Ninth Circuit decides that INS lacks authority to indefinitely detain criminal aliens whose home countries refuse repatriation

The following case addresses the problem of criminal aliens (including "permanent residents" of the U.S.) who have been detained by the Immigration and Naturalization Service (INS) but cannot be repatriated, thus resulting in their perpetual detention.

Petitioner Kim Ho Ma came from his native Cambodia to the U.S. as a refugee at the age of two. He became a permanent resident (that is, he received a "green card") at age six. Unfortunately, he had bad company, got involved in a gang shooting, and was convicted of manslaughter at age 17.

After completing his prison sentence, the INS ordered him removed (previously called "deported") from the U.S. and took him into custody. Cambodia does not have a repatriation agreement with the U.S. and refused to take him back.

Ma filed a petition for habeas corpus. More than 100 similarly situated petitioners filed in the same court. Similar cases have arisen in Nevada and other California districts.

The district court held that Ma's continued detention violates his substantive due process rights under the Fifth Amendment. The INS appeals the court's decision to grant habeas corpus and release Ma from custody.

The issue in this case is whether, in light of the absence of such a repatriation agreement, the Attorney General has the authority to hold Ma in detention indefinitely.

The U.S. Court of Appeals for the Ninth Circuit affirms the district court, but on a different basis. The Court finds that the INS lacks authority under the immigration laws, and particularly 8 U.S.C. Section 1231(a)(6), to detain an alien who has entered the U.S. for more than a reasonable time beyond the normal 90 day statutory period authorized for removal.

Section 1231(a)(6) allows the INS to detain aliens with criminal convictions "beyond" 90 days but is silent as to how long such detention is authorized.

"[W]e construe the statute as providing the INS with authority to detain aliens only for a reasonable time beyond the statutory removal period. In cases in which the alien has already entered the United States and there is no reasonable likelihood that a foreign government will accept the alien's return in the reasonably foreseeable future, we conclude that the statute does not permit the Attorney General to hold the alien beyond the statutory removal period. Rather, the alien must be released subject to the supervisory authority provided in the statute.

We adopt our construction of the statute for several reasons. First, and most important, the result we reach allows us to avoid deciding whether or not INS's indefinite detention policy violates the due process guarantees of the Fifth Amendment. Second, our reading is the most reasonable one - it better comports with the language of the statute and permits us to avoid assuming that Congress intended a result as harsh as indefinite detention in the absence of any clear statement to that effect. Third, reading an implicit 'reasonable time' limitation into the statute is consistent with our case law interpreting a similar provision in a prior immigration statute. Finally, the interpretation we adopt is more consonant with international law." [Slip op. 15-16].

Specifically, in cases such as this one where there is no reasonable likelihood that the alien will be removed anytime soon, the Court holds that the INS may not detain the alien beyond that statutory removal period. The Court therefore does not decide the constitutional questions raised in this case.

As for international law, the Court has accepted that "a clear international prohibition" exists against prolonged and arbitrary detention. The Court's construction of the statute renders it consistent with the "Charming Betsy" rule of statutory construction, which requires courts to construe congressional legislation in a way to avoid violations of international law.

Citation: Ma v. Reno, No. 99-35976 (9th Cir. April 10, 2000).

In case of Filipino asylum-seeker threatened for exposing political corruption in his home country, Ninth Circuit concludes that whistle blowing against government officials may give rise to "well-founded fear of persecution" of political nature

Dionesio Calunsag Grava, a citizen of the Philippines, entered the U.S. illegally in 1991. When the Immigration and Naturalization Service (INS) began deportation proceedings against him, he petitioned for asylum. According to his testimony, Grava had been working as a policeman and customs officer. On several occasions, he exposed the official corruption and misdeeds of his supervisors.

Grava claims to have suffered mistreatment as a result. For example, someone had poisoned his dog and his monkey, and he had received several threatening telephone calls. If sent back to the Philippines, Grava fears further persecution from several Philippine groups, including Marcos Loyalists, the police force and Communist insurgents.

The immigration judge denied Grava's petition for asylum. On appeal, the Board of Immigration Appeals (BIA) affirmed, inter alia, because Grava's alleged persecution was not based on his "political" opinions. The U.S. Court of Appeals for the Ninth Circuit reverses. It rules that whistle blowing may constitute an expression of political opinion and may lead to a sufficiently "well-founded fear of persecution" to justify granting asylum.

"Whistle blowing against one's supervisors at work is not, as a matter of law, always an exercise of political opinion. However, where the whistle blows against government officials, it may constitute political activity sufficient to form the basis of persecution on account of political opinion. ..."

"Refusal to accede to government corruption can constitute a political opinion for purposes of refugee status. ... Thus, official retaliation against those who expose and prosecute governmental corruption may, in appropriate circumstances, amount to persecution on account of political opinion." [1181] The Court therefore remands to the BIA for consideration of whether Grava has proven a well-founded fear of persecution from his whistle blowing activities.

Citation: Grava v. Immigration and Naturalization Service, 205 F.3d 1177 (9th Cir. 2000).

Eleventh Circuit preliminarily enjoins departure of Elian Gonzalez from U.S. pending decision on merits of asylum case

After six-year-old Elian (plaintiff) arrived in U.S. territorial waters clinging to a raft six months ago, he applied for asylum in at least one document he signed personally. When his Cuban father sought to have it withdrawn, the Immigration and Naturalization Service (INS) determined that Plaintiff was too young to make an independent request and refused to consider it.

With the aid of his temporary legal custodian, Lazaro Gonzalez, Plaintiff then sued in federal court challenging this action but that court denied his claim. On appeal, the U.S. Court of Appeals for the Eleventh Circuit grants Plaintiff's motion for an injunction against his physical removal from U.S. jurisdiction pending the decision of his appeal which is to be argued early in May.

The Court first balances the equities. "The equities, in this case, weigh heavily in favor of issuing an injunction pending appeal. Apart from concerns about what might happen to this child if he is returned to Cuba (which we do not address), if Plaintiff leaves the United States during the pendency of his appeal, his case will likely become moot. Our failure to issue an injunction pending appeal, therefore, could strip the Court of jurisdiction over this case and deprive Plaintiff forever of something of great value: his day in a court of law. That circumstance alone presents a significant risk of irreparable harm to Plaintiff." [Slip op. 2]

Nor would an interim injunction offend the interests of the INS. As to the public interest, the INS pointed to the plenary power of the political branches over immigration matters. "But we fail to see how an injunction in this case infringes upon the congressional power; after all, the heart of Plaintiff's appeal is that the INS by refusing to consider Plaintiff's asylum application, has disregarded the command of Congress. And we doubt that protecting a party's day in court, when he has an appeal of arguable merit, is contrary to the public interest." [id.]

