Carlos Alberto Cuenca Figueredo v. Yauri Del Carmen Rojas

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12566
____________________
CARLOS ALBERTO CUENCA FIGUEREDO,
Petitioner-Appellant,
versus
YAURI DEL CARMEN ROJAS,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:22-cv-01268-TJC-LLL
____________________
Before J ILL PRYOR , NEWSOM , and G RANT, Circuit Judges.
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G RANT, Circuit Judge:
Eight-year-old C.R. and his parents are all citizens of
Venezuela, where C.R. was born and where his father, Carlos
Cuenca Figueredo (Cuenca), still lives. C.R.’s mother, Yauri Rojas,
took C.R. from Venezuela three years ago without his father’s
knowledge or permission and brought him to the United States.
She and C.R. have lived in the same apartment near Jacksonville,
Florida ever since.
Twenty months after Rojas absconded with their only child,
Cuenca filed a petition in the Middle District of Florida seeking the
return of his son under the Hague Convention on the Civil Aspects
of International Child Abduction. The Convention and its
implementing legislation generally require the immediate return of
a child to his home country when the abandoned parent files a
petition for return within one year of the wrongful removal of the
child. But because Cuenca filed his petition more than a year after
C.R.’s mother took him from Venezuela, the Convention allowed
the district court to refuse his petition for return if it found that
C.R. was settled in his new home in the United States.
The district court did find that C.R. was settled in his new
environment—after two years living in the same home, attending
the same elementary school, and participating in various
extracurricular activities in the same community in Florida—and it
denied Cuenca’s petition for C.R.’s return. To resolve Cuenca’s
appeal, we must decide whether and how the immigration status
of a child and respondent affects child-settlement decisions under
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23-12566 Opinion of the Court 3
the Convention. Along the way, we must also clarify our standard
of review for the district court’s determination that a child is or is
not “settled” within the meaning of the Convention.
We conclude that immigration status is one factor among
many that may be relevant when assessing the relative stability and
permanence of the child’s connections to his new home. As with
any other relevant factor, the weight assigned to immigration
status will vary according to the child’s individual circumstances.
And because identifying and weighing all the relevant factors to
determine whether a child is settled in his new home is essentially
a factfinding exercise, we review the district court’s determination
on this issue only for clear error.
The district court here correctly identified C.R. and his
mother’s immigration status as a relevant—but not dispositive—
factor in whether C.R. is settled in his home in Florida. The court’s
finding that C.R. is settled in his new environment was not clearly
erroneous, and its decision not to order C.R.’s return to Venezuela
despite his settlement was not an abuse of discretion. We therefore
affirm the denial of Cuenca’s petition.
I.
A.
The Hague Convention on the Civil Aspects of International
Child Abduction “was adopted in 1980 in response to the problem
of international child abductions during domestic disputes.” Abbott
v. Abbott, 560 U.S. 1, 8 (2010); see generally Convention, Oct. 25,
1980, T.I.A.S. No. 11,670, S. Treaty Doc. No. 99–11. The
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Convention’s “core premise” is that children’s interests in custody
matters “are best served when custody decisions are made in the
child’s country of ‘habitual residence.’” Monasky v. Taglieri, 589
U.S. 68, 72 (2020) (quoting Convention, pmbl.). In service to that
principle, the Convention requires signatory nations to establish
procedures for the rapid return of abducted children to the place
where the child habitually resided before the abduction.
Convention, pmbl., arts. 1–2, 6–12.
The United States ratified the Convention, and Congress
implemented it through the International Child Abduction
Remedies Act (ICARA). See T.I.A.S. No. 11,670; 22 U.S.C. § 9001 et
seq. ICARA allows the parent of an abducted child to file a petition
for the child’s return in a state or federal court in the jurisdiction
where the child is located, and directs courts to “decide the case in
accordance with the Convention.” 22 U.S.C. § 9003 (a)–(b), (d).
Consistent with the objects of the Convention, ICARA provides
that “[c]hildren who are wrongfully removed or retained within
the meaning of the Convention are to be promptly returned unless
one of the narrow exceptions set forth in the Convention applies.”
Id. § 9001(a)(4).
