Brito Guevara v. Francisco Castro
U.S. Court of Appeals for the Fifth Circuit
Brito Guevara v. Francisco Castro, 139 F.4th 422 (5th Cir. 2025)
Brito Guevara v. Francisco Castro
Opinion
Case: 24-10520 Document: 82-1 Page: 1 Date Filed: 06/02/2025
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 24-10520
FILED
June 2, 2025
____________
Lyle W. Cayce
Jose Leonardo Brito Guevara, Clerk
Plaintiff—Appellant,
versus
Samantha Estefania Francisco Castro,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:23-CV-1726
______________________________
Before Richman, Willett, and Douglas, Circuit Judges.
Don R. Willett:
When A.F. was five years old, her mother, Samantha Estefania
Francisco Castro, removed her from the lawful custody of her father, Jose
Leonardo Brito Guevara, in Venezuela and then illegally immigrated with
A.F. to the United States. 1 Brito petitioned for A.F.’s return under the Hague
Convention on Civil Aspects of International Child Abduction.
_____________________
1
A.F. was five years old at the time the district court decided this case. She is now
seven.
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The district court denied the petition, finding that although Brito had
established a prima facie case of wrongful removal, A.F. was now well-settled
in Texas.
We REVERSE and REMAND with instructions that the district
court enter an order that A.F. be returned to Venezuela.
I
A
A.F. was born May 3, 2018 to Jose Leonardo Brito Guevara and
Samantha Estefania Francisco Castro. ] Although never married, Castro and
Brito lived together with A.F. in the home of Brito’s mother in Venezuela
until they separated in July 2019. Following their separation, Brito was
granted custody rights over A.F. During this period, A.F. maintained regular
contact with both parents, though the record does not clearly indicate her
primary residence.
In August 2021, Brito relocated to Spain for a better-paying job. While
in Spain, Brito continued to support A.F. financially, maintained regular
contact through video calls and voice messages, and stayed in close contact
with A.F.’s grandmother, who ensured that A.F. was provided for during
Brito’s absence. The district court found that Brito was exercising his
custody rights throughout his time in Spain.
Until late 2021, A.F. had lived exclusively in Venezuela, and nothing
in the record suggests she was not living a stable and safe life. 2 But in
November 2021, Castro removed A.F. from Venezuela without Brito’s
consent and unlawfully entered the United States. After presenting herself
_____________________
2
The district court found that there was “next to zero evidence to prove the
presence of ‘grave risk of harm’” if A.F. were to return to Venezuela.
2
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and A.F. to U.S. Border Patrol in San Luis, Arizona, Castro relocated to
Lewisville, Texas. There, she lived with Castro’s boyfriend, Otton
Rodriguez, for eleven months. In October 2022, Castro, A.F., and Rodriguez
moved together to Dallas. Brito remained in contact with A.F. during this
time and attempted to visit her in the United States, though his visa
application was denied.
The district court found that Castro “has been gainfully employed
since arriving in the United States and provides for A.F.” Since arriving in
the United States, Castro has worked for four different companies, averaging
40–45 hours a week, with hourly wages ranging from $12 to $16.
Castro and A.F. lack permanent residence status in the United States.
U.S. Citizenship and Immigration Services issued them employment
authorization documentation, but their asylum applications remain pending.
B
Immediately upon learning that Castro had taken A.F. to the United
States, Brito contacted the family attorney, Venezuelan authorities, and both
the United States and Venezuelan embassies in Spain. He authorized his
mother to file an application under the Hague Convention seeking A.F.’s
return. Venezuelan authorities received the application on January 20,
2022—just under two months after Castro removed A.F. to the United
States.
The application languished until November 7, 2022, when the U.S.
Department of State sent a letter to Castro, advising that the request had
been forwarded from Venezuela and urging her to resolve the matter
amicably or voluntarily return A.F. to Venezuela. Castro did not respond.
After efforts to reach an agreement with Castro failed, Brito filed a
petition in the Eastern District of Texas in April 2023. The district court
3
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issued a temporary restraining order, followed by a preliminary injunction
barring Castro from leaving the jurisdiction and requiring her to disclose her
address and contact information to both the court and Brito. Despite
receiving actual notice, Castro failed to appear at the preliminary injunction
hearing.
A month later, in June 2023, Castro—through counsel—finally
accepted service and disclosed her address, which was in fact located within
the Northern District of Texas. By agreement of the parties, the action was
transferred to the Northern District on August 1, 2023. Although Brito
repeatedly requested expedited consideration, the Northern District did not
hold a bench trial until March 2024—eight months after the transfer. Six
weeks later, the court issued its findings of facts and conclusions of law. The
court denied Brito’s petition, concluding that although he had established a
prima facie case for A.F.’s return, Castro had sufficiently shown that A.F.
was well-settled in Dallas and that remaining there was in her best interest.
Brito timely appealed.
II
The Hague Convention mandates the return of “a child wrongfully
removed from her country of habitual residence . . . upon petition.” 3 The
Convention’s two chief objectives “are to restore the pre-abduction status
quo and to deter parents from crossing borders in search of a more
sympathetic court.” 4 The Convention rests on a core principle: “the best
_____________________
3
England v. England, 234 F.3d 268, 270 (5th Cir. 2000).
4
Id. at 271 (quotations omitted).
4
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interests of the child are well served when decisions regarding custody rights
are made in the country of habitual residence.” 5
Accordingly, the Convention’s default rule is that the child should be
returned to her country of habitual residence. But the Convention “does not
pursue that goal at any cost.” 6 It recognizes that, in certain cases, “the
interests of the child may be better served by the child remaining” in her new
environment, and it “provides ‘several narrow affirmative defenses to
wrongful removal.’” 7
In the United States, the Hague Convention is implemented through
the International Child Abduction Remedies Act (ICARA). 8 “Under
ICARA, once a petitioner has established by a preponderance of the
evidence that the child was wrongfully removed or retained, the burden shifts
to the respondent to establish an affirmative defense.” 9
This case concerns one such defense: the “well-settled” exception
found in Article 12. Article 12 provides that, “when a court receives a petition
for return within one year after the child’s wrongful removal, the court ‘shall
order the return of the child forthwith.” 10 But “where the proceedings have
been commenced after the expiration of the period of one year,” the court
“shall also order the return of the child, unless it is demonstrated that the
_____________________
5
Abbott v. Abbott, 560 U.S. 1, 20 (2010).
6
Hernandez v. Pena, 820 F.3d 782, 786(5th Cir. 2016) (quoting Lozano v. Montoya Alvarez,572 U.S. 1, 16
(2014)).
7
Id.(quoting Sealed Appellant v. Sealed Appellee,394 F.3d 338, 343
(5th Cir. 2004))
(emphasis removed).
8
Galaviz v. Reyes, 95 F.4th 246, 251 (5th Cir. 2024); see also22 U.S.C. § 9001
(b)(1).
9
Galaviz, 95 F.4th at 521 (citing 22 U.S.C. § 9003(e)).
10
Lozano, 572 U.S. at 5 (quoting Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, art. 12).
5
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child is now settled in its new environment.” 11 “The underlying purpose of
this defense is to recognize that at some point a child may become so settled
in a new environment that return is no longer in the child’s best interests.” 12
To assess whether the well-settled defense applies, we consider seven
factors:
(1) the child’s age; (2) the stability and duration of the child’s
residence in the new environment; (3) whether the child
attends school or day care consistently; (4) whether the child
has friends and relatives in the new area; (5) the child’s
participation in community or extracurricular activities; (6) the
respondent’s employment and financial stability; and (7) the
immigration status of the respondent and child. 13
III
“A district court’s determination of whether a child is well-settled
presents a mixed question of law and fact.” 14 “We review the district court’s
factual findings for clear error, and its legal conclusions de novo.” 15
Our precedent has long treated the balancing of factors under the well-
settled defense as a legal question subject to de novo review. 16 The dissent
_____________________
11
Id. (quoting Hague Convention, art. 12).
12
Hernandez, 820 F.3d at 787.
13
Id. at 787–88.
14
Id. at 787.
15
Id.
16
Id. at 790.
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contends that the Supreme Court’s recent decision Bufkin v. Collins 17
requires clear-error review. It does not.