Plaintiff has a substantial argument on the merits since 8 U.S.C. Section 1159(a)(1) provides that "any alien who is physically present in the United States... may apply for asylum." Moreover, INS's own regulations and guidelines provide for the "active and independent" participation of minors in asylum proceedings and "contemplate that a minor, under some circumstances, may seek asylum against the express wishes of his parents." [Slip op. 3]

There is also support for the notion that testimonial competency rather than contractual competency should be the proper test for minors in asylum cases. Finally, despite indications that Plaintiff does not want to leave the U.S., INS officials have never tried to interview him about his own wishes.

Even if the INS is right that Plaintiff needs an adult to apply for asylum, it is not obvious that Plaintiff's father was the only proper representative or that Lazaro Gonzalez, Plaintiff's great-uncle by blood, whom the INS had designated as his representative and care-giver, was a legally inappropriate person to have submitted the asylum request on plaintiff's behalf. "Lazaro's interests, to say the least, are not obviously hostile to Plaintiff's interests." [Slip op. 4]

[The Associated Press reports that, just before dawn on April 22, federal agents armed with automatic weapons and using tear gas on the crowd, broke into the home where Elian had been staying and forcibly removed him over his cries and screams. There are indications that government agents may have transferred Elian into his father's custody at Andrews Air Force Base just south of Washington, D.C.]

Citation: Gonzales v. Reno, Case No. 00-11424-D (11th Cir. April 19, 2000); Associate Press Newswires, Sat. April 22, 2000, under byline of Alan Clendenning.]

After hostage takers who abducted U.S. citizen in the Republic of Trinidad and Tobago where extradited to U.S., District of Columbia Circuit ponders whether Hostage Taking Act applies in cases where the alleged victim obtained U.S. citizenship by fraud

Defendants Wayne Pierre, Ricardo De Four, Zion Clarke, Kevon Demerieux, Kevin Nixon, Christopher Sealey, and Anderson Straker, nationals of the Republic of Trinidad and Tobago, throughout the years abducted wealthy individuals, held them captive, and extorted ransoms from their family and friends.

On April 6, 2005, they abducted a Trinidad-native and a United States citizen, Balram Maharaj, who visited his children in Trinidad. The defendants delivered Maharaj to an isolated camp deep within the forest where they tied him to a post and gave him little food and water. Maharaj suffered from severe diabetes, hypertension and tuberculosis. The defendants ignored his pleas for medication and used his worsening health as leverage to demand three million Trinidadian dollars from his family. After six days in captivity, missing the medication, Maharaj slipped into a diabetic coma and died. Defendants dismembered his body, packed the remains in Styrofoam containers and buried them in the woods.

In late 2005, assisted by FBI, the Trinidad and Tobago Police Service uncovered evidence of Maharaj’s death. The United States sought the extradition of the defendants and charged them with conspiracy and hostage-taking resulting in death in violation of The Hostage Taking Act, 18 U.S.C. § 1203. As the United States citizenship is an essential element of a Hostage Taking Act prosecution, defendants argued that Maharaj secured his citizenship through fraud. He had allegedly failed to disclose an assault on his wife in his U.S. immigration applications. The district court denied this argument. The jury convicted defendants of all charges, and the district court sentenced them to life imprisonment without the possibility of release. Defendants appealed.

The United States Court of Appeals for the District of Columbia Circuit affirms defendants’ convictions and the judgment of the district court.

The issue here is whether The Hostage Taking Act, 18 U.S.C. § 1203, that prescribes criminal penalties for foreign nationals who abduct American citizens, applies if after the crime was committed the victim’s citizenship is found invalid.

The Hostage Taking Act was enacted to fulfill the United States’ obligations under the International Convention Against the Taking of Hostages. Section 18 U.S.C. § 1203, and makes extraterritorial hostage-taking a criminal offense when the victim is a United States national.

Before the trial defendants uncovered evidence they claimed demonstrated that Maharaj obtained his naturalization through fraud, by misrepresenting facts on his green card application, and later on his naturalization application. The defendants thus argued that because conviction under the Hostage Taking Act requires U.S. citizenship and because Maharaj’s fraud negated his citizenship, the district court lacked jurisdiction.

“The district court disagreed. Citing a long and unbroken line of Supreme Court precedent, see, e.g., United States v. Zucca, 351 U.S. 91, 95 & n.8 (1956); see also Bindczyck v. Finucane, 342 U.S. 76, 83 (1951), the district court held that 8 U.S.C. § 1451, which permits the United States Attorney to institute denaturalization proceedings in a federal district court, is the exclusive procedure for voiding the citizenship of a person naturalized due to fraud. United States v. Clarke, 628 F. Supp. 2d 1, 9 (D.D.C. 2009). Citizenship, the court held, remains valid until a district court, acting upon a United States Attorney’s section 1451 motion, determines that naturalization was ‘procured by concealment of a material fact or fraud.’ Id. at 6 (quoting 8 U.S.C. § 1451(a)). Given that no district court had ever made such a finding as to Maharaj, the court denied the motion. Clarke, 628 F. Supp. 2d at 10.”

“The district court also granted the government’s motion in limine to exclude from trial any evidence regarding Maharaj’s alleged fraud. Id. at 13. Conviction under the Hostage Taking Act, the court held, requires the government to prove that the victim acquired citizenship by birth or naturalization. Id. at 13. Evidence disputing whether the victim should have been naturalized or the circumstances surrounding naturalization is irrelevant. Id. The court therefore rejected defendants’ argument that they had a Sixth Amendment right to present evidence regarding Maharaj’s alleged fraud to the jury. Id. at 14. ‘[T]he jury,’ the district court concluded, ‘may not decide the validity of Maharaj’s citizenship.’ Id. at 13.”

Furthermore, defendants argued that “[a] claim that an element of the offense is unsatisfied—that the victim was not a United States citizen, for example—goes only to a defendant’s guilt or innocence. In other words, jurisdiction hinges not on the merits, but rather on the court’s constitutional or statutory power to adjudicate the case. Lamar v. United States, 240 U.S. 60, 64 (1916) (‘Jurisdiction is a matter of power, and covers wrong as well as right decisions.’). Under 18 U.S.C. § 3231, federal district courts possess statutory authority over ‘all offenses against the laws of the United States.’ Because violation of the Hostage Taking Act is an offense against the laws of the United States, our jurisdictional inquiry ends and we turn to the merits of defendants’ appeal. United States v. Fahnbulleh, 752 F.3d 470, 476 (D.C. Cir. 2014) (‘If an indictment or information alleges the violation of a crime set out in Title 18 or in one of the other statutes defining federal crimes, that is the end of the jurisdictional inquiry.’) (internal quotation marks omitted).”

