     Case: 12-50783   Document: 00512719736       Page: 1   Date Filed: 08/01/2014




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


                                 No. 12-50783
                                                                     FILED
                                                                    August 1, 2014

                                                                    Lyle W. Cayce
                                                                         Clerk
ANGELICA LOPEZ SANCHEZ,

                                             Plaintiff - Appellee
v.

R. G. L., as next friend Alex Hernandez; S. I. G. L., as next friend Alex
Hernandez; A. S. G. L., as next friend Alex Hernandez,

                                             Movants - Appellants



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


            ON SECOND PETITION FOR PANEL REHEARING
Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Today, for the third time, we address an appeal by three children who are
natives of Mexico, who seek reversal of the district court’s finding under the
Hague Convention on the Civil Aspects of International Child Abduction that
they were being wrongfully retained in the United States and should be returned
to Angelica Sanchez, their mother. While this appeal was pending, the United
States Citizenship and Immigration Services granted the children asylum. This
new evidence is critical to determining whether one or more of the Hague
Convention’s exceptions to return applies.
     Case: 12-50783       Document: 00512719736          Page: 2     Date Filed: 08/01/2014



                                       No. 12-50783

       On February 21, 2014, we vacated the district court order and remanded
for further proceedings. See Sanchez v. R.G.L., 743 F.3d 945 (5th Cir. 2014)
(withdrawn on rehearing). We issued a second opinion on June 5, 2014, in
response to the children’s first petition for rehearing. In that opinion, we held
that a jurisdictional question regarding the necessity of the Government’s being
made a party did not need to be resolved because we were ordering the
Government’s joinder on remand. See Sanchez v. R.G.L., 2014 WL 2532434 (5th
Cir. 2014) (withdrawn by this opinion on rehearing).
       The children have petitioned for panel rehearing.1 They argue, and we
agree, that we erred in concluding that the jurisdictional challenge raised by the
children can be mooted by Rule 19 joinder. We WITHDRAW our previous
opinion and issue the present opinion, which restates our initial conclusion that
the district court had jurisdiction over Sanchez’s petition because the individual
with physical custody over the children was a party. We reiterate our conclusion
from the rehearing opinion that the Government should be joined in this lawsuit
under Federal Rule of Civil Procedure 19. The district court’s order to return the
children is VACATED and the case is REMANDED for further proceedings
consistent with this opinion.
                                     BACKGROUND
       R.G.L., S.I.G.L., and A.S.G.L., the three minor children involved in this
appeal, were born and raised in Mexico and are Mexican citizens. They lived
with their mother, Angelica Sanchez (“Sanchez”), and her boyfriend, Arturo
Quinonez, in Ciudad Juarez, Chihuahua. On June 9, 2012, the children’s aunt
and uncle, Miriam Lopez Sanchez and Jose Sanchez, brought the children across
the border into El Paso, Texas, either without Sanchez’s permission or under


       1
         The occasions when second rehearings are appropriate are exceedingly rare, but our
legal error in the first rehearing opinion is such an instance. Petitioners’ motion to file for
rehearing out-of-time is granted. We cannot envision granting leave to file for a third.

