In dispute between Israeli citizens (who immigrated to USA) over child custody, Eighth Circuit rules that habitual residence of children was in U.S. based on Hague Abduction Convention and implementing statute and Court rejects argument that Israeli consent decree and Missouri divorce decree determine children's habitual residence; Israeli court is to be the sole authority as to the children's immigration

In dispute between Israeli citizens (who immigrated to USA) over child custody, Eighth Circuit rules that habitual residence of children was in U.S. based on Hague Abduction Convention and implementing statute and Court rejects argument that Israeli consent decree and Missouri divorce decree determine children's habitual residence; Israeli court is to be the sole authority as to the children's immigration

In 1994, Sagi (F or father) and Tamar (M or mother) Barzilay, both Israeli citizens, got married in Israel. Their first child arrived two years later. In 2001, their employer transferred the family on visas to the U.S. where they had two more children. The relationship eventually became rocky, however, and so they divorced in January 2005 in Missouri. The divorce decree gave them joint custody, with M having "primary parental responsibility and physical custody." The divorce decree also contained a repatriation clause, which required F, M and the children to live in the same country.

Thus, if either F or M moved back to Israel, the other party must do the same. F moved to Israel in September 2005 but M refused to do the same. She did, however, take the children for a summer visit in June 2006. During that visit, F obtained an ex parte order in the Kfar Saba court that prohibited the removal of the children from Israel. Shortly before M's and the children's scheduled return to the U.S., the parties filed a consent judgment with the court. It provided [1] that M would repatriate to Israel in August 2009, [2] that M would not take any further action against F in Missouri family court, and [3] that the Israeli court is to be the sole authority as to the children's immigration, repatriation and custody.

Nevertheless, M went ahead and petitioned a Missouri court to remove the repatriation agreement from the original decree, and to limit F's visitation rights. The Missouri court granted the petition. In 2007, F filed the instant case in federal court pursuant to the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601, and the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49 (the Convention).

In his complaint, F alleged that Israel was the children's "habitual residence" within the meaning of the Convention, and that M and the children had a legal duty move back to Israel. Disagreeing, the District Court found that the U.S. had become the children's habitual residence, and dismissed F's petition because retention of a child in the state of his or her habitual residence is not wrongful under the Convention.

M appealed. The Eighth Circuit, however, affirms. The controlling issue is the children's habitual residence since the Convention does not bar the retention of a child in the state of its habitual residence.

"The Hague Convention, to which the United States and Israel are both signatories, was adopted to address the problem of child abduction by family members, which not infrequently occurs in connection with transnational custody disputes. The Convention's purpose is ‘to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence....'"

"... The Convention seeks to deter abduction by ‘depriving the abductor's actions of any practical or juridical consequences.' ... It accomplishes this goal—not by establishing any new substantive law of custody—but rather by acting as a forum selection mechanism, operating on ‘the principle that the child's country of ‘habitual residence' is ‘best placed to decide upon questions of custody and access.' ... The purpose of proceedings under the Hague Convention is thus not to establish or enforce custody rights, but only ‘to ‘provide for a reasoned determination of where jurisdiction over a custody dispute is properly placed.'' ..." [...]

"‘The key inquiry under the Convention is whether a child has been wrongfully removed from the country of its habitual residence or wrongfully retained in a country other than that of its habitual residence." ... According to the Convention,"

"The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention art. 3."

"Thus, in order to determine whether an ICARA petition merits relief, ‘a court must ... determine [1] when the removal or retention took place, [2] what the habitual residence of the child was immediately prior to the removal, [3] whether the removal or retention violated the Petitioner's custody rights under the law of the habitual residence, and [4] whether the Petitioner was exercising those rights at the time of the removal or retention.' ..." [...]

As the Court reminds us: "Proceedings under [Art. 19 of] the Hague Convention and pursuant to ICARA do not reach the merits of an underlying custody dispute. (‘A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.'); 42 U.S.C. § 11601(b)(4) [(‘The Convention and this chapter empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims.')]. Rather, ‘the district court is to ascertain `only whether the removal or retention' of a child was ‘wrongful' under the law of the child's ‘habitual residence,' and if so, to order the return of the child to the place of ... ‘habitual residence' for the court there to decide the merits of the custody dispute.' ..." [916‑7].

The Court then applies Convention law to the case at hand. "The first step in determining a child's habitual residence is to discern when the alleged wrongful removal or retention took place, for ‘the text of the Convention directs courts to only one point in time in determining habitual residence: the point in time ‘immediately before the removal or retention.' ... Because this case does not present the typical abduction scenario, it is not entirely clear when the alleged wrongful retention commenced. ... Based on [F's] testimony and a series of e‑mails exchanged between the parties, the district court determined that it began in early Spring 2006, by which time F had informed M that he considered her to be in breach of the repatriation agreement." [...]

"Having concluded that the alleged wrongful retention began in early 2006, the district court proceeded to consider the factors relevant to the determination of habitual residence: ‘[1] the settled purpose of the move to the new country from the child's perspective, [2] parental intent regarding the move, [3] the change in geography, [4] the passage of time, and [5] the acclimatization of the child to the new country.' ..."