“[…] [T]he Hostage Taking Act. Section 1203(b)(1)(A) criminalizes hostage-taking that occurs outside the United States if ‘the person seized or detained is a national of the United States.’ A ‘national of the United States’ is, in turn, defined by reference to the Immigration and Nationality Act as ‘a citizen of the United States.’ 18 U.S.C. § 1203(c); 8 U.S.C. § 1101(a)(22). By its plain language, then, section 1203 broadly protects United States citizens. The statute imposes no restriction on this protection. It does not, for example, exclude citizens who, in retrospect, are unworthy of the honor. Nor does it exclude persons whose citizenship might at some later time be invalidated. In other words, section 1203 protects victims according to their status at the time of the hostage-taking.”

“True, section 1203 is written in the present tense—the statute applies if ‘the person seized or detained is a national of the United States.’ But that clause appears in a criminal statute that requires examination of past events—whether the victim was seized or detained. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (use of backward-looking language such as ‘resulted in’ and ‘involved’ in federal habeas statute, 28 U.S.C. § 2254(d), requires examination of the state-court decision at the time it was made). […]Determining whether an American citizen was seized or detained under the Hostage Taking Act requires examination of the victim’s status at the time of the abduction.”

The Court concludes that “Congress has vested sole naturalization authority in the Attorney General, 8 U.S.C. § 1421(a), and a certificate of naturalization represents conclusive evidence of the Attorney General’s determination, Tutun v. United States, 270 U.S. 568, 577 (1926); 8 U.S.C. § 1443(e). […] [W]hether the Attorney General, acting through INS, should have issued a certificate to Maharaj—as opposed to whether the certificate was itself authentic—is irrelevant under the Hostage Taking Act”, and affirms district court’s decision.

Citation: U.S. v. Straker, 800 F.3d 570 (D.C. Cir. 2015).

D.C. Circuit dismisses complaint against Iran for lack of subject-matter jurisdiction; Foreign Sovereign Immunity Act’s terrorism exception, 28 U.S.C. § 1605A, does not apply to acts by a foreign country against its own citizens

In 2009, plaintiffs, three Iranian émigré siblings and the estate of their deceased brother, brought an action to recover for their injuries sustained from imprisonment, torture, and extrajudicial killing they allegedly suffered at the hands of the Islamic Republic of Iran. As defendants, they named the Islamic Republic of Iran, the Army of the Guardians of the Islamic Revolution (the Revolutionary Guard), and two Iranian leaders, Ayatollah Sayid Ali Hoseyni Khamenei and Mahmoud Ahmadinejad.

During the 1990s, plaintiff Manouchehr Mohammadi and his late brother, Akbar Mohammadi, became leaders in the Iranian pro-democracy movement. The brothers also participated in the 1999 student protest. This resulted in their arrest by the Iranian officials and confinement in Evin prison in Tehran. In the prison, the brothers allegedly suffered brutal physical and psychological abuse and torture. Allegedly, their sisters, Nasrin Mohammadi and Simin Taylor, also suffered severe mistreatment at the hands of the Iranian regime. Akbar died in prison in 2006, while the three surviving siblings had settled in the United States. Furthermore, the plaintiffs alleged that Iranian agents continued to harass them in the United States, threatening them over the phone with murder, refusing to let their parents leave Iran, hacking their computers, and circulating doctored photographs of Nasrin depicted in an immodest light.

The defendants never appeared in court to contest the allegations against them. Plaintiffs filed a motion for entry of default and a default judgment. The district court granted the motion for entry of default; scheduled an evidentiary hearing to establish damages; and directed plaintiffs to submit briefing addressing the basis for the court’s subject-matter jurisdiction. 

The district court dismissed plaintiffs’ complaint for lack of subject-matter jurisdiction, and held that the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602 et seq., afforded Iran and the Revolutionary Guard immunity from the court’s jurisdiction. Plaintiffs relied on the FSIA’s terrorism exception, 28 U.S.C. § 1605A, but the court rejected their claim because “[t]hat exception abrogates immunity if, among other things, the complaint seeks damages for ‘torture’ or ‘extrajudicial killing’ and the victim was a ‘national of the United States’ at the time of those acts. 28 U.S.C. § 1605A(a).” [Slip op. 2] The district court also held that “plaintiffs failed to qualify as United States ‘nationals’ at the time of the relevant acts in Iran, and that any acts postdating plaintiffs’ relocation to the United States failed to constitute ‘torture’ within the meaning of the statute”. Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d at 68 (D.D.C. 2013). Furthermore, the court held that the claims against Kahmenei and Ahmadinejad would be treated as claims against Iran itself and thus would likewise be dismissed based on foreign sovereign immunity. The district court denied plaintiffs’ motion for default judgment. 

In response to district court’s denial, plaintiffs filed a motion for reconsideration and an accompanying motion for leave to file a fourth amended complaint, which the district court denied. The plaintiffs appealed.

The United States Court of Appeals for the District of Columbia Circuit affirms the district court’s decision.

The key issue here is whether the Foreign Sovereign Immunity Act’s terrorism exception, 28 U.S.C. § 1605A, applies to acts by a foreign country taken against its own citizens.

Reviewing the matter de novo, the Court agrees with the district court’s conclusion that the terrorism exception to FSIA, 28 U.S.C. §§ 1602, is inapplicable in this case.