                                              2
    Case: 12-50783    Document: 00512719736     Page: 3   Date Filed: 08/01/2014



                                 No. 12-50783

false pretenses. Several times, Sanchez asked for her children’s return. On July
18, 2012, Miriam Sanchez took the children to the Bridge of the Americas in El
Paso and instructed the children to cross into Mexico where Sanchez and
Quinonez were waiting on them. As the children were walking across the
international bridge, they presented themselves to Department of Homeland
Security (“DHS”) officers and stated that they did not want to return to Mexico
because they feared Quinonez.
      The DHS officers escorted the children to a passport control office where
they interviewed the children. R.G.L., the oldest, told the officers that he and
his brothers did not want to return because Quinonez, who they claim was a
member of the Azteca gang, was involved in drug trafficking, using drugs, and
abusing the children. At some time during the interview, FBI agents contacted
the DHS officers and informed them that Sanchez and Quinonez had reported
the children kidnapped and were coming to the passport control office, under
FBI supervision, to speak with the children. When Sanchez and Quinonez
arrived, they were able to speak with R.G.L. briefly and were themselves
interviewed separately by FBI agents. Sanchez denied the children’s allegations
of abuse and informed the agents that her children had been taken to El Paso
against her will. Sanchez was informed that DHS would retain custody of the
children. She and Quinonez returned to Mexico without the children.
      DHS promptly determined that the children were unaccompanied alien
children with a credible fear of returning to Mexico.       Accordingly, DHS
transferred the children to the custody of the Office of Refugee Resettlement
(“ORR”), Division of Unaccompanied Children’s Services, which is responsible
for coordinating and implementing the children’s care and placement. ORR,
though retaining legal custody, placed the children in the physical custody of
Baptist Services Child and Family Services to provide for their care, including
education, travel, and medical care. Baptist Services placed the children in a


                                       3
     Case: 12-50783       Document: 00512719736         Page: 4    Date Filed: 08/01/2014



                                      No. 12-50783

foster home in San Antonio, where they remained until sometime during this
appeal. Because the children were declared by DHS to be “unaccompanied alien
children,” they entered mandatory removal proceedings. ORR, as authorized by
statute, appointed pro bono counsel for the children. See 8 U.S.C. § 1232(c)(5)-
(6). Their counsel applied for relief from removal on a number of grounds,
including asylum.
       Almost a year after the children had been removed from Mexico, Sanchez
filed this suit in district court against the children’s aunt and uncle, Miriam and
Jose Sanchez, and against the director of Baptist Services, Asennet Segura. She
sought access to the children, their return, and an immediate temporary
restraining order preventing the children’s transfer out of Texas. She claimed
entitlement to this relief under the Hague Convention on the Civil Aspects of
International Child Abduction and also under the International Child Abduction
Remedies Act (“ICARA”). The Hague Convention is an international treaty to
which both the United States and Mexico are signatories, see T.I.A.S. No. 11670,
S. Treaty Doc. No. 99–11, and ICARA is the domestic implementing legislation.
See 42 U.S.C. § 11601, et seq.
       Because Hague Convention petitions are intended to be addressed
expeditiously, the district court held an evidentiary hearing one month after
Sanchez filed her suit. Miriam and Jose Sanchez did not participate.2 Baptist
Services was represented at the hearing, but took no position on whether the
children should be returned to their mother. Instead, because it was acting at
the direction of ORR in maintaining custody of the children, it argued that ORR
was the proper party to the proceedings. The children’s ORR-appointed asylum
attorney appeared informally at the hearing on the children’s behalf, arguing


       2
         The district court’s docket sheet indicates that Miriam and Jose Sanchez were
represented by the same counsel as Baptist Services. That counsel, however, did not represent
to the court that he was appearing on their behalf.

                                             4
    Case: 12-50783     Document: 00512719736       Page: 5   Date Filed: 08/01/2014



                                   No. 12-50783

that the court should allow the children to intervene through Alex Hernandez,
as next friend, or in the alternative, grant their motion for the appointment of
a guardian ad litem. The district court would later deny the motion, but it
allowed the children’s attorney to participate in all critical stages of the hearing.
      After the hearing, the court directed ORR, who was not formally a party
to the proceedings, to answer these questions: “(1) whether this Court has
jurisdiction under the Hague Convention; (2) does any procedure in the
immigration court preempt or stay this Court’s actions; and (3) whether ORR
has a position as to whether or not the children would be subject to grave risk
or harm by being returned to their mother.” ORR, through the Office of
Immigration Litigation (which has filed an amicus brief on appeal), informed the
court that it “does not take a position at this time” on the first and third question
and moved that the district court hold the petition in abeyance pending the
disposition of the children’s asylum applications.
      On August 3, 2013, the district court issued findings of fact and
conclusions of law. It acknowledged the difficulties presented by the parallel
asylum proceedings but determined that the Hague Convention’s demands for
expediency counseled against prolonging a resolution of Sanchez’s petition. The
court did not indicate what bearing, if any, the children’s asylum proceedings
would have on its grant of relief, though it did suggest that it would be relevant.
The court also did not address whether the United States Government, through
ORR, was a proper party to the petition and denied the children’s request for
representation. The district court concluded that the children were “wrongfully
retained” within the meaning of the Convention and none of the Convention’s
exceptions to return applied. Therefore, the court ordered “the minor children
be returned forthwith to the custody of Petitioner,” but later stayed the
enforcement of the order pending this appeal.



