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In re B.
Del C.S.B., 525 F. Supp.2d 1182 (C.D. California, 2008) Brianna was born
in Mexico to her unmarried parents, Mr. Salmeron and Ms. Brito ,who were
citizens of Mexico. From her birth in 1997 until early 2001, Brianna
lived with both parents in Acapulco Guerrero, Mexico. She traveled to
the United States in 2001 at the age of four and stayed with Ms. Brito
and her maternal grandmother in Garden Grove, California for several
months. Overwhelmed by the financial demands and responsibilities of
working and raising a young daughter at the same time, Ms. Brito sent
Brianna back to Mr. Salmeron's care in Mexico in June 2001. After
spending a year living with her father and going to school in Mexico,
Brianna traveled to the United States to visit her mother for summer
vacation. Shortly after her arrival, the relationship between Mr.
Salmeron and Ms. Brito deteriorated, partly because Ms. Brito was living
with another man. Despite Mr. Salmeron's repeated requests, Ms. Brito
refused to return Brianna to Mexico where she was already enrolled for
the upcoming school year. Lacking a visa or other authorization to enter
the United States legally, Mr. Salmeron was unable to visit his daughter
or assert his right to shared custody of Brianna.
The Court found that Brianna was habitually
resident in Mexico immediately prior to her retention in the United
States. It held that to determine if Brianna's retention was in fact
wrongful, the Court must answer, "(1) When did the removal or retention
at issue take place? (2) Immediately prior to the removal or retention,
in which state was the child habitually resident?" Mozes, 239 F.3d at
1070. Ms. Brito's retention of Brianna took place when she refused Mr.
Salmeron's repeated requests for Brianna to return to Mexico to begin
the 2002- 2003 school year. The Court found that Mr. Salmeron and Ms.
Brito did not share a settled intent sufficient to establish an
abandonment of Brianna's habitual residence in Mexico with respect to
Brianna's June 2002 entry into the United States. Mr. Salmeron fully
consented to Brianna's travel to the United States. It was his
understanding that Brianna would visit her mother during her summer
vacation because Ms. Brito had become ill. Having already registered
Brianna for the school year beginning the following September, and
having taken no action to postpone or cancel that registration, Mr.
Salmeron's belief that Brianna would return to Mexico was entirely
reasonable, and his testimony on this point was credible. Brianna's
trip, in this respect, was one of a "specific, delimited period"
insufficient to abandon her habitual residence. See Mozes, 239 F.3d at
1076. In support of her position that Brianna abandoned her habitual
residence in Mexico by traveling to the United States in June 2002, Ms.
Brito claimed that she and Mr. Salmeron reached a mutual agreement to
reunite as a family in the United States. She testified Mr. Salmeron
sent Brianna to the United States ahead of him because he was unable to
secure papers for legal entrance or save enough money to finance an
illegal entrance. The court held that even if it were to find Ms.
Brito's account credible, it failed to establish a shared intent between
the parties that Brianna would remain in the United States indefinitely.
Ms. Brito considered her romantic relationship with Mr. Salmeron to have
ended upon her return to the United States in February or March of 2001.
And, she became involved in a romantic relationship with another man by
December 2001 at the latest, seven months before Mr. Salmeron sent
Brianna to the United States in June 2002. These facts were not
disclosed to Mr. Salmeron in June 2002. The Court could not conclude
that a shared intent can exist if Mr. Salmeron's alleged agreement to
the family's reunification was premised on purposefully false or
misleading statements of future events by Ms. Brito.
Ms. Brito argued that as Mr. Salmeron's Hague
application was filed over one year after the allegedly wrongful
retention, it should be denied because Brianna had become well-settled
in the United States. The Court found that Brianna was not well-settled
in the United States. Courts evaluating the degree to which a child has
become well-settled have considered a number of factors bearing on the
child's connection to the community. Where appropriate, courts have also
examined the effect of immigration status on the child's settlement.
There was no dispute that Brianna had developed significant connections
to the United States. However her connection to the United States was
undermined by the uncertain foundation upon which it was built. Neither
she nor her mother were lel residents of the United States. Both were
subject to deportation at any time. The court found that the threat of
deportation was not simply an isolated factor, such as a parent's
inability to find employment or the lack of nearby relatives, which
weighed against finding Brianna to be well-settled. Instead, it was a
constant danger to Brianna's well-being, threatening to undermine each
and every connection to her community that she had developed in the past
five years. Returning Brianna to Mexico would create some disruption to
her short-term stability and happiness. The court stated: "However, this
temporary disruption paled in comparison to the limitations her
immigration status will place upon her as she matures into adulthood.
When she turns sixteen, Brianna cannot get a driver's license. If she
chooses to attend college, her opportunity to win financial aid may be
restricted. If Brianna chooses to work, her employment prospects may be
limited to low-wage work. In the absence of employer-sponsored health
care, affordable health care insurance for an illegal immigrant may not
exist. This is not a fate that should befall a child of Brianna's
intelligence and promise. The bright future to which she is otherwise
entitled may unfortunately be out of reach as an undocumented immigrant.
In Mexico, Brianna will not face these same limitations. And, she will
have a full opportunity to apply to return to this country legally,
should she so choose. The well-settled defense is intended to prevent
harm to the child, and it must be applied in a way that effectuates that
purpose. Finding Brianna to be well-settled despite her uncertain
immigration status would only exchange a temporary harm (the uncertainty
of returning to Mexico) for a long-term one (the substantial barriers
presented by her immigration status)."Ms. Brito raised the affirmative
defense that Mr. Salmeron forfeited his custody rights and acquiesced to
Brianna's retention in the United States. As Brianna was habitually
resident in Mexico immediately prior to her retention, the domestic laws
of that nation were applied in evaluating Mr. Salmeron's behavior. Under
Mexican law, a parent's right to custody is governed by the concept of
patria potestas. Patria potestas provides that both mother and father
jointly exercise custody over an unemancipated minor. Mexican law
explicitly provides that a parent's rights under patria potestas are not
waivable. The facts established that Mr. Salmeron did not forfeit his
custody rights over Brianna at the time of her retention. Ms. Brito
argued that Mr. Salmeron relinquished custody rights to Brianna in
return for access rights because he stated in his petition that he
consented to Brianna living with Ms. Brito and her boyfriend, and asked
only that Brianna be allowed to communicate with him and visit on
vacations. Under Mexican law, Mr. Salmeron could not waive his custody
rights by conduct, or by requesting visitation and telephone
communication as Ms.Brito argued.
Brianna expressed her objection to being
returned to Mexico and a desire to remain with her mother in the United
States. While Brianna's testimony demonstrated that she was an
intelligent and poised ten year old, the Court concluded that it could
not offer definitive weight to her testimony for two reasons. First,
Brianna's testimony raised a strong inference that it had been affected,
whether intentionally or not, by her mother's influence. Second, Brianna
had not yet reached the age and maturity to fully comprehend the
significant impediments her immigration status will present to her
development and future. "A ten year old child cannot be expected to
weigh the immediate yet short-term effects of returning to Mexico
against the barriers she will face as she matures into adulthood as an
illegal alien in the United States." Because the Court found that
Brianna's status as an illegal alien is an important consideration in
evaluating Mr. Salmeron's petition, and because Brianna had not
demonstrated an ability to grasp these complicated issues, the Court
granted Mr. Salmeron's petition without consideration of Brianna's
objection.
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