REVISED MARCH 3, 2014
Appeal from the United States District Court for the Western District of Texas
Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge
Three children who are natives of Mexico, through a next friend, appeal the district court's finding under the Hague Convention on the Civil Aspects of International Child Abduction that they were being wrongfully retained in the United States and should be returned to Angelica Sanchez, their mother. While this appeal was pending, the United States Citizenship and Immigration Services granted the children asylum. Because we find this new evidence critical to determining whether one or more of the Hague Convention's exceptions to return applies, we VACATE the district court order and REMAND.
R.G.L., S.I.G.L., and A.S.G.L., the three minor children involved in this appeal, were born and raised in Mexico and are Mexican citizens. They lived with their mother, Angelica Sanchez ("Sanchez"), and her boyfriend, Arturo Quinonez, in Ciudad Juarez, Chihuahua. On June 9, 2012, the children's aunt and uncle, Miriam Lopez Sanchez and Jose Sanchez, brought the children across the border into El Paso, Texas, either without Sanchez's permission or under false pretenses. Several times, Sanchez asked for her children's return. On July 18, 2012, Miriam Sanchez took the children to the Bridge of the Americas in El Paso and instructed the children to cross into Mexico where Sanchez and Quinonez were waiting on them. As the children were walking across the international bridge, they presented themselves to Department of Homeland Security ("DHS") officers and stated that they did not want to return to Mexico because they feared Quinonez.
The DHS officers escorted the children to a passport control office where they interviewed the children. R.G.L., the oldest, told the officers that he and his brothers did not want to return because Quinonez, who they claim was a member of the Azteca gang, was involved in drug trafficking, using drugs, and abusing the children. At some time during the interview, FBI agents contacted the DHS officers and informed them that Sanchez and Quinonez had reported the children kidnapped and were coming to the passport control office, under FBI supervision, to speak with the children. When Sanchez and Quinonez arrived, they were able to speak with R.G.L. briefly and were themselves interviewed separately by FBI agents. Sanchez denied the children's allegations of abuse and informed the agents that her children had been taken to El Paso against her will. Sanchez was informed that DHS would retain custody of the children. She and Quinonez returned to Mexico without the children.
DHS promptly determined that the children were unaccompanied alien children with a credible fear of returning to Mexico. Accordingly, DHS transferred the children to the custody of the Office of Refugee Resettlement ("ORR"), Division of Unaccompanied Children's Services, which is responsible for coordinating and implementing the children's care and placement. ORR, though retaining legal custody, placed the children in the physical custody of Baptist Services Child and Family Services to provide for their care, including education, travel, and medical care. Baptist Services placed the children in a foster home in San Antonio, where they remained until sometime during this appeal. Because the children were declared by DHS to be "unaccompanied alien children, " they entered mandatory removal proceedings. ORR, as authorized by statute, appointed pro bono counsel for the children. See 8 U.S.C. § 1232(c)(5)-(6). Their counsel applied for relief from removal on a number of grounds, including asylum.
Almost a year after the children had been removed from Mexico, Sanchez filed this suit in district court against the children's aunt and uncle, Miriam and Jose Sanchez, and against the director of Baptist Services, Asennet Segura. She sought access to the children, their return, and an immediate temporary restraining order preventing the children's transfer out of Texas. She claimed entitlement to this relief under the Hague Convention on the Civil Aspects of International Child Abduction and also under the International Child Abduction Remedies Act ("ICARA"). The Hague Convention is an international treaty to which both the United States and Mexico are signatories, see T.I.A.S. No. 11670, S. Treaty Doc. No. 99–11, and ICARA is the domestic implementing legislation. See 42 U.S.C. § 11601, et seq.
Because Hague Convention petitions are intended to be addressed expeditiously, the district court held an evidentiary hearing one month after Sanchez filed her suit. Mariam and Jose Sanchez did not participate. Baptist Services was represented at the hearing, but took no position on whether the children should be returned to their mother. Instead, because it was acting at the direction of ORR in maintaining custody of the children, it argued that ORR was the proper party to the proceedings. The children's ORR-appointed asylum attorney appeared informally at the hearing on the children's behalf, arguing that the court should allow the children to intervene through Alex Hernandez, as next friend, or in the alternative, grant their motion for the appointment of a guardian ad litem. The district court would later deny the motion, but it allowed the children's attorney to participate in all critical stages of the hearing.
After the hearing, the court directed ORR, who was not formally a party to the proceedings, to answer these questions: "(1) whether this Court has jurisdiction under the Hague Convention; (2) does any procedure in the immigration court preempt or stay this Court's actions; and (3) whether ORR has a position as to whether or not the children would be subject to grave risk or harm by being returned to their mother." ORR, through the Office of Immigration Litigation (which has filed an amicus brief on appeal), informed the court that it "does not take a position at this time" on the first and third question and moved that the district court hold the petition in abeyance pending the disposition of the children's asylum applications.
On August 3, 2013, the district court issued findings of fact and conclusions of law. It acknowledged the difficulties presented by the parallel asylum proceedings but determined that the Hague Convention's demands for expediency counseled against prolonging a resolution of Sanchez's petition. The court did not indicate what bearing, if any, the children's asylum proceedings would have on its grant of relief, though it did suggest that it would be relevant. The court also did not address whether the United States, through ORR, was a proper party to the petition and denied the children's request for representation. The district court concluded that the children were "wrongfully retained" within the meaning of the Convention and none of the Convention's exceptions to return applied. Therefore, the court ordered "the minor children be returned forthwith to the custody of Petitioner, " but later stayed the enforcement of the order pending this appeal.
Two other post-judgment developments are important to this appeal. Shortly after the notice of appeal was filed but before briefing, the United States Citizenship and Immigration Services ("USCIS") granted the children asylum pursuant to 8 U.S.C. § 1158. Among other things, that statute states that in the case of aliens who are granted asylum, "the Attorney General . . . shall not remove or return the alien to the alien's country of nationality." § 1158(c)(1)(A). Secondly, before we held oral argument in this case, the United States informed the court that it was in the process of transferring the children to the physical custody of Catholic Charities. The United States informs us this transfer will also vest legal custody under Texas law in Catholic Charities. Based on the Government's representation that transfer takes six to eight weeks, Baptist Services no longer has physical custody of the children, and Catholic Charities is now their legal and physical custodian.
The children, who are the sole appellants in this case, challenge both the district court's handling of Sanchez's petition and the enforceability of the district court's order in light of the subsequent asylum grant. First, they argue that Sanchez did not have standing to pursue her petition. They assert that the only way Sanchez would have had standing to pursue her petition was by naming ORR as a respondent in her petition. They also argue that even if Sanchez did have standing, none of the respondents meaningfully advanced their interests under the Convention and therefore they had the right to formally participate in the district court proceedings. They also contend that the district court erred in ordering their return in light of the evidence presented.
As for the asylum grant, the children advance alternative theories on how the court should proceed. First, they argue that the district court can no longer order their return to Mexico because their asylum status prohibits their return. In the alternative, they argue that this case should be remanded to the district court with instructions for it to consider their asylum grant in order to determine whether they should be returned. Three other interested parties, including the United States, filed amicus briefs in this case. The United States, whose interpretation of a treaty is afforded special weight, also asks the court to remand the ...