                                         5
     Case: 12-50783       Document: 00512719736          Page: 6     Date Filed: 08/01/2014



                                       No. 12-50783

       Two other post-judgment developments are important to this appeal.
Shortly after the notice of appeal was filed but before briefing, the United States
Citizenship and Immigration Services (“USCIS”) granted the children asylum
pursuant to 8 U.S.C. § 1158.3 Among other things, that statute states that in the
case of aliens who are granted asylum, “the Attorney General . . . shall not
remove or return the alien to the alien’s country of nationality.” § 1158(c)(1)(A).
Secondly, before we held oral argument in this case, the Government informed
the court that it was in the process of transferring the children to the physical
custody of Catholic Charities. The Government informed us that the transfer
would take six to eight weeks, and would vest legal custody, under Texas law,
in Catholic Charities. In rehearing briefing, though, the children maintain that
their custodial status has not changed.
       The children, who are the sole appellants in this case, challenge both the
district court’s handling of Sanchez’s petition and the enforceability of the
district court’s order in light of the subsequent asylum grant. First, they argue
that Sanchez did not have standing to pursue her petition. They assert that the
only way Sanchez would have had standing to pursue her petition was by
naming ORR as a respondent in her petition. They also argue that even if
Sanchez did have standing, none of the respondents meaningfully advanced
their interests under the Convention and therefore they had the right to formally
participate in the district court proceedings. They also contend that the district
court erred in ordering their return in light of the evidence presented.
       As for the asylum grant, the children advance alternative theories on how
the court should proceed. First, they argue that the district court can no longer


       3
         It is unclear whether USCIS had more information about the risks to the children
than did the district court. Relevantly, there are two unresolved motions related to the
children’s asylum grant. We grant the children’s motion to take judicial notice of their asylum
grant but deny the alternative to supplement the record. We also grant the unopposed motion
of the Government to seal the assessments in support of the children’s asylum grant.

                                              6
    Case: 12-50783      Document: 00512719736     Page: 7     Date Filed: 08/01/2014



                                  No. 12-50783

order their return to Mexico because their asylum status prohibits their return.
In the alternative, they argue that this case should be remanded to the district
court with instructions for it to consider their asylum grant in order to
determine whether they should be returned. Three other interested parties,
including the Government, filed amicus briefs in this case. The Government
asks the court to remand the proceedings to the district court with instructions
for it to consider evidence of the children’s asylum grant.


                                  DISCUSSION
      I. Whether the Children Have Standing to Appeal
      Our threshold issue is whether the children, who were not parties, have
the right to appeal as de facto parties. Sanchez disputes this argument in one
paragraph in her brief. The children were the primary opponents of Sanchez’s
petition for return, even though the district court denied their motion to
intervene as respondents. To determine whether a non-party has standing to
appeal, we ask: (1) “whether the non-party actually participated in the
proceedings below”; (2) whether “the equities weigh in favor of hearing the
appeal”; and (3) whether “the non-party has a personal stake in the outcome.”
SEC v. Forex Asset Mgmt. LLC, 242 F.3d 325, 329 (5th Cir. 2001) (quotation
marks omitted). The factors weigh in favor of finding that the children should
be allowed to appeal.
      With regard to the first factor, the children’s attorney played an active role
in the evidentiary hearing, submitting briefs and evidence, and arguing issues
before the court. Others who might have responded to the petition – the
children’s aunt and uncle, their foster parents, the foster agency, or the
Government – did not respond meaningfully and failed to assert the Convention
exceptions that are designed, in part, to account for the harms that could result
from the children’s return. As to the other factors, both the equities and the

                                         7
    Case: 12-50783     Document: 00512719736     Page: 8   Date Filed: 08/01/2014



                                  No. 12-50783

children’s strong personal stake in the outcome weigh in favor of permitting
their appeal. “In every case under the Hague Convention, the well-being of a
child is at stake.” Chafin v. Chafin, 133 S. Ct. 1017, 1027 (2013). If the appeal
is not allowed, we will not be able to consider the arguments that their well-
being will be adversely affected by the ruling. We conclude the children have
standing to appeal.


