     Case: 15-41312      Document: 00513683739        Page: 1    Date Filed: 09/19/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                     No. 15-41312                         FILED
                                                                  September 19, 2016
                                                                     Lyle W. Cayce
RODRIGO LUIS DELGADO,                                                     Clerk

              Plaintiff - Appellant

v.

MARIANA CECILIA LUIS OSUNA,

              Defendant - Appellee




                  Appeal from the United States District Court
                       for the Eastern District of Texas


Before WIENER, CLEMENT, and COSTA, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      In this Hague Convention case, Petitioner-Appellant Dr. Rodrigo Luis
Delgado (“Dr. Delgado”) appeals the district court’s 1 denial of his petition for
return of his children. For the following reasons, we AFFIRM.
                                            I.
      On May 22, 2015, Dr. Delgado filed a verified petition under the Hague
Convention on the Civil Aspects of International Child Abduction (the
“Convention”) for return of abducted children, seeking the return of his seven-


      1  By agreement, the parties consented to have the matter heard and resolved by the
magistrate judge below. Because of this, we refer to the magistrate judge as the “district
court” throughout this opinion.
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                                  No. 15-41312
year-old and four-year-old sons (“J.A.L.O.” and “D.A.L.O,” respectively, and
referred to collectively herein as the “children”) to Venezuela. The district court
ordered the Respondent-Appellee, Mariana Cecilia Luis Osuna (“Osuna”), to
show cause why the children should not be returned to Venezuela and why the
relief requested by Dr. Delgado should not be granted. The district court
conducted a show cause hearing and bench trial on the merits. The following
findings of fact from the proceeding are relevant to this appeal.
      Dr. Delgado is a dual citizen of Spain and Venezuela and is the biological
father of the children in this case. Osuna is also a citizen of Venezuela and is
the biological mother of the children in this case. Dr. Delgado and Osuna
married in 2002. Dr. Delgado and Osuna have an apartment in Maracay,
Venezuela, where they lived together from 2008 until May 2014. During this
time, Dr. Delgado practiced urology, and Osuna was a stay-at-home mother.
      J.A.L.O. was born in Maracay, Venezuela on July 17, 2008 and is a dual
citizen of Spain and Venezuela. J.A.L.O. lived in Venezuela from his birth until
May 2014, when he moved with his mother to Frisco, Texas. He has been
enrolled in school in the Frisco Independent School District (“Frisco ISD”) since
approximately June 2014.
      D.A.L.O. was born in Caracas, Venezuela on September 9, 2011 and is a
dual citizen of Spain and Venezuela. He lived in Venezuela from his birth until
May 2014, when he moved with his mother to Frisco.
      Prior to traveling to the United States in May 2014, Dr. Delgado and
Osuna frequently discussed the civil unrest and danger occurring in
Venezuela, and they discussed relocating their family to another country. The
possible new countries of residence included the United States, Spain,
Panama, and Ecuador, among others. The discussions were motivated by fear
for their family, especially the children, after the family was robbed in 2013 in
a Venezuelan hotel room while they slept. Additionally, Osuna testified that
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                                       No. 15-41312
her family, specifically her uncle and father, had been involved in a military
coup to overthrow the Venezuelan government. As a result, she and other
members of her family had been threatened by the government, and she
believed that her children had also been threatened. Specifically, Osuna
testified that she believed her children were threatened on March 4, 2014,
when she was asked to pass a message to her uncle and father to “stop messing
with the government.” At the conclusion of the conversation, the men who
threatened her said, “Okay, you have a beautiful blondies [children], then take
care.” 2
       The family had previously planned to travel to the United States on May
14, 2014 so that Dr. Delgado could attend the annual Congress of Urology and
the children could visit amusement parks. The family obtained six-month
tourist visas for the visit. Originally, the family purchased four round-trip
tickets arriving in Miami on May 14, 2014 and departing Miami to return to
Venezuela on May 26, 2014. Following the March threat to Osuna, one-way
tickets were also purchased (sometime between March and May 2014) for
Osuna and both children to travel to Osuna’s sister’s home in Frisco, for an
undetermined period of time.
       Also after the March 2014 threat, Osuna withdrew J.A.L.O. from school
in Venezuela, and with Dr. Delgado’s knowledge and approval, she sent
J.A.L.O.’s paperwork to the school in Frisco to prepare for his enrollment upon
their arrival. The family packed as many belongings as they could fit inside
eight suitcases (two per person), which was the maximum allowed by the
airline before it charged a fee. Osuna brought all of her and her children’s



       2 The parties experienced additional acts of violence in Venezuela. Dr. Delgado, one of
his sons, and his mother-in-law were robbed at gunpoint in front of the marital home. And a
person was assassinated in the lobby of the hospital where Dr. Delgado worked.

