Standardizing the Standard: Determination of “Habitual Residence” Under the Hague Convention

BACKGROUND

In 1980, the United States and the member states of the Hague Conference on Private International Law unanimously adopted the Convention on the Civil Aspects of International Child Abduction. In 1988, Congress passed the Hague Convention’s enabling statute, the International Child Abduction Remedies Act. 22 U.S.C. §§ 9001–9011. In doing so, Congress reiterated the Convention’s purpose “to help resolve the problem of international abduction and retention of children” and to “deter such wrongful removals and retentions.” 22 U.S.C. § 9001(a)(4). Accordingly, Congress empowered “courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claim.” 22 U.S.C. § 9001(b)(4). As a result, the determination of a child’s “habitual residence” is the fundamental question in any case under the Hague Convention. The answer controls whether the Convention applies, which nation’s laws determine custodial or access rights, and whether a child must be sent across international borders to another country for adjudication of those rights.

THE ISSUE

Whether a district court’s determination of “habitual residence” under the Hague Convention should be reviewed:

  1. De novo, as seven circuits have held;
  2. Under clear-error review, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held; or
  3. Under a deferential version of de novo review, as the U.S. Court of Appeals for the 1st Circuit has held.

THE SPLIT

Among the ten circuits that have addressed the issue, three different standards have emerged for reviewing a district court’s habitual-residence determination.

Seven circuits apply de novo review to a district court’s determination of habitual residence, thus reviewing the district court’s underlying findings of historical fact for clear error. The Second Circuit explained that the habitual residence determination is heavily fact-dependent, but the question of whether the pertinent facts satisfy the legal standard is a question of law to be reviewed de novo. Guzzo v. Cristofano (2013). Similarly, the Third Circuit held that the “determination of habitual residence is not purely factual, but requires the application of a legal standard, which defines the concept of habitual residence, to historical and narrative facts.” Feder v. Evans-Feder (1995). Keeping in line with this approach, the Third Circuit applies “a mixed standard of review, accepting the district court’s historical or narrative facts unless they are clearly erroneous, but exercising plenary review of the court’s choice of and interpretation of legal precepts and its application of those precepts to the facts.” The Fifth Circuit agrees, explaining that such a determination presents a mixed question of law and fact subject to de novo review. Larbie v. Larbie (2012). The Seventh, Eighth, Ninth, and Eleventh Circuits also apply the same approach — reviewing the underlying historical facts for clear error, but reviewing the ultimate determination of habitual residence de novo. Koch v. Koch (7th Cir. 2006); Silverman v. Silverman (8th Cir. 2003); Mozes v. Mozes (9th Cir. 2001); Ruiz v. Tenorio (11thCir. 2004).

In contrast, the Fourth Circuit found that the crux of the habitual residence determination is whether the district court’s finding is clearly erroneous. Maxwell v. Maxwell (2009). Almost a decade later, the Sixth Circuit joined the Fourth Circuit in applying that deferential standard. The Sixth Circuit held in Taglieri v. Monasky (2018) that it would “treat the habitual residence of a child as a question of fact.” Emphasizing the comparative advantages of trial and appellate courts and the highly deferential nature of clear-error review, the court uniquely articulated that it would affirm the district court’s habitual-residence determination “unless the fact findings ‘strike us as wrong with the force of a five week-old, unrefrigerated dead fish.’” The court then deferred not only to the district court’s findings of historical fact but also to its determination that those facts were legally sufficient to establish a child’s habitual residence.

The First Circuit adopted a hybrid approach. Although it applies clear-error review to historical facts underlying the habitual-residence determination and de novo review to the district court’s resolution of that question, the First Circuit gives some deference to the district court’s determination. According to the First Circuit, it is fairly difficult in Hague Convention litigation “to attach an abstract label to a complex of discrete facts, some of which push each way.” Nicolson v. Pappalardo (2010). With this approach, the court will reverse a “district court’s raw fact findings . . . only for clear error,” giving some form of deference to the district court’s application of the standard in determining habitual residence.

LOOKING FORWARD

When Congress adopted legislation implementing the Convention, it emphasized “the need for uniform international interpretation of the Convention.” 22 U.S.C. § 9001(b)(3)(B). Ten circuits applying three approaches is not the uniformity Congress intended. Fortunately, the Supreme Court found a proper vehicle to address the lack of uniformity in Monasky v. Taglieri. Set for oral argument on December 11, 2019, the Supreme Court will shed light on which standard of review a Court of Appeals should apply to a district court’s determination of habitual residence under the Hague Convention. In deciding Monasky, the Sixth Circuit created an additional split that the Supreme Court will also examine later this year. That issue will be discussed in another Sunday Split.