One of the Convention’s “narrow exceptions” applies only
when the parent seeking the child’s return files her petition more
than one year after the child’s wrongful removal or retention. See
Convention, art. 12. In that case, the court is not required to order
the return of the child if the responding parent shows by a
preponderance of the evidence that “the child is now settled in its
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23-12566 Opinion of the Court 5
new environment.” Id.; see 22 U.S.C. § 9003(e)(2)(B). Even then,
the court has the discretion to order the child’s return—though
“the return of a settled child should be an infrequent occurrence.”
Fernandez v. Bailey, 909 F.3d 353, 363 (11th Cir. 2018); see
Convention, art. 18.
B.
The parties here do not dispute that Rojas wrongfully
removed C.R. from Venezuela in March 2021 in violation of their
custody agreement and Cuenca’s parental rights under Venezuelan
law. At the time, Cuenca and Rojas—who separated before C.R.
was born and divorced two years later—shared custody of C.R. so
that he spent his days with Cuenca at his paternal grandparents’
home and his nights with Rojas. One morning, Rojas told the
paternal grandfather that she was taking C.R. to a family farm in
Venezuela; she took him across the border into Colombia and then
to the United States. She called Cuenca a few days later and told
him that she and C.R. were on vacation in the United States. She
revealed that they were in Jacksonville, Florida, but did not provide
a specific address.
During the months that followed, Rojas repeatedly assured
Cuenca that she would return to Venezuela with their son in time
for him to start school there in the fall. But even while she
attempted to placate Cuenca, she enrolled C.R. in the local
elementary school after moving in with her boyfriend in Orange
Park, Florida (a suburb of Jacksonville). She also applied for asylum
in the United States for both herself and C.R. She was given a
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Social Security number, authorization for employment, and
permission to remain in the United States for the duration of the
asylum proceedings. She bought a car, got a full-time job, and
enrolled C.R. in a YMCA program before and after school. In
October 2021, she admitted to Cuenca that she intended to settle
permanently in the United States with C.R.
Two months later, Cuenca visited his son in Florida and
attempted to persuade Rojas to send C.R. back to Venezuela. She
refused. He returned to Venezuela and filed an action for custody
of C.R. Rojas appeared in the Venezuelan custody proceedings
through counsel, but ultimately the Venezuelan courts awarded
full custody of C.R. to Cuenca and denied Rojas’s appeal.
In the meantime, C.R. flourished in his new home. He and
Rojas continued to live in the same apartment in Orange Park,
Florida and took trips to visit a cousin in Orlando and family friends
in South Carolina. He learned to speak and read English, earned
good grades, and made friends in the neighborhood, at the YMCA,
and at school. He took swimming lessons and karate classes. He
won school awards for academics, good character, helpfulness,
citizenship, and perfect attendance. At the YMCA, he won the
“most friendly” award for making the most friends throughout the
year.
C.R. also maintained ties with his family in Venezuela. He
spoke with his father, his paternal grandparents, and his uncle on
the phone almost every day, and his father traveled to the United
States to visit him three times between December 2021 and
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February 2023. According to Cuenca, C.R. initially said that he
would like to return to Venezuela, but he didn’t want to leave his
mother. But after nearly two years in the United States, according
to Rojas’s uncontradicted testimony, C.R. preferred his life and his
friends in the United States and said openly that he did not want to
go back to Venezuela.
C.
Twenty months after Rojas left Venezuela with C.R.,
Cuenca filed a petition in the Middle District of Florida seeking his
son’s return under the Convention and ICARA. Rojas opposed the
petition, arguing that even if it was wrong of her to take C.R. out
of Venezuela, one or more of the Convention’s exceptions to the
return remedy applied. In particular, Rojas argued that C.R. should
not be returned to Venezuela because Cuenca had filed his petition
more than a year after she removed C.R. from Venezuela and he
had since become settled in his new home in the United States.1
The district court held an evidentiary hearing and heard
testimony from Cuenca, Rojas, one of C.R.’s teachers, and an
employee of the YMCA where C.R. attended before- and after-
school programs. After the hearing, the district court instructed
Rojas to file her asylum application under seal, which she did.
1 Initially, Rojas also argued that C.R.’s return to Venezuela would expose him
to physical or psychological harm, and that C.R. wished to remain in the
United States and was old enough and mature enough that his wishes should
be considered. See Convention, art. 13. She has since abandoned those argu-
ments.