“The Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602 et seq., affords the ‘sole basis for obtaining jurisdiction over a foreign state’ in United States courts. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989). While the FSIA establishes a general rule granting foreign sovereigns immunity from the jurisdiction of United States courts, 28 U.S.C. § 1604, that grant of immunity is subject to a number of exceptions, see id. §§ 16051607. In their third amended complaint, plaintiffs asserted subject-matter jurisdiction based solely on the FSIA’s terrorism exception, 28 U.S.C. § 1605A.” [Slip op. 3]

“The terrorism exception abrogates immunity in cases in which a plaintiff seeks damages for personal injury or death caused by ‘torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act,’ if ‘engaged in by an official, employee, or agent’ of a foreign country. 28 U.S.C. § 1605A(a) (1). The exception further requires that (i) the foreign country was designated a ‘state sponsor of terrorism at the time [of] the act,’ (ii) the ‘claimant or the victim was’ a ‘national of the United States’ at that time, and (iii) the ‘claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim.’ Id. § 1605A(a)(2).” [Slip op. 3]

“Because Iran has been designated a state sponsor of terrorism since 1984, plaintiffs satisfy the first of those conditions. See Heiser v. Islamic Republic of Iran, 735 F.3d 934, 937 (D.C. Cir. 2013); Roeder v. Islamic Republic of Iran, 646 F.3d 56, 58 n.1 (D.C. Cir. 2011). Plaintiffs, however, fail to satisfy the second condition with regard to the torture and extrajudicial killing allegedly committed against them while in Iran, because none of them was a ‘national of the United States’ at the time of those acts.” [Slip op. 3]

“The terrorism exception assigns the term ‘national of the United States’ the ‘meaning given that term in section 101(a) (22) of the Immigration and Nationality Act’ (INA), 8 U.S.C. § 1101(a)(22). 28 U.S.C. § 1605A(h)(5). The referenced provision of the INA, in turn, generally describes ‘national of the United States’ to mean either a ‘citizen of the United States’ or a ‘person who, though not a citizen of the United States, owes permanent allegiance to the United States.’ 8 U.S.C. § 1101(a)(22).” [Slip op. 4]

Although none of the plaintiffs was a United States citizen between 1999 and 2006, when the central alleged acts of torture and extrajudicial killing occurred in Iran, they argued that they qualified as United States nationals during that time because Manouchehr, Akbar, and Nasrin had personally pledged permanent allegiance to the United States and disclaimed their loyalty to Iran following the “first signs of persecution” in Iran, and that Nasrin exhibited her allegiance by applying for and attaining United States permanent resident status before Akbar’s death in 2006. The Court rejects this argument.

“Plaintiffs’ argument is foreclosed by our precedent. We have held that ‘manifestations of ‘permanent allegiance’ do not, by themselves, render a person a U.S. national.’ Lin v. United States, 561 F.3d 502, 508 (D.C. Cir. 2009). That is because the ‘phrase ‘owes permanent allegiance’’ in 8 U.S.C. § 1101(a)(22) is ‘a term of art that denotes a legal status for which individuals have never been able to qualify by demonstrating permanent allegiance, as that phrase is colloquially understood.’ Marquez-Almanzar v. INS, 418 F.3d 210, 218 (2d Cir. 2005); see Lin, 561 F.3d at 508 (relying on Marquez-Almanzar). The reference in 8 U.S.C. § 1101(a)(22) to a United States national as a person who ‘owes permanent allegiance to the United States’ is descriptive of someone who has attained the status of United States nationality through other statutory provisions; it does not itself set forth an independent basis by which to obtain that status. The language, that is, ‘describes, rather than confers, U.S. nationality.’ Marquez-Almanzar, 418 F.3d at 218; see Lin, 561 F.3d at 508. The conferral of United States nationality must come from elsewhere.” [Slip op. 4]

“The sole such statutory provision that presently confers United States nationality upon noncitizens is 8 U.S.C. § 1408. See Lin, 561 F.3d at 508; Marquez-Almanzar, 418 F.3d at 219. Plaintiffs make no claim that they qualify as United States nationals under that provision, much less that they did so at the time of the alleged torture and extrajudicial killing in Iran. Section 1408 describes four categories of persons who ‘shall be nationals, but not citizens, of the United States at birth.’ 8 U.S.C. § 1408. Those categories generally consist of persons born in, or possessing a specified personal or parental connection with, an ‘outlying possession of the United States,’ id. § 1408(1)(4), presently defined as American Samoa and Swains Island, id. § 1101(a)(29). See Lin, 561 F.3d at 508; see also Hashmi v. Mukasey, 533 F.3d 700, 703 n.1 (8th Cir. 2008) (noting that the category of those who owe ‘permanent allegiance to the United States . . . [is] apparently limited to residents of American Samoa and Swains Island’).” [Slip op. 4-5]

“The courts of appeals to consider the issue thus have overwhelmingly concluded that the status of non-citizen United States nationality is limited to those persons described in 8 U.S.C. § 1408, and that, apart from that provision, an effort to demonstrate ‘permanent allegiance to the United States’ does not render a person a United States national. See United States v. Sierra-Ledesma, 645 F.3d 1213, 122426 (10th Cir. 2011); Abou-Haidar v. Gonzales, 437 F.3d 206, 207 (1st Cir. 2006); Omolo v. Gonzales, 452 F.3d 404, 409 (5th Cir. 2006); Sebastian-Soler v. U.S. Att’y Gen., 409 F.3d 1280, 128587 (11th Cir. 2005); Marquez-Almanzar, 418 F.3d at 21819; Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972 (9th Cir. 2003); Salim v. Ashcroft, 350 F.3d 307, 30910 (3d Cir. 2003) (per curiam). While one court of appeals has indicated otherwise, see United States v. Morin, 80 F.3d 124, 126 (4th Cir. 1996), we specifically ‘join[ed] the majority’ approach in Lin, 561 F.3d at 508. (And the continuing practical force of the Fourth Circuit’s decision in Morin within that circuit appears unclear. See Fernandez v. Keisler, 502 F.3d 337, 348 (4th Cir. 2007).) Plaintiffs likewise err in relying on certain district court decisions attributing United States nationality to non-citizens based on unique circumstances indicating a ‘permanent allegiance to the United States.’ See Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25, 39 n.4 (D.D.C. 2007); Asemani v. Islamic Republic of Iran, 266 F. Supp. 2d 24, 26 (D.D.C. 2003). Those decisions predate ours in Lin.” [Slip op. 5]

Plaintiff also contended that since 2006, two of the plaintiffs became “nationals” within the meaning of 8 U.S.C. § 1101(a)(22). Therefore they could establish jurisdiction under the terrorism exception with respect to events occurring after Nasrin and Simin became United States citizens.

“[…] That argument could have merit, however, only if, after Nasrin became a citizen in 2009, the Iranian regime engaged in conduct against plaintiffs constituting ‘torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.” See 28 U.S.C. § 1605A(a) (1), (a)(2). According to plaintiffs, the Iranian regime continued to ‘torture’ them in the United States by making threatening phone calls, hacking certain of plaintiffs’ online accounts, and disseminating doctored, sexually explicit photographs of Nasrin. We conclude that those alleged acts, while certainly harassing and objectionable, fail to amount to ‘torture’ within the meaning of the terrorism exception.”