Violence By Any Other Name: Interpreting “Crimes of Violence” under 18 U.S.C. § 16(a)

BACKGROUND

18 U.S.C. § 16(a) defines a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” In Leocal v. Ashcroft (2004), the Supreme Court held that the section requires courts “to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.” Essentially, in applying § 16(a), courts must presume that a conviction rests upon nothing more than the least of the acts criminalized and then determine whether that conviction matches up with the federal offense.

The Supreme Court reinforced its holding in Johnson v. United States (2010), where it found a provision of the Armed Career Criminal Act (ACCA) similar to § 16(a). The Court observed that the word “force” might evoke the common-law crime of battery, where “the intentional application of unlawful force against the person of another” could “be satisfied by even the slightest offensive touching.” Thus, it rejected the ACCA’s interpretation and maintained its interpretation of “use of physical force” in Leocal.

However, in Castleman v. United States (2014), the Court adopted a different meaning of the phrase “use of physical force” in their interpretation of the Domestic Violence Gun Offender Ban. The Court departed from the interpretation adopted in Johnson and Leocal and held that under § 921(a)(33)(A) a prior conviction has the “use of physical force” as an element even if it can be satisfied by “the slightest offensive touching,” thus adopting for § 921(a)(33)(A) the common-law meaning of “force.” At the same time, the Court emphasized that nothing in its decision casted doubt on Leocal’s and Johnson’s holding that a “crime of violence” requires “violent force” and not mere common-law force. However, the Court expressly reserved the issue of whether or not the causation of bodily injury necessarily entails violent force as required by § 16(a).

THE ISSUE

Does an offense qualify as a crime of violence within the meaning of § 16(a) if a state statute criminalizes only the causation or threat of bodily harm—without a distinct element requiring the use or threatened use of physical force? Or does § 16(a) apply only if the statute also requires the use, attempted use, or threatened use of physical force?

THE SPLIT

The First, Second, and Fifth Circuits hold that § 16(a) does not apply to convictions under statutes that do not include physical force as an element of the crime, reasoning that bodily injury can be inflicted without physical force—such as by trickery or poisoning. However, the Eighth, Seventh, and Ninth Circuits hold that § 16(a) covers such offenses considering that any bodily injury at least involves indirect physical force.

In Chrzanoski v. Ashcroft (2003), the Second Circuit explained that “use of force must be an element of that offense for that offense to be a crime of violence under § 16(a).” Therefore, where nothing in the language of the state statute requires the government to prove that force was used in causing the injury, the force element required by § 16(a) is absent. Accordingly, the Second Circuit rejected the Government’s argument “that force is implicit in the statute,” because “such an argument equates the use of physical force with harm or injury.” In United States v. Villegas-Hernandez (2006), the Fifth Circuit followed the Second Circuit’s reasoning, explaining that “Chrzanoski’s analysis is fully applicable” to a Texas domestic assault statute criminalizing the causation of “bodily injury to another.” The court held that the force element required by § 16(a) was absent because “‘bodily injury’ … could result from any number of acts” that would not require “the government … to show the defendant used physical force.” The First Circuit reached the same conclusion in Whyte v. Lynch (2015) by explaining that where the statute “identifies only two elements”—intent to cause physical injury and causing such injury—the crime does not contain as a necessary element “the use, attempted use, or threatened use” of violent force.

On the other hand, the Seventh, Eighth, and Ninth Circuits hold that § 16(a) applies to “bodily harm” offenses even if the relevant state statute does not include physical force as an element of the crime. In De Leon Castellanos v. Holder (2011), the Seventh Circuit held that under § 16(a), and under Illinois law, a misdemeanor conviction for “intentionally causing bodily harm to any family or household member” constitutes a “crime of violence.” The Ninth Circuit similarly held that offenses covering threats of injury—regardless of how that injury is caused—constitutes crimes of violence under § 16(a). In Arellano Hernandez v. Lynch (2016), the court found that a California conviction for a mere attempt to “threaten to commit a crime which will result in death or great bodily injury” involves “the use, attempted use, or threatened use of force” meant by § 16(a). Finally, the Eighth Circuit joined the Seventh and Ninth Circuits in United States v. Schaffer (2016) holding that state statutes criminalizing the causation, or threatened causation, of bodily injury necessarily includes the force requirement of § 16(a) under ACCA’s force prong—which mirrors that in § 16(a). In the Eighth Circuit’s view, causing bodily harm or fear of imminent bodily harm by means such as exposing someone to a deadly virus or by employing poison are indirect applications of physical force. Thus, a statutory element requiring actual or threatened bodily injury is necessarily equivalent to “an element requiring the use, attempted use, or threatened use of physical force.”

LOOKING FORWARD

This circuit split is a significant because § 16(a) operates in numerous contexts and there are dozens of state crimes across the country that require only “bodily harm,” “physical harm,” or “physical injury,” without an additional “physical force” requirement. All of these statutes implicate the circuit split because inconsistent results will continue to occur unless the Supreme Court clarifies the issue. Right now, the government can engage in forum-shopping in a circuit with precedent favorable to the government. Furthermore, section 16(a) supplies the general definition for a “crime of violence” for the entire Criminal Code. As such, it operates in the context of more than a dozen criminal provisions, several of which impose severe, mandatory sentences for those deemed to have prior convictions for “crimes of violence,” regardless of the sentence imposed for the original offense.

