United States District Court, D. Maryland
W. GRIMM UNITED STATES DISTRICT JUDGE.
Jose Omar Flores Perla (the "Father") filed a
verified petition against Respondent Jacqueline Ivonneth
Perla Velasquez (the "Mother"), his former wife,
seeking the return of the parties' minor child, O.E.F.P.
(the "Child"), to El Salvador, from the United
States where the Mother allegedly wrongfully removed and
retained him on or after April 27, 2014. Pet. ¶ 1, ECF
No. 1. The Mother filed a Motion to Dismiss or, in the
Alternative, to Transfer Venue, ECF No. 31. I held a hearing
on June 29 and 30, 2016 and issued an Order granting the
motion, transferring the case to the United States District
Court for the Southern District of Texas in Houston. ECF No.
47. This Memorandum Opinion memorializes that hearing.
and Procedural Background
Child was born in El Salvador on March 12, 2011, and he lived
in El Salvador. Pet. ¶¶ 5-6 & Ex. 2, ECF No. 1-2.
The parties divorced on May 29, 2013; the court in El
Salvador granted the Mother custody and the Father
"liberal visitation, " which he claims he
exercised. Id. ¶¶ 8, 10. On April 29,
2014, the Father learned that the Mother left El Salvador
with the Child, with the intent to go to the United States.
Id. ¶ 16. The Father did not consent to the
Child's removal from the country. Id.
Mother and the Child entered the United States in May 2014
and ICE/DHS detained them at the Texas-Mexico border
"and placed [them] immediately into removal
proceedings." Stmt. 1, ECF No. 29. But, following a
"credible fear interview . . . it was determined that
the Respondent and the child feared returning to their native
country of El Salvador based on the information provided
about Jose Omar Flores Perla, Petitioner."
Id. They were allowed to remain in Texas under
the supervision of ICE/DHS.
5, 2014, the Father sought the return of the Child through
the El Salvador courts and the Attorney General of El
Salvador. Pet. ¶¶ 18-20 & Ex. 3-5, ECF Nos. 1-3 -
1-5. On May 20, 2014, the Father filed an Application for
Return of the Child with the Central Authority of El
Salvador, which was submitted to the Central Authority of the
United States of America under the Hague Convention.
Id. ¶¶ 20-21 & Ex. 6, ECF No. 1-6. The
Second Family Court of San Miguel temporarily revoked the
Mother's custody on June 24, 2014. Id. ¶ 22
& Ex. 4.
who resides in El Salvador, filed suit in this Court with the
assistance of counsel, who is providing representation that
is largely pro bono. He filed his Petition on January 11,
2016, alleging that the Child was in Maryland, and requesting
that the Court order the return of the Child to El Salvador.
Pet. ¶¶ 40-41. I promptly entered an Order to Show
Cause, ECF No. 9-1, on January 13, 2016. Petitioner had
trouble locating Respondent but ultimately successfully
served her by mailing via first class mail to her last known
residences in Maryland and last known residence in Texas on
March 24, 2016 and serving a person of suitable age and
discretion at her last two known places of employment on
March 28, 2016. ECF Nos. 19, 20, 21.
Mother and the Child are currently in a "supervision
program" in Texas and have a final merits hearing on
their asylum petitions scheduled for November 2019. Stmt.
1-2. They live in Houston, Texas with the Mother's new
husband, a U.S. citizen. Id. at 1. They have lived
in Houston since moving to the United States, except for a
period of time from Spring 2015 until early January, 2016
that they spent in Maryland for Respondent to care for her
mother, Sandra Velasquez, who lives in Maryland. Id.
at 2. They need prior DHS approval to leave Texas.
Id. at 1-2. Respondent's counsel has her
moved to dismiss or transfer the Petition on the basis that
the Child was in Texas, not Maryland, when the Father filed
the Petition. The parties fully briefed the motion, ECF Nos.
34, 38, and presented evidence at the hearing on June 29 and
Child Abduction Laws
Petition is brought pursuant to the Convention on the Civil
Aspects of International Child Abduction ("Hague
Convention" or "Convention"), T.I.A.S. No. 11,
760 at 1, 22514 U.N.T.S. at 98, reprinted in 51 Fed.
Reg. 10, 493 (1986), and the International Child Abduction
Remedies Act ("ICARA"), 22 U.S.C. § 9901
et. seq. (2001). Pet. ¶ 1. "The United States
ratified the Hague Convention in 1988, and Congress
implemented the Convention that same year through the
International Child Abduction Remedies Act (ICARA). 102 Stat.
437, 42 U.S.C. §§ 11601-11610 [22 U.S.C. §
9901 et seq.]." Lozano v. Montoya
Alvarez, 134 S.Ct. 1224, 1229 (2014). As of June 1,
2007, El Salvador also is a signatory to the Convention.
Hague Abduction Convention Country List, available at:
accessed April 21, 2016).
Convention has "two primary objections."
Lozano, 134 S.Ct. at 1228-29. First, its
"‘central operating feature, '"
id. (quoting Abbott v. Abbott, 560 U.S. 1,
9 (2010)), is "‘to secure the prompt return of
children wrongfully removed to or retained in any Contracting
State.'" Id. (quoting Hague Convention Art.
1). The second is "‘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. (quoting Hague Convention
Art. 1). Pursuant to Article 12 of the Convention, "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.'"
The return remedy is not absolute. Article 13 excuses return
where, for example, the left-behind parent was not
"actually exercising" custody rights when the
abducting parent removed the child, or where there is a
"grave risk" that return would "place the
child in an intolerable situation." Hague Convention,
Arts. 13(a)-(b) . . .. A state may also refuse to return the
child if doing so would contravene "fundamental
principles ... relating to the protection of human rights and
fundamental freedoms." Art. 20. . ..
. . .[ICARA] instructs courts to "decide the case in
accordance with the Convention." § (d).
Echoing the Convention, ICARA further provides that
"[c]hildren who are wrongfully removed ... are to be
promptly returned unless one of the narrow exceptions set
forth in the Convention applies." § (a)(4).
Finally, ICARA requires the abducting parent to establish by
a preponderance of the evidence that Article 12's
exception to return applies. § (e)(2)(B).
Lozano, 134 S.Ct. at 1228-29. As noted, the Father
alleges that the Child was wrongfully removed and seeks his
a Petition under ICARA May Be Filed in ...