“The terrorism exception defines ‘torture’ by reference to the definition of that term contained in the Torture Victim Protection Act (TVPA), 106 Stat. 73, note following 28 U.S.C. § 1350. See 28 U.S.C. § 1605A(h)(7). The TVPA, in turn, defines torture as ‘any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering . . . is intentionally inflicted on that individual.’ 28 U.S.C. § 1350 (note). It is doubtful that plaintiffs could be considered to have been in the Iranian regime’s ‘custody or physical control’ after their relocation to the United States.”

“Even assuming otherwise, the challenged acts postdating plaintiffs’ settlement in the United States fail to satisfy the statute’s severity requirement. Plaintiffs’ allegations did not involve physical acts against them. And the nonphysical acts alleged—viz., threatening phone calls made from Iran, hacking of Facebook and email accounts, and circulation of explicit photographs—fall short of anything previously held to constitute ‘torture’ within the meaning of the TVPA. See Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 230, 234 (D.C. Cir. 2003).” [Slip op. 5-6]

The Court then addresses to the “hostage taking” argument within the meaning of the FSIA’s terrorism exception because the Iranian regime refuses to permit plaintiffs’ parents to leave Iran:

“In any event, a prohibition on international travel of the kind alleged by plaintiffs would not constitute ‘hostage taking.’ The statute’s definition of ‘hostage taking’ incorporates the definition from Article 1 of the International Convention Against the Taking of Hostages, see 28 U.S.C. § 1605A(h)(2), and that definition applies to a person who ‘seizes or detains and threatens to kill, to injure or to continue to detain another person,’ Simpson, 326 F.3d at 234 (internal quotation marks omitted). Even if plaintiffs’ parents are barred from traveling abroad from Iran, there is no allegation that they have been ‘seized or detained’ within Iran under any ordinary understanding of those terms. Courts thus have found ‘hostage taking’ in cases involving physical capture and confinement, not restrictions on international travel. See, e.g., Simpson v. Socialist People’s Libyan Arab Jamahiriya, 470 F.3d 356, 358 (D.C. Cir. 2006); Anderson v. Islamic Republic of Iran, 90 F. Supp. 2d 107, 109111, 113 (D.D.C. 2000).” [Slip op. 6-7]

The Court concludes:

“Because plaintiffs fail to satisfy the statutory requirements of the terrorism exception, Iran, as a ‘foreign state,’ is ‘immune from the jurisdiction’ of federal courts. See 28 U.S.C. § 1604. The district court concluded that it also lacked jurisdiction over the Revolutionary Guard because the FSIA defines ‘foreign state’ to include ‘a political subdivision of a foreign state or an agency or instrumentality of a foreign state,’ id. § 1603(a). Plaintiffs have forfeited any challenge to that conclusion by failing to contest it on appeal. See, e.g., World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1160 (D.C. Cir. 2002). Plaintiffs also raise no challenge to the district court’s determination that foreign sovereign immunity extended to the individual defendants, Khamenei and Ahmadinejad. Immunity under the FSIA therefore applies to all defendants.”

“In a final effort to establish subject-matter jurisdiction, plaintiffs invoke the Alien Tort Statute, 28 U.S.C. § 1350. The Alien Tort Statute, however, does not confer any waiver of foreign sovereign immunity. See Amerada Hess, 488 U.S. at 43839; Enahoro v. Abubakar, 408 F.3d 877, 883 (7th Cir. 2005); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 713 n.13 (9th Cir. 1992). The Alien Tort Statute affords jurisdiction for suits against private defendants, not against foreign sovereigns. The FSIA provides the ‘sole basis for obtaining jurisdiction over a foreign state.’ Amerada Hess, 488 U.S. at 439. […]” [Slip op. 7]

The Court affirms the district court’s dismissal of plaintiffs’ third amended complaint for lack of subject-matter jurisdiction.

Citation: Mohammadi v. Islamic Republic of Iran, 782 F.3d 9 (D.C. Cir. 2015).

Second Circuit addresses novel issues under Hague Child Abduction Convention, including whether separating a child from autism therapy is sufficiently grave to trigger exceptions to the general rule that children wrongfully removed or retained should be returned to their country of habitual residence.

The case Ermini v. Vittori arose out of the marital dissolution of an Italian couple. The couple moved to the United States with their two sons and signed a one-year lease on a New York apartment in August 2011 after they were unable to secure adequate treatment in Italy for their autistic son Daniele. They enrolled Daniele in a Comprehensive Application of Behavior Analysis to Schooling (“CABAS”) program in Stony Point, New York. The program offered personalized instruction with an educational team, including a special educational teacher, an occupational therapist, a speech and language therapist, several classroom assistants, and a full-time one-on-one teaching assistant. Daniele’s mother, Viviana Vittori (Vittori), instituted divorce proceedings against Daniele’s father, Emiliano Ermini (Ermini) in April 2012 after numerous incidences of domestic abuse. Ermini had remained employed in Italy and traveled between Italy and the United States to visit his family, but petitioned the district court during the divorce proceedings and ensuing custody dispute to have both children returned to Italy pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. Specifically, Ermini petitioned the return of his two sons to Italy alleging that the two boys who were Italian citizens had been retained in the United States by Vittori, also an Italian citizen without Ermini’s consent. After a trial, the district court denied the petition without prejudice to renewal if Daniele was not able to continue with his current CABAS program. The Italian court system issued a final order requiring the return of the children to Italy.

Daniele was diagnosed with autism on March 14, 2008, when he was approximately two years old. Both parents were committed to helping Daniele and took him to several doctors in Italy as well as abroad to Scotland for medical treatment. When their own resources were inadequate to pay for the treatments, they solicited donations through a website dedicated to Daniele. Dr. Antonucci was Daniele’s primary treating professional in Italy from December 2008 until May 2010. One of the treatments that Dr. Antonucci recommended was hyperbaric oxygen therapy, which was eventually administered in a hyperbaric chamber installed in the family home in Italy. Daniele’s support teacher in Italy was not familiar with any specific techniques for treating autistic children. On their own initiative, the parents attended training in Applied Behavioral Analysis (“ABA”) techniques at a private institution. With permission from Daniele’s school principal, Vittori spent two hours daily at Daniele’s school instructing the support teacher in ABA techniques. Both parents consulted another physician in Italy, Dr. Claudia Lerz, to develop an ABA treatment plan for Daniele. According to Vittori’s expert, Dr. Fiorile, ABA therapy is the most common treatment for children with autism in the United States and it can have an enormous impact on the life of an autistic child. Dr. Antonucci also endorsed ABA treatment. Vittori estimated that she personally provided 70-80% of Daniele’s thirty to forty weekly hours of ABA treatment while the family was living in Italy. Professional ABA treatment would have been preferable but very expensive. The Italian national health care system covered 90 minutes a week of psycho-motility therapy for the first year after Daniele’s autism diagnosis, with an extra 90 minutes of speech therapy during the second year. However, it did not cover other types of treatment or therapy. Both parents were dissatisfied with the options for Daniele’s schooling and therapy in Italy as they did not see results in his developmental progress. They began to look elsewhere for treatment options. In Spring 2010, the parents met Dr. Giuseppina Feingold in Italy. Dr. Feingold was an Italian-speaking pediatrician with a practice in Suffern, New York specializing in children with special needs. In August 2010, they traveled with both sons to Suffern so that Dr. Feingold could assess and begin treating Daniele. The family stayed with Vittori’s cousins at their Connecticut home.