Do Federal Courts Have Jurisdiction over Civil Actions under the Federal Tort Claims Act by Immigrants Alleging Wrongful Removal from the United States?

The Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) allows those who have suffered an injury, or whose property is damaged, to file a claim with the federal government for reimbursement for that injury or damage. Under 28 U.S.C. § 2674, the federal government recognizes its liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties. The FTCA positions the United States—not the individual employee—as the defendant, and transfers all liability to the federal government. Therefore, the United States is liable the same way that a private party would be liable in a normal civil action.

The Issue

Two cases, each with similar factual backgrounds, help illustrate the question at hand. In both cases, the plaintiffs—Lopez Silva and Claudio Anaya Arce—were erroneously deported and subsequently sued the federal government under the FTCA. In Silva’s case, he was a Mexican citizen who resided in the United States as a lawful permanent resident since 1992. After he was convicted of two criminal offenses in Minnesota, the Department of Homeland Security commenced removal proceedings against him in 2012. Silva appealed to the Board of Immigration Appeals, which issued a stay of Silva’s removal while his appeal was pending. However, in July 2013, DHS mistakenly removed Silva to Mexico before the BIA heard his appeal. DHS subsequently returned Silva to the United States several months later. An immigration judge subsequently granted Silva’s application for cancellation of his removal—allowing him to lawfully remain in the country.

In Arce’s case, he was apprehended by Customs and Border Patrol and detained in Adelanto, California in April 2014. He expressed a fear of harm if he was removed to Mexico, but an asylum officer determined that he had not demonstrated a reasonable fear of persecution or torture. This decision was affirmed by an immigration judge on February 4, 2015, and the DHS began the process of removing him to Mexico. However, on February 6, Arce filed an emergency petition for review and a motion for a stay of removal with the Ninth Circuit. The court immediately issued a temporary stay of removal, but Arce was removed to Mexico later that day—despite the fact that Arce’s counsel put DHS on notice of the stay. Arce remained in Mexico until February 20, when he was returned to the United States.

Both Silva and Arce sued the federal government for harm arising from their unlawful removal. The District Courts of Minnesota and the Central District of California dismissed both cases on the ground that Section 242(g) of the Immigration and Nationality Act deprived them of jurisdiction. Specifically, they held Section 242(g), which applies to agency decisions or actions to “commence proceedings, adjudicate cases, or execute removal orders” divested them of subject-matter jurisdiction. Silva and Arce appealed to the Eighth and Ninth Circuits, respectively.

The Circuit Split

Both cases raise the question: do federal courts have jurisdiction over civil actions brought under the FTCA by immigrants alleging wrongful removal from the United States?

In Silva v. United States (2017), the Eighth Circuit affirmed the district court’s decision in a 2-1 ruling that it lacked jurisdiction under the FTCA. The court held that Silva’s claims were directly connected to the execution of the removal order, and that Section 242(g) applied to bar the plaintiff’s civil action.

Judge Kelly dissented, however, and argued that the United States Supreme Court rejected the assumption that Section 242(g) covered that kind of deportation claim in Reno v. American-Arab Anti-Discrimination Committee (1999). She would have held that the mandatory automatic stay in Silva’s case “suspended the source of authority for the agency to act” on the removal order and therefore “temporarily divested the order of enforceability.” Accordingly, Silva’s claims did not arise “from the government’s decision or action to execute a removal order,” because a valid removal order did not exist at the time he was removed. She noted that the Third Circuit had held in Garcia v. Attorney General (2009), that Section 242(g) doesn’t apply when the petitioner is challenging the government’s authority to commence removal proceedings, not the discretionary decision to commence proceedings.

The Ninth Circuit charted a different course than the Eighth Circuit, and instead embrace the position that Judge Kelly articulated in dissent. In Arce v. United States (2018), the court rejected the government’s argument that Arce’s claims were foreclosed by Section 242(g) because they arose from the Attorney General’s decision or action to execute the removal order. Citing Judge Kelly’s dissent in Silva, the court held that the statute does not “sweep as broadly as the government contends.” Arce, it found, was not attacking the removal itself but the authority of the Attorney General to execute the removal order in light of the stay of removal that the court had issued.

Looking Forward

Though these cases have mostly flown under the radar—especially given the recency of the Ninth Circuit’s opinion—they raise important ramifications for those who wish to bring claims under the FTCA for wrongful removal. In many ways, this split is a perfect embodiment of the reason that the Supreme Court wishes to avoid circuit splits in the first place. In some parts of the country, the federal government is financially liable for actions that it is not liable for in other parts of the country, raising the need for the Supreme Court to resolve the split.