Bufkin addressed the standard of review the Veterans Court must
apply in reviewing the Department of Veterans Affairs’ (VA) application of
the statutory “benefit-of-the doubt rule.” 18 This “unique” rule, codified by
Congress, instructs the VA to “give the benefit of the doubt to the claimant”
whenever “there is an approximate balance of positive and negative
evidence.” 19 The Supreme Court held that the Veterans Court must review
the VA’s application of the rule “the same way it would any other
determination—by reviewing legal issues de novo and factual issues for clear
error.” 20 It further held that determining whether the evidence is
approximately balanced is a “predominantly factual determination reviewed
only for clear error.” 21
Like the VA’s approximate-balance test, our analysis of whether a
child is well-settled presents a mixed question of fact and law. And the
Supreme Court has made clear that the standard of review “depends ‘on
whether answering it entails primarily legal or factual work.’” 22 Here is
where the approximate-balance test and our well-settled test part ways. The
VA’s determination of whether record evidence is approximately balanced is
a textbook factual inquiry. It entails categorizing each piece of evidence based
_____________________
17
604 U.S. __,145 S.Ct. 728
(2025).
18
Id. at 733.
19
Id.; 38 U.S.C. § 5107(b).
20
Bufkin, 145 S.Ct. at 733.
21
Id.
22
Id.at 739 (quoting U.S. Bank N.A. v. Vill. at Lakeridge, LLC,583 U.S. 387, 396
(2018)).
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on whether it supports or undermines the claim, comparing the relative
strength and persuasiveness of the evidence on each side, then determining
whether it is approximately balanced. 23 As the Supreme Court put it, this is
“inherently a factual task.” 24
By contrast, our well-settled inquiry is primarily legal in character. We
do not engage in a mathematical tallying of how the evidence aligns with each
of the seven factors. Rather, the well-settled factors are a judicially crafted
framework designed to inform a legal judgment: Is the child well-settled?
None of the factors is dispositive. 25 We do not conduct a “head-to-head
weighing” of the factors favoring one party versus the other. 26 Our review is
holistic and guided—but not dictated—by the factors. 27 Our task is to assess
whether, taken together, the evidence supports the district court’s legal
conclusion.
Congress might well have prescribed a different review standard had
it envisioned evidence-balancing akin to the VA regime. But it did not. To be
sure, the well-settled defense is a “creature of statute,” 28 deriving from the
Hague Convention as implemented by Congress. 29 But the balancing
_____________________
23
Id. at 738–39.
24
Id. at 738.
25
Hernandez, 820 F.3d at 788.
26
See Bufkin, 145 S.Ct. at 749 (Jackson, J., dissenting).
27
See Hernandez, 820 F.3d at 787–88 (stating that “the following factors should be
considered” and noting that immigration is “one relevant factor in a multifactor test”
(emphasis added)) (citing Lozano v. Alvarez, 697 F.3d 41, 57(2d Cir. 2012); In re B. Del C.S.B.,559 F.3d 999, 1009
(9th Cir. 2009)); see also Lozano,697 F.3d at 57
(listing factors that courts should “generally” consider); In re B. Del C.S.B.,559 F.3d at 1009
(listing “a
number” of non-exclusive factors courts should consider).
28
Bufkin, 145 S.Ct. at 740.
29
See post, at n.2.
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framework we use to assess that defense is not the product of statute. The
factors are judicial constructs, not legislative commands. So we are not bound
to the sort of calibrated factfinding Congress required under the VA’s
benefit-of-the-doubt rule. Indeed, if Congress mandated anything here, it is
this: courts “shall . . . order the return of the child” unless the respondent
proves the well-settled defense applies. The factors we consult in applying
that standard are just that—factors—not formulas that impose a duty of
evidentiary calibration. They remain useful aids—but they are tools of our
own making, crafted not to precisely quantify the weight of each piece of
evidence, but to “generate guidance for . . . future courts” wrestling with the
well-settled defense. 30 Our role, then, is not to duplicate the district court’s
work in “compar[ing] the relative strength and persuasiveness of” the
evidence. 31 Rather, we evaluate whether the district court properly applied
the law—the requirements of the Hague Convention—to the facts before it.
Unlike the evidentiary balancing required in Bufkin, this application of the
factors is a legal inquiry, not a factual one.
Bufkin thus leaves untouched our settled standard of review. We
examine the district court’s factual findings for clear error, and we review de
_____________________
30
Bufkin, 145 S.Ct. at 741.
31
See post, at 24 (quoting Bufkin, 145 S.Ct. at 738).
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novo the legal question whether, in light of holistic balance of the seven
nondispositive factors, the evidence supports the district court’s conclusion.
IV
The parties do not dispute the district court’s finding that Brito
established a prima facie case for A.F.’s return. The sole question on appeal
is whether the well-settled defense bars that return.
We conclude that the district court erred in both its legal framing and
application of the well-settled exception. Balancing the relevant factors de
novo, we are not persuaded that A.F. has formed such deep or enduring ties
to her new environment that returning to her home in Venezuela would
contravene her best interests.
The first factor is A.F.’s age. She is seven years old—and was five at
the time of the bench trial. The district court acknowledged, citing our
precedent in Hernandez, that a child of this age is “a very young child not
able to form the same level of attachments and connections to a new
environment as an older child.” 32 Yet the district court described this factor
as “lukewarm”—a characterization unsupported by the record. A.F.’s
young age means it will take more time for her to become “so settled” in the
United States that her best interests lie in remaining here rather than
returning home to Venezuela. 33 At age seven, A.F. is not yet capable of
forming the kind of enduring attachments that the Convention deems
sufficient to override its default return remedy.
_____________________
32
Hernandez, 820 F.3d at 789.
33
See id.; see also Hernandez v. Erazo, No. 23-50281, 2023 WL 3175471, *4 (5th
Cir. May 1, 2023) (holding that young age can “discount[] the detrimental effect of being
relocated” even where residential stability and daycare attendance cut against return).
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The second factor considers the stability and duration of A.F.’s
residence in the United States. The district court found that over the past
three years, Castro and A.F. have lived in two separate residences in the
United States. It characterized this arrangement as stable and weighed the
factor in favor of Castro. That conclusion was error. That A.F. has already
moved multiple times in her brief time here undermines any claim of
residential stability. 34 So too does the fact that Castro and A.F. currently
reside in the home of Castro’s boyfriend. Should that relationship falter,
Castro and A.F. would be forced to relocate once more. Castro conceded that
if the relationship were to end, she and A.F. would need to downgrade to a
cheaper apartment, as they rely—at least in part—on her boyfriend’s
income. Even if A.F.’s present living situation appears stable, its long-term
viability is far from assured. 35
The third factor examines whether the child attends school
consistently. The district court rightly found that A.F. is enrolled in
kindergarten and performing well. But that fact must be viewed in context
and alongside the other factors. 36 At her young age, A.F. has ample time and
_____________________
34
Cf. Belay v. Getachew, 272 F. Supp. 2d 553 (D. Md. 2003) (holding that stability
factor weighed in favor of well-settled defense where child had lived at only one address
since moving to the United States).
35
Cf. Ramirez v. Buyauskas, 2012 WL 606746(E.D. Pa. 2012), opinion amended on other grounds,2012 WL 699458
(E.D. Pa. 2012) (analyzing not just whether residence was
currently stable but also whether it would remain stable).
36
The dissent claims that we impermissibly “bleed[] several factors together to
circumvent the analysis of one.” Post, at 29. But it cites no support for the notion that each
factor must be hermetically sealed and analyzed in isolation before the totality is
considered. Our precedent says the opposite: the well-settled factors “should not be
considered in the abstract.” Hernandez, 820 F.3d at 788. In any event, the dissent endorses
the district court’s treatment of the fourth factor even though that analysis “overlapped”
with its assessment of the third. Post, at 30. And the dissent itself folds delay into the factor-
based framework, “incorporat[ing]” it rather than treating it as distinct. Post, at 41.
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opportunity to integrate into a new school community in Venezuela. 37
Moreover, A.F.’s school environment in United States is not especially
secure, given the uncertainty of her immigration status, the nature and
impermanence of Castro’s transient employment, and their reliance on
Castro’s boyfriend for housing. These circumstances suggest a real
possibility of future moves, which could disrupt A.F.’s schooling and
undercut any sense of educational continuity.
The fourth factor considers whether the child has formed meaningful
relationships with friends and family in her new environment. A.F. does have
at least six close relatives in the United States, as well as several friends she
sees regularly. Still, most of A.F.’s extended family—including Castro’s
parents, two brothers, a cousin, an aunt and uncle, and Brito’s mother,
siblings, and additional relatives—remain in Venezuela. Most notably, A.F.
cannot see her father in the United States. As discussed at oral argument,
Brito attempted to visit her but was denied a visa. While the inquiry is not a
numbers game, the fact that A.F. has a “large extended family” in Venezuela
remains significant—particularly because her relationships in the United
States are entirely derivative of her mother’s. 38 In addition, Castro’s
boyfriend lacks lawful permanent resident status, and none of A.F.’s relatives
in the United States are U.S. citizens. The unsettled immigration status of
A.F.’s family here casts doubt on durability of those relationships and weighs
against a finding that they are well-settled.