During that visit, they met other parents at Dr. Feingold’s clinic who shared provisions for special needs children at the local schools in Suffern. Both were impressed by the treatment options available in the United States. Around this time, they began to formulate a plan to relocate to the United States for two or three years, during which time they would decide if it would be feasible to make a permanent move to the United States. Meanwhile, Ermini met with Marcello Russodivito about potentially investing in Russodivito’s restaurant so that he could obtain a business visa for himself and derivative ones for his family in order to pursue treatment for Daniele in the United States. On September 2, 2011, the couple co-signed a one-year lease for a house near Russodivito’s restaurant. On September 15, 2011, Vittori and her two sons moved into that house. In September and November, the boys were enrolled in the local public school. In an email to Vittori, Ermini said that they should ship “books, clothing, any furniture we can’t sell, ornaments, dishes, sheets, blankets” in a cargo container from Italy to the United States. On September 13, 2011, he wrote to the U.S. Consulate in Rome to apply for visas for himself and his family for the purpose of “exploring the possibilities of entering into a business partnership with Mr. Marcello Russodivito who already owns an established Italian restaurant in the city of Suffern, NY. I also wish to request a B-2 visa for my wife and 2 children, who will accompany me in this trip to the United States.” Vittori traveled with the children to Italy to renew their visas in November 2011 and then returned to Suffern. Meanwhile Ermini traveled to Italy to finish settling the family’s affairs and did not return to the United States until December 2011. Ermini left again for Italy in early January 2012, following an altercation with Vittori. Although the children had not left the United States since November 2011, but Vittori left the country again in April 2012 to attend court proceedings in Italy. On December 1, 2012, Vittori and the two children moved to their current residence in Suffern. Ermini never relocated to the United States.

Meanwhile, on September 20, 2012, Ermini had applied to the Italian court for an order directing Vittori to return to Italy with the children. With only Ermini in attendance, the court in Velletri ordered Vittori to return to Italy with the children and also ordered temporary measures including that the parents live separately but share parental authority; Vittori and the children would live in the family home; Ermini could visit 8–12 hours per week; and that Ermini would pay spousal and child support of 1,600 Euros per month. At the time of trial, Vittori had not complied with the Italian court’s order to return to Italy with the children, nor had there been visitation or other contact between Ermini and the children. Vittori appealed the Velletri court’s order and on April 5, 2013, the Court of Appeals in Rome vacated several provisions of the September 20, 2012, order and granted her exclusive custody of the children. The April 5, 2013 order also withdrew the Velletri Court’s order thereby revoking both the award of the family home to Ermini. However it did not preclude Ermini’s application to the district court because it was only a temporary order, which appeared to have been designed to conform with U.S. Family Court protective orders.

Due to Daniele’s limited capacity for speech, he did not appear in court. Vittori testified that she took care of feeding Daniele, grooming him and ensuring that he was properly supervised. According to Vittori and Dr. Fiorile, Daniele had shown significant progress in his school environment in the United States. When he first began school in the United States, Daniele’s test results were far below average; at age six, he demonstrated the motor skills of a three-year old. Dr. Fiorile suggested that Daniele performed poorly on the testing because his Italian treatments had been deficient. According to Dr. Fiorile, the CABAS program offered the best ABA curriculum available to autistic children. Dr. Fiorile further testified that Daniele had one-to-one instruction throughout the day and had made exceptional progress. Dr. Fiorile explained that the high level of intervention in Daniele’s current classroom setting was the key to his success. Moreover, she believed that Daniele required this program in order to continue experiencing meaningful progress in cognition, language, social and emotional skills. While the United States has over 4,000 board certified ABA practitioners, Dr. Fiorile knew of fewer than twenty in Italy. Therefore, she concluded in her January 11, 2013 report that if Daniele were separated from his CABAS program, he “will most certainly fail to make the same level of progress and will, without doubt, demonstrate significant skill regression” and that it would be “extremely harmful” to return him to Italy at this time. The Court found that separating Daniele from CABAS would put him in an intolerable situation due to the grave risk of deterioration of his condition and denial of needed rehabilitation.

On the contrary, Ermini argued that Vittori and the children did not currently have legal immigration status in the United States, as they had overstayed their visas in April 2012. In October or November of 2012, Vittori applied for a visa for both herself and the children on the basis of the domestic abuse. Her application was currently pending.

The district court found that the then couple intended to move to the United States as a family for a period of two to three years, during which time medical and rehabilitative treatment would be pursued for Daniele, and also agreed that it was possible that the move would be made permanent at the end of the three-year period, circumstances permitting. Notwithstanding the plan to sell their house in Italy to fund the restaurant investment, there was no agreement to abandon the family’s ties to Italy.

The court ultimately concluded that the children’s habitual residence for Hague Convention purposes at the time of their retention in the United States was Italy; that the retention was in breach of Ermini’s custody rights under the law of Italy; and that Ermini was exercising those rights at the time of the children’s retention in the United States.

The burden then shifted to Vittori to assert affirmative defenses against the return of the children to Italy. The court accepted Vittori’s argument that return to Italy posed a “grave risk” of harm to Daniele, pursuant to Hague Convention, Article 13(b), which precludes repatriation of a child where there “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”, and ruled in Vittori’s favor.

The district court denied Ermini’s petition for return to Italy as to both children without prejudice to renewal if Daniel is no longer able to participate in the CABAS program. Ermini appealed.

The United States Court of Appeals for the Second Circuit affirmed the district court’s denial and amended the judgment to deny the petition with prejudice.

The key issue here is whether the psychological and physical harms of separating a child from autism therapy were sufficiently grave to allow a displaced child to remain in the country where they receive the therapy.

The Court reviewed de novo the district court’s interpretation of Hague Convention.

