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Perla v. Velasquez

United States District Court, D. Maryland

July 18, 2016

JOSE OMAR FLORES PERLA, Plaintiff,
v.
JACQUELINE IVONNETH PERLA VELASQUEZ, Defendant.

          MEMORANDUM OPINION

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         Factual and Procedural Background

         The 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. ¶¶ 29-31.

         The 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.[1] They were allowed to remain in Texas under the supervision of ICE/DHS.

         On May 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.

         Petitioner, 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.

         The 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 passport. Id.

         Respondent 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 30, 2016.

         International Child Abduction Laws

         The 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).[2] 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: http://travel.state.gov/content/ childabduction/en/country/hague-party-countries.html (last accessed April 21, 2016).

         The 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.'" Id.

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." § [9903](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." § [9901](a)(4). Finally, ICARA requires the abducting parent to establish by a preponderance of the evidence that Article 12's exception to return applies. § [9903](e)(2)(B).

Lozano, 134 S.Ct. at 1228-29. As noted, the Father alleges that the Child was wrongfully removed and seeks his prompt return.

         Where a Petition under ICARA May Be Filed in ...


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