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Appeal from the United States District Court for the Western District of Texas.
For Angelica Lopez Sanchez, Plaintiff - Appellee: Gary Caswell, Esq., Attorney, San Antonio, TX; Marisa C. Balderas-Flores, Attorney, Balderas & Balderas, San Antonio, TX.
For R. G. L., as next friend Alex Hernandez, S. I. G. L., as next friend Alex Hernandez, A. S. G. L., as next friend Alex Hernandez, Movants - Appellants: Lee J. Teran, Adriane Jaeckle Meneses, Andrea Melissa Sauters Aguilar, Esq., St. Mary's University, School of Law, San Antonio, TX; Adam Auchter Allgood, Esq., Morgan, Lewis & Bockius, L.L.P., Houston, TX; Christopher Simon Bloom, McDermott Will & Emery, L.L.P., Houston, TX; Nicholas Gerhart Grimmer, Attorney, McDermott Will & Emery, L.L.P., Houston, TX; Geoffrey Alan Hoffman, Esq., University of Houston, Law Center, Houston, TX; Albert Henry Kauffman, St Mary's University, School of Law, San Antonio, TX.
For Kids in Need of Defense, Amicus Curiae: Rosa Arguelles Shirley, Baker & McKenzie, L.L.P., Dallas, TX.
For United States of America, Amicus Curiae: August E. Flentje, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC; Katherine E. M. Goettel, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation - DCS, Washington, DC; Elizabeth J. Stevens, Assistant Director, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.
Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges. HAROLD R. DeMOSS, JR., Circuit Judge, DISSENTING.
ON SECOND PETITION FOR PANEL REHEARING
LESLIE H. SOUTHWICK, Circuit Judge:
Today, for the third time, we address an appeal by three children who are natives of Mexico, who seek reversal of 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. This new evidence is critical to determining whether one or more of the Hague Convention's exceptions to return applies.
On February 21, 2014, we vacated the district court order and remanded for further proceedings. See Sanchez v. R.G.L., 743 F.3d 945 (5th Cir. 2014) (withdrawn on rehearing). We issued a second opinion on June 5, 2014, in response to the children's first petition for rehearing. In that opinion, we held that a jurisdictional question regarding the necessity of the Government's being made a party did not need to be resolved because we were ordering the Government's joinder on remand. See Sanchez v. R.G.L., 755 F.3d 765, 2014 WL 2532434 (5th Cir. 2014) (withdrawn by this opinion on rehearing).
The children have petitioned for panel rehearing. They argue, and we agree, that we erred in concluding that the jurisdictional challenge raised by the children can be mooted by Rule 19 joinder. We WITHDRAW our previous opinion and issue the present opinion, which restates our initial conclusion that the district court had jurisdiction over Sanchez's petition because the individual with physical custody over the children was a party. We reiterate our conclusion from the rehearing opinion that the Government should be joined in this lawsuit under Federal Rule of Civil Procedure 19. The district court's order to return the children is VACATED and the case is REMANDED for further proceedings consistent with this opinion.
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. Miriam 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 Government, 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 Government informed the court that it was in the
process of transferring the children to the physical custody of Catholic Charities. The Government informed us that the transfer would take six to eight weeks, and would vest legal custody, under Texas law, in Catholic Charities. In rehearing briefing, though, ...