"The ‘settled purpose' of a family's move to a new country is a central element of the habitual residence inquiry. ... ‘This settled purpose need not be to stay in a new location forever, but the family must have a ‘sufficient degree of continuity to be properly described as settled.' ... Because two of the Barzilay children had lived their whole lives in Missouri, the eldest had lived there for five years, and there was no indication in the record that the children had spent any significant amount of time in another country, the district court concluded that—from the children's perspective—the settled purpose of the family's residence in Missouri was to remain there permanently." [...]

"Finally, the district court considered ‘the change in geography, the passage of time, and the acclimatization of the children to the new country.' ... It concluded that the children were well acclimatized to life in the U.S.. The eldest child was, after all, the only one who had experienced a significant change in geography, and by 2006, she had been in the U.S. for approximately five years ... The younger two had lived their entire lives in Missouri. ..."

"Based on the foregoing considerations, we agree with the district court's conclusion that the children's country of habitual residence under the Hague Convention was the United States. [F] has pointed to no evidence suggesting [that] the district court's factual findings are clearly erroneous or that its analysis is otherwise unsound. Indeed, he has offered no evidence that his children have spent any significant amount of time outside the United States since 2001 or that they have been given any reason to believe [that] their home is anywhere but Missouri. The United States is the country where the Barzilay children have spent most or all of their young lives, and there can be little question that it is consequently their habitual residence within the meaning of the Hague Convention. ..." [...]

"We also reject the claim that either the Kfar Saba consent judgment or the Missouri repatriation agreement is an enforceable stipulation of the children's habitual residence. We have held that ‘habitual residence may only be altered by a change in geography and passage of time.' ... The notion that parents can contractually determine their children's habitual residence without regard to the actual circumstances of the children is thus entirely incompatible with our precedent. Indeed, [F] has not cited a decision by any court anywhere in the world embracing such a proposition." [...]

"Any idea that parents could contractually determine their children's habitual residence is also at odds with the basic purposes of the Hague Convention. The Convention seeks to prevent the establishment of ‘artificial jurisdictional links' as a means to remove the child from the ‘family and social environment in which its life has developed.' ... It is difficult to imagine a jurisdictional link more artificial than an agreement between parents stating that their child habitually resides in a country where it has never lived." [...]

"... [W]hile [F] characterizes the Missouri repatriation agreement and the Kfar Saba consent judgment as prospective stipulations of habitual residence, they are in fact [merely] custody decrees. ... Indeed, F must agree with that proposition, for they are the bases for his claim that retention of the children in Missouri is wrongful. See Hague Convention art. 3 [(‘The removal or retention of a child is to be considered wrongful where ... it is in breach of rights of custody attributed to a person....').]"

"Once the agreements are seen in this way, the fundamental problem with [F's] argument becomes clear. He is trying to use the Hague Convention as a vehicle to enforce his custody rights, simply by relabeling them as stipulations of habitual residence. ... Regardless of how they are labeled, however, these agreements amount to provisions relating to the custody of the children, and ‘the Convention is certainly not a treaty on the recognition and enforcement of decisions on custody.' ..."

"While [F] has framed this case as a complex matter of first impression, it is in fact relatively simple. Immediately before the alleged wrongful retention in this case began, the children's habitual residence under the Hague Convention was in Missouri, where they had lived without interruption for five years. Under the Convention, it was consequently for the courts of Missouri to determine whether [M's] refusal to bring the children back to Israel was indeed wrongful and if so, to fashion an appropriate remedy."

"Instead of seeking to enforce his custody rights in the Missouri courts, however, [F] went to the court in Kfar Saba because, as he candidly testified in the district court, ‘it proposed better chances for me winning.' Having obtained a favorable judgment there, he then turned to the federal court seeking enforcement of his newly minted custody rights through an ICARA petition. This course of litigation not only betrays a fundamental misunderstanding of the Hague Convention, but also precisely the sort of international forum shopping the Convention seeks to prevent. The district court correctly withheld the relief [F had] requested." [600 F.3d 918‑922]

Citation: Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010).

 


Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries.

D.C. Circuit concludes Foreign Affairs Reform and Restructuring Act as amended by REAL ID Act confers on detainee no habeas or due process right to judicial review of conditions in Iraq before being transferred into its custody

D.C. Circuit concludes Foreign Affairs Reform and Restructuring Act as amended by REAL ID Act confers on detainee no habeas or due process right to judicial review of conditions in Iraq before being transferred into its custody  

Since 2004 the U.S. military had detained Shawqi Omar, a dual citizen of Jordan and the U.S., in Iraq on the basis of evidence he had participated in al Qaeda’s terrorist activities there. The U.S. government apparently intended to transfer him to the custody of Iraq. In 2005 Omar filed a habeas petition claiming the right to judicial review of conditions in Iraq before being transferred there, and that he had a habeas and due process right not be transferred if (as he alleged) he was likely to be tortured while in Iraqi custody. In 2008 the U.S. Supreme Court in Munaf v. Geren, 553 U.S. 674 (2008), concluded that Omar had neither a habeas corpus nor a due process right to “judicial second‑guessing of the Executive’s determination that he was not likely to be tortured in Iraqi custody.” [Slip op. 2]

In his amended habeas petition to the district court, Omar posed both a novel statutory argument—that the Foreign Affairs Reform and Restructuring Act of 1998 (FARR), as supplemented by the REAL ID Act of 2005, gave him the right to the judicial review he sought—and a refashioned constitutional argument—that the habeas corpus guarantee, either by itself or in conjunction with the Due Process clause or FARR, entitled him to the review. The district court rejected both arguments, granting the Government’s motion to dismiss.