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                                  No. 15-41312
important documents, including birth certificates, medical records, school
records, and her marriage license. Osuna and Dr. Delgado also went to Osuna’s
mother’s house to pick out jewelry to bring to the United States. She recalled
telling her husband that they were looking “just like Jews . . . trying to run out
from Germany. We are taking all the jewels and all the gold that we can collect
and put inside to go out from Venezuela.” Dr. Delgado also established a bank
account in Frisco prior to the trip and deposited money into it.
      On May 14, 2014, the family traveled to Miami, Florida. During this trip,
Osuna and Dr. Delgado met with Maritza Cifuentes (“Cifuentes”), who assisted
Osuna and the children with preparing their applications for political asylum
in the United States. During the meeting, Dr. Delgado learned that in order to
practice urology in the United States, he would have to undergo an additional
fourteen years of medical school and/or training. Accordingly, Dr. Delgado
decided not to pursue asylum in the United States. On May 25, 2014, Osuna
and the children flew to Texas. Dr. Delgado returned to Venezuela one day
later. He did not return to the United States until the hearing before the
district court.
      Dr. Delgado testified that he intended for Osuna and the children to
return to Venezuela sometime after the expiration of the six-month visas, but
he had no specific time frame in mind. Osuna testified that she did not intend
to ever return to Venezuela but that she discussed reuniting the family with
Dr. Delgado in Spain if he was able to find a job there. Dr. Delgado testified
that he was aware of the asylum applications but that he did not consent to or
intend for Osuna and the children to live in the United States without him
permanently.
      Dr. Delgado testified that the family left behind ninety percent of their
personal belongings in Venezuela. They did not sell their apartment and only
took the clothing and other items that they could fit in the suitcases allowed
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                                 No. 15-41312
by the airline. Dr. Delgado did not attempt to sell his medical practice. He did,
however, later sell one of the family’s two cars in Venezuela to pay some
outstanding loans and send money to Osuna and the children in the United
States.
      Throughout the spring and summer of 2014, Osuna and the children
resided in Frisco, and J.A.L.O. enrolled in school there. On July 9, 2014, Dr.
Delgado signed a power of attorney giving Osuna the authority to make
decisions regarding medical, educational, and other care for the children while
in the United States. Both parties agreed that the power of attorney did not
affect either parties’ custody rights. Yet, the parties’ testimony diverged
concerning the reason for executing the power of attorney. Dr. Delgado testified
that the power of attorney was intended to give Osuna the authority to make
medical, educational, and other care-related decisions for the children while
they were in the United States. Osuna testified that the power of attorney was
executed so that she could pursue the asylum applications for the children.
      In the fall of 2014, Dr. Delgado packed and sent, through a family
member, some winter clothes to Osuna and the children. Osuna testified that
even as late as October 2014, Dr. Delgado was aware of the asylum applications
and continued to support her in pursuing asylum. Dr. Delgado provided
approximately $500 a month to Osuna and the children until December 2014,
when he ceased making these payments. Dr. Delgado testified that he
requested that Osuna and the children return home in September 2014
because the political situation in Venezuela was improving. She refused. Dr.
Delgado testified that his relationship with his wife had deteriorated, and he
filed for divorce in January 2015.
                                      ***
      At the conclusion of the hearing, the district court orally denied Dr.
Delgado’s petition. Later, the district court issued a written opinion finding
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                                  No. 15-41312
that Dr. Delgado “failed to meet his burden to establish by a preponderance of
the evidence that the habitual residence of the children was Venezuela, and,
thus, failed to demonstrate that the children were wrongfully removed and/or
retained in the United States.” Additionally, the district court held that even
if it erred in its determination that Dr. Delgado failed to establish Venezuela
as the children’s habitual residence, “this error is harmless as the Court finds
the consent exception to return applies here.” The district court entered
judgment dismissing the petition with prejudice. Dr. Delgado appealed.
                                       II.
      “Resolving disputes under the Convention implicates multiple standards
of review.” Larbie v. Larbie, 690 F.3d 295, 306 (5th Cir. 2012). “[T]his court
reviews factual findings for clear error and conclusions of law de novo.” Id. “A
factual finding survives review so long as it is plausible in the light of the
record as a whole.” Id. (internal quotation marks omitted). A district court’s
determination of a child’s “habitual residence” is a mixed question of law and
fact subject to de novo review. Id. “The mixed standard of review means that
the court accept[s] the district court’s historical or narrative facts unless they
are clearly erroneous, but exercis[es] plenary review of the court’s choice of and
interpretation of legal precepts and its application of those precepts to the
facts.” Berezowsky v. Ojeda, 765 F.3d 456, 465-66 (5th Cir. 2014), cert. denied,
135 S. Ct. 1531 (2015) (internal quotation marks omitted).
                                       III.
      Dr. Delgado argues that “the district court ignored Fifth Circuit
precedent and applied an erroneous legal standard in its determination of the
Children’s habitual residence” and that the factual “record does not support
the district court’s finding that the parties shared an intent to abandon
Venezuela as the Children’s habitual residence.”