      II. Whether the District Court Erred in Ordering the Children’s Return
      Before we address the merits of the children’s arguments, we begin with
a general discussion of the Hague Convention, as implemented through ICARA.
The Hague Convention has two stated objectives: “a) to secure the prompt return
of children wrongfully removed to or retained in any Contracting State; and b)
to ensure that rights of custody and of access under the law of one Contracting
State are effectively respected in the other Contracting States.”          Hague
Convention, art. 1. It accomplishes these objectives through the return remedy.
E.g., Abbott v. Abbott, 560 U.S. 1, 8-9 (2010). This means that under the
Convention, a “wrongfully removed” child is returned to his or her home country;
the return order is not a determination as to permanent legal or physical custody
of the child. Id. at 1987. By focusing on the child’s return, the Convention seeks
to “restore the pre-abduction status quo and to deter parents from crossing
borders in search of a more sympathetic court.” England v. England, 234 F.3d
268, 271 (5th Cir. 2000) (quotation marks omitted).         The return remedy
determines the country in which the custody decision is to be made; it does not
make that decision.
      The implementing statute provides concurrent original jurisdiction over
a Hague Convention petition in state and federal court; it sets venue at the
location of the child. 42 U.S.C. § 11603(a), (b). “Notice of an action brought
under subsection (b) of this section shall be given in accordance with the

                                        8
     Case: 12-50783        Document: 00512719736          Page: 9     Date Filed: 08/01/2014



                                        No. 12-50783

applicable law governing notice in interstate child custody proceedings.” 42
U.S.C. § 11603(c). The applicable law comes from the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”). See Livanos v. Livanos, 333
S.W.3d 868, 876 (Tex. App. – Houston [1 Dist.] 2010). As codified in Texas, the
UCCJEA states “notice and an opportunity to be heard . . . must be given to all
persons entitled to notice under the law of this state as in child custody
proceedings between residents of this state, any parent whose parental rights
have not been previously terminated, and any person having physical custody
of the child.” TEX. FAM. CODE ANN. § 152.205(a).
       Once a petitioner files and gives notice, ICARA explains both what the
petitioner must establish in order to obtain relief and what “a respondent who
opposes the return of the child” must show.4 42 U.S.C. § 11603(e)(2). To secure
the return of the child, the petitioner must establish that the child “has been
wrongfully removed or retained within the meaning of the Convention.” 42
U.S.C. § 11603(e)(1)(A). Article 3 of the Hague Convention requires a showing
that the petitioner had some “rights of custody” that are derived from the child’s
home country and that she was exercising her custody rights at the time of
removal. Hague Convention, art. 3; see also Larbie v. Larbie, 690 F.3d 295, 307
(5th Cir. 2012).
       The burden then shifts to the respondent to establish “by clear and
convincing evidence that one of the exceptions set forth in Article 13(b) or 20 of
the Convention applies.” 42 U.S.C. § 11603(e)(2)(A). None of the exceptions turn
on whether the person removing or retaining was properly exercising custody
rights. Article 13(b), for example, concerns whether “there is a grave risk that


       4
         A petitioner is defined as “any person who, in accordance with this chapter, files a
petition in court seeking relief under the Convention,” and a respondent is “any person against
whose interests a petition is filed in court, in accordance with this chapter, which seeks relief
under the Convention.” 42 U.S.C. § 11602(4), (6). A person includes “any individual,
institution, or other legal entity or body.” 42 U.S.C. § 11602(5).