The fifth factor examines A.F’s participation in community activities.
The district court found that A.F. regularly attends church, visits a primary
_____________________
37
See Erazo, 2023 WL 3175471 at *4 (“Although [the child] has been in a stable
home for over a year and attends daycare six days a week, his young age discounts the
determinantal effect of being relocated.”).
38
See Hernandez, 820 F.3d at 789.
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care physician, goes on family vacations, has playdates with friends, uses
community playgrounds, goes swimming, and attends birthday parties. The
district court deemed this evidence “overwhelming” support for the well-
settled defense. We disagree. Though it certainly weighs in Castro’s favor,
this factor on its own does not demonstrate that A.F. is “so settled” in the
United States that returning to Venezuela would be contrary to her best
interests—especially since she could engage in many of these same activities
there. 39
The sixth factor considers Castro’s economic and employment
stability. The district court found that Castro “has been gainfully employed
since arriving in the United States and provides for A.F.” But while the court
acknowledged that Castro has changed jobs four times since her arrival, it
failed to give appropriate weight to other facts that cast doubt on the stability
of her employment. For instance, the court found that Castro was
unemployed for at least two months between jobs. Nor does the record show
that any of her jobs were permanent positions offering reliable income or
benefits. The court further acknowledged that Castro shares both a car and
an apartment with her boyfriend but overlooked the precariousness of that
arrangement—namely, that if the relationship ended, Castro and A.F. would
have to relocate. The end of the relationship would also leave them without
transportation, impairing A.F.’s ability to attend school and participate in
community life. While Castro is currently meeting A.F.’s basic needs, her
_____________________
39
See id.at 789–90 (holding child was not well-settled despite evidence that he attended church regularly with his mother); Vite-Cruz v. Sanchez,360 F.Supp.3d 346, 358
(D.S.C. 2018) (holding child was not well-settled despite evidence that he regularly spends
time with his friends and is “very active in his school’s jazz ensemble”).
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financial circumstances are not “so settled” that it would be against A.F.’s
best interest to return to her life in Venezuela. 40
The seventh and final factor concerns immigration status. The district
court acknowledged that neither Castro nor A.F. has lawful permanent
residence status in the United States and that both have pending asylum
applications. But the court deemed this factor merely “lukewarm.” That
conclusion was error. Castro presented no evidence suggesting their asylum
claims are likely to succeed. Indeed, the court found no evidence that A.F.
would face a “grave risk of harm” if returned to Venezuela—a finding that
undercuts any suggestion that her asylum claim will succeed. 41
We acknowledge that “immigration status is not dispositive” and that
lacking lawful permanent resident status “does not necessarily prevent a
child from developing significant connections in a new environment.” 42 Still,
“immigration status should not be analyzed in the abstract,” and the
Convention requires “an individualized, fact-specific inquiry.” 43 The
district court erred by evaluating immigration status in isolation, rather than
_____________________
40
See Vite-Cruz, 360 F.Supp.3d at 358 (considering financial dependence on
mother’s boyfriend evidence opposing a well-settled determination).
41
Asylum is available only “where 1) a person is ‘unwilling to return to’ their home
country ‘because of persecution or a well-founded fear of persecution’; and 2) the applicant
has demonstrated that ‘race, religion, nationality, membership in a particular social group,
or political opinion was or will be at least one central reason for persecuting the applicant.’”
Tamara-Gomez v. Gonzales, 447 F.3d 343, 348(5th Cir. 2006) (quoting8 U.S.C. § 1101
(a)(42), 1158(b)). The fact that there is no “grave risk of harm” if A.F. returned to
Venezuela strongly suggests that she does not face persecution there. Of course, the
immigration court will reach its own findings in adjudicating A.F.’s asylum claim. But
based on the record before us, she appears unlikely to satisfy the statutory requirements for
asylum.
42
Hernandez, 820 F.3d at 788.
43
Id. at 788–89.
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assessing how it interacts with and undermines the other well-settled
factors. 44 Here, the uncertainty surrounding Castro’s and A.F.’s
immigration status permeates every aspect of their life in the United States,
rendering it fundamentally unstable. This factor weighs heavily against
finding that A.F. is well-settled.
Overall, balancing the factors de novo, we disagree with the district
court’s assessment that factors one and seven are merely “lukewarm,” and
that the remaining factors “overwhelmingly” support a “well-settled”
finding. The court failed to give due weight to A.F.’s young age—which
favors her ability to readjust to life in Venezuela—and to her uncertain
immigration status, which erodes any stability she may have developed in the
United States. The district court also gave more weight to the remaining
factors than is supported by the record.
Certainly, as both the dissent and the district court observe, the record
reflects that A.F. has enjoyed a stable and loving life with her mother in the
United States. But that is not the legal question before us. Our task is to
determine whether A.F. is “so settled in a new environment that return is no
longer in [her] best interests.” 45 On balance, the answer is no. The factors do
not support the conclusion that A.F. is so deeply rooted in the United States
that returning her to Venezuela would contravene her best interests. This
decision is not easy, nor is it without sorrow. But it accords with the
Convention’s core objective: “to restore the pre-abduction status quo and to
_____________________
44
Once again, the dissent contends that we improperly “bleed” our analysis of
immigration status into the other factors. Post, at 35. But nothing in our precedent requires
that each factor be assessed in hermetic isolation. See supra, at n.36. A holistic inquiry
necessarily contemplates how various aspects of a child’s life—legal status included—
interact to shape her connection to a new environment.
45
Hernandez, 820 F.3d at 787 (emphasis added).
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deter parents from crossing borders in search of a more sympathetic
court.” 46 Because Brito established a prima facie case for return—and
because the well-settled exception does not apply—the district court erred in
denying his petition. 47
V
Concluding that A.F. is not well-settled in her new environment, we
VACATE the district court’s order and RENDER judgment in favor of
Brito. We REVERSE and REMAND with instructions that the district
court enter an order directing A.F.’s return to Venezuela.
_____________________
46
England, 234 F.3d at 271 (quotations omitted).
47
Brito also argues that the district court erred in failing to consider its own delay
in trying the case and Castro’s previous delays in responding to his petition. Because we
render judgment in Brito’s favor on the grounds that the well-settled defense does not
apply, we need not reach the delay issue.
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Dana M. Douglas, Circuit Judge, dissenting:
The majority opinion reverses the district court’s order and renders
judgment in Brito’s favor. In doing so, it reweighs evidence, bleeds various
factors together in violation of established law, and assumes imminent failure
of an undecided asylum claim. Today’s decision punishes A.F.—who is well-
settled in her new home—for her mother’s decisions. I respectfully dissent.
I
A
Brito and Castro are Venezuelan citizens and former romantic
partners. On May 3, 2018, their daughter, A.F., was born. Brito and Castro
were never married, but they lived together in Brito’s mother’s home in
Venezuela when A.F. was born. Approximately two years after the couple
split up, in August 2021, Brito moved from Venezuela to Madrid, Spain, for
a new job; he has not returned to Venezuela since then.
At some point after Brito moved, Castro mentioned to Brito and/or
his mother that she was considering traveling to the United States, but never
informed them of a desire to bring A.F. with her; accordingly, Brito never
consented to A.F.’s removal from Venezuela. Nevertheless, about three
months after Brito moved, Castro left Venezuela with A.F., entering the
United States without documentation. They immediately presented
themselves to the United States Border Patrol in San Luis, Arizona, and
applied for asylum. Both of their asylum applications remain open; although
they do not have Lawful Permanent Residence status in the United States,
both are awaiting asylum interviews with the U.S. Citizenship and
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Immigration Services (“USCIS”). 1 Approximately six months before
moving, Castro began a romantic relationship with Otton Rodriguez, who has
Temporary Protected Status under the Immigration and Nationality Act
(“INA”). Rodriguez has resided with Castro and A.F. in Texas since they
arrived. They married during the pendency of this appeal.
Since moving to Texas, Castro has held positions at four companies
and has earned enough money to open a bank account in the United States.
While Castro worked, she either hired a caretaker for A.F. or left A.F. in the
care of family. Eventually, A.F. began attending kindergarten full-time in
Addison, Texas, and began seeing a primary care physician.
B
On January 20, 2022, Brito’s mother filed a petition under the Hague
Convention on the Civil Aspects of International Child Abduction (“Hague
Convention” or “Convention”) with Venezuelan authorities, seeking A.F.’s
return. That application, however, was not transferred to the U.S.