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                                 No. 15-41312
      The Convention has two primary objectives: “(1) to secure the prompt
return of children wrongfully removed to or retained in any Contracting State;
and (2) to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting States.”
Larbie, 690 F.3d at 306 (internal quotation marks omitted). A court in a
Convention case does not inquire into the underlying custody dispute. See
Berezowsky, 765 F.3d at 465. “Rather, our inquiry is limited to determining
whether or not the child has been wrongfully removed from their country of
‘habitual residence.’” Id.
            A removal or retention is wrongful under the
            Convention when (1) it is in breach of rights of custody
            attributed to a person . . . under the law of the State in
            which the child was habitually resident immediately
            before the removal or retention; and (2) at the time of
            removal or retention those rights were actually
            exercised, either jointly or alone, or would have been
            so exercised but for the removal or retention.
Larbie, 690 F.3d at 307 (internal quotation marks omitted). For the petitioner
to prevail, he must establish three elements by a preponderance of the
evidence: (1) that the respondent removed or retained the child somewhere
other than the child’s habitual residence; (2) that the removal or retention
violated the petitioner’s rights of custody under the habitual-residence nation’s
laws; and (3) that at the time of removal or retention, petitioner was exercising
those rights or would have exercised those rights but for the removal or
retention. Id. Even if a petitioner establishes the foregoing, a court may still
deny a petition if the respondent proves one of several narrow affirmative
defenses to wrongful removal or retention. Id. at 308.
      A. Challenged Holding as to the Children’s Habitual Residence
      Dr. Delgado argues that he satisfies the first element of his wrongful
removal claim because Osuna wrongfully removed and retained their children

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                                       No. 15-41312
outside of their habitual residence—Venezuela—and moved them to the
United States. The Convention does not define “habitual residence.” Larbie,
690 F.3d at 310. “The inquiry into a child’s habitual residence is not formulaic;
rather it is a fact-intensive determination that necessarily varies with the
circumstances of each case.” Id (internal quotation marks omitted). This circuit
has

              adopted an approach that begins with the parents’
              shared intent or settled purpose regarding their child’s
              residence. . . . This approach does not ignore the child’s
              experience, but rather gives greater weight to the
              parents’ subjective intentions relative to the child’s
              age. For example, parents’ intentions should be
              dispositive where, as here, the child is so young that
              he or she cannot possibly decide the issue of residency.
Id. (internal quotation marks and citations omitted). “[T]he threshold test is
whether both parents intended for the child to abandon the [habitual
residence] left behind.” 3 Id. at 310-11 (internal quotation marks omitted).
Absent the parents’ shared intent, “prior habitual residence should be deemed
supplanted only where ‘the objective facts point unequivocally’ to this
conclusion.” Id. at 311. “Notably, when ‘the child’s initial move from an
established habitual residence was clearly intended to be for a specific, limited
duration[,] . . . most courts will find no change in habitual residence.’” Id.
       This court reviews a district court’s shared intent determination for clear
error. See Berezowsky, 765 F.3d at 466 n.7 (“[W]e join our sister circuits in



