of the child's country of habitual residence.
242. Collated Responses, supra note 8, at 243.
243. 8 C.F.R. § 208.13 (2009).
244. ICARA, 42 U.S.C. § 11603(e) (2006).
245. See CollatedResponses, supra note 8, at 243.
246. See Memorandum from Phyllis Coven, Immigration and Naturalization Serv., Office
of Int'l Affairs to All INS Asylum Officers & HQASM Coordinators, Subject: Considerations for
Asylum Officers Adjudicating Asylum Claims from Women (May 26, 1995), available at
http://cgrs.uchastings.edu/documents/legal/guidelines-us.pdf; Memorandum from Jeff Weiss,
Acting Dir., INS Office of Int'l Affairs to Asylum Officers, Immigration Officers & Headquarters
Coordinators (Asylum & Refugees), Subject: Guidelines for Children's Asylum Claims
(December 10, 1998), available at http://cgrs.uchastings.edu/documents/legal/gender-guidelines/
DHSjNS -childrenguidelines.pdf.
247. See Memorandum from David L. Neal, Chief Immigration Judge, U.S. Dep't of
Justice, Executive Office of Immigration Review, to All Immigration Judges, Court Adm'rs,
Judicial Law Clerks & Immigration Court Staff, Subject: Guidelines for Immigration Court Cases
Involving Unaccompanied Alien Children (May 22, 2007), available at http://www.usdoj.gov/
eoir/efoialocij/oppm07/07-01 .pdf.
248. Weiner, StrengtheningArticle 20, supra note 5, at 730.
2010] IMMIGRATION AND ABDUCTION 191

rather than ignore, a grant of asylum in grave-risk determinations.

If a respondent's asylum application is pending but has not yet been
granted, all of the factors discussed above urge the court to stay the Hague
Convention proceeding until an asylum officer or immigration judge adjudi-
cates the application.2 49 The principle of nonrefoulement applies to asylum
applicants, as well as asylees.250 Furthermore, allowing an asylum adjudicator
to decide the asylum claim first may yield additional evidence regarding
country conditions in the child's habitual residence.251 When issuing the stay,
the court adjudicating the Hague petition should request an expedited adjudica-
tion of the asylum application. Accelerated consideration should be feasible
given the limited number of cases that would require such treatlment and the
existing procedure of expediting asylum decisions in cases involving detained
252
applicants. An accelerated asylum procedure should prevent undue delays in
the Hague proceeding, as prompt resolution of the petition is undoubtedly in
the child's best interest. However, expediency concerns should not deprive the
respondent parent and child of the benefits of adjudicating the asylum applica-
tion first.

C. InternationalLaw and Lack ofLegal Status as a Dispositive Factor

While the international law norms discussed above urge U.S. courts to
consider asylum claims when making grave-risk determinations, the interna-
tionally recognized norm of nondiscrimination should counsel courts to adopt a
totality-of-the-circumstances approach to the well-settled inquiry-an approach
that only considers a possibility of deportation relevant when it is an imminent
threat. Given the lack of clarity regarding the concept of settlement, U.S. courts
are entitled to weigh any relevant factor in determining whether a child has
settled, as long as the best interests of the child guide the courts. By treating
lack of legal status as a dispositive factor that undercuts all other indications of
settlement or as a bar to settlement, however, U.S. courts have discriminated
against children without such status and therefore have not acted in their best
interests.
The International Covenant on Civil and Political Rights ("ICCPR"),
which the United States has ratified, 253 obligates each state party "to ensure to

249. See id. at 726.

250. UN High Commissioner for Refugees, UNHCR Note on the Principle of Non-
Refoulement, Nov. 1997, availableat http://www.unhcr.org/refworld/docid/438c6d972.html.
251. Weiner, StrengtheningArticle 20, supra note 5, at 73 1.
252. The Code of Federal Regulations provides that "expedited consideration shall be
given to [asylum] applications of detained aliens." 8 C.F.R. § 208.5(a) (2009). I do not mean to
suggest that Hague petition respondents are similarly situated to detainees. Rather, I highlight the
existing framework for such a procedure to demonstrate that it is possible to expedite the
adjudication of certain subsets of asylum applications when public policy goals support doing so.
253. The United States ratified the ICCPR on September 8, 1992. See Office of the United
Nations High Commissioner for Human Rights, Status of Ratifications of the Principal Human
192 CALIFORNIA LAW REVIEW [Vol. 98:159