Department of State until November 7, 2022, at which point the State
Department attempted to contact Castro. Because Castro did not consent to
return to Venezuela, Brito petitioned the United States District Court for the
Eastern District of Texas on April 19, 2023, for A.F.’s return under the
Hague Convention, Oct. 25, 1980, T.I.A.S. No. 670, and the International
Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001–9011.
The matter was ultimately transferred to the Northern District of
Texas. Following the transfer, Brito repeatedly requested status conferences
to schedule a trial. The court scheduled an off-the-record status conference
_____________________
1
Castro’s brief notes that she and A.F. were provided Temporary Protected Status
under the INA during the pendency of this appeal. She again represented this fact at oral
argument.
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for November 7, 2023. Brito asserts that the judge did not address his
concerns at that conference, instead requesting a recitation of facts before
ending the conference due to a scheduling conflict. On November 8, the
court reset the conference. On November 10, the parties attended a Zoom
conference at which the court allegedly indicated that trial would be set no
sooner than March 2024. In a later status report, Brito requested an
expedited trial setting and reserved the right to request a formal statement of
delay or judicial transfer. In other filings, Brito compared the court’s delay
with the time other Hague Convention cases in the district took to reach trial.
The court denied all requests without a hearing and scheduled the final trial.
The court held a two-day bench trial beginning on March 21, 2024.
On May 8, 2024, the district court issued findings of fact and conclusions of
law, finding that A.F. has stable housing in the United States, Castro is
financially secure and amply provides for A.F., and Rodriguez cares deeply
for and serves as a father figure to A.F. The district court also found that
A.F. has formed significant connections to her environment in Texas—
stronger than those to Venezuela. Therefore, it concluded that, while
Venezuela is A.F.’s country of habitual residence, Castro successfully
demonstrated that A.F. is well-settled in Texas. It issued a final judgment
denying Brito’s complaint and petition for A.F.’s return. Brito appealed.
II
The Hague Convention addresses “the problem of international child
abductions during domestic disputes.” Lozano v. Montoya Alvarez, 572 U.S.
1, 4(2014) (quoting Abbott v. Abbott,560 U.S. 1, 8
(2010)). “The Convention states two primary objectives: ‘to secure the prompt return of children wrongfully removed to or retained in any Contracting State,’ and ‘to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.’”Id.
at 4–5
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(quoting Hague Convention, art. 1). So, the focus “is the return of the
child,” which lays the venue for the ultimate custody determination. Id. at 5.
For a petitioner to make a prima facie showing that the child should
be returned to the country of habitual residence, they must demonstrate that
(1) the child was removed from the country of habitual residence; (2) the
removal violated petitioner’s rights of custody under the laws of the country
of habitual residence; and (3) petitioner was exercising those rights at the
time of removal. Larbie v. Larbie, 690 F.3d 295, 307(5th Cir. 2012). If a petitioner demonstrates these three elements, the child shall be returned to the country of habitual residence. Seeid.
at 306–07.
Nevertheless, the Convention’s remedy of return “is not absolute.”
Lozano, 572 U.S. at 5. The Convention provides several affirmative defenses to the respondent, typically proven by a preponderance of the evidence, to refute a petitioner’s prima facie showing that the child was wrongfully removed from their country of habitual residence. Many of these defenses are housed in Article 13 of the Convention, but Article 12 holds the one we consider today: “[W]hen a court receives a petition for return within one year after the child’s wrongful removal, the court ‘shall order the return of the child forthwith.’”Id.
(quoting Hague Convention, art. 12). But “where the proceedings have been commenced after the expiration of the period of one year,” the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”Id.
(quoting Hague Convention, art. 12).
Courts consider the following factors for the well-settled defense:
(1) the child’s age; (2) the stability and duration of the child’s
residence in the new environment; (3) whether the child
attends school or day care consistently; (4) whether the child
has friends and relatives in the new area; (5) the child’s
participation in community or extracurricular activities; (6) the
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respondent’s employment and financial stability; and (7) the
immigration status of the respondent and child.
Hernandez v. Garcia Pena, 820 F.3d 782, 787–88 (5th Cir. 2016). While “[c]ourts diverge . . . with regard to the significance of immigration status,” we have concluded “that immigration status is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test.”Id. at 788
. “The underlying purpose of this defense is to recognize that at some point a child may become so settled in a new environment that return is no longer in the child’s best interests.”Id. at 787
. Ultimately, even if an affirmative defense applies, “a federal court has ‘and should use when appropriate’ the discretion to return a child to his or her place of habitual residence ‘if return would further the aims of the Convention.’” England v. England,234 F.3d 268, 271
(5th Cir. 2000) (quoting Friedrich v. Friedrich,78 F.3d 1060, 1067
(6th Cir. 1996)).
III
Before considering the merits, we must adopt the proper standard of
review. The majority opinion takes the traditional path of reviewing factual
findings for clear error and legal determinations de novo. However, the
Supreme Court recently altered this determination in Bufkin v. Collins, 145
S. Ct. 728 (2025), which demands a clear-error review of both the fact-finding
and the weighing of evidence in certain instances. Bufkin should apply here.
In Bufkin, the Court considered a Board of Veterans’ Appeals decision
denying a veteran’s claim to disability benefits for PTSD. The Court
accepted that legal conclusions are subject to de novo review. “For example,
if the veteran argues that the [Department of Veterans’ Affairs (“VA”)]
misunderstood the definition of ‘approximate balance,’ the Veterans Court
would construe the challenge as a legal one and review it de novo.” Id. at
738. But typically, “a veteran challenges the VA’s determination that the
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evidence on a particular material issue is not in approximate
balance.” Id.The Supreme Court concluded that this “is a predominantly factual question and thus subject to clear-error review.”Id.
The method of weighing the factors in Bufkin was strikingly similar to
the case at hand. “First, the VA reviews each item of evidence in the record
and assigns weight to it.” Id.The parties agreed that this was reviewed for clear error. Then, “the VA assesses the weight of the evidence as a whole,” deciding whether there was an approximate balance on any material issue.Id.
The Court noted that the second step had “both legal and factual components,” considering “marshaling and weighing evidence” factual.Id.
“The appropriate standard of review for a mixed question depends
‘on whether answering it entails primarily legal or factual work.’” Id.at 739 (quoting U.S. Bank N.A. v. Vill. at Lakeridge, LLC,583 U.S. 387, 396
(2018)). “When applying the law involves developing legal principles for use in future cases, appellate courts typically review the decision de novo.”Id.
But, critically, “[w]hen the tribunal below is ‘immerse[d]’ in facts and compelled to ‘marshal and weigh evidence’ and ‘make credibility judgments,’ the appellate court ‘should usually review a decision with deference.’”Id.
(second alteration in original) (quoting U.S. Bank,583 U.S. at 396
). “Reviewing a determination whether record evidence is approximately balanced is ‘about as factual sounding’ as any question gets.”Id.
(quoting U.S. Bank,583 U.S. at 397
). Because the Board had to weigh evidence, the work was “fact intensive” and its determinations received deference.Id.
2
_____________________
2
The Supreme Court also distinguished between those evidence-weighing
determinations that are constitutional, and those that are statutory. Constitutional
standards are entitled to a presumption of de novo review that statutory standards do not
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The inquiry before us today is one that required the district court to
be “‘immerse[d]’ in facts and compelled to ‘marshal and weigh evidence’
and ‘make credibility judgments.’” Id.(alteration in original) (quoting U.S. Bank,583 U.S. at 396
). The majority focuses on the fact that our analysis does not include a “head-to-head weighing” of the factors, and that “[o]ur review is holistic and guided—but not dictated—by the factors.” Ante, at 8. But our court borrowed this test from the Second Circuit, which “formally adopt[ed]” this “fact-specific multi-factor test.” Lozano v. Alvarez,697 F.3d 41, 57
(2d Cir. 2012), aff’d, Lozano,572 U.S. 1
; accord Lozano,572 U.S. at 17
(referring to whether a child is settled as “a factual determination”). And while the language in Hernandez may not be mandatory, stating that we “should” consider the seven factors we look to today, Hernandez,820 F.3d at 787
, the court used softer language because the determination is inherently factually driven and context dependent. See Duarte v. Bardales,526 F.3d 563, 576
(9th Cir. 2008) (Bea, J., dissenting) (noting that “a court may consider any factor relevant to a child’s connection to his living environment” before listing the seven factors that courts “generally” consider). But courts widely consider these same factors. See Hernandez,820 F.3d at 787
(“We join the
_____________________
receive. See Bufkin, 145 S. Ct. at 740. The Hague Convention undoubtedly falls in the “statutory” realm. Not only was it implemented by congressional act, but basic Supremacy Clause jurisprudence puts treaties on par with statutes. See, e.g., Reid v. Covert,354 U.S. 1, 18
(1957) (“This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty . . . .”); Whitney v. Robertson,124 U.S. 190, 194
(1888) (“By the constitution, a treaty is placed on the same
footing, and made of like obligation, with an act of legislation. Both are declared by that
instrument to be the supreme law of the land, and no superior efficacy is given to either
over the other.” (emphases added)).
