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

                                        No. 15-30993
                                                                                       Fifth Circuit

                                                                                      FILED
                                                                                 April 28, 2016

FRANKLIN PLEITES HERNANDEZ,                                                     Lyle W. Cayce
                                                                                     Clerk
                Plaintiff - Appellant

v.

REINA LETICIA GARCIA PENA,

                Defendant - Appellee



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


Before      CLEMENT          and     HAYNES,         Circuit    Judges,      and         GARCIA
MARMOLEJO, District Judge.*
MARINA GARCIA MARMOLEJO, District Judge:
      Six-year-old D.A.P.G. was abducted from his home in Honduras and
brought illegally into the United States by his mother Defendant–Appellee
Reina Leticia Garcia Peña. Plaintiff–Appellant Franklin Pleites Hernandez
filed a petition under the Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 (the
Convention), seeking the return of his only child. The Convention provides as
a general rule that when a court receives a return petition within one year of
a child’s wrongful removal, the court “shall order the return of the child

      *   District Judge of the Southern District of Texas, sitting by designation.
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forthwith.”     Art. 12.     Hernandez, however, filed his return petition two
months outside of the one-year period, allowing the district court to consider
the Convention’s defense that the child is well-settled in his new environment
and therefore should not be returned. The district court denied Hernandez’s
petition, concluding that D.A.P.G. was well-settled in his current community
even though Garcia Peña’s removal of D.A.P.G. from Honduras was wrongful.
       This case presents an issue of first impression in this Circuit: the
interpretation and application of the Convention’s “well-settled” defense. For
the reasons that follow we conclude that the district court erred in its
application of this defense. Accordingly, we VACATE the district court’s order
and RENDER judgment in Hernandez’s favor.
                                            I.
       Franklin Pleites Hernandez and Reina Leticia Garcia Peña, both
Honduran citizens, are the parents of D.A.P.G.                    D.A.P.G. was born in
Honduras on September 17, 2009, and grew up in the town of San Antonio,
Copán, where both of his grandmothers and 27–45 other extended family
members also reside. In 2012, Hernandez and Garcia Peña married, but
their relationship deteriorated in the following years and they eventually
stopped living together.        Hernandez and Garcia Peña never divorced or
sought a formal custody agreement, and Hernandez continued to see
D.A.P.G. regularly. Then, without Hernandez’s knowledge, Garcia Peña left
San Antonio, Copán, with D.A.P.G. on May 20, 2014, and hired individuals to
smuggle herself and D.A.P.G. into the United States. 1
       Garcia Peña and D.A.P.G. entered the United States illegally through
Texas and were arrested by immigration authorities.                           They were

       1 At the bench trial, Garcia Peña testified that she paid “coyotes” to help bring them
into the United States. “Coyote” is a term commonly used to describe an individual who is
paid to smuggle persons across the Mexican border into the United States. E.g., United
States v. Hernandez-Bautista, 293 F.3d 845, 850 (5th Cir. 2002).
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subsequently placed in removal proceedings and released into the United
States with instructions to report at a later date. Upon their release into the
United States, Garcia Peña and D.A.P.G. resided in Nashville for five months
and then moved in October 2014 to New Orleans, Louisiana, where they
currently live.
      In New Orleans, Garcia Peña and D.A.P.G. live with Garcia Peña’s
boyfriend, also a Honduran citizen, and D.A.P.G.’s four-month-old half-sister,
who was born in May 2015. D.A.P.G. is in kindergarten, 2 and Garcia Peña
works in the housekeeping department of a hotel. Garcia Peña and D.A.P.G.
also attend church regularly.             Aside from these connections, however,
D.A.P.G. has no family in New Orleans, and both Garcia Peña and D.A.P.G.
are involved in active removal proceedings before the New Orleans
Immigration Court.
      Meanwhile, as Garcia Peña and D.A.P.G. began new lives in New
Orleans, Hernandez remained in Honduras searching for his son. In June
2014, Hernandez contacted Honduran authorities, who in turn contacted the
United States Department of State to seek D.A.P.G.’s return pursuant to the
Convention. The Department of State did not locate D.A.P.G. and Garcia
Peña in New Orleans until May 2015. After locating D.A.P.G., Hernandez
filed a petition under the Convention in the United States District Court for
the Eastern District of Louisiana on August 4, 2015, asserting that Garcia
Peña wrongfully removed D.A.P.G. from Honduras and seeking D.A.P.G.’s
prompt return.


