Joining Forces: Whether § 2 of the VRA Permits Aggregation to Create Majority-Minority Coalition Districts

BACKGROUND

Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in the VRA. In 1982, Congress amended § 2 to allow a plaintiff to establish a violation of the Section if the evidence established by a “totality of the circumstance of the local election process” that the standard, practice or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process and to elect representatives of their choice. In effect, this empowered voters to challenge district lines drawn to either dilute or pack minority voters to decrease their influence on the political process.

In its first case following the passage of the 1982 amendments, the Supreme Court explained in Thornburg v. Gingles that the “essence of the Section 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”

The Court in Gingles held the following:

  • That the use of multimember districts generally will not impede the ability of minority voters to elect representatives unless: (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group is politically cohesive; and (3) the white majority group votes sufficiently as a bloc to enable it to usually defeat the minority’s preferred candidate.
  • That a showing that a significant number of minority group members usually vote for the same candidates is one way of proving the requisite political cohesiveness.
  • A white bloc vote that normally will defeat the combined strength of minority support plus white “crossover” votes rises to the level of legally significant white bloc voting.
  • That the “clearly erroneous test” of Rule 52(a) of the Federal Rules of Civil Procedure is the appropriate standard of appellate review for a finding of vote dilution.

Despite these findings, the Court did not consider whether § 2 permits a claim brought by a minority group that is not sufficiently large and compact enough to constitute a majority in a single-member district.

In Growe v. Emison, Johnson v. DeGrandy, and LULAC v. Perry, the Supreme Court continued to sidestep the question by assuming, without deciding, that it is possible to state a § 2 claim for a racial group that makes up less than 50% of the population.

In Bartlett v. Strickland, the Court considered the “minimum-size” question under the first requirement of Gingles. It made clear that the holding only addressed the issue as it pertains to crossover districts, not coalition districts. In crossover districts, minority voters make up less than a majority of the voting population, but the minority population, at least potentially, is large enough to elect the candidate of its choice with the help of voters who are members of the majority and who cross over to support the minority’s preferred candidate. Coalition-district claims, on the other hand, involve two minority groups that form a coalition to elect the candidate of the coalition’s choice. The Court held that crossover districts are not protected under § 2.

THE ISSUE

Pursuant to § 2 of the Voting Rights Act, is the majority-minority requirement under the first Gingles precondition satisfied when minorities from more than one racial or ethnic group, joined together, constitute a majority of the citizen voting age population?

THE SPLIT

The 5th Circuit has been most explicit in permitting coalition districts. In Campos v. City of Baytown, the court held that minority voters can be aggregated so that “together, they are of such numbers residing geographically so as to constitute a majority in a single member district, they cross the Gingles threshold as potentially disadvantaged voters.” Still, the plaintiffs must prove the minorities actually vote together in a cohesive manner. The court determined that the standard for proving cohesion is whether the minority group together votes in a cohesive manner for the minority candidate.

Following Campos, the 2nd Circuit, 9th Circuit, and 11th Circuit have tacitly permitted coalition districts, though not as explicitly as the 5th Circuit. In both Badillo v. City of Stockton and Concerned Citizens of Hardee County v. Hardee County Board of Commissioners, the courts assumed it was acceptable to aggregate voters of different minority groups, but the plaintiffs in both cases failed to prove the requisite political cohesion necessary to satisfy the second Gingles requirement. In Bridgeport Coalition for Fair Representation v. City of Bridgeport, the 2nd Circuit assumed the coalition districts were covered under § 2 and that requisite political cohesion was proven to satisfy the elements of Gingles.

Deviating from the other circuits, the 6th Circuit refused to extend § 2 coverage to a minority group that includes more than one race or ethnicity. In Nixon v. Kent County, the court held that if Congress wanted to protect a minority group that was composed of more than one race or ethnicity, it would have used more words in the plural form in § 2, such as “protected classes” rather than “protected class.”

LOOKING FORWARD

Recently, the Supreme Court seems more willing to take on cases dealing with issues of independent redistricting commissions and partisan gerrymandering. It also has been willing to take on cases regarding § 5 of the Voting Rights Act, as well as the application of the Gingles factors in § 2 claims. While the Court has not yet signaled a willingness to take on the issue of coalition districts, the number of cases arising from the use of African-American and Hispanic voters to create the majority-minority districts will likely continue to increase as the Hispanic population continues to grow. If the Supreme Court does not take up the issue, there may be an increase in coalition districts drawn following the 2020 Census.