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circuits that have addressed this issue and hold that the following factors
should be considered . . . .”). 3
When considering the well-settled defense, the district court makes
credibility judgments and considers evidence produced by each side, and,
ultimately, “compares the relative strength and persuasiveness of” that
evidence in determining whether a child’s best interests would be served by
remaining in their current environment. Bufkin, 145 S. Ct. at 738. Considering a child’s best interests through record evidence “is ‘about as factual sounding’ as any question gets.”Id.
at 739 (quoting U.S. Bank,583 U.S. at 397
). Today we do not consider any inherently legal issue, such as
whether the district court properly interpreted a statute. See id. at 738 (“[I]f
the veteran argues that the VA misunderstood the definition of ‘approximate
balance,’ the Veterans Court would construe the challenge as a legal one and
review it de novo. So too if the veteran argues that the VA gave the benefit of
the doubt to the wrong party.”). But the “approximate balance”
determination brought before the Supreme Court was “case specific and fact
intensive.” Id. at 740. The same is true of the well-settled defense as it is
before us today.
Therefore, Supreme Court precedent dictates that clear-error review
dominates the entire analysis—not merely the facts underlying each
_____________________
3
While the majority rightly notes that these factors are judicially created, see ante,
at 9, nothing in Bufkin demands that the factors be statutorily created to compel a clear-
error review. Indeed, our court conducts clear-error review in other judicially created
doctrines—even ones that create exceptions to the constitutional standards that typically
receive de novo review. See United States v. Newman, 472 F.3d 233, 237(5th Cir. 2006) (“The district court’s determination as to whether exigent circumstances existed is fact- specific, and we will not reverse it unless clearly erroneous.”). Similar to our inquiry here, the exigent-circumstances test considers a “non-exhaustive” list of five factors. See United States v. Aguirre,664 F.3d 606, 611
(5th Cir. 2011). That does not render the determination
legal.
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factor. Nevertheless, even if the majority opinion is correct in weighing the
factors de novo, I respectfully disagree with its conclusion.
IV
The majority opinion identifies and considers the seven well-settled
defense factors, but it blends them together without providing proper
deference to the district court. I discuss each factor below.
A. Age
A.F. was five years old at the time of trial. I agree with the majority
opinion that “A.F. is not yet capable of forming the kind of enduring
attachments” that would weigh in favor of applying the well-settled defense.
Ante, at 10.
B. Stability and Duration of Residence
The district court found that A.F. has lived with Castro and Rodriguez
at two locations over the course of nearly three years. It concluded that she
had stable housing during that time. The majority opinion reverses course
on this, stating: “That A.F. has already moved multiple times in her brief
time here undermines any claim of residential stability.” Ante, at 11. But
there is no support for this statement. First, A.F. has moved once since
arriving to the United States. And second, the only cited legal support—a
non-binding opinion from the District of Maryland—is inapposite. The
district court in that case weighed the stability factor in favor of a well-settled
conclusion where the child had lived at only one location. See Belay v.
Getachew, 272 F. Supp. 2d 553, 561 (D. Md. 2003). Under the majority’s
reading of Belay, the only way that a child may have “stability” in their new
environment is if they live in one place for some indeterminate period of
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time. 4 But Belay does not stand for this restrictively narrow proposition, and
the majority fails to cite to a decision of any court supporting that conclusion.
It is unclear what more Castro could have done to provide A.F. with a settled
home life. Moving once in three years is far from unstable, and holding
otherwise creates an unrealistic hurdle.
Simultaneously, the majority opinion concludes that A.F. lacks
housing stability because “Castro and A.F. currently reside in the home of
Castro’s boyfriend,” and, “[s]hould that relationship falter, Castro and A.F.
would be forced to relocate once more.” Ante, at 11. 5 But the Hague
Convention does not work in theoretical possibilities. See, e.g., Farley v. Hill,
150 U.S. 572, 577(1893) (“But a court cannot act upon such uncertain conjectures.”); DeFunis v. Odegaard,416 U.S. 312
, 320 n.5 (1974) (refusing
_____________________
4
Similarly, the various cases that Brito cites in favor of his position that the home
was unstable are distinguishable. Each considers a situation in which the child or children
lived in several homes over a shorter period of time. See, e.g., Argueta v. Lemus, No. 21-cv-
209, 2022 WL 88039, at *3, 8 (N.D. Miss. Mar. 9, 2022) (finding that living in three locations in approximately eighteen months, including several months at the mother’s friend’s house, weighed against a well-settled finding); In re A.V.P.G.,251 S.W.3d 117, 126
(Tex. App. 2008) (“The children were living in Belgium with both parents when they were suddenly uprooted, resided for a time with Guajardo’s parents in Mexico, then relocated to a different home in Mexico with Guajardo; were placed in foster care in Texas; and then resided with their grandparents in Texas.”); Moretti v. Braga, No. 23-cv-0586,2023 WL 3590690
, at *19 (N.D. Tex. May 22, 2023) (noting that the child “had no less [sic] than
four different residences, some as temporary as a tent in a campground,” over fourteen
months).
5
In support of this speculative proposition, the majority cites loosely to a decision
from the Eastern District of Pennsylvania, which considered whether the child’s residence
would remain stable in the future. Ante, at 11 n.35. That case notes that future stability was
promising “because the rent is government-subsidized and is far less than the amount
respondent receives each month in governmental assistance.” Ramirez v. Buyauskas, No.
11-6411, 2012 U.S. Dist. LEXIS 24899, at *53–54 (E.D. Pa. Feb. 24, 2012). This is far from
the speculative reasons provided in the majority opinion for finding A.F.’s future housing
unstable.
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to consider “speculative contingencies” (quoting Hall v. Beals, 396 U.S. 45,
49 (1969))). Imagine the limitless possibilities that could weigh against
stability if we allow speculation to creep into our analysis.
Consider, for instance, a tenant that pays rent to a landlord, with no
suggestion they have violated their lease. Is it not possible that rent increases,
necessitating a move? Or that the landlord chooses not to relet to the tenant
at the expiration of the initial lease term, for no discernable reason? Imagine
they live in a hurricane-prone region. What if a natural disaster strikes,
rendering the home uninhabitable, a scenario with which this circuit is
tragically familiar? More pointedly, is it not possible that anyone could split
up with their partner and need a new home? Does that make their housing
unstable? What if they have lived together for twenty years? Fifty years?
The majority opinion draws no lines as to what a “stable”
environment is in the face of this hypothetical. Instead, it premises A.F.’s
lack of stability on speculation, which does not further the Convention’s
purpose. Indeed, any of these possibilities could just as likely arise in
Venezuela, where A.F.’s father has never returned since his relocation to
Spain.
Nor do Brito’s arguments fare any better. He claims that Castro lived
in four separate locations, asserting that her housing in temporary asylum
facilities should weigh against stability. But he effectively stipulated to the
fact that A.F. had only resided in two locations in the United States in the
unopposed statement of facts. Moreover, the record supports the district
court’s determinations: Castro testified that she “handed [herself] over” to
border patrol agents upon her arrival, at which point they transferred Castro
and A.F. “to one of the refugee camps.” They were only at that “family
refugee center . . . for about one day” before they were sent to another refugee
center for two days. They then were transferred to a hotel in Los Angeles by
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bus for one night, after which she flew to Texas. The well-settled defense—
with good reason—establishes a one-year bar on its applicability. It would
defy logic that one week’s worth of one- or two-day stops upon arrival in a
new country should cut against a finding that a child has stable housing.
I would defer to the district court’s well-reasoned and well-supported
factfinding and weigh this factor in favor of a well-settled finding.
C. Whether A.F. Attends School or Day Care
The district court next found that A.F. received daily care from two
individuals—a caretaker and a family member—from her arrival in
November 2021 until August 2023, at which point she began kindergarten.
She attends school each day with her cousin, and they both go to her aunt’s
house after school. The district court also recognized her success in school,
including her nomination for the Gifted and Talented Program (through
which she receives a bilingual education) and her report cards, which
demonstrate continued academic improvement.
