In Gaudin v. Remis, 379 F.3d 631 (9th Cir. (Hawaii) Mar 11,
2002) Gaudin appealed from the district court=
s dismissal of her petition for the return of her two children from the
United States to Canada under the Hague Convention. In Gaudin v. Remis,
282 F.3d 1178 (9th Cir. 2002)(A
Gaudin I@ ), the Court
directed the district court to conduct an evidentiary hearing to
determine whether Gaudin had moved permanently to Hawaii and, if the
court determined that she had relocated, to dismiss her petition as
moot. After conducting the hearing, the district court concluded that
Gaudin had moved permanently to Hawaii and dismissed the petition as
moot. The Ninth Circuit concluded that the district court correctly
chose to apply the federal common law of domicile, but that the court
erred in applying that law and it reversed.
The court declined to revisit its decision in Gaudin I that, if a
Hague Convention petitioner moves permanently to the same country as the
abductor, the petition is moot because no effective relief remains to
grant. Gaudin I, which was the law of the case, foreclosed adopting a
contrary position. None of the reasons for deviating from the law of the
case -- A (1) the decision is
clearly erroneous and its enforcement would work a manifest injustice,
(2) intervening controlling authority makes reconsideration appropriate,
or (3) substantially different evidence was adduced at a subsequent
trial,@ -- applied here.
Gaudin argued that the district court erred in concluding that she
had moved permanently to the United States. The district court chose, in
accordance with the parties=
agreement, to apply the factors that federal courts use in determining
domicile for purposes of diversity jurisdiction.
A A person=
s domicile is her permanent home, where she resides within the intention
to remain or to which she intends to return.
A A person residing in a given
state is not necessarily domiciled there...@
A person generally assumes the domicile of his or her parents, and she
may have only one domicile at a time. Domicile may be changed by being
physically present in the new jurisdiction with the intent to remain
there. Thus, domicile includes a subjective as well as an objective
component, although the subjective component may be established by
objective factors.
Guided by the holding in Gaudin I, the court agreed with the district
court= s choice of domicile as
the appropriate measure of whether one has moved permanently to a new
jurisdiction. In Gaudin I, it characterized the mootness question as
whether Gaudin has moved A
permanently@ to Hawaii.
A [W]hen a petitioner
relocates permanently to the same country in which the abductor and the
children are found, she casts her lot with the judicial system of that
country. When Gaudin purportedly relocated, she severed her ties with
Canada and made Hawaii the proper forum to determine custody matters.
Gaudin= s intent to remain in
Hawaii, and not just her residence there, was critical because we also
observed that if, on remand, it was shown that Gaudin had moved to
Hawaii, A for the sole purpose
of regaining custody of the children to return to Canada@
, her petition would not be moot. The traditional concept of domicile,
as contrasted with mere residence, captures well the motion of
performance. Gaudin I required the court to adopt domicile as the test
for whether Ms. Gaudin= s
petition had been mooted by her having permanently relocated to the same
country as the abductor.
Notwithstanding the objective of evidence of Gaudin=
s move to Hawaii and the uncertainly concerning her subjective intent to
relocate permanently there, the court disagreed with the district court=
s conclusion, based on the fact that Gaudin was precluded by law from
relocating permanently to the United States. Gaudin was a Canadian
citizen who had invoked the Immigration and Nationality Act (A
INA@ ) 101(a)(15)(B), 8 U.S.D.
1101(a)(15)(B), as the basis for her presence in the United States. That
provision describes, in relevant part, the following class of
A nonimmigrant aliens@
: A an alien... having a
residence in a foreign country which he has no intention of abandoning
and who is visiting the United States temporarily for business or
temporarily for pleasure.@
The Supreme Court has cited this provision as an example of a statute
in which A Congress has
precluded the covered alien from establishing domicile in the United
States.@ The court has
referred to Section 1101(a)(15)(B) as a statute in which Congress
A expressly conditioned
admission ... on an intent not to abandon a foreign residence or, by
implication, on an intent not to seek domicile in the United States.@
Gaudin was barred by law from possession, the requisite intent to
establish domicile in Hawaii. Because she could not lawfully have moved
permanently to Hawaii, the case was not moot, and the court erred in so
holding.