“The Hague Convention is a pact among nation-states to protect children in limited, though important, circumstances. It establishes uniform standards, on one side, for ensuring the swift return of children wrongfully removed or retained from their home states, and, on the other, for barring return to a home state when doing so would create a grave risk of harm to the children or violate their fundamental human rights and freedoms. See Hague Convention, arts. 13 & 20.”

“The Convention was adopted in 1980 ‘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, as well as to secure protection for rights of access.’ Hague Convention, pmbl., 51 Fed.Reg. at 10498. The Convention is not designed to adjudicate custody claims, but only to determine the merits of claims of wrongful removal and abduction. See id., art. 19 (‘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.’)”

“Under the Convention, removal or retention of a child is deemed ‘wrongful’ when:

[1] 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

[2] 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.”

“Wrongful removal or retention, however, does not end the matter. If a parent establishes that the removal or retention was wrongful, the child is to be returned unless the defendant establishes one of four defenses. See Blondin v. Dubois (Blondin II), 189 F.3d 240, 245 (2d Cir. 1999); see also 42 U.S.C. § 11601(a)(4). These defenses, or as they are also called, “exceptions,” are to be are to be construed narrowly. See 42 U.S.C. § 11601(a)(4).”

“Two of the four exceptions are to be established by clear and convincing evidence. See id. § 11603(e)(2)(A). The first applies if ‘there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’ Hague Convention, art. 13(b). The second governs when the return of the child ‘would not be permitted by the fundamental principles ... relating to the protection of human rights and fundamental freedoms.’ Id., art. 20. The remaining exceptions are to be established by a preponderance of the evidence. See 42 U.S.C. § 11603(e)(2)(B). The first exception subject to this lesser standard applies if judicial proceedings were not commenced within one year of the child’s abduction and the child is well-settled in the new environment. Hague Convention, art. 12. The second applies if the plaintiff not actually exercising custody rights at the time of the removal. Id., art. 13(a).”

“Finally, it should be noted that, since the Convention is a pact among nation-states, Congress has emphasized ‘the need for uniform international interpretation of the Convention.’ 42 U.S.C. § 11601(b)(3)(B). In light of this necessity, the Supreme Court has made clear that, in interpreting the Convention, we are to give the opinions of our sister signatories ‘considerable weight.’ Air France v. Saks, 470 U.S. 392, 404, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985) (quoting Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir.1978)).” (internal quotation marks omitted).

“The Hague Convention does not concern itself with situations where two parents commit to settle a family in a new location, and where in so migrating, neither parent breaches the other’s custody rights. Familial migration across borders is a facet of family life for many, and unless there is wrongful removal or retention of children from their habitual residence and breach of custody rights, the Hague Convention is neither concerned nor involved. […]”

While the Court accepts the district court’s findings that both wrongful retention and breach of custody rights had occurred here, thereby triggering the Convention’s applicability, it doubts as to the district court’s conclusions of law on these issues.

“We have before stated that, in determining habitual residence, courts are to focus on whether a ‘child’s presence at a given location is intended to be temporary, rather than permanent.’ Gitter v. Gitter, 396 F.3d 124, 132 (2d Cir.2005). And the two-three year trial period here may well have influenced the district court’s conclusion that this move was temporary. We have also earlier credited a district court’s finding that a habitual residence did not change because a move was of a ‘trial nature’ and ‘conditional. Id. at 135. And here, the district court, again with reason, focused on the fact that the parents were to reassess their stay in the United States at the end of what appeared to be a trial period. Ermini, 2013 WL 1703590, at *11-12.”

“But we stress that the period of time of a move is not the only relevant factor in the analysis. Indeed, our sister signatories have clarified that a habitual residence may be established even when a move is for a ‘limited period’ and indeed ‘indefinit[e].’ Shah v. Barnet London Borough Council and other appeals, [1983] 1 All E.R. 226, 235 (Eng.H.L). Drawing on the approach in Shah, the Ninth Circuit has placed emphasis on divining not just the duration of the move but instead, more broadly, the shared intent and ‘settled purpose’ of the parents. Mozes v. Mozes, 239 F.3d 1067, 1074 (2001). As the Third Circuit has stated, when similarly confronted with a two-year relocation, ‘the fact that the agreed-upon stay was of a limited duration in no way hinders the finding of a change in habitual residence. Rather, ... the parties’ settled purpose in moving may be for a limited period of time....’ Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir.2004); see also Gitter, 396 F.3d at 132 (adopting the ‘shared intent’ approach). We thus want to emphasize that the time period attached to a move is but one factor in determining, in a fact-intensive manner, what the settled intent among the parents was in making the move.”

“Nor, as we see it, is it clear that Vittori breached Ermini’s custody rights. Rights of custody are ‘rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’ Hague Convention, art. 5(a). Custody rights are provided by ‘the law of the State in which the child was habitually resident immediately before the removal or retention.’ Id., art. 3(a). The district court determined, quite properly, that, under Italian law, custody rights are defined by ‘mutual agreement’ of the parents, and therefore focused on Ermini and Vittori’s agreement. Ermini, 2013 WL 1703590, at *14; see also Title IV, Italian Civil Code of Law, Art. 316 (‘A child is subject to the authority of its parents until majority ... or emancipation. The authority is exercised by both parents by mutual agreement....’).”

“[…][T]he legal issues surrounding custody rights, and defining the family’s habitual residence, are complicated. As a result, while we have doubts about the district court’s conclusions and thought it important to clarify the governing legal standards, we choose not to ground our decision on those issues. The case can be resolved, and the district court’s decision readily affirmed, because we believe—even assuming arguendo that the children’s habitual residence was in Italy and that Vittori breached Ermini’s custody rights—that return would be barred because the children faced a ‘grave risk’ of harm if returned. […]”

The Court then turns to analyze the “grave risk” of harm issue under the Convention. Although the Court agrees with the district courts finding that the risk of harm Daniele faced if removed from his therapy and returned to Italy was grave enough to meet the Hague Convention’s standards, the Court also holds that Ermini’s history of domestic violence towards Vittori and the children was itself sufficient to establish the Hague Convention’s “grave risk” of harm defense.

“We have in the past ruled that a ‘grave risk’ of harm does not exist when repatriation ‘might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences.’ Blondin IV, 238 F.3d at 162. But we have also stressed that a grave risk of harm exists when repatriation would make the child ‘face[] a real risk of being hurt, physically or psychologically.’ Id. The potential harm ‘must be severe,’ and there must be a ‘probability that the harm will materialize.’ Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013).”