The Tapia Tap Dance: When Does Considering Rehabilitation in Imposing a Sentence Violate Tapia?

BACKGROUND

In 1984, Congress passed the Sentencing Reform Act, as part of the Comprehensive Crime Control Act. The Act, among other things, abolished federal parole in all but a few instances and created the United States Sentencing Commission. It also required courts to consider the factors outlined in 18 U.S.C. § 3553(a)—which include the nature of the crime, the characteristics of the defendant, the justification for the sentence, the kinds of available sentences, any relevant policies promulgated by the Sentencing Commission, the need for consistency, and the value of any potential restitution to victims.

However, §3582 of the Act went one step further. In a nod to concerns about excessive prison sentences imposed during the height of the War on Drugs, it provided that the above factors should be considered while also “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.” In Tapia v. United States (2011), the Supreme Court interpreted that provision of the Act to mean that “the Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant’s rehabilitation.”

THE ISSUE

What is the standard for determining when a sentencing court violates Tapia? When a court considers rehabilitation in imposing a sentence at all, does it violate Tapia? Or is Tapia only violated when a sentencing court uses rehabilitation as the determining factor?

THE SPLIT

As it turns out, every Circuit in the country—save for the D.C. Circuit—has taken a position on this issue. They’re divided into two camps.

The Seventh, Ninth, Tenth, and Eleventh Circuits apply an easy-to-satisfy standard: they hold that Tapia is violated when the sentencing judge even considers rehabilitation or bases his sentence even in part on rehabilitation. As articulated by the Tenth Circuit in United States v. Thornton (2017), for example, “A rule requiring reversal only when rehabilitation is the sole motivation would not make sense. The federal sentencing statute mandates that judges consider other factors. . . . Therefore, there will almost always be some valid reasons advanced by the district court for imposing the sentence issued.” The Eleventh Circuit in United States v. Vandergrift (2014) arrived at the same conclusion, and based its analysis on an interpretation “faithful to Tapia’s reasoning.” It noted that the Supreme Court held that sentencing courts “‘should consider the specified rationales of punishment except for rehabilitation’” when “determining whether to impose or lengthen a sentence of imprisonment.” Accordingly, any consideration of rehabilitation is improper.

The First, Second, Third, Fourth, Fifth, Sixth, and Eighth Circuits come out differently. For a sentencing court to run afoul of Tapia, they require a demonstration that rehabilitation was the determining factor in the sentencing court’s decision to impose or enhance a sentence in order to find a Tapia violation. They, too, base their rationale in the Supreme Court’s language in Tapia. For example, in United States v. Garza (2018), the Fifth Circuit noted:

in Tapia the Court made clear that “[a] court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.” A district court also may legitimately “urge the [Bureau of Prisons] to place an offender in a prison treatment program.” However, when the district court’s concern for rehabilitative needs goes further—when the sentencing record discloses “that the court may have calculated the length of [the defendant’s] sentence to ensure that she receive certain rehabilitative services”—§ 3582(a) has been violated.

Similarly, in United States v. Bennett (2012), the Fourth Circuit focused on looking at the specific error that the Supreme Court was attempting to remedy in Tapia. To glean the Supreme Court’s meaning, it looked at the sentencing court’s proceedings in Tapia and observed that the district court judge said that the “‘number one’ consideration ‘[was] the need to provide treatment.’” It observed that the Tapia decision was a “close question . . . whether the rehabilitation rationale drove the sentencing decision,” despite the sentencing court’s brazen discussion of rehabilitation. Accordingly, the Court couldn’t possibly mean that a district court judge’s mere discussion of rehabilitation ran afoul of Tapia.

The Third Circuit, which arrived at a conclusion on the proper interpretation of Tapia only ten days ago, articulated a related—but distinct—rationale. It noted in United States v. Schonewolf (2018) that that the first approach, taken by the Seventh, Ninth, Tenth, and Eleventh Circuits, would “risk a chilling effect on district courts ‘discussing the opportunities for rehabilitation within prison,’ a subject that ‘a court properly may address.’”

LOOKING FORWARD

Given that virtually every Circuit in the country has arrived at a conclusion on the meaning of Tapia—and that those meanings differ and are supported by different rationales—the Supreme Court has a strong incentive to take an appeal from one of these cases to resolve the split. Even more persuasively, the Sentencing Reform Act was intended to promote consistency in sentencing across the country. It’s a cruel twist of irony for the drafters of the Act that it, in turned, spurred even more inconsistency.

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.