all individuals within its territory and subject to its jurisdiction the rights
recognized in the [ICCPR], without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status." 25 4 This provision establishes the general
rule that "each one of the rights of the Covenant must be guaranteed without
discrimination between citizens and aliens."25 5 The ICCPR thus requires that
aliens and citizens be treated equally before courts and tribunals. 2 56
U.S. courts that view a child's lack of legal status as a dispositive factor or
bar in the well-settled exception calculus contravene this norm of equal treat-
ment before courts. For example, consider the following scenario: a left-behind
parent files a petition for the return of a U.S. citizen child from the United
States to Mexico. If more than a year has passed since the abduction, and the
child is living in a stable residence, regularly attending school, and enjoying the
company of family and friends in her new environment, the court will likely
deem her well settled and not order her return. Now consider the same scenario,
except that the child lacks legal status in the United States; in other words, the
fact pattern of In re B. del C.S.B. A court that treats legal status as dispositive
or as a bar would find that the child had not settled in her new environment and
would order her return. While it is only logical for courts to weigh immigration
status as one factor among many in their well-settled determinations, according
such status dispositive weight is discriminatory and contrary to children's best
interests.
Treating lack of status as a dispositive factor also contravenes the views of
the U.N. Human Rights Committee, which has found that family unity may
outweigh a state's interests in border enforcement.257 Furthermore, present lack
of legal status does not preclude obtaining it in the future. Even without the
benefit of legal status, millions of undocumented immigrants live and work in
the United States and are integral to the U.S. economy, as the Ninth Circuit
highlighted in In re B. del CS.B.258 The majority of the 11.5 to 12 million
undocumented immigrants in the United States are long-term residents who are

Rights Treaties as of 14 July 2006, availableat www2.ohchr.org/english/bodies/docs/ status.pdf.

254. International Covenant on Civil and Political Rights art. 2, Dec. 16, 1966, 999
U.N.T.S. 171 [hereinafter ICCPR].
255. Human Rights Comm., Office of the High Comm'r for Human Rights, General
Comment 15: The Position of Aliens Under the Covenant (Apr. 11, 1986), available at
http://www.unhcr.org/refworld/pdfid/45139acfc.pdf. Protections established in the ICCPR include
the rights to: life; freedom from cruel, inhuman or degrading treatment or punishment; liberty and
security of person; equality before courts and tribunals; peaceful assembly; and freedom of
association. See ICCPR,supra note 254, at arts. 6, 7, 9, 14, 21, 22.
256. ICCPR, supra note 254, art. 14.
257. The Human Rights Committee is the treaty body that oversees the ICCPR. See Winata
v. Australia, U.N. Hum. Rts. Comm., Communication No. 930/2000, 1 7.3 U.N. Doc. No.
CCPR/C/72/D/930/2000 (Aug. 16, 2001), available at http://www.unhchr.ch/tbs/doc.nsflO/
488b0273fa4febfbc l256ab7002e5395?Opendocument.
258. See In re B. del C.S.B., 559 F.3d 999, 1012 (9th Cir. 2009).
2010] IMMIGRATION AND ABDUCTION 193

unlikely to be deported.259 Despite the disadvantages of "living in the

shadows," millions of undocumented immigrants maintain regular employment
and established residences and are, in fact, settled in this environment. 260
Critics may argue that allowing a child to remain in an environment where
she lacks legal status and from which she could be deported at any time is
hardly in her best interests. As the Ninth Circuit noted, however, the Hague
Convention "is concerned with the present, and not with determining the best
interests of the child in the long term." 261 Thus, I urge courts only to consider
immigration status relevant if an immediate threat of deportation exists. If such
a threat is present, courts should still take a totality-of-the-circumstances
approach and consider all the factors that have emerged from U.S.
jurisprudence as key considerations in well-settled determinations. In this
calculus, courts should not treat any one factor as dispositive or as a bar that
discriminates against a particular group of children.

CONCLUSION
The Hague Convention itself is largely a positive, useful tool for combat-
ing international child abduction. There are, however, systemic flaws in the
Convention's implementation-notably in its application to respondents fleeing
domestic violence. This Comment has highlighted the problematic ways in
which U.S. courts address-or fail to address-the overlap of immigration
status with defenses to the return of a child in Hague Convention proceedings
in cases involving domestic violence victims. I urge courts to consider immi-
gration status as relevant to the grave-risk exception but not dispositive in
analysis of the well-settled exception.
Additionally, administrative and legislative action can contribute to better
outcomes for undocumented and asylee Hague petition respondents who have
fled to the United States to escape domestic violence. First, the USCA should
shift its policy to comply with international law norms. Second, Congress
should amend ICARA, the U.S. legislation that implements the Hague
Convention.