The majority opinion discounts these factual findings, stating that
they “must be viewed in context and alongside the other factors.” Ante, at
11. In support, it cites only one unpublished opinion, Hernandez v. Erazo,
which stated that, “[a]lthough [the child] ha[d] . . . been in a stable home for
over a year and attend[ed] daycare six days a week, his young age
discount[ed] the detrimental effect of being relocated.” No. 23-50281, 2023
WL 3175471, at *4 (5th Cir. May 1, 2023). Stepping beyond the fact that Erazo was in a vastly distinguishable procedural posture—a motion to stay the district court order pending appeal,id.
at *1—the court made that
statement while weighing all of the factors together, not while individually
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analyzing them. 6 Allowing the ultimate weighing of the factors to impact the
individual analyses puts the cart before the horse.
So, when the majority opinion states that A.F. “has ample time and
opportunity to integrate into a new school community in Venezuela,” and
that her situation here “is not especially secure, given the uncertainty of her
immigration status, the nature and impermanence of Castro’s transient
employment, and their reliance on Castro’s boyfriend for housing,” ante, at
12, it impermissibly bleeds several factors together to circumvent the analysis
of one. Neither the Convention nor our case law endorses this approach,
which would prevent a respondent from ever successfully invoking the
defense. See Hernandez, 820 F.3d at 789–90 (considering each factor
individually before weighing them together). 7
_____________________
6
The statement clearly credits the child’s attendance at day care in favor of a well-
settled finding before saying that it may be outweighed by a negative factor.
7
While the majority opinion states that there is no authority “for the notion that
each factor must be hermetically sealed and analyzed in isolation before the totality is
considered,” ante at 11 n.36, Hernandez itself took that very approach. For instance,
Hernandez considered stability of residence separately from immigration status. 820 F.3d
at 789–90 (“With regard to [stability and duration of the child’s new residence], although
[the child’s] residence is stable, he has lived in New Orleans less than a year. . . . Finally,
the seventh factor we consider is immigration status. [The child and his parent] are both
illegally present in the United States and involved in active removal proceedings. This
involvement in active removal proceedings and categorization as new immigration violators
seriously threatens their ability to remain in the United States.”); id. at 790 (“[b]alancing
the factors” against one another).
And while the majority points to the determination that delay folds into the factor-
based framework, ante at 11 n.36, not only is that conclusion compelled by Supreme Court
precedent, as discussed below, but a parent’s concealment has no individual impact on
whether a child is well-settled unless the parent’s actions directly impact the child. Those
actions then fit squarely within our Hernandez framework. See post, at 39–43.
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For his part, Brito provides only a conclusory, threadbare challenge
that the evidence was not overwhelming. But the record is replete with
evidence to support the court’s findings on this factor.
Thus, neither Brito nor the majority opinion shows that the district
court committed clear error in reviewing this factor. I would accept its
findings.
D. A.F.’s Friends and Relatives
The district court’s consideration of this factor largely overlapped
with its consideration of the third given the crossover of A.F.’s school and
family communities. But it also noted that she “has many friends outside of
her family with whom she has been photographed.” Brito argues that while
Castro testified that A.F. enjoys playdates and swimming, she failed to show
the frequency or duration of those activities. He also complains that the court
pointed to only three other schoolmates and one family member, which he
considers insufficient.
The record supports the district court’s findings. First, A.F. clearly
has significant family ties to the area. She sees her cousin and aunt daily after
school, took a family vacation to Disney World, and has several family
members whom she sees “[a]lmost every day.” Moreover, Rodriguez
teaches her how to swim; she goes to the movies, zoo, and aquarium; and she
rides bikes with her family. She also “has very tight connections with her
friends” and talks about her friends every day. Castro produced photos of
her with her friends Manuela and Emma at trial. Contrary to Brito’s
unsupported allegations, this evidence is significant. 8
_____________________
8
Similarly, Brito’s citation to an unpublished decision from the Middle District of
North Carolina for the proposition that making “only a few friends” can weigh against a
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The majority opinion considers none of this evidence. Instead,
despite acknowledging that “the inquiry is not a numbers game,” it
effectively counts the number of family members she has in both the United
States and Venezuela. Ante, at 12. While it is certainly relevant that she has
a large extended family in Venezuela, see Hernandez, 820 F.3d at 789, this fact
alone does not conclusively demonstrate that the district court’s findings
were clearly erroneous. The majority opinion goes on to note that Castro’s
husband lacks Lawful Permanent Resident status, and that none of A.F.’s
family members in the United States are citizens. First, Rodriguez has
Temporary Protected Status under the INA. 9 Second, that A.F.’s family
members are not citizens should not weigh against whether A.F. is well-
settled. There is no evidence that any of these individuals face imminent
removal, nor was any other information regarding their immigration statuses
produced. 10
This factor should weigh in favor of a finding that A.F. is well-settled.
E. Participation in Community or Extracurricular Activities
The district court labeled the evidence of A.F.’s extracurricular and
community participation “overwhelming.” Among other things, it found
_____________________
well-settled finding is readily distinguishable. There, the child was thirteen years old and
had made significant connections in their home country before removal. See Chambers v.
Russell, No. 20-cv-498, 2020 WL 5044036, at *1, 6 (M.D.N.C. Aug. 26, 2020).
9
Therefore, he “cannot be detained by DHS on the basis of his . . . immigration
status in the United States,” and he is “not removable from the United States.” Temporary
Protected Status, https://www.uscis.gov/humanitarian/temporary-protected-status (last
visited April 29, 2025).
10
And, even if there was such evidence, there is no suggestion that we must
consider their immigration statuses. Considering immigration statuses of the individuals
with whom A.F. acquaints adds yet another formerly unrecognized consideration into the
typical Hernandez factors.
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that she regularly attends church in Dallas with Castro and Rodriguez, sees a
primary care physician, goes on trips with her family, has playdates with
school friends, is learning English, plays at community playgrounds, swims,
and attends birthday parties.
The majority opinion does not show that the district court’s factual
finding that this evidence is overwhelming is implausible in light of the record
as a whole. Instead, after recounting the district court’s findings, it simply
states: “[w]e disagree.” 11 Ante, at 13. Instead, the majority states that “this
factor on its own” does not demonstrate that A.F. is well settled. Ante, at 13
(emphasis added). But the district court never made such a statement. And
as it relates to the district court’s comment that the evidence was
overwhelming in favor of Castro, neither the majority nor Brito offers any
evidence that clearly undermines the district court’s finding. The trial
testimony indicates that A.F. is involved in the community activities
described above. Considering these facts, the district court correctly
weighed this factor in favor of applying the well-settled defense. It is not the
role of this court to conclude that the district court’s finding of fact was
clearly erroneous based on a belief that, “had [we] been sitting as the trier of
fact, [we] would have weighed the evidence differently.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573–74 (1985).
F. Mother’s Employment and Economic Stability
_____________________
11
True enough, the opinion cites two cases as demonstrating that a child may not
be well-settled despite spending time with friends or attending church. But it relies on
statements made during the ultimate weighing of the factors. These citations, if anything,
cut against the majority opinion’s statement, as they demonstrate that the extracurriculars
weighed in favor of a well-settled finding. That factor was merely outweighed by others
under the specific facts of those cases.
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The district court found that Castro has held four jobs since arriving
in the United States, “with each subsequent job having a higher salary than
the one before.” 12 It noted that she has been gainfully employed since she
arrived and that she sufficiently provides for A.F. Additionally, Rodriguez
contributes financially and splits rent and utility payments with Castro.
Castro makes monthly car payments for Rodriguez’s car, which they share,
and she has healthcare covering both herself and A.F. Finally, Castro
testified that if she and Rodriguez were to ever break up, she would move to
a cheaper apartment so that she could provide for herself and A.F.
The majority opinion focuses not on her employment history, but on
the fact that she “was unemployed for at least two months between jobs” and
that “the record [does not] show that any of her jobs were permanent
positions offering reliable income or benefits.” Ante, at 13. As an initial
matter, while Castro may have been unemployed for two months, she was
employed for twenty-seven months, with her term of employment increasing
at each company. Focusing on this two-month period is misleading. Nor
does the majority opinion provide any law suggesting that “stability” in
employment requires permanence or stable benefits.
The majority then turns to the same concerns it espoused before: if
Rodriguez and Castro break up, what of her economic stability? There is no
support for considering hypothetical scenarios in determining that someone
is not currently well-settled, absent some clear, imminent event. The majority
cites only Vite-Cruz v. Sanchez, 360 F. Supp. 3d 346, 358 (D.S.C. 2018), for
_____________________
12
This finding was error. Castro’s wage changed as follows: (1) $12/hour, (2)
$16/hour, (3) $14/hour, and (4) $16.20/hour. She worked an estimated (1) 40 hours per
week, (2) 45 hours per week, (3) 45 hours per week, and (4) 40 hours per week. Therefore,
she had an approximate weekly income of: (1) $480, (2) $720, (3) $630, and (4) $648.
