                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 06 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MAURICIO FERNANDEZ MARGAIN,                      No. 14-15214

              Plaintiff - Appellant,             D.C. No. 4:13-cv-01162-RCC

  v.
                                                 MEMORANDUM*
ELSA LOURDES RUIZ-BOURS,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Raner C. Collins, Chief District Judge, Presiding

                    Argued and Submitted January 29, 2015
              University of Arizona, James E. Rogers College of Law
                                 Tucson, Arizona

Before: TASHIMA, McKEOWN, and BERZON, Circuit Judges.

       Mauricio Fernandez Margain (“Mauricio”) appeals from the district court’s

denial of his petition for the return of his minor daughter to Mexico, pursuant to

the Hague Convention on the Civil Aspects of International Child Abduction, Oct.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
25, 1980, 19 I.L.M. 1501 (the “Convention”), as implemented by the International

Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq. We affirm. Because we

conclude that the district court correctly determined that the child was “settled”

within the meaning of Article 12 of the Convention, we affirm on that ground

without deciding the habitual residence question.

      “Article 12 of the Convention states the general rule that 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.’” Lozano v. Montoya

Alvarez, 134 S. Ct. 1224, 1229 (2014) (quoting Convention, art. 12). Article 12

also contains an affirmative defense: “If the abducting parent can show that the

petition for return was filed more than a year after the wrongful removal or

retention occurred, and ‘that the child is now settled in its new environment,’ the

abducting parent can overcome the presumption in favor of return.” In re B. Del

C.S.B., 559 F.3d 999, 1002 (9th Cir. 2009) (quoting Convention, art. 12).

Although the Convention does not define the term “settled,” courts may “consider

a number of factors that bear on whether the child has significant connections to

the new country.” Id. at 1003, 1009 (internal quotation marks omitted). The

respondent must establish the Article 12 exception by a preponderance of the

evidence. See 22 U.S.C. § 9003(e)(2)(b).


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      We “review the district court’s factual findings underpinning its Article 12

determination for clear error, and its ultimate conclusion that [the child] is . . . now

settled in the United States de novo.” C.S.B., 559 F.3d at 1008.

      1. The district court’s finding that the child’s mother, Elsa Lourdes Ruiz-

Bours (“Elsa”), moved with her daughter to Tucson in July 2012, more than one

year before Mauricio filed his petition in September 2013, is supported by the

record, so the district court did not clearly err in so finding. Elsa introduced into

evidence a receipt regarding a transaction she conducted at a clothing store in

Tucson on July 6, 2012. She also produced evidence of money orders drawn on

July 11, 2012 from a bank in Tucson to a residential leasing company, which she

explained were the first payment and deposit for the apartment in which they were

residing. This evidence, along with the trial testimony, sufficiently establishes that

Elsa and her daughter had lived in Tucson for more than one year at the time

Mauricio filed his Convention petition. The district court did not clearly err in

finding that Mauricio filed his petition more than one year after the alleged

wrongful removal.

      2. Mauricio contends that the Convention’s one-year period should be

equitably tolled because Elsa “active[ly] conceal[ed]” the child’s removal from

Mexico. But Mauricio’s equitable tolling argument is foreclosed by Lozano, which


                                            3
held that Article 12’s one-year requirement is never subject to equitable tolling.

134 S. Ct. at 1228, 1232.

       3. The district court also concluded that the child is now settled in Tucson.

Its fact-findings underlying that conclusion have ample support in the trial record.

For example, Elsa’s child psychology expert testified that the child had a “normal”

emotional status for a five-year old child, and was “well acclimated” to her home

and community. In particular, he noted that the child has friends with whom “she’s

very involved,” and that she likes her school and teacher. Other witnesses testified

that the child has friends in the Tucson area. Cf. C.S.B., 559 F.3d at 1010.

Moreover, the child has lived with Elsa in Tucson for a longer period of time than

she did in Mexico, and Mauricio has offered no evidence that her situation or

environment is “unstable.” See id. at 1009 (noting that the “length and stability of

the child’s residence in the new environment” is “ordinarily the most important”

factor in the “settled” analysis).

       Reviewing the record as a whole, we agree with the district court that the

child is settled in her new environment. Moreover, no equitable factors counsel

against application of the Article 12 exception, as the record supports the district

court’s conclusion that Mauricio was not diligent in locating the child in Tucson.

See Lozano, 134 S. Ct. at 1237-39 (Alito, J., concurring).


                                           4
      We therefore conclude that the Convention’s Article 12 exception applies

and that the district court properly denied the petition.

      AFFIRMED.




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