                                             II.




      2   At the time of the bench trial, D.A.P.G. had attended kindergarten for three weeks.
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                                 No. 15-30993
       The district court scheduled an expedited bench trial, but the trial was
delayed over a month by various continuances, including a continuance
granted based on Garcia Peña’s inaccurate belief that divorce and custody
proceedings were pending in Honduras. The day before the bench trial, the
district court held an emergency discovery status conference and ordered
Garcia Peña to produce all notices she had received from the immigration
court. On the morning of the bench trial, September 18, 2015, Garcia Peña
produced two notices to appear for removal hearings, addressed to Garcia
Peña and D.A.P.G. respectively. Both notices advised that the hearings were
scheduled for July 20, 2015, and that failure to attend could result in an
order of removal.
       Both parties were represented by counsel at the bench trial. Garcia
Peña    stipulated   that   D.A.P.G.   was   wrongfully   removed   under    the
Convention, but argued that D.A.P.G. was well-settled in New Orleans and
that return to Honduras would pose a grave risk of harm to D.A.P.G. The
district court heard testimony from Hernandez, Hernandez’s mother, Garcia
Peña, Garcia Peña’s boyfriend, a Honduran official, and community members
in New Orleans.      The court also conducted an in camera interview with
D.A.P.G. and received exhibits into evidence.      The bulk of Garcia Peña’s
witnesses’ testimony focused on characterizing D.A.P.G. as a happy, well-
adjusted, and friendly six-year-old who during the past nine months in New
Orleans had formed new relationships at church, at school, and at home with
his four-month-old half-sister and his mother’s boyfriend.
       Among the exhibits introduced were the notices to appear for removal
proceedings before the New Orleans Immigration Court, addressed to Garcia
Peña and D.A.P.G.      Garcia Peña testified that although she received the
notices, she intentionally did not attend the immigration court hearings
because she feared she would be deported.             In closing arguments,
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Hernandez’s counsel represented to the district court that he believed
D.A.P.G. and Garcia Peña had been ordered deported based on calls to the
immigration court’s status hotline that morning; however, no evidence of
deportation orders was actually introduced.
       On September 25, 2015, the district court issued its findings of fact and
conclusions of law. The district court concluded that the testimony at trial
established by a preponderance of the evidence that D.A.P.G. is well-settled
in the United States. The court then denied Hernandez’s return petition
without addressing the grave risk of harm defense. With regard to the well-
settled defense, the district court concluded that D.A.P.G.’s immigration
status did not outweigh his “age, stability of new residence, school
attendance, friendships in the new area, participation in the community and
respondent’s employment and financial stability.” Specifically, the district
court categorized Garcia Peña’s and D.A.P.G.’s immigration status as
generally “questionable,” instead of focusing more concretely on their
involvement in active removal proceedings.
       Hernandez immediately filed a motion for a new trial pursuant to
Federal Rule of Civil Procedure 59 to present new evidence that Garcia Peña
and D.A.P.G. had been ordered deported from the United States. The district
court denied the motion on the grounds that the new evidence would not
change the outcome of the case.
       On appeal Hernandez challenges the district court’s determination that
D.A.P.G. is well-settled in New Orleans and its denial of the Rule 59 motion. 3




       3  We do not address the grave risk of harm defense because Garcia Peña has failed
to brief this issue as a basis for affirmance. Adams v. Unione Mediterranea Di Sicurta, 364
F.3d 646, 653 (5th Cir. 2004). We do “construe this rule more leniently when the party who
fails to brief an issue is the appellee.” United States v. Luna, 264 F.3d 1142, at *3 (5th Cir.
2001) (unpublished). But nevertheless, we find that Garcia Peña’s inadequate briefing
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                                      No. 15-30993
                                            III.
       The Hague Convention on the Civil Aspects of International Child
Abduction was adopted by its signatories, which include the United States
and Honduras, to address “the problem of international child abductions
during domestic disputes.” Abbott v. Abbott, 560 U.S. 1, 8 (2010). The terms
of the Convention were implemented by Congress through the International
Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001–11.
       The Convention’s two express objectives are: (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 access under the law of
one Contracting State are effectively respected.” Art. 1. The return remedy
is the central operating feature of the Convention and provides that a
wrongfully removed child must be returned to his or her country of habitual
residence unless certain defenses 4 apply. Lozano v. Montoya Alvarez, 134 S.
Ct. 1224, 1228–29 (2014). Notably, the return remedy does not address the
merits of any underlying custody dispute but instead only determines where
any custody decision should be made. Sanchez v. R.G.L., 761 F.3d 495, 503
(5th Cir. 2014); see also 22 U.S.C. § 9001(b)(4). As the Supreme Court has
explained, the return remedy “is based on the principle that the best interests
of the child are well served when decisions regarding custody rights are made
in the country of habitual residence.” Abbott, 560 U.S. at 20. This principle
works to “restore the pre-abduction status quo and deter parents from
crossing borders in search of a more sympathetic court.”                     England v.




constitutes waiver. Even if we considered this issue, we conclude that Garcia Peña failed to
present sufficient evidence to support this defense.

       4These defenses are commonly referred to interchangeably by courts as “exceptions,”
which is the term employed by the implementing legislation. See 22 U.S.C. § 9003(e)(2).
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England, 234 F.3d 268, 271 (5th Cir. 2000) (quoting Friedrich v. Friedrich, 78
F.3d 1060, 1064 (6th Cir. 1996)).
      But, while the Convention is designed to discourage child abduction, it
“does not pursue that goal at any cost.” Lozano, 134 S. Ct. at 1235. The
Convention recognizes that the interests of a child may be better served by
the child remaining in a new environment and provides “several narrow
affirmative defenses to wrongful removal.”          Sealed Appellant v. Sealed
Appellee, 394 F.3d 338, 343 (5th Cir. 2004) (emphasis added); see also Elisa
Pérez–Vera, Explanatory Report: Hague Convention on Private International
Law ¶ 34, available at https://assets.hcch.net/upload/expl28.pdf (explaining
that these defenses are to be interpreted narrowly to avoid undermining the
objectives of the Convention). 5    When addressing these defenses to return,
courts “must strive always to avoid a common tendency to prefer their own
society and culture.” Abbott, 560 U.S. at 20.
      This case concerns the Convention’s well-settled defense.
                                        IV.
      A district court’s determination of whether a child is well-settled
presents a mixed question of law and fact. See In re B. Del C.S.B., 559 F.3d
999, 1008 (9th Cir. 2009). We review the district court’s factual findings for
clear error, and its legal conclusions de novo. England, 234 F.3d at 270. “A
factual finding is not clearly erroneous as long as it is plausible in the light of
the record as a whole.” Sealed Appellant, 394 F.3d at 342 (citation omitted).
                                        V.
      We conclude that the district court erred in its legal analysis and
application of the Convention’s well-settled defense.


      5  The Pérez–Vera Explanatory Report “is recognized as the official history,
commentary, and source of background on the meaning . . . of the Convention.” Sealed
Appellant, 394 F.3d at 343.
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      Article 12 of the Convention provides, in relevant part, that when
return proceedings are commenced more than one year after the date of
wrongful removal, the court must “order the return of the child, unless it is
demonstrated that the child is now settled in its new environment.” Art. 12.
The underlying purpose of this defense is to recognize that at some point a
child may become so settled in a new environment that return is no longer in
the child’s best interests. Lozano v. Alvarez, 697 F.3d 41, 53 (2d Cir. 2012),
aff’d sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014). The term
“settled” is not defined in the Convention or its implementing legislation. Id.
at 56. The State Department has explained that the term requires “nothing
less than substantial evidence of the child’s significant connections to the new
country,” and that claims should “be considered in light of evidence . . .
concerning the child’s contacts with and ties to his or her State of habitual
residence.”      Hague International Child Abduction Convention; Text and
Legal Analysis (State Legal Analysis), 51 Fed. Reg. 10,494, 10,509 (1986); see
also Abbott, 560 U.S. at 15 (reiterating that the Executive Branch’s
interpretation of a treaty is entitled to great weight). A respondent has the
burden to prove this defense by a preponderance of the evidence. 22 U.S.C. §
9003(e)(2)(B).
      This Court has never reached the merits of the well-settled defense,
contained in Article 12 of the Convention.      Vasconcelos v. Batista, 512 F.
App’x 403, 404 n.3 (5th Cir. 2013) (per curiam). We join the circuits that
have addressed this issue and hold that the following factors should be
considered: (1) the child’s age; (2) the stability and duration of the child’s
residence in the new environment; (3) whether the child attends school or day
care consistently; (4) whether the child has friends and relatives in the new
area; (5) the child’s participation in community or extracurricular activities;
(6) the respondent’s employment and financial stability; and (7) the
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                                 No. 15-30993
immigration status of the respondent and child. See Lozano, 697 F.3d at 57;
In re B. Del C.S.B., 559 F.3d at 1009. Courts diverge, however, with regard
to the significance of immigration status, which forms the crux of the parties’
arguments here.
      In the instant case, Hernandez argues that a lack of legal immigration
status must weigh heavily against finding a child well-settled. Alternatively,
Garcia Peña contends that the well-settled analysis requires a multifactor,
holistic inquiry where immigration status is never dispositive.       Only the
Second and Ninth Circuit have addressed this issue.
      In Lozano, the Second Circuit concluded that “immigration status
should only be one of many factors courts take into account . . . . [and] that,
in any given case, the weight to be ascribed to a child’s immigration status
will necessarily vary.”   697 F.3d at 56.     The court emphasized that this
approach is consistent with the underlying purpose of the defense and with
the State Department’s position that immigration status is not dispositive.
Id. at 49, 56–57. The Second Circuit also explained that the proper inquiry is
not abstract but fact-specific, and is broader than just the threat of
deportation.   For example, the importance of immigration status “will
inevitably vary for innumerable reasons, including: the likelihood that the
child will be able to acquire legal status or otherwise remain in the United
States, the child’s age, and the extent to which the child will be harmed by
her inability to receive certain government benefits.” Id. at 57.
      The Ninth Circuit also declined to announce a categorical rule for the
weight to be given to immigration status. See In re B. Del C.S.B., 559 F.3d at
1010, 1009–10 (“In some circumstances, we will also consider the
immigration status of the child and the respondent.           In general, this
consideration will be relevant only if there is an immediate, concrete threat of


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                                       No. 15-30993
deportation.”). 6 Unlike the Second Circuit, however, the Ninth Circuit’s focus
was not fact-specific but generally emphasized the insignificance of
immigration status when there is no concrete threat of removal, devoting
extensive commentary to the low-risk of deportation for most undocumented
aliens.    Id. at 1012–14 (“[T]he reality is that millions of undocumented
immigrants are presently living in the United States . . . without ever having
any contact with immigration authorities.”).
       We join the Second and Ninth Circuits in concluding that immigration
status is neither dispositive nor subject to categorical rules, but instead is one
relevant factor in a multifactor test.                This approach recognizes that
immigration status alone does not necessarily prevent a child from
developing significant connections in a new environment, and is consistent
with the text of the treaty, the State Department’s guidance, and the purpose
of the well-settled defense.         Like the other factors, however, immigration
status should not be considered in the abstract.                 In other words, proper
application of the framework does not assign automatic treatment to any
particular type of immigration status. Instead, we agree with the Second
Circuit that an individualized, fact-specific inquiry is necessary in every case.
       Here, the district court did not clearly err in its factual findings but
erred in its legal interpretation and application of the well-settled defense.
Although the district court purported to adopt the Second Circuit’s balancing
test, it erred in its application.          Specifically, the district court erred by
treating immigration status as a factor in the abstract. That is, the district


       6 Arguably, some parts of the Ninth Circuit’s opinion can be read to propose a
categorical rule that weighs immigration status heavily only where there is a concrete
threat of removal. Id. (“[O]nly in a case in which there is an immediate, concrete threat of
removal can immigration status constitute a significant factor . . . .”). To the extent this is
in tension with other parts of the opinion that advocate a more flexible approach, where
immigration status is merely relevant when there is a concrete threat of removal, it
appears the court did not announce a true categorical rule for immigration status.
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                                  No. 15-30993
court failed to adequately examine Garcia Peña’s and D.A.P.G.’s actual
immigration status.     Instead, the district court discredited the impact of
immigration status generally by relying on the Ninth Circuit’s reasoning that
“the likelihood of deportation of law-abiding aliens . . . is small, both because
of the sheer number of undocumented immigrants and because the
government has set a priority to deport those with criminal records.” In re B.
Del C.S.B., 559 F.3d at 1012. This type of broad statement fails to take into
account relevant, case-specific distinctions that may exist among and
between different immigration statuses. Hence, the district court’s method of
analysis and conclusion that D.A.P.G. was well-settled, without a proper
analysis of Garcia Peña’s and D.A.P.G.’s specific immigration status, was
incorrect.
      On de novo review, D.A.P.G. and Garcia Peña’s involvement in active
removal proceedings must be considered when balancing the factors. Garcia
Peña admitted she and D.A.P.G. received notice of, but did not attend,
scheduled final removal hearings in July 2015. In fact, these hearings alone
distinguish Garcia Peña and D.A.P.G. from the putative individuals
described by the Ninth Circuit who will never have contact with immigration
authorities. Moreover, D.A.P.G. and Garcia Peña are both within current
DHS civil enforcement priorities as new immigration violators.           See U.S.
Dep’t of Homeland Security, Policies for the Apprehension, Detention, and
Removal of Undocumented Immigrants, Memorandum (Nov. 20, 2014)
(“Aliens described in this priority . . . represent the second-highest priority for
apprehension and removal. . . . (c) aliens . . . who cannot establish to the
satisfaction of an immigration officer that they have been physically present
in the United States continuously since January 1, 2014.”).
      Giving due consideration to immigration status and the other relevant
factors listed above, the thin evidence in the record does not demonstrate that
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D.A.P.G. has formed significant connections to his new environment. The
first factor we consider is the child’s age. Here, D.A.P.G. turned six years old
the day before the bench trial. In other words, he is a very young child not
able to form the same level of attachments and connections to a new
environment as an older child. See Lozano, 697 F.3d at 48 (noting that the
district court found the five-year-old child “too young to form certain types of
connections”). The second factor is the stability and duration of the child’s
new residence. With regard to this factor, although D.A.P.G.’s residence is
stable, he has lived in New Orleans less than a year. The third and fourth
factors we look to are whether the child attends school consistently and has
friends and relatives in the new environment. At the time of the bench trial,
D.A.P.G. had regularly attended kindergarten for three weeks. D.A.P.G.’s
acquaintances in the community are dependent on his mother. He has an
infant half-sister who is one of two relatives in New Orleans. In comparison,
he has a large extended family through both his mother and father in
Honduras.      The fifth factor we consider is participation in community
activities. With respect to this factor, D.A.P.G. attends church regularly with
his mother.      As to the sixth factor, the respondent’s economic and
employment stability, Garcia Peña is employed in a hotel housekeeping
department and is able to provide for D.A.P.G.’s needs. Finally, the seventh
factor we consider is immigration status. D.A.P.G. and Garcia Peña are both
illegally present in the United States and involved in active removal
proceedings.     This involvement in       active removal      proceedings and
categorization as new immigration violators seriously threatens their ability
to remain in the United States.
      Balancing the above factors on de novo review, we are not persuaded
that D.A.P.G. has formed significant connections to his new environment and
thus conclude D.A.P.G. is not well-settled under the Convention. As a result,
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                                       No. 15-30993
we do not need to address Hernandez’s claim that the district court erred in
declining to grant his Rule 59(a) motion.
                                             VI.
       Because we conclude that D.A.P.G. is not well-settled in his new
environment, we VACATE the district court’s order and RENDER judgment
in Hernandez’s favor. Thus, D.A.P.G. must be returned to Honduras without
delay. 7 Moreover, we emphasize that this is not a custody decision but a
conclusion that any custody determinations should be made by Honduran
courts. We REMAND to the district court to finalize the details of D.A.P.G.’s
return, including the financial considerations. See 22 U.S.C. § 9007(b)(3).
       Additionally, we order that the mandate shall issue if no petition for
panel rehearing or rehearing en banc is filed within seven days of the
issuance of this opinion. See Fed. R. App. P. 35 & 40.




       7  Prompt resolution of international child abduction cases is essential to
safeguarding the best interests of the child and upholding the core spirit of the Convention.
Chafin v. Chafin, 133 S. Ct. 1017, 1027 (2013) (“[W]hether at the district or appellate court
level, courts can and should take steps to decide these cases as expeditiously as possible, for
the sake of the children who find themselves in such an unfortunate situation.”).
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