Regardless of the metric by which the district court measured Castro’s income, it did not
consistently increase. Nevertheless, this error has no impact upon the analysis.
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the proposition that economic reliance on a partner may weigh against a well-
settled finding, especially if the partner ceases to provide assistance. But that
case is doubly distinguishable: there, the mother “testified she [did] not
work,” so their economic stability was entirely dependent on the boyfriend,
who was undocumented (with no indication that he had Temporary
Protected Status). Id. As established above, Castro is employed. Moreover,
Rodriguez has married Castro. Nothing in the majority opinion
demonstrates how the district court clearly erred in this determination.
Nor do Brito’s arguments carry the day. First, he claims that Castro’s
expenses exceed her income. But a review of the record shows that such
would be the case only if Rodriguez were to move out and all expenses
remained the same. The district court found that Castro would reduce her
expenses under those circumstances, so this argument fails. Second, he
complains that she has held four positions since moving, so her employment
cannot be stable. But she has held each position for a longer time than the
one directly preceding it. And while her previous position at the Great Wolf
Lodge netted the highest weekly income, she has found more temporal
stability at her final two jobs, including having been employed at Paycom for
approximately eleven months at the time of trial. Brito’s argument finds no
support, and the non-binding case law he cites is distinguishable. 13
_____________________
13
See, e.g., Vite-Cruz, 360 F. Supp. 3d at 358(finding that if the mother’s romantic partner were to lose his job, be deported, or otherwise split with the mother, she would be unable to provide for the child because she “depend[ed] solely on [her] boyfriend . . . to provide financial support for food, housing, clothing[,] and other necessities” (emphasis added)); Moretti,2023 WL 3590690
, at *20 (noting that the respondent’s entrepreneurial
activities were just “beginning to achieve a modicum of success,” but that she did not make
a paycheck the prior month and had “not held any other employment”).
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G. Immigration Status
As to the final factor, “it is undisputed that both [Castro] and A.F. do
not have Lawful Permanent Residence status in the United States, but they
both have actively pending asylum applications and are currently awaiting
their asylum interview with USCIS.” The district court credited Castro and
A.F. with immediately surrendering themselves to border patrol upon entry
to the United States and endeavoring through “the proper procedures to
achieve lawful status in the United States.” Finally, both Castro and A.F.
have employment authorization documentation from the USCIS.
The majority opinion properly notes that immigration status is not
dispositive and that a child may still develop contacts in a new environment.
It also correctly states that immigration status should not be considered in
the abstract, but requires “an individualized, fact-specific inquiry.”
Hernandez, 820 F.3d at 789. But it misreads this to mean that immigration status should not be considered “in isolation”; instead, it concludes that the court should consider how immigration status “interacts with and undermines the other well-settled factors.” Ante, at 14–15. This contradicts Hernandez twice over. First, it overlooks Hernandez’s statement that immigration is merely “one relevant factor in a multifactor test.” Hernandez,820 F.3d at 788
. This alone suggests that immigration does not bleed into
other factors. The majority opinion, however, contrarily concludes that
immigration status alone can “permeate[] every aspect of their life in the
United States, rendering it fundamentally unstable,” thus “weigh[ing]
heavily against a finding that A.F. is well-settled.” Ante, at 15.
Second, it takes the statement that there must be an “individualized,
fact-specific inquiry” out of context. Hernandez held that the district court
should have “adequately examine[d] [the individual’s] actual immigration
status.” Hernandez, 820 F.3d at 789. In other words, it should “take into
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account relevant, case-specific distinctions that may exist among and
between different immigration statuses.” Id.At risk of repetition, Hernandez requires “a proper analysis of [the individual’s] specific immigration status.”Id.
Nowhere does Hernandez suggest that we ought to consider immigration within each other factor. Rather, it merely held that broad statements suggesting unlikelihood of removal are insufficient. Seeid.
The district court erred to the extent it failed to consider the statuses
of A.F.’s and Castro’s asylum petitions. But the majority opinion does not
stop here, instead pointing to the district court’s conclusion Castro did not
face a grave risk of harm under the Hague Convention. This, it says,
“undercuts any suggestion that her asylum claim will succeed.” Ante, at 14.
This raises three concerns. First, there is no reason to believe that this is the
only basis through which Castro seeks asylum. Second, it presupposes that
the evidence provided in this proceeding is the same as that provided to
USCIS—an assumption that the record does not unequivocally support.
And third, it ignores that asylum seekers face different standards of proof and
review than do those seeking to demonstrate a grave risk of harm under the
Hague Convention. 14
_____________________
14
Compare Hague Convention, art. 13(b) (providing that a contracting state is not
bound to return a child if the person establishes that “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 Soto v. Contreras, 880 F.3d 706, 712(5th Cir. 2018) (“[T]he Hague Convention does not require objective evidence in proving the grave-risk defense by clear and convincing evidence.” (emphasis added) (citing22 U.S.C. § 9003
(e)(2)(A))), with8 U.S.C. § 1101
(a)(42) (defining “refugee” as one “who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [their home country] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”),8 U.S.C. § 1158
(a) (granting the Attorney General discretion in such determinations),8 C.F.R. § 208.13
(a) (placing the burden of proof on the applicant “to
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Finally, after recognizing the district court’s failure to fully consider
immigration, the majority opinion chooses not to vacate and remand.
Instead, it vacates and renders judgment in favor of Brito. This leapfrogs
USCIS’s review of Castro’s and A.F.’s asylum claims, based solely on the
conclusion—from a limited record—that it is unlikely that “her asylum claim
will succeed,” thus “erod[ing] any stability she may have developed in the
United States.” Ante, at 15. No law or record evidence supports these
statements.
Even assuming that the outcome of Castro’s asylum application is
woefully uncertain—a claim we are ill-suited to make given the lack of record
evidence to support it—it cannot be said that the district court clearly erred
in weighing the other five factors over immigration and age. After all,
“immigration status is [not] dispositive.” Hernandez, 820 F.3d at 788.
Allowing it to seep into every other factor makes it dispositive. Even if the
proper review is de novo, these factors still support a finding that A.F. is well-
settled in Texas. The district court did not err in these determinations.
_____________________
establish that he or she is a refugee as defined in” 8 U.S.C. § 1101(a)(42) and noting that the applicant’s testimony, “if credible, may be sufficient to sustain the burden of proof without corroboration”),8 C.F.R. § 208.13
(b)(1)(i)–(ii) (requiring a preponderance of the evidence, with the burden of proof on the INS, to overcome an asylum applicant’s showing of eligibility),8 C.F.R. § 208.13
(b)(1)(iii) (permitting an officer to grant asylum in their discretion if the applicant demonstrates “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution” or they have “established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country”), I.N.S. v. Cardoza-Fonseca,480 U.S. 421, 431
(1987) (noting that a well-founded fear may be proven by “less than a 50% chance of the occurrence taking place” and differentiating “well-founded fear” from “clear probability”), and Orane v. Barr,919 F.3d 904
, 910 n.2 (5th Cir. 2019) (stating that the likelihood “need not be ‘more likely than not’” and that “a ‘reasonable possibility’ suffices,” but declining to select a specific percentage requirement (quoting Cardoza- Fonseca,480 U.S. at 440
)).
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V
The question remains of whether the district court erred in failing to
consider litigative delays in determining whether A.F. was well-settled. The
Supreme Court has emphasized the importance of expeditious litigation of
Hague Convention petitions. Chafin v. Chafin, 568 U.S. 165, 180 (2013).
Brito, citing this support for expeditious disposition, argues that the Fifth
Circuit has endorsed a general goal of “adjudicating Hague Convention
petitions ‘within six weeks of the start of proceedings, or as expeditiously as
possible within the context of the case.’” He further provides citations to
courts from various other circuits that, at the least, properly identify the
Hague Convention’s procedures to protect expeditious litigation.
Brito argues that the district court improperly held that A.F. was well-
settled by “ignoring the Hague Convention’s central pillar of expediency.”
In essence, he asserts that, because Castro refused to inform him of her Texas
address, and because the district court took months to try the case, it
considered evidence that it would not have considered had the trial occurred
sooner. Accordingly, he claims that the district court erred by not adequately
considering the delay.
In response, Castro argues that Brito waived this argument by failing
to discuss it in the Pre-Trial Order, not objecting to evidence, and failing to
press that the district court should have exercised its discretion and denied
the well-settled exception, and that the ICARA advocates against his
reading. Finally, she argues that Brito really brings an exclusionary argument
that the court should not have considered the evidence that was brought
about by Castro’s and the district court’s delays.
