     13-1014-cv
     Varillas Broca v. Gil Giron

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of July, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                SUSAN L. CARNEY,
 9                CHRISTOPHER F. DRONEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       JOSE LEONIDES VARILLAS BROCA,
14                Petitioner-Appellant,
15
16                    -v.-                                               13-1014-cv
17
18       MIRNA MARIANA GIL GIRON,
19                Respondent-Appellee.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        LAURA W. SAWYER (Mark R. Seiden,
23                                             Lisa M. Yemm, and Caroline I.
24                                             Lents, on the brief), Jones Day,
25                                             New York, New York.
26
27       FOR APPELLEE:                         CAROLYN A. KUBITSCHEK, Lansner &
28                                             Kubitschek, New York, New York.

                                                  1
 1
 2        Appeal from a judgment of the United States District
 3   Court for the Eastern District of New York (Johnson, J.).
 4
 5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 6   AND DECREED that the judgment of the district court be
 7   AFFIRMED.
 8
 9        Jose Leonides Varillas Broca appeals from the judgment
10   of the United States District Court for the Eastern District
11   of New York (Johnson, J.), denying Varillas’s petition for
12   the repatriation of his three children under the Hague
13   Convention on the Civil Aspects of International Child
14   Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S.
15   89 (“Hague Convention”), implemented by the International
16   Child Abduction Remedies Act, 42 U.S.C. §§ 11601-10. We
17   assume the parties’ familiarity with the underlying facts,
18   the procedural history, and the issues presented for review.
19
20        Varillas appeals the determination that his youngest
21   child, JV, was well settled in the United States, such that
22   JV’s return to Mexico was not required under Article 12 of
23   the Hague Convention.1 Varillas primarily argues that the
24   district court improperly considered the importance of
25   keeping JV together with his siblings in deciding that JV
26   was well settled. “We review the district court’s
27   interpretation of the Convention de novo and its factual
28   determinations for clear error.” Souratgar v. Fair, ---
29   F.3d ---, 2013 WL 2631375, at *3 (2d Cir. June 13, 2013).
30
31        If Hague Convention proceedings are initiated within a
32   year of a child’s wrongful removal, then Article 12 requires
33   the court to order repatriation of that child, unless an
34   exception applies. Hague Convention, art. 12. If the
35   proceedings are commenced after the one-year period, the
36   court “shall also order the return of the child, unless it
37   is demonstrated that the child is now settled in its new
38   environment.” Id. (emphasis added). Respondent bears the


         1
            Varillas’s oldest child turned sixteen during the
     pendency of the proceedings, thus the Hague Convention no
     longer applied to him. As to the middle child, the district
     court denied the request for repatriation, concluding that
     she was well settled, and that she was sufficiently mature
     that her objection to returning to Mexico should be taken
     into account. Varillas does not appeal this determination.
                                  2
 1   burden of proving this exception by a preponderance of the
 2   evidence. 42 U.S.C. § 11603(e)(2)(B).
 3
 4        We have discussed the “[f]actors that courts consider”
 5   in determining whether a child is well settled, which
 6   “should generally include”:
 7
 8       (1) the age of the child; (2) the stability of the
 9       child’s residence in the new environment; (3) whether
10       the child attends school or day care consistently; (4)
11       whether the child attends church [or participates in
12       other community or extracurricular school activities]
13       regularly; (5) the respondent’s employment and
14       financial stability; (6) whether the child has friends
15       and relatives in the new area; and (7) the immigration
16       status of the child and the respondent.
17
18   Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir. 2012), cert.
19   granted in part, No. 12-820, 2013 WL 56044 (U.S. June 24,
20   2013).2 While useful, these factors are neither mandatory
21   nor exclusive. “[C]ourts are permitted to consider any
22   relevant factor surrounding the child’s living arrangement--
23   without limitation.” Id. (internal quotation marks
24   omitted). The test is a “fact-specific multi-factor” test,
25   in which no factor, including immigration status, is
26   dispositive. Id.
27
28        Here, the district court considered the above factors
29   in determining that JV was well settled.3 Under Lozano, the
30   court rightly considered JV’s relationship with his mother
31   and siblings in reaching its conclusion. Even though the
32   court emphasized this factor in its final balancing


         2
             The Supreme Court recently granted certiorari in
     Lozano, but the issue to be reviewed by the Court is
     explicitly limited to whether the one-year period may be
     equitably tolled when the abducting parent has concealed the
     whereabouts of the child--a question not at issue in this
     appeal.
         3
            Varillas’s argument that the district court erred in
     failing to consider the employment and financial stability
     of JV’s mother is unpersuasive. While the court did not
     explicitly list this factor, it discussed it in relation to
     other factors. See, e.g., Special App. 43. In any event,
     the Lozano factors are not mandatory. 697 F.3d at 57.
                                  3
 1   analysis, it was one of many considerations. In any event,
 2   our review is de novo. Reviewing the record as a whole and
 3   focusing on the Lozano factors, we agree that JV is well
 4   settled in the United States. JV’s consistent school
 5   attendance, involvement in church, and strong relationships
 6   with friends and relatives in the area, in particular his
 7   mother and sister, all support a conclusion that he is well
 8   settled. His immigration status, lack of residential
 9   stability, and poor performance in school, as well as his
10   mother’s lack of financial stability, counsel against a
11   conclusion that he is well settled. Nonetheless, in the
12   overall balancing, we conclude that the exception applies.4
13
14        For the foregoing reasons, and finding no merit in
15   Varillas’s other arguments, we hereby AFFIRM the judgment of
16   the district court.
17
18                              FOR THE COURT:
19                              CATHERINE O’HAGAN WOLFE, CLERK
20




         4
            We note that the factors here are in many ways
     similar to those in Lozano, where we affirmed the
     determination that the child was well settled. 697 F.3d at
     58.
                                  4