“Domestic violence can satisfy the defense when the respondent shows by clear and convincing evidence a ‘sustained pattern of physical abuse and/or a propensity for violent abuse.’ Id. at 104 (internal quotation marks omitted). And we concluded that a ‘grave risk’ of harm from abuse had been established where the ‘petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question.’ Id. at 105. Spousal violence, in certain circumstances, can also establish a grave risk of harm to the child, particularly when it occurs in the presence of the child. See id. at 103-04 (stating that spousal abuse is relevant insofar as it ‘seriously endangers the child’); see also *165 Khan v. Fatima, 680 F.3d 781, 787 (7th Cir.2012). We have also been careful to note that ‘[s]poradic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.’ Id. at 104.”

As stated above, the Court finds district court’s conclusion of law as correct when district court concluded that a “grave risk” of harm existed if Daniele would be removed from his current therapy and returned to Italy.

“This is the first occasion for this Court to consider this kind of psychological harm pursuant to Article 13(b). We note, however, that Article 13(b) explicitly lists ‘psychological’ harm and ‘physical’ harm as appropriate harms for triggering the Convention’s affirmative defenses, both of which are implicated by a developmental disorder such as autism. And we hold that the facts as found by the district court lend themselves straightforwardly to the conclusion that the risk of harm was grave.”

“First, the district court’s findings established there was a ‘probability that the harm w[ould] materialize.’ Souratgar, 720 F.3d at 103. Indeed, the district court credited testimony that does not speak in terms of probability but instead of near certainty: ‘if [Daniele] leaves the Stony Point CABAS program even temporarily, he will face a significant regression in his skills and [] without such an intensive, structured program, [Daniele] will not develop the cognitive, language, social, emotional and independent living skills that he is likely to acquire through such a program.’ Ermini, 2013 WL 1703590, at *16 (emphasis added).”

“Second, the court’s finding that Daniele would lose the ability to develop cognitive, emotional, and relational skills, and potentially lead an independent life, if removed from his current therapy and repatriated, establishes harm of a ‘severe’ magnitude manifestly sufficient to satisfy the exception. Souratgar, 720 F.3d at 103. The harm, in fact, is of such a severity that it threatens to strike to the very core of the child’s development individually and of his ability to participate as a member of society.”

In support of its determination, the Court of Appeals cited a number of cases from countries who were also signatories to the Hague Convention and had ruled on the harm inherent in removing an autistic child from treatment:

J.M.H. v. A.S., [2010] 367 N.B.R.2d 200 (N.B.Fam.Ct.) (Can.) (concluding that the risk to the wellbeing of a child who exhibited signs of autism in removing the child from treatment was sufficiently grave);

DP Commonwealth Cent. Auth., [2001] HCA 39 (High Ct. Austl.) (finding that a lack of adequate treatment facilities for a child with autism in his country of habitual residence was a reason for refusing to return the child).

The Court also agreed with the district court’s decision related to the separation of children, and states:

“[I]n light of the children’s close relationship to each other, and, significantly, the conclusion we reached with respect to abuse, we determine as well that it was not error for the district court to decline to separate the children. See Ermini, 2013 WL 1703590, at *17 (“Courts in this Circuit have frequently declined to separate siblings, finding that the sibling relationship should be protected even if only one of the children can properly raise an affirmative defense under the Hague Convention.’).”

The Court, however, does not agree with district court denial of Ermini’s petition without prejudice to renewal if Daniele is not able to continue with his current CABAS program and the Italian court system issues a final order requiring the return of the children to Italy.

“[…][A]s we believe the district court’s approach—which is, so far as we can tell, the first such instance of denial without prejudice in a Hague Convention case—to constitute an error of law, neither justified nor allowed by the Convention. Since the ‘proper interpretation of the Hague Convention is an issue of law,’ we review the district court’s decision de novo. Blondin IV, 238 F.3d at 158 (internal quotation marks omitted).”

“‘In interpreting a treaty, it is well established that we begin with the text of the treaty and the context in which the written words are used.’ Swarna v. Al-Alwadi, 622 F.3d 123, 132 (2d Cir.2010) (internal quotation marks and alteration omitted). The Hague Convention provides either for the ‘return of the child forthwith’ if the child is wrongfully removed, pursuant to Article 12, or for a ‘determin[ation] that the child is not to be returned,’ pursuant to Article 16. The Convention authorizes these decisions alone, and stresses the importance of deciding matters ‘expeditiously.’ See Hague Convention., art. 11. It also explicitly keeps courts out of deciding, or acting under the Convention, ‘on the merits of rights of custody.’ Id., art. 16.”

“Furthermore, as the Hague Convention’s Explanatory Report—which we have construed as being an authoritative and official history of the Convention proceedings, see Blondin II, 189 F.3d at 246 n. 5-has explained, the Convention ‘is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision ... on the basis of facts which have subsequently changed.’ Elisa Perez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426 (1980), (“Explanatory Report”) ¶ 71.”

“By denying the petition without prejudice to renewal, the district court allows the parties to call upon future events and engage in prospective modifications in light of changed facts in precisely the way the Convention intended to prohibit. As the Explanatory Report shows, the Convention is concerned with events at a particular *168 moment: it either requires return or, in light of the risks of harm or other circumstances, it does not. Once a determination properly applying the Convention to the facts at hand has been made, all other issues leave the realm of the treaty’s domain. The Convention is not, and cannot be, a treaty to enforce future foreign custody orders, nor to predict future harms or their dissipation. See, e.g., Redmond v. Redmond, 724 F.3d 729, 741 (7th Cir.2013) (‘The Hague Convention targets international child abduction; it is not a jurisdiction-allocation or full-faith-and-credit treaty. It does not provide a remedy for the recognition and enforcement of foreign custody orders or procedures for vindicating a wronged parent’s custody rights more generally.’); Mota v. Castillo, 692 F.3d 108, 112 (2d Cir.2012) (‘[T]he Convention’s focus is simply upon whether a child should be returned to her country of habitual residence for custody proceedings.’). Indeed, the Convention stresses the need for, and importance of, establishing swiftly a degree of certainty and finality for children.[12] See, e.g., Chafin v. Chafin, ___ U.S. ___, 133 S.Ct. 1017, 1030, 185 L.Ed.2d 1 (2013) (Ginsburg, J., concurring) (‘Protraction ... is hardly consonant with the Convention’s objectives.’); Blondin II, 189 F.3d at 244 n. 1 (noting the necessity that procedural and substantive decision-making be expeditious so they do not exceed the time that the child can endure the uncertainty of the process).”

The Court affirms the District Court’s denial of appellant’s petition, and amends its judgment to deny that petition with prejudice.

Citation: Ermini v. Vittori, 758 F.3d 153 (11th Cir. 2014).