                                               9
    Case: 12-50783      Document: 00512719736        Page: 10    Date Filed: 08/01/2014



                                     No. 12-50783

his or her return would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.” Hague Convention, art.
13b. This exception derives not from a concern for the respondent’s rights but
“from a consideration of the interest of the child.” See Elisa Pérez–Vera,
Explanatory Report: Hague Conference on Private International Law, ¶ 29, in
3, Acts and Documents of the Fourteenth Session, Child Abduction 426, 464 (the
“Explanatory Report”).5       If the respondent fails to show that one of the
exceptions applies, the court “shall order the return of the child forthwith.”
Hague Convention, art. 12.
      A. Proper party defendants
      The children begin by arguing the district court lacked jurisdiction to
grant Hague Convention relief because Sanchez failed to sue the proper party.
They label this issue with the word “standing,” which has three elements.
“First, the plaintiff must have suffered an ‘injury in fact.’” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992). Second, “a causal connection between the
injury and the conduct complained of” must exist. Id. That is, the injury must
be “fairly traceable to the challenged action of the defendant, and not the result
of the independent action of some third party not before the court.” Id.
(quotation marks omitted). Last, “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Id. at
561 (quotation marks omitted). Questions of standing are reviewed de novo.
Bonds v. Tandy, 457 F.3d 409, 411 (5th Cir. 2006). Additionally, all elements of
standing should be determined “at the outset of the litigation.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000).




      5
        We have previously relied upon the Explanatory Report “as the official history,
commentary, and source of background on the meaning of the provisions of the” Convention.
Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 343 (2004).

                                           10
    Case: 12-50783       Document: 00512719736         Page: 11     Date Filed: 08/01/2014



                                      No. 12-50783

       The children’s argument focuses primarily on the last element of the
standing inquiry, which is redressability.6 They argue that the district court
order could not redress Sanchez’s injury because Segura, the most significant
respondent in this case, cannot be compelled in her official capacity as director
of Baptist Services to return the children because she was not the actual
physical custodian of the children, and even if she could, Baptist Services lacked
the legal authority to return her children to her. Instead, the children assert
that ORR, as the children’s temporary legal guardian, was the only respondent
who had the authority to return the children. Therefore, they argue Sanchez
should have named ORR in her petition in order to be able to receive any relief.
But even then, the children argue that if Sanchez would have named ORR in the
petition, it would have failed because the Hague Contention cannot be used to
compel the Government to return children within their legal custody.
       Sanchez responds that, under the Hague Convention, the person who
“controls the body” is the person appropriate for suit. She argues that is so
because the necessary respondent under the Convention is the party who can
physically complete the return, if ordered. Legal custody is then resolved in the
new forum. Thus, she argues, the legal custodian is not needed for jurisdiction.
Sanchez is correct that the person with physical custody of the child must be a
respondent, regardless of whether someone else has legal custody. For instance,
had Jose and Miriam Sanchez continued to retain the children after they entered
the United States, they would have been proper ICARA respondents. The issue
here is whether Sanchez’s failure to join the actual physical custodians (the




       6
         The children also dispute whether any party named in the petition caused her injury.
They suggest that Jose and Miriam Sanchez are not presently causing their mother injury,
even if they did initially take them from their mother. Regardless, we discuss later that
Segura is a named party who at the time of suit was said to be wrongfully withholding custody
from the children’s mother.