259. JEFFREY S. PASSEL, PEw HISPANIC CENTER, THE SIZE AND CHARACTERISTICS OF THE
UNAUTHORIZED MIGRANT POPULATION IN THE U.S. 1 (2006), available at
http://pewhispanic.org/files/execsum/61.pdf; MICHAEL HOEFER, ET. AL., OFFICE OF IMMIGRATION
STATISTICS, DEP'T OF HOMELAND SECURITY, ESTIMATES OF THE UNAUTHORIZED IMMIGRANT
POPULATION RESIDING IN THE UNITED STATES: JANUARY 2008, at 1, 3 (2009), available at
http://www.dhs.gov/xlibrary/assets/statistics/publications/ ois ill_pe_2008.pdf (highlighting that
63 percent of unauthorized immigrants entered the United States before the year 2000); David B.
Thronson, Custody and Contradictions:Exploring Immigration Law as FederalFamilyLaw in the
Context of Child Custody, 59 HASTINGS L.J. 453, 470-71 (2008) (noting that "[e]ven with
occasional spikes in the enforcement of immigration laws, most unauthorized immigrants are
unlikely to face removal").
260. See Thronson, supra note 259, at 470.
261. In re B. del C.S.B., 559 F.3d 999, 1013 (9th Cir. 2009).
194 CALIFORNIA LAW REVIEW [Vol. 98: 159

Advocates and scholars have called for the amendment of ICARA to

address the needs of domestic violence victims. 262 Any such modification of
ICARA should establish that under the Article 13(b) defense, domestic
violence poses a grave risk of harm or an intolerable situation. Furthermore, the
amendment should require that courts weigh asylum grants in grave-risk
determinations and require that courts stay Hague proceedings until pending
asylum applications can be resolved on an expedited basis.
Short of congressional action, the USCA should ensure that its policies
comply with international law norms. Although the USCA does not play a
direct role in judicial proceedings, it provides resources to judges and attorneys
and represents the United States at meetings of the Special Commission to
review the operation of the Hague Convention.263 The USCA is therefore in a
position to endorse a totality-of-the-circumstances approach to the well-settled
inquiry. While including this nuanced matter of judicial interpretation in an
amendment to ICARA is not necessary, the USCA should favorably present the
totality-of-the-circumstances method in the resources it makes available to
judges and attorneys and at the next Special Commission meeting.
In light of the international law norms discussed above, the USCA should
also change its position that a respondent's grant of asylum does not itself
establish that there is a grave risk that the child's return would expose that child
to harm or an intolerable situation. At least one other signatory to the Hague
Convention, the Netherlands, does equate a grant of asylum with satisfaction of
the grave-risk exception.264 While the USCA is unlikely to shift its position
entirely,265 it should at least acknowledge that asylum grants merit
consideration in grave-risk determinations. As the proposed amendment to
ICARA suggests, the USCA should also recommend that courts stay Hague
proceedings until pending asylum applications can be resolved on an expedited
basis. The USCA can make its reformed views known through both the materi-
als it produces and the next Special Commission meeting.
These steps will contribute to a more just application of the Hague Con-
vention to victims of domestic violence and their children who find themselves
in the United States, both as asylees and without legal status. As the Hague
Convention itself proclaims, the treaty's primary purpose is to protect children
from the harmful effects of child abduction. 266 Courts must therefore ensure
that any decision to promptly return a child is not itself harmful. Returning a

262. See, e.g., Shetty & Edleson, supra note 5, at 135; Dana Beth Finkey, The Hague
Convention on the CivilAspects ofInternationalChildhoodAbduction: Where Are We, and Where
Do We Go From Here?,30 HASTINGS INT'L & COMP. L. REv. 505, 520 (2007).
263. See Office of Children's Issues, U.S. Dep't of State, Resources: For Attorneys and
Judges, http://travel.state.gov/family/abduction/resources/resources_4306.html (last visited Jan.
18, 2010); see also "Special Commission" explanation, supra note 115.
264. CollatedResponses, supra note 8, at 242.
265. See supra text accompanying notes 114-19.
266. Hague Convention, supra note 4, at pmbl.
2010] IMMIGRATIONAND ABDUCTION 195

child to the petitioner's country is likely to be detrimental if the respondent has

been granted asylum or the totality of the circumstances shows that the child is
settled in the United States.
196 CALIFORNIA LAW REVIEW [Vol. 98:159