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Based on all the evidence before it, the district court determined
that Cuenca had established a prima facie case for C.R.’s return
under the Convention by showing that the child was less than 16
years old and that Rojas had wrongfully removed him from
Venezuela, his place of habitual residence. But the court also
concluded that the Convention did not require C.R.’s return
because Cuenca had filed his petition more than a year after the
child’s wrongful removal from Venezuela, and C.R. had become
settled in his new environment.
In making its finding that C.R. was settled in Florida, the
district court considered his uncertain immigration status as one
factor, but noted—without making any judgment on the merits of
Rojas’s immigration case—that the application for asylum was
detailed and not frivolous, and that Rojas had been granted
authorization to remain and work in the United States while the
petition remained pending. The court also noted that eligible
Venezuelan citizens enjoyed Temporary Protected Status due to
poor humanitarian conditions in that country. This meant that
Rojas and C.R. probably would not be removed from the United
States for at least another year even if Rojas’s application for
asylum were eventually denied.
Finally, the district court acknowledged that it had the
discretion to return C.R. to Venezuela under the Convention even
though he was settled in the United States. See Convention, art. 18;
Fernandez, 909 F.3d at 362. But the court declined to exercise that
discretion, concluding that C.R.’s interest in settlement
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23-12566 Opinion of the Court 9
outweighed his father’s interest in C.R.’s return and the general
need to discourage wrongful conduct like his mother’s.
On appeal, Cuenca argues that the district court failed to
adequately consider Rojas and C.R.’s immigration status in
determining that C.R. was settled in the United States. And he
argues that even if C.R. is settled, other equitable considerations
outweigh the interest in settlement and should have led the district
court to order C.R. returned to Venezuela.
II.
Before reaching the merits of Cuenca’s appeal, we must
clarify the standard of review for a district court’s determination
that a child is or is not “settled” in his new home within the
meaning of the Convention—a question we have not explicitly
answered in previous cases. Generally, in deciding an appeal under
the Convention and ICARA, we review a district court’s legal
conclusions de novo and its factual findings for clear error. Gomez
v. Fuenmayor, 812 F.3d 1005, 1007 (11th Cir. 2016). The
determination of whether a child is settled in his new environment
presents, at least to some extent, a mixed question of law and fact.
The standard of review for such questions depends on “whether
answering it entails primarily legal or factual work.” Monasky, 589
U.S. at 83–84 (quoting U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset
Mgmt. LLC v. Vill. at Lakeridge, LLC, 583 U.S. 387, 396 (2018)).
Like the analogous concept of a child’s “habitual residence,”
the determination of whether a child is settled begins with the
selection of the appropriate legal framework: a case-specific
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totality-of-the-circumstances analysis. Fernandez, 909 F.3d at 361;
see Monasky, 589 U.S. at 84. “Once the trial court correctly identifies
the governing totality-of-the-circumstances standard, however,
what remains for the court to do in applying that standard” is classic
factfinding work. Monasky, 589 U.S. at 84; see Lops v. Lops, 140 F.3d
927, 946 (11th Cir. 1998) (describing the district court’s
determination on the issue of settlement as a finding of fact). The
court must “marshal and weigh evidence, make credibility
judgments,” and consider “multifarious, fleeting, special, narrow
facts” specific to the child’s circumstances. Vill. at Lakeridge, 583
U.S. at 396 (quotation omitted). The assessment of whether a child
is settled “thus presents a task for factfinding courts, not appellate
courts, and should be judged on appeal by a clear-error review
standard deferential to the factfinding court.” Monasky, 589 U.S. at
84. “A factual finding is clearly erroneous when a review of the
entire record leaves us with the definite and firm conviction that a
mistake has been committed.” Berenguela-Alvarado v. Castanos, 950
F.3d 1352, 1357 (11th Cir. 2020) (quotation omitted). But even if
the district court finds, as it did here, that the wrongfully removed
child is “now settled in its new environment,” the court has the
discretion to order the child returned to the country where he or
she habitually resided at the time of the removal. Convention, art.
12; Fernandez, 909 F.3d at 362–63. We then review the district
court’s ultimate decision whether to return a child for abuse of
discretion. Fernandez, 909 F.3d at 363.
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III.
A.