                                             11
    Case: 12-50783    Document: 00512719736      Page: 12    Date Filed: 08/01/2014



                                  No. 12-50783

unidentified foster parents) or the Government, as the current legal custodian,
deprived the district court of Article III jurisdiction over Sanchez’s petition.
      The Government has scrupulously avoided taking a position on whether
it should have been or must be made a respondent. The district court directed
the Government to explain its position on “whether this court has jurisdiction
under the Hague Convention.” The Government, represented by the Office of
Immigration Litigation in the Civil Division of the Department of Justice,
answered that “as a general matter, the court has jurisdiction over a Hague
Convention case,” but it expressly did “not take a position at this time on
whether the petitioner has named a proper respondent in this case.” It also
suggested the court hold the case in abeyance pending the children’s asylum
determinations. The district court interpreted the position of the Government
as agreeing that: (1) the court had jurisdiction over the case and (2) the asylum
proceedings would not alter its authority to order the children’s return.
      Similarly, on appeal, the Government, in its amicus brief, has not
suggested that ORR is a necessary respondent in this case. It has contended
that the executive branch’s proposed interpretation of a treaty, “particularly in
light of the Department of State’s involvement” in the treaty process, is entitled
to “great weight.” See Abbott, 560 U.S. at 15. The Government’s interpretation
of the Convention, however, in no way suggested that it was a necessary party.
If anything, it did the opposite. In its amicus brief, the Government said that its
interest in this case “arises out of its treaty obligations and federal immigration
law.” It did not state that it had any vested interest by virtue of its legal
guardianship of the children or its contractual relationship with Segura or
Baptist Services. The clear implication of the briefing was: the Executive
Branch did not dispute the district court’s jurisdiction to enter an order that the
children could be returned to their mother, even without ORR as a party to this



                                        12
   Case: 12-50783     Document: 00512719736     Page: 13   Date Filed: 08/01/2014



                                 No. 12-50783
suit. Further, at oral argument, the Government represented to this court that
it would not interfere with a court-ordered return of the children.
      Despite these assertions, the children raise a variety of hypothetical
scenarios regarding what the Government might do if the district court issues
a return order. The primary argument in their petitions for rehearing is that
Segura will not have authority to carry out the order because ORR may prevent
her from returning the children. The children, however, have yet to identify any
authority to suggest that the Hague Convention or ICARA requires the
Government, as temporary legal custodian, to be involved in this suit. Put
another way, they have failed to identify what would prevent Segura from
returning the children pursuant to a judicial order. As explained above, the
Hague Convention was designed to afford the child’s home country the right to
decide legal custody disputes: “Ordering a return remedy does not alter the
existing allocation of custody rights . . . but does allow the courts of the home
country to decide what is in the child’s best interests.” Abbott, 560 U.S. at 20;
see also England, 234 F.3d at 271. Typically, this means serving the petition on
the person with physical custody of the children in order to effectuate the
expedited return of the children to their home country.
      We first conclude that no jurisdictional defect arises from the fact that
Segura was not the actual physical custodian of the children. The record
indicates that Sanchez was diligent in trying to determine the location of her
children and the identity of their custodians.     The United States had an
obligation under the Convention to assist with her application.       See Hague
Convention, art. 7. It identified the foster service but not the foster parents.
Consequently, Sanchez could not serve notice on the children’s actual but
unknown physical custodians. The best she could do was serve her petition on
Segura, the person identified by the United States. Though Segura was not the



                                       13
    Case: 12-50783       Document: 00512719736        Page: 14     Date Filed: 08/01/2014



                                      No. 12-50783
actual physical custodian,7 she had knowledge of the children’s location and, as
director of child placement, had authority over the Baptist Services to direct
their placement. That is enough to oversee the children’s return, which would
redress Sanchez’s injury. The Hague Convention demands no more.
       Further, we hold that Sanchez’s failure to name the Government as a
respondent did not create a jurisdictional defect. The district court did not lack
jurisdiction to enter its order because Segura, as either physical custodian or
someone with authority over the physical custodian at the time the petition was
filed, could provide Sanchez relief under the Convention by overseeing the
return of the children to their home country. When “establishing redressability,
[a plaintiff] need only show that a favorable ruling could potentially lessen its
injury; it need not definitively demonstrate that a victory would completely
remedy the harm.” Antilles Cement Corp. v. Fortuno, 670 F.3d 310, 318 (1st Cir.
2012). Here, a court order for the children’s return has the potential, in whole
or in part, to redress the claimed injury.
       Nevertheless, we conclude that joinder of the Government is required in
this action. A party must be joined, if feasible, when joinder is required for
certain purposes enumerated in Federal Rule of Civil Procedure 19. The rule
provides as follows:
       (a) Persons Required to Be Joined if Feasible.
           (1) Required Party. A person who is subject to service of process
           and whose joinder will not deprive the court of subject-matter
           jurisdiction must be joined as a party if:
              (A) in that person’s absence, the court cannot accord complete
              relief among existing parties; or


       7
        We note that even if Sanchez had named the unidentified foster parents as John and
Jane Doe in her petition, she could not have served the petition on them, and thus could not
have given them the notice required by ICARA. Moreover, the children argue that Baptist
Services could have been served. That may be correct, but they do not explain why Segura
cannot accomplish the same acts as the Baptist Services.