As an initial matter, Castro misrepresents Brito’s argument. He does
not request that the court exclude all evidence that accumulated between the
filing of his suit (or the six-week goal) and the trial, but that the court instead
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must consider the passage of time and why the delays occurred. Moreover,
he could not have pressed this objection at trial. “Even though [Castro’s]
alleged paucity of pre-petition evidence certainly could have been fodder for
[Brito’s] closing argument, it was not until the court rendered its decision
that the alleged error was committed, affording [Brito] something concrete
to challenge.” da Costa v. de Lima, 94 F.4th 174, 182(1st Cir. 2024). For this reason, the First Circuit has “reject[ed] the suggestion of waiver” under these circumstances.Id.
Although the trial transcript makes no mention of
the alleged delays, the final judgment was rendered alongside the findings of
fact and conclusions of law in which the district court failed to adequately
consider its delays. There was no reasonable time during which Brito could
raise such an argument, except on reconsideration.
Assuming, therefore, that this argument was sufficiently preserved,
we ask whether the district court needed to consider the delay. The Supreme
Court provided insight in Lozano v. Montoya Alvarez, 572 U.S. 1. There, the child’s mother left the United Kingdom with her child without informing the father of her intended destination.Id. at 8
. Because the mother did not inform the father of her whereabouts, and because he could not locate her, he was unable to file a Petition for Return of Child for over sixteen months.Id.
Presented with an argument that the mother’s intentional concealment of the child should have equitably tolled the one-year filing timeline for the well- settled exception, the Court held that it was “unwilling to apply equitable tolling principles that would, in practice, rewrite the treaty.”Id. at 17
. Instead, the Court expressed that, similar to the approaches of other signatory nations’ courts, “concealment may be taken into account in the factual determination whether the child is settled.”Id.
After all, “steps taken to promote concealment can . . . prevent the stable attachments that make a child ‘settled.’”Id.
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Therefore, delay may be considered through the established factors.
In finding that concealment could prevent a child from being well-settled, the
Supreme Court cited various cases, all of which considered concealment
within the Hernandez factors. E.g., Mendez Lynch v. Mendez Lynch, 220 F.
Supp. 2d 1347, 1363–64 (M.D. Fla. 2002) (children lived in seven locations in eighteen months); Wigley v. Hares,82 So. 3d 932, 942
(Fla. App. 2011) (mother intentionally kept the child from participation in community activities, sports, or church); In re Coffield,644 N.E.2d 662, 666
(Ohio Ct.
App. 1994) (child withheld from school and organized activity). These cases,
and the Supreme Court’s favorable citation thereto, do not stand for the
proposition that a delay dampens post-petition evidence presented in favor
of a well-settled finding. To the contrary, if an abducting parent intentionally
delays proceedings through active concealment (or otherwise), those acts are
considered through the lens of the well-settled factors, including the child’s
exposure to the environment and home stability. This interpretation tracks
with Hernandez, our governing standard on the well-settled defense. 15 If
delay were an independent consideration, it would have been listed among
_____________________
15
It also comports with the approach of the only other circuit court to consider this
issue. In da Costa, the First Circuit faced the argument that reliance solely on post-petition
evidence “does not align with the reasoning behind the now settled defense.” 94 F.4th at
181. But the court held that “the Convention itself gives a strong indication that post- petition evidence remains important.”Id. at 182
. Specifically, it noted that “[t]he phrase ‘now settled’—the wording of which itself suggests an emphasis on the present—is introduced in the context of post-petition circumstances without reference to pre-petition circumstances.”Id.
It concluded that one would have expected the drafters to have “expressed that intent more explicitly in the text” if pre-petition evidence were required.Id. at 183
. This comports with the plain text of the treaty.
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the several factors. It was not. To the extent that Lozano extended those
considerations, it did so by incorporating time into the existing inquiry. 16
So, the question is whether the district court erred in failing to
consider the contributions of the delays when analyzing the seven
aforementioned factors. Brito asserts that some evidence would not be
considered but for the delays, including that A.F. would have lived in Texas
for a shorter period of time, would not have gone to school for as long, would
not have participated in the community as much, and would not have seen a
doctor or begun to learn English. But, for all of these arguments, Brito never
mentions how the delays impacted the specific criteria that the court was to
consider under Hernandez. None of his examples show that Castro kept A.F.
from participating in the community, going to school, meeting friends, living
in a stable home, or otherwise growing settled in Texas. Instead, the
additional time resulted in A.F.’s schooling, at which she has excelled, her
participation in community functions, and her establishment of friendships
and relationships in Texas. The delay does not cut against a finding that A.F.
was well-settled in Texas.
As to the expediency requirement, Brito is correct that a six-week goal
exists: “Article 11 of the Hague Convention contemplates an immediate
emergency hearing in international child abduction cases and a judicial
decision within six weeks.” Lops v. Lops, 140 F.3d 927, 944 (11th Cir. 1998).
_____________________
16
Lozano works hand-in-hand with a related federal regulation, shedding light on
how to consider time delays. See Hague International Child Abduction Convention; Text
and Legal Analysis, 51 Fed. Reg. 10494, 10509 (Mar. 26, 1986) (“The reason for the passage
of time, which may have made it possible for the child to form ties to the new country, is
also relevant to the ultimate disposition of the return petition. If the alleged wrongdoer
concealed the child’s whereabouts from the custodian necessitating a long search for the
child and thereby delayed the commencement of a return proceeding by the applicant, it is
highly questionable whether the respondent should be permitted to benefit from such
conduct absent strong countervailing considerations.”).
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But he makes no showing that the Convention or the ICARA requires a
judicial determination in six weeks (or as close thereto as possible). As the
Eleventh Circuit noted, Article 11 contemplates, but does not demand, an
immediate emergency hearing. Id.The Convention states that the judicial authorities “shall act expeditiously in proceedings for the return of children.” Hague Convention, art. 11 (emphasis added). But, as for relief, it only provides that if the judicial authority has not yet reached a decision in six weeks, the applicant “shall have the right to request a statement of the reasons for the delay.”Id.
There is no indication in the record or the briefing that Brito sought
such relief. Even if he did request a statement, the answer would have been
clear. His briefing and underlying requests for reassignment demonstrate as
much. He filed the petition over one year after A.F.’s removal, litigated in
the improper district for part of the time, and the judge to whom he was
assigned had no trial availability for months. Ultimately, if a district court is
too dilatory in setting the trial, a party can follow “familiar judicial tools” and
petition for a writ of mandamus; after all, “courts can and should take steps
to decide these cases as expeditiously as possible.” Chafin, 568 U.S. at 178–
79. 17
_____________________
17
Brito did not move to expedite this appeal. While that does not impact the
ultimate determination, Chafin advocates for prompt return of children “through the
familiar judicial tools of expediting proceedings.” 568 U.S. at 178. It is true that “courts can and should take steps to decide these cases as expeditiously as possible.”Id. at 179
. And “[e]xpedition will help minimize the extent to which uncertainty adds to the challenges confronting both parents and child.”Id. at 180
. But “the Convention does not prescribe modes of, or time frames for, appellate review of first instance decisions.”Id. at 181
(Ginsburg, J., concurring). “It therefore rests with each Contracting State to ensure that appeals proceed with dispatch.”Id.
Brito could have—but chose not to—follow this
oft-trodden, established judicial path.
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The district court did not err by not considering its delay, nor was it
improper to set its trial date outside of the aspirational six-week time frame.
VI
Hague Convention cases are difficult and sad matters. I sympathize
with Brito’s inability to enter the United States to visit his child. But the
Hague Convention does not permit a court to adjudicate the merits of
custody disputes. See England, 234 F.3d at 271;22 U.S.C. § 9001
(b)(4). As
difficult as it is to be separated from a child, A.F.’s relationship with Brito in
Texas is no different than it was after he moved to Spain: all interactions are
virtual. It is not our province to consider his ability to see A.F. She left
Venezuela when she was three. Her entire life as she knows it—including
the last three years—is in Texas, and she has grown well-settled.
The majority opinion today fails to provide sufficient deference to the
district court and reshapes Hague Convention jurisprudence by creating a
new emphasis on immigration. It relies on inferential leaps based on limited
evidence to determine that a child—who lives a stable, happy, and enriching
life in Texas—should be uprooted because of various hypothetical
possibilities. This does not comport with our case law, nor does it fit within
the purposes of the Hague Convention. I respectfully dissent.
43
Reference
- Status
- Published