Neither the Convention nor ICARA defines the term
“settled” or provides any guidance on the factors courts should
consider when determining whether a child is settled. In this
circuit, a child is “settled” for purposes of the Convention “when a
preponderance of the evidence shows that the child has significant
connections to their new home that indicate that the child has
developed a stable, permanent, and nontransitory life in their new
country to such a degree that return would be to the child’s
detriment.” Id. at 361. In making this determination, courts must
“carefully consider the totality of the circumstances,” including
evidence of the child’s “significant connections to the new country”
as well as evidence of continuing “contacts with and ties to his or
her State of habitual residence.” Id. (quoting State Dep’t Legal
Analysis, 51 Fed. Reg. 10,494, 10,509 (March 26, 1986)).
Factors that may be relevant to whether a child is “settled”
in his new environment include (1) whether the child is old enough
to form attachments beyond the parent or guardian with whom he
lives; (2) the duration and stability of the child’s residence in the
new country; (3) whether the child has friends and relatives in the
new environment; (4) whether the child regularly attends school
or daycare; (5) the child’s participation in community or
extracurricular activities; (6) the respondent’s employment and
financial stability; and (7) the child and respondent’s immigration
status. See da Costa v. de Lima, 94 F.4th 174, 179–80 (1st Cir. 2024);
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Hernandez v. Garcia Peña, 820 F.3d 782, 787–88 (5th Cir. 2016); see
also Lozano v. Montoya Alvarez, 572 U.S. 1, 17 (2014).
Here, Cuenca does not contest the district court’s
determination that most of the relevant circumstances weigh in
favor of finding that C.R. is settled in his new environment. C.R.
is now almost nine years old, and he has been living in the same
apartment in Florida with his mother and her boyfriend since he
arrived in the United States three years ago. He has made many
friends and has developed close friendships with children his age
who attend classes and after-school programs with him. He has
attended the same elementary school since 2021. He has become
fluent in English, is doing well in all his classes, and is well-liked by
his teachers and other students. He loves participating in activities
at the YMCA and is considered the leader of his group of friends
there. He also enjoys the karate lessons he began taking last year.
His mother has stable, full-time, “on-the-books” employment, is
financially capable, and plans to remain permanently in the United
States. In short, C.R. has acclimated well to his new home and has
developed significant, enduring connections to his community.
Despite these signs that C.R. has become established in his
new life, Cuenca argues that his son’s lack of permanent legal status
in this country means that he cannot be considered “settled” as that
term is used in the Convention. More specifically, he argues that
discrepancies between Rojas’s testimony at the evidentiary hearing
and her application for asylum showed that the application was
fraudulent and has no chance of success. He also argues that the
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district court should not have considered the Secretary of
Homeland Security’s extension of Temporary Protected Status for
Venezuelans because Rojas and C.R. were not eligible for that
protection at the time.
We agree that a child’s lack of permanent legal status in the
United States can have a negative impact on his ability to establish
a “stable, permanent, and nontransitory life” in this country,
especially if removal seems imminent. Fernandez, 909 F.3d at 361.
But we decline to state categorically that a child without
permanent legal immigration status cannot become “settled” in the
United States within the meaning of the Convention. Instead, we
join several of our sister circuits in holding that a child’s
immigration status is one relevant factor that must be evaluated in
the context of the child’s individual circumstances. See da Costa, 94
F.4th at 180; Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir. 2012); Alcala
v. Hernandez, 826 F.3d 161, 171 (4th Cir. 2016); Hernandez, 820 F.3d
at 787–88; In re B. Del C.S.B., 559 F.3d 999, 1009–14 (9th Cir. 2009).
Whether the child and respondent are present illegally, whether
they have a feasible path to permanent legal residence, and
whether they are currently embroiled in removal proceedings will
all be relevant to the court’s ultimate finding on the issue of
settlement.
When the respondent and child have a pending application
for permanent legal status, an assessment of the facial validity of
the application may be helpful. But we reject the suggestion that
district courts should attempt to prejudge the merits of an
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immigration petition—in general, district courts have no role in
immigration proceedings and are not in the best position to predict
how an immigration judge or the Board of Immigration Appeals
may rule. See 8 U.S.C. § 1252(a)(5).
Here, the district court appropriately considered that Rojas’s
application for asylum was “detailed and non-frivolous” while
declining to express an opinion on the merits of the application. It
is true that Rojas’s testimony at the evidentiary hearing
contradicted one of the statements in her application for asylum.