                                            14
    Case: 12-50783       Document: 00512719736      Page: 15    Date Filed: 08/01/2014



                                     No. 12-50783
            (B) that person claims an interest relating to the subject of
            the action and is so situated that disposing of the action in the
            person’s absence may:
                      (i) as a practical matter impair or impede the person’s
                      ability to protect the interest; or
                      (ii) leave an existing party subject to a substantial risk
                      of incurring double, multiple, or otherwise inconsistent
                      obligations because of the interest.
FED. R. CIV. P. 19.
      There are legitimate concerns that, absent the Government as a party, the
carrying out of any court order could become difficult. Although the court has
jurisdiction, the Government has been the temporary legal custodian throughout
this action and selected the children’s physical custodian. As previously noted,
the record is unclear on whether the Government still retains temporary legal
custody and whether Baptist Services retains physical custody; instead, both
legal and physical custody may have been transferred to Catholic Charities. The
children insist their custodial status is unchanged. These questions fall within
the principle that courts at times must decide cases “where the practical impact
of [a] decision is not assured.” Chafin, 133 S. Ct. at 1025. Yet we should also
endeavor to increase the level of assurance when practicable.
      Failure to include the temporary legal custodian in a situation where a
change in physical custody during the appeal has been suggested, presents
unusual risks. In order to assure complete relief to Sanchez, the Government
should be joined pursuant to Rule 19(a)(1)(A).
      Additionally, the children have contended that Segura lacks authority to
comply with a return order due to ORR’s congressionally mandated custody. See
8 U.S.C. § 1232(b)(1) (tasking HHS with care of unaccompanied alien children);
6 U.S.C. § 279(a) (naming ORR as the responsible entity within HHS). Instead,
they maintain Baptist Services, as physical custodian, is simply a contractor
with ORR and cannot move the children without ORR’s prior consent. As a

                                           15
    Case: 12-50783    Document: 00512719736      Page: 16    Date Filed: 08/01/2014



                                  No. 12-50783
result, a return order entered by the district court could put Segura, or Baptist
Services, in the difficult position of disobeying a court order or breaking
contractual and legal obligations to maintain physical custody. In order to avoid
potentially imposing inconsistent obligations on Segura, the Government should
be joined pursuant to Rule 19(a)(1)(B)(ii).
      We therefore hold that the Government should be joined on remand. We
leave it for the district court to determine whether the United States, ORR, its
director, or some other entity is the proper governmental party. Joinder will
expedite a resolution of this case, which has already been delayed too long.
      B. The children’s motion to intervene or appoint a guardian ad litem
      The children’s second argument is whether the district court should have
granted their motions to intervene or to appoint a guardian ad litem in light of
the fact that none of the respondents asserted the Convention’s exceptions. The
children argue they have the “right to be heard” but were not allowed to exercise
that right in the district court. It is unclear whether they seek reversal on this
basis alone or whether they are asking the court to provide instruction to the
district court to allow them to intervene if it decides that remand on other
grounds is warranted.
      Federal Rule of Civil Procedure 24(a) provides for intervention as a matter
of right when a prospective party “claims an interest relating to the property or
transaction that is the subject of the action, and is so situated that disposing of
the action may as a practical matter impair or impede the movant’s ability to
protect its interest, unless existing parties adequately represent that interest.”
FED. R. CIV. P. 24(a). Rule 17(c)(2) provides that a court “must appoint a
guardian ad litem – or issue another appropriate order – to protect a minor or
incompetent person who is unrepresented in an action.” FED. R. CIV. P. 17(c)(2).
We review de novo the denial of a motion to intervene as a matter of right.
Heaton v. Monogram Credit Card Bank of Georgia, 297 F.3d 416, 422 (5th Cir.