Is the Board of Immigration Appeals Entitled to Chevron Deference When Interpreting What Constitutes Child Abuse?

BACKGROUND

Chevron U.S.A., Inc. v. Natural Resources Defense Council established a framework for determining whether the decisions of administrative bodies are entitled to judicial deference. In very simplified terms, Chevron states that, when a statute is ambiguous, the decisions of administrative agencies should be granted judicial deference unless they are arbitrary or capricious. This determination is made in two steps. First, the court must determine whether the plain language of the statute in question is ambiguous. Second, if the language is determined to be ambiguous, the court must determine whether the administrative agency’s decision was arbitrary or capricious.

The Board of Immigration Appeals (BIA) is the “highest administrative body for interpreting and applying immigration laws,” and has nationwide jurisdiction to hear appeals of decisions rendered by immigration judges. In this capacity, the BIA often finds itself interpreting the Immigration and Naturalization Act (INA) during immigration proceedings.

In the Ninth Circuit case Martinez-Cedillo v. Sessions (2018), Marcelo Martinez-Cedillo was convicted of felony child endangerment under California Penal Code §273a(a). Mr. Martinez-Cedillo was ordered removed from the United States on the grounds that his conviction constituted “a crime of child abuse, child neglect, or child abandonment” under INA §237(a)(2)(E)(i). On appeal, the primary issue—and the source of the circuit split—was whether BIA’s interpretation of “child abuse, child neglect, or child abandonment,” as written in the INA, was entitled to Chevron deference.

THE NINTH CIRCUIT’S CHEVRON ANALYSIS

The Ninth Circuit held, in a 2-1 decision, that the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” was entitled to Chevron deference. Writing for the majority, Judge Bybee acknowledged that, regarding Chevron Step One, “every circuit court to have considered [the definition of “a crime of child abuse, child neglect, or child abandonment] noted its ambiguity,” and proceeded to Chevron Step Two without much discussion. Under Chevron Step Two, Judge Bybee determined that the BIA’s interpretation was “reasonable and entitled to deference.”

In dissent, Judge Wardlaw characterized the BIA’s interpretation as “unreasonable,” noting that the BIA’s definition had “inexplicably changed its generic definition three times in the past two decades.” Judge Wardlaw, quoting the Supreme Court in Sessions v. Dimaya (2018), further stated that the BIA’s “generic definition of the ‘crime of child abuse’ is so imprecise, it violates ‘essential’ tenets of due process, most specifically ‘the prohibition of vagueness in criminal statutes.’”

THE CIRCUIT SPLIT

Here, the Ninth Circuit joins the Second, Third, and Eleventh Circuits in holding that the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” should be granted judicial deference under Chevron. On the other hand, the Tenth Circuit held that the BIA’s interpretation should not be granted judicial deference.

In the Second Circuit case Florez v. Holder (2015), the BIA determined that Nilfor Yosel Florez’s action of driving while intoxicated with children in the back seat of his vehicle constituted “a crime of child abuse,” noting that the BIA’s interpretation of what constituted “a crime of child abuse” was “intentionally broad.” Of note in this case, Florez’s children were not harmed during the incident that led to his arrest and order of removal. The court determined that the BIA’s determination that actual injury to a child was not a required element of this definition was a reasonable one.

In the Third Circuit case Mondragon-Gonzales v. Attorney General of the United States (2018), Judge Vanaskie noted that the portion of the INA that listed general categories of crimes “was enacted…as part of an aggressive legislative movement to expand the criminal grounds of deportability … and to create a comprehensive statutory scheme to cover crimes against children in particular.” Similarly, in the Eleventh Circuit case Martinez v. United States Attorney General (2011), the court granted deference to the BIA’s determination that proof of actual harm or injury to the child by the petitioner was not required.

But the Tenth Circuit disagreed—in Ibarra v. Holder (2013), the court refused to grant deference to the BIA’s determination that a Colorado conviction for “child abuse—negligence—no injury” constituted a “crime of child abuse, child neglect, or child abandonment” under the INA. The court noted that the plain language of the statute applied only to crimes, but that not all states criminalize certain acts of child neglect, particularly in the absence of mens rea beyond criminal neglect or in the absence of proof of actual injury to the child. The court reasoned that in effect, the BIA’s interpretation of “a crime of child abuse” and its subsequent application would vary from one jurisdiction to another, depending on whether certain acts of child neglect were criminalized.