In affirming the district court’s decision, the U.S. Court of Appeals for the D.C. Circuit concludes that Omar’s constitutional argument already had been authoritatively addressed and rejected in Munaf, stating: “The Supreme Court has established that there is no freestanding constitutional right for extradition or military transferees to obtain judicial review of conditions in the receiving country before being transferred.” [Slip op. 15] The Appeals Court likens Omar’s status to that of an extradition or military transferee: “Omar is a military detainee captured during war and now facing transfer to the custody of another nation. In addition, because Omar is facing transfer to the custody of another sovereign that has convicted him of a crime, his situation is analogous to that of an extradition transferee—a point Omar himself acknowledges.” [Slip op. 12]

To Omar’s argument that the REAL ID Act, to the extent it amended FARR, violated the Constitution’s guarantee of habeas corpus, the Appeals Court states while FARR does allow aliens in removal proceedings to obtain the type of judicial review Omar seeks, in FARR on its own and, certainly, as supplemented by the REAL ID Act, “Congress has not created such a right for extradition or military transferees such as Omar.” [Slip op. 21] In support, the Court states, “Omar is not subject to a removal order and has not filed—and, as a military transferee, is not eligible to file—a petition for review under § 242 of the Immigration and Nationality Act. The REAL ID Act thus confirms that Omar possesses no statutory right to judicial review of conditions in the receiving country.” [Slip op. 9‑10] And, despite Omar’s argument to the contrary, the Court concludes, “the fact that Congress, in the FARR Act, created such a right for immigration transferees does not raise a constitutional problem simply because Congress did not also extend the right to extradition and military transferees.” [Slip op. 20]

In his Concurrence, Judge Griffith provides a spirited rebuke of the majority’s jurisdictional stance:

“Our quarrel over jurisdiction stems from my belief that the FARR Act ‘trigger[s] constitutional habeas’ by giving Omar a colorable claim that his transfer to Iraqi authorities would be unlawful¼.When an American citizen is in U.S. custody, the Constitution’s guarantee of habeas corpus entitles him to assert any claim that his detention or transfer is unlawful. Because Congress may not deprive Omar of access to the courts without suspending the writ or repealing the statutory basis for his claim, neither of which it has done here, we must consider his argument on the merits.” [22] Judge Griffith adds, “[T]he Supreme Court has repeatedly held that only the clearest of statements from Congress should be read as repealing our habeas jurisdiction, see Demore v. Kim, 538 U.S. 510, 517 (2003)¼.Section 2242(d) of the FARR Act, which the majority suggests strips the federal courts of jurisdiction to hear Omar’s claim, does not speak with the required clarity. Although it leaves no doubt that the FARR Act does not itself ‘provid[e] any court jurisdiction’ to hear claims outside the immigration context, it just as plainly leaves undisturbed our jurisdiction to hear FARR Act claims under 28 U.S.C. § 2241 [federal habeas statute]. A plurality of the circuits have reached the same conclusion.” [Slip op. 23]

Citation: Omar v. McHugh, 646 F.3d 13 (D.C. Cir. 2011).

 
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Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries.

Cuba said to be violating migration agreements with U.S.

Cuba said to be violating migration agreements with U.S. Since 1984, the U.S. and Cuba have entered into several agreements on the migration of Cubans. See Joint Communiques on Immigration Matters, December 14, 1984, T.I.A.S. 11057; 2034 U.N.T.S. 193, as modified on September 9, 1994 and May 2, 1995; collectively Migration Accords. Under the Accords, the U.S. Department of State (DOS) must see to it that it documents at least 20,000 Cubans per year to migrate to the U.S. for permanent residence. During Fiscal Year 2003 (October 2002 through September 2003), the DOS issued more than 20,000 immigrant visas to Cuban nationals. According to the DOS, the burden clearly rests on the Cuban government to grant exit permits to all those Cubans who have received U.S. travel documents and to remove the roadblocks it has put up against fully carrying out the Accords. In particular, the DOS calls on the Cuban Government to halt its discriminatory practices of denying such permits to doctors, information technology professionals, and family members of Cubans who have sought freedom in the United States. At the last round of Migration Talks in June 2003, the DOS declared that it had identified over 600 individual cases of Cubans unfairly denied exit permits. Citation: Press Statement by Adam Ereli, Deputy Spokesman, U.S. Dept. of State, Washington, D. C.; released on Monday, September 22, 2003; 19:05:31 ‑0400 (EDT).

 
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Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries.