                                                                             FILED
                            NOT FOR PUBLICATION                              MAY 21 2015

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



                            FOR THE NINTH CIRCUIT


FRANCISCO MERCHAN ROCHA,                        No. 14-16045

               Petitioner - Appellee,           D.C. No. 2:14-cv-00051-RCJ-VCF

v.
                                                MEMORANDUM*
VERONICA MOLANO FLOREZ, agent
of Veronica Gabrielle,

               Respondent - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                        Argued and Submitted April 13, 2015
                             San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges, and BENITEZ, District
Judge.**

      Respondent Veronica Gabrielle appeals from the district court’s grant of

Francisco Merchan Rocha’s petition under the International Child Abduction


           *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
         The Honorable Roger T. Benitez, District Judge for the U.S. District Court
for the Southern District of California, sitting by designation.
Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq., ordering the return of their

daughter (“SMM”) to Mr. Rocha’s custody in Colombia. We affirm.

      1. SMM’s habitual residence was in Colombia. Giving the district court’s

findings great deference, Mozes v. Mozes, 239 F.3d 1067, 1077-78 (9th Cir. 2001),

the parents did not have a mutual settled intention to abandon Colombia as SMM’s

habitual residence.

      2. Respondent concedes the Petition for Return was filed within one year of

the wrongful retention date. The “well settled” exception under Article 12 of the

Hague Convention on the Civil Aspects of International Child Abduction

(“Convention”), Oct. 24, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, is

inapplicable to this case.

      3. Petitioner did not acquiesce to SMM’s retention in the United States.

While Petitioner allowed SMM to extend her stay in the United States to pursue

her permanent resident application, there is no evidence to unequivocally

demonstrate that Petitioner agreed to let SMM stay in this country indefinitely. See

Asvesta v. Petroutsas, 580 F.3d 1000, 1019 (9th Cir. 2009).

      4. Respondent failed to show by clear and convincing evidence that SMM

would suffer psychological harm if she is returned to Colombia. See Cuellar v.

Joyce, 596 F.3d 505, 509 (9th Cir. 2010).

                                         2
      5. The district court did not err by declining to apply the child preference

exception under Article 13 of the Convention. Application of the exception is

discretionary. See Convention, art. 13, ¶ 2. The record indicates that the district

court properly exercised its discretion.

      AFFIRMED.




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