LOOKING FORWARD

With at least five circuits speaking to whether the BIA’s interpretation of “a crime of child abuse” should be granted judicial deference, the issue is ripe for review by the Supreme Court. However, these decisions point to a larger problem—the vagueness of some of the language in the INA combined with the latitude granted to the BIA, which often acts as the final voice on deportation decisions, to make broad interpretations of certain portions of the statute. It is especially important to note that these immigration decisions are not limited to undocumented immigrants—for example, Mr. Florez, the defendant in Florez, was a legal permanent resident at the time that his removal was ordered. In today’s climate, where deportation is all but actively encouraged, two additional steps besides eventual Supreme Court review would be particularly helpful: (1) clarification of the language of the statute by Congress, and (2) closer scrutiny by courts as to whether the BIA’s interpretations—not just limited to the BIA’s interpretation of child abuse—have become overly broad, especially in light of the administration’s anti-immigrant stance.

Too Little Too Late If You Work for The State? The Applicability of Employee Thresholds to Age Discrimination Claims from State Workers

The Issue

Americans born in 1978 will be turning 40 this year. In addition to the wisdom that comes with age, these citizens will also be gaining the possibility of protection from age discrimination under the Age Discrimination and Employment Act (ADEA). This act prohibits employers from discriminating “against persons 40 years of age or older.29 U.S.C. §§ 621–34. According to 29 U.S.C. § 630(b), the term “employer” is defined as:

[…] a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year․ The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States. (Emphasis Added)

If the “twenty or more employees” threshold is not met, workers over 40 are ineligible for ADEA protection. The circuit courts are split on whether the 20-employee threshold only applies to persons, or whether agents of persons, and state entities are included.

The Split

The Seventh Circuit

In Kelly v. Wauconda Park Dist. (7th Cir. 1986), the Seventh Circuit ruled that government entities were encompassed by the 20-employee threshold in 29 U.S.C. § 630(b). The court utilized a two-step process in determining whether government entities had to meet the 20-employee threshold. First, the court looked at whether 29 U.S.C. § 630(b) is ambiguous. If the statute was determined to be ambiguous, then the court would analyze legislative history to guide its decision.

In the first step of the analysis, both parties made arguments about the ambiguity of the statute. Kelly made an argument that the statute excluded government entities, and Wauconda argued that government entities were included by the statute. The court concluded that the statute was ambiguous because it had two reasonable but differing interpretations.

The court then analyzed the legislative history. The lower court ruled “that ‘[t]he legislative history of the 1974 amendment, the similarities between it and a parallel amendment of Title VII, and common sense’ all favor [Wauconda’s] reading of section 630(b).” The Seventh Circuit believed that the analysis of the 1974 ADEA amendment’s history was a valid point, and that Title VII had a large number of parallels to the ADEA. Ultimately, the Seventh Circuit held that the legislative history weighed in favor of the ADEA’s 20-employee threshold applying to government entities.

Therefore, Wauconda Park District, a local government entity, was not an “employer” for ADEA purposes because it did not have the required number of employees as specified in 29 U.S.C. § 630(b).

The Sixth, Eighth, and Tenth Circuits

In EEOC v. Monclova Township (6th Cir. 1990), Palmer v. Arkansas Council On Economic Education (8th Cir. 1998), and Cink v. Grant County (10th Cir. 2015), the Sixth Circuit, Eighth Circuit, and Tenth Circuit, respectively, came to the same conclusion as the Seventh Circuit in Kelly.  Each circuit held that the 20-employee threshold applied to state entities.

The Ninth Circuit

In Guido v. Mount Lemmon Fire Dist. (9th Cir. 2017), the court held that the ADEA definition of “employer” “is deconstructed as follows: The term “employer” means [A—person] and also means (1) [B—agent of person] and (2) [C—State-affiliated entities].” Due to the division of these three categories, the “person” category is the only category of the three that is modified by the “who has twenty or more employees” clause. If this is the case, then “agents of the person” or “state-affiliated entities” would have to comply with the ADEA regardless of meeting the 20-employee threshold.

The court supports their position by claiming that the “person” category is further defined by 29 U.S.C. § 630(a) (The term “person” means one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons), and is narrowed by the “engaged in an industry affecting commerce who has twenty or more employees for each working day” clause. The court also claims that the “state-affiliated entities” category is further defined by “the various types of State-affiliated entities covered, such as a ‘political subdivision of a State’.”