       3 “As multiple courts have noted, the difficult cases arise when the persons entitled to
fix the child’s residence do not agree on where it has been fixed. Much of the existing case
law discussing a child’s habitual residence involves situations where the parents were still
together at the time of the child’s birth, made plans for the child’s future, and only later did
the family unit begin to dissolve. In these situations, the court’s task is usually to try to
determine when the parents last had a shared plan regarding their child’s future, and what
that plan entailed.” Berezowksy, 765 F.3d at 468 (internal quotation marks and citations
omitted).
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                                 No. 15-41312
treating the shared intent determination as a factual finding that is reviewed
for clear error.”). Here, the district court found that the parties’ “last shared
intent . . . regarding their children’s future was that they would leave their
habitual residence, Venezuela, and would not return.” The district court
recognized that the parties’ shared intent eventually diverged but that after
meeting with Cifuentes in the United States, the last shared intent was for
Osuna and the children to seek political asylum in the United States and for
Dr. Delgado to return to Venezuela to seek employment opportunities
elsewhere. If Dr. Delgado was successful in finding employment outside of
Venezuela, Osuna and the children would cancel their asylum applications and
reunite with Dr. Delgado.
      Dr. Delgado argues that he and Osuna did not form a shared intent to
abandon Venezuela as the children’s habitual residence. Because the plan was
laden with contingencies and did not foreclose a return to Venezuela, Dr.
Delgado contends that there was not the requisite shared intent to change the
habitual residence of the children. He argues that the district court ignored
this court’s rejection of a similar argument in Berezowksy, 765 F.3d at 471.
      Dr. Delgado’s arguments fall short. The district court did not clearly err
in its shared intent determination. The record demonstrates that Osuna and
Dr. Delgado’s last shared intent was to abandon Venezuela permanently as the
children’s habitual residence. There was a meeting of their minds to abandon
Venezuela as the children’s habitual residence. See Larbie, 690 F.3d at 310-11
(requiring a meeting of the parents’ minds to abandon the children’s habitual
residence). Once Osuna and Dr. Delgado formed this shared intent and the
children subsequently left Venezuela with their most important documents in
tow, Venezuela was abandoned as the children’s habitual residence.
      Dr. Delgado’s argument—that the shared intent to abandon a child’s
habitual residence requires “making a joint decision to raise the child in the
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                                  No. 15-41312
new country” and that the new country must be agreed upon by the parents—
is not the law in this circuit. Berezowsky, 765 F.3d at 471 (emphasis omitted).
In Berezowsky, two Mexican nationals were engaged in a bitter custody battle
over their child in Mexican and United States courts. Id. at 459. The fighting
and procedural wrangling resulted in the child changing hands among the
parents many times and moving between Mexico and the United States many
times. Id. The child was born in Texas and spent the first two years of his life
there with his mother. Id. at 459-60. The father filed a petition under the
Convention in Texas to return the child to Mexico, but the Texas court denied
his petition and found that it had jurisdiction over his fight for custody. Id. at
460. The father was awarded custody in the Texas state proceeding and
thereafter moved the child to Mexico. Id. at 461. While in Mexico, the parents
filed or continued actions in seven Mexican courts. Id. The mother regained
possession of the child, and the father continued to fight for the child in
Mexican and Texas courts. Id. at 461-62. Following an award of sole custody in
Texas and a victory in Mexico in which the Mexican authorities gave the child
back to the father, the father moved with the child to Texas. Id. at 463-64.
Ultimately, the mother filed a petition under the Convention, alleging
wrongful removal of the child from Mexico to Texas. Id.
      In an attempt to establish Mexico as the child’s habitual residence, the
mother argued that both parents decided individually to abandon Texas as the
child’s habitual residence and decided individually to establish the child’s new
residence in Mexico and that this sufficed for shared parental intent. Id. at
471. She based this argument on the fact that the child’s father had moved the
child to Mexico from Texas after winning custody and that she subsequently
stayed in Mexico with her son for thirteen months after getting the child back.
Id. This court rejected the mother’s argument. Id. It stated that “[the mother]
does not point to any case law supporting her novel argument that parents can
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                                 No. 15-41312
form the shared intent necessary to abandon a prior habitual residence
without—at some point in the child’s life—making a joint decision to raise the
child in the new country.” Id.
      Dr. Delgado relies on this language to support his position that parents
must agree on “the new country of residence,” and not on an unspecified
country to be determined at a later time in order to abandon a child’s habitual
residence. But the argument rejected in Berezowsky is highly distinguishable
from the situation here. Berezowsky involved a bitter custody dispute where
the child was moved back and forth between the United States and Mexico
largely because the parents sought more favorable forums for their custody
dispute. The parents did not share an intent concerning the location of their
child’s habitual residence, and this court rejected the mother’s argument that
a shared intent could be established by the parents individually. Here, in
contrast, the parents held a shared intent for their children to abandon
Venezuela. Thus, Dr. Delgado’s reliance on Berezowsky is misplaced. Simply
because the Berezowsky court used the term “the new country” as opposed to
“a new country” does not inform our analysis here for an entirely different
argument.