But the essential parts of Rojas’s asylum claim—her history of
serious conflicts with Venezuelan authorities and her fear of
returning there—were consistent with her testimony in the district
court. And because Cuenca failed to raise this issue until after the
district court denied his petition and the record contained nothing
from Rojas’s asylum proceedings except the initial application, the
district court had no way of knowing whether Rojas would be able
to correct her application or explain the inconsistency to the
immigration judge.
Considered in context with other details of C.R.’s
immigration status, the uncertain fate of Rojas’s application for
asylum does not necessarily outweigh the evidence of C.R.’s many
lasting connections to his new community. As the district court
noted, Rojas and C.R. were authorized to remain in the United
States for the duration of the proceedings on their asylum claim.
They had been living in Florida for two years already, and they had
not yet had the first scheduling hearing in their immigration
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proceedings. And although Rojas and C.R. did not then meet the
length-of-residency requirement for Temporary Protected Status,
the Secretary’s formal declaration in September 2022 that “severe
economic and political crises ongoing within Venezuela”
prevented Venezuelans from returning in safety at least indicated
that their removal to Venezuela would not be a priority in the near
future.2 Extension of the Designation of Venezuela for Temporary
Protected Status, 87 Fed. Reg. 55,024, 55,026 (Sept. 8, 2022). In the
circumstances, we cannot say that the district court clearly erred in
finding that C.R. is “now settled” in his new environment.
B.
Of course, the fact that C.R. is settled does not end the
matter; the Convention gives courts the discretion to order the
return of even a settled child. See Convention, art. 18. But that
discretion should be exercised sparingly to avoid “swallow[ing] the
text of Article 12’s stated exception” allowing settled children to
stay where they are. Fernandez, 909 F.3d at 363. Sometimes,
though, the objectives of the Convention—ensuring that child-
custody decisions are made in the child’s home country and
discouraging parents from absconding with children in search of a
friendlier custody forum—will outweigh the child’s interest in
2 In October 2023, Secretary Mayorkas re-designated Venezuela for Tempo-
rary Protected Status, offering Rojas and C.R. protection from removal
through at least April 2025. Extension and Redesignation of Venezuela for
Temporary Protected Status, 88 Fed. Reg. 68,130 (Oct. 3, 2023), corrected by 88
Fed. Reg. 80,327 (Nov. 17, 2023).
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settlement. See id. at 363–64. Factors that may be relevant in this
inquiry include the child’s remaining ties to his home country, his
“need for contact with the non-abducting parent,” “the non-
abducting parent’s interest in exercising the custody to which he or
she is legally entitled,” and “the need to discourage inequitable
conduct” by abducting parents. Lozano, 572 U.S. at 20 (Alito, J.,
concurring).
Still, returning a settled child is the exception rather than the
rule, and here the district court did not abuse its discretion in
declining to order C.R.’s return to Venezuela. Rojas’s conduct in
removing C.R. from his home in violation of his father’s custody
rights was undoubtedly wrongful, as was her initial dishonesty in
informing Cuenca that she planned to return with C.R. even as she
applied for asylum. But she informed Cuenca almost immediately
that she had taken C.R. to Jacksonville, and she has made no effort
to conceal his location or keep Cuenca from speaking to C.R. or
visiting him in Florida. And although the district court’s denial of
Cuenca’s petition means that he will have to sue in Florida if he
wishes to formalize a custody arrangement, the district court’s
decision does not prevent the Florida court from awarding Cuenca
whatever custody and visitation rights it deems suitable.
* * *
Carlos Cuenca Figueredo established that his ex-wife
wrongfully abducted their only child from his home in Venezuela
in violation of Cuenca’s custody rights. Ordinarily, the Hague
Convention on the Civil Aspects of International Child Abduction
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would mandate the “prompt return” of Cuenca’s son. But Cuenca
waited more than a year to file his petition for the child’s return
under the Convention, and in the meantime, his son developed
stable, enduring ties to his new community. Under the
circumstances, the district court did not clearly err in finding that
Cuenca’s son was “settled” in his new home in the United States.
And because the facts of this case did not present equitable
considerations outweighing the child’s interest in settlement, the
district court did not abuse its discretion in refusing to order his
return to Venezuela. We therefore affirm the denial of Cuenca’s
petition.
AFFIRMED.
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