The Equal Employment Opportunity Commission (EEOC) supports the Ninth Circuit’s holding. The EEOC states that when Title VII was amended, Congress was able “to apply clarifying language across multiple definitions of a term.” The clarifying language in question applied to “States and State-related entities, including political subdivisions of a State.” 42 U.S.C. § 2000e. The EEOC believed that Congress could have applied similar language to 29 U.S.C. § 630(b) if it had wanted to, but that Congress chose not to.

The ninth circuit ultimately held that “a political subdivision of a State need not have twenty or more employees in order to qualify as an employer subject to the requirements of the ADEA.”

Looking Forward

Based on the holdings from the various circuits, a state entity may or may not be considered an “employer” under the ADEA’s 20-employee threshold. On February 26, 2018, the Supreme Court granted certiorari to hear the case of Guido v. Mount Lemmon Fire Dist. Thus, the issue may be resolved soon.

For further reading, see what Squire Patton Boggs has to say on the topic.

Splitting the Baby: Does the Child Have a Say?

Divorces can be hard enough on children without being abducted by one of their parents. Unfortunately, this problem occurred frequently enough for 98 countries to adopt an international law addressing this problem. The 1980 Hague Convention on the Civil Aspects of International Child Abduction provides for a prompt return of children to their “habitual residence” in the event of being wrongly removed or retained in a foreign country by one of their parents. 22 U.S.C. § 9003(e). The Convention sets out to protect children in the context of custody battles by deterring parents from crossing international borders in an attempt to gain advantage in a more favorable jurisdiction.

The sole purpose of the Convention is to protect children who are uprooted from their homes in the wake of their parents’ split by returning them to their “habitual residence.”  Unfortunately, the Convention failed to define what constitutes a child’s “habitual residence,” which gave rise to competing interpretations of the term. The point of contention is whether the child’s perspective rules in determining where they must be returned or if greater weight should be given to the parents’ last shared intent regarding the child’s residence.

The Split

Courts of most contracting nations evaluate both of these factors – the child’s perspective as well as the parents’ shared decision prior to the break-up. However, courts in the U.S. disagree regarding which one of them is dispositive. In Cohen v. Cohen (8th Cir. 2017), after a mother and child moved to St. Louis from Israel, the relationship between the parents deteriorated. The father filed a request to have the child returned to Israel under the Convention. He asserted that the parents agreed that if the father will be unable to join his family in the United States, they will return to Israel. He “urge[d] the court to adopt the standard applied in the Second Circuit, among others, which gives dispositive weight to parental intent,” in reference to Gitter v. Gitter (2nd Cir. 2005).  In Gitter, the Second Circuit concluded that:

“…the first step in determining a child’s habitual residence is to inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared.”

The Cohen court refused to adopt this standard, giving greater weight to the fact that the child has spent a significant portion of his life in the United States, where he has been going to school, socializing, and making other significant connections in the community.  The Eighth Circuit “declined to adopt this standard and decided that [they] determine habitual residence from the child’s perspective.” Although the court admits that the parents may have a more mature perspective on the situation, their primary goal is to ensure the child remains in their habitual environment.

The child-focused approach is in the minority, distinct from the “Mozes framework” proclaimed in the Ninth Circuit’s Mozes v. Mozes (2001). Here, the Ninth Circuit held that children “normally lack the material and psychological wherewithal to decide where they will reside,” so the dispositive weight is given to the last shared intent of “persons entitled to fix the place of child’s residence.” The Fourth, Seventh, and Eleventh Circuits, among others, adopted this perspective. However, the court in Redmond v. Redmond (7th Cir. 2013) attempted to reconcile the two approaches, emphasizing that “habitual residence” should be a “practical, flexible, factual inquiry, not a “fixed doctrinal test.” While it declared that it also subscribes to the Mozes framework, the Seventh Circuit Court declared that courts should consider both elements and determine which one deserves greater weight on a case-by-case basis.

Looking Forward

Since the Convention focuses on preventing children from needlessly suffering as a result of their parents’ actions, the Second Circuit’s decision to prioritize the child’s perspective seems like the just approach. However, the majority view, articulated by the Ninth Circuit, also have some traction, particularly in situations involving younger children. Although the courts have an interest in establishing a consistent interpretation, many commentators emphasize the importance of flexibility in determining the meaning of “habitual residence.” Depending on the child’s age and circumstances, a case-by-case approach will likely result in more equitable decisions than when applying a rigid, uniform principle. If the Supreme Court ever decides to address this question, it could likely establish a fairly flexible test, similar to the Redmond opinion, allowing the courts a lot of discretion in subsequent cases.