      The district court applied the correct legal standard in determining the
children’s habitual residence, and its shared intent determination was not
clearly erroneous.
      B. Challenged Factual Findings
      Dr. Delgado challenges a number of the district court’s factual findings
that underpin its decision to deny his petition. Specifically, Dr. Delgado
challenges the findings: that “[u]pon arrival in the United States, [Dr. Delgado]
and [Osuna] would seek political asylum for themselves and the children, while
residing in the United States with the children”; that there was no evidence
that the family expected the trip to be of limited duration; and that the family
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                                  No. 15-41312
intended to abandon Venezuela with no intent to return. Dr. Delgado contends
that these factual findings are “wholly unsupported by the record.”
      Dr. Delgado faces a difficult task trying to show that any of the district
court’s factual findings were clearly erroneous. See Larbie, 690 F.3d at 306 (“A
factual finding survives review so long as it is plausible in the light of the
record as a whole.” (internal quotation marks omitted)). In challenging the
finding concerning seeking political asylum, Dr. Delgado argues that no
evidence supports him ever intending to apply for asylum in the United States.
We disagree. There is at least some evidence that supports this finding, namely
that he attended the meeting with Cifuentes where he learned that he would
be unable to practice medicine in the United States without multiple years of
additional schooling and training. Regardless, Dr. Delgado’s intentions
concerning his seeking political asylum are largely irrelevant for purposes of
his petition. The important finding is that Dr. Delgado and Osuna agreed that
she would seek political asylum for the children because this finding
establishes the conclusion that Osuna and Dr. Delgado intended to abandon
Venezuela as the children’s habitual residence. The record supports this
finding. Thus, the relevant finding by the district court is not clearly erroneous.
      Dr. Delgado’s challenge to the district court’s finding that there was no
evidence that the family expected the trip to the United States to be of limited
duration has merit. This finding is not plausible in light of the record as a
whole because there is at least some evidence that the trip to the United States
was expected to be of limited duration. Osuna testified that she emailed Dr.
Delgado expressing her plan to stay in the United States until Dr. Delgado
obtained a job in Spain, whereupon she would cancel their asylum applications
and move the family to meet him there. The family’s decision to leave ninety
percent of their belongings behind in Venezuela and to forgo trying to sell all
of their assets before the relocation is additional evidence of the trip to the
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                                 No. 15-41312
United States being temporary. Even though the district court clearly erred by
making this finding, this error is harmless because it has no effect on our
resolution of this appeal.
      Evidence that Dr. Delgado and Osuna planned for Osuna and the
children to stay in the United States only until Dr. Delgado secured a job in
Spain does not change the fact that Dr. Delgado and Osuna held a shared
intent for the children to abandon Venezuela permanently. In other words, the
stay in the United States was initially planned to be temporary, but the
intention for the children to abandon Venezuela was permanent. Thus, Dr.
Delgado’s contention that the district court clearly erred by finding that the
family intended to abandon Venezuela as the children’s habitual residence
with no intent to return is without merit. This finding is plausible in light of
the record.
      Osuna traveled to the United States with all of her and her children’s
most important documents—birth certificates, medical records, school records,
and a marriage license—and she packed portable valuables like jewelry before
leaving. She arranged for J.A.L.O. to attend school in Frisco before leaving for
the United States. The move was prompted by increasing violence and
instability in Venezuela and out of fear for Osuna and the children’s safety.
Members of Osuna’s family had already left Venezuela, and Osuna diligently
applied for asylum for her and her children so that they would not have to
return to Venezuela. Dr. Delgado’s actions demonstrate that he agreed that
the children should permanently abandon Venezuela. Even the fact that the
family did not sell their most valuable assets—their home, two cars, and Dr.
Delgado’s medical practice—does not call into question the finding that the
parents held a shared intent to abandon Venezuela permanently as the
children’s habitual residence. When placed in context of the family’s most
recent shared plan—for Osuna and the children to move to the United States
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                                      No. 15-41312
while Dr. Delgado obtained a job in Spain and then for the family to meet him
there—it is plausible that the family could have sold these valuable assets after
Dr. Delgado obtained employment in Spain. Sadly, Osuna and Dr. Delgado’s
last shared plan did not work out, and the family broke apart. Nevertheless,
the district court’s factual findings that underpin its conclusion that Osuna
and Dr. Delgado held a shared intent to abandon Venezuela as the children’s
habitual residence are supported by the record.
       Dr. Delgado cannot meet his burden to show that the children were
wrongfully removed from Venezuela or retained in the United States because
Venezuela was abandoned as the children’s habitual residence. 4 Thus, the
district court correctly held that Dr. Delgado’s petition failed. Because his
petition fails, we need not reach the district court’s alternate holding.
                                            IV.
       For the foregoing reasons, we AFFIRM.




       4 We need not decide if and when the children established a new habitual residence in
the United States or if the children had no habitual residence for a period of time because
those issues are immaterial to the resolution of this petition.
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