                                        16
    Case: 12-50783    Document: 00512719736      Page: 17     Date Filed: 08/01/2014



                                  No. 12-50783
2002). Denial of appointment of a guardian ad litem is reviewed for abuse of
discretion. See Fernandez-Vargas v. Pfizer, 522 F.3d 55, 66 (1st Cir. 2008).
      Children are not usually parties to Hague Convention proceedings, though
nothing in the Convention expressly prohibits a court from allowing children to
intervene. The First Circuit has stated that some cases, but not “very many,”
may warrant a child’s formal representation in a Hague Convention proceeding.
See Walsh v. Walsh, 221 F.3d 204, 213 (1st Cir. 2000). District courts have
sometimes allowed children to participate through guardians ad litem when
their interests were not adequately represented by either party. See Danaipour
v. McLarey, 286 F.3d 1, 8 (1st Cir. 2002) (noting that the district court appointed
a guardian ad litem); Lieberman v. Tabachnik, 2007 WL 4548570, *2 (D. Colo.
Dec. 19, 2007) (appointing a guardian ad litem).            Granting the children
representation in appropriate situations is consistent with the Supreme Court’s
view that “courts can achieve the ends of the Convention and ICARA – and
protect the well-being of the affected children – through the familiar judicial
tools . . . .” Chafin, 133 S. Ct. at 1026-27.
      As we have acknowledged, the circumstances of this case are exceptional.
The abducting respondents have disclaimed any responsibility for the children.
The children’s physical guardian was represented by counsel and participated
in the matter when it was before the district court but appeared to be concerned
with her own interests. And the Government, the children’s temporary legal
guardian, chose not to assert the Convention defenses for the children when
queried by the district court. Moreover, none of the respondents named in
Sanchez’s petition have participated in this appeal. Without the informal
participation of the children’s ORR-appointed counsel, the children would have
had no advocates before the district court.
      Despite the district court’s clear concern for the children, and despite the
considerable informal allowances made for the children’s attorney, we find that


                                        17
    Case: 12-50783    Document: 00512719736       Page: 18    Date Filed: 08/01/2014



                                  No. 12-50783
the children should now be appointed formal legal representation.               The
children’s fundamental interests are at stake in the district court’s proceedings,
and no respondent is making an effort to represent those interests. Rule 17(c)(2)
requires a court to appoint counsel for an unrepresented minor in the
proceedings, and these children’s interests were unrepresented. On remand, the
district court should appoint the children a guardian ad litem. We reject,
however, the children’s assertion that they should be allowed to intervene. The
fact that the children have obtained additional “rights” through their asylum
grants does not change their status vis-a-vis an ICARA petition. Our concern
here is that the children’s fundamental interests are represented as embodied
in the Hague Convention. The children’s asylum grants, as explained below, are
only relevant to these proceedings to the extent that they cast some additional
light on the relevant Hague Convention defenses, which can be adequately
asserted by the court-appointed guardian ad litem.
      C. The sufficiency of the district court’s findings
       The children also attack the merits of the district court’s return order.
“The district court’s findings of fact are reviewed for clear error . . . .” Sealed
Appellant, 394 F.3d at 342. Relying in particular on Khan v. Fatima, 680 F.3d
781 (7th Cir. 2012), they argue that the district court erred by failing to mention
the children’s psychological evaluations, and perhaps some other evidence, in
considering whether any of the Hague Convention’s exceptions to return apply.
The Seventh Circuit determined that the district court should have considered
psychological evidence suggesting that the return of the children to the
petitioner would subject them to psychological harm. Id. at 788.
      Here, critical to the district court’s legal conclusion was its factual finding
that the children would not be returned to the same threatening situation as
they were in when they left Mexico. The psychological evidence presented by the
children centered mostly on harm Quinonez was inflicting on their mother and


                                        18
    Case: 12-50783    Document: 00512719736       Page: 19   Date Filed: 08/01/2014



                                  No. 12-50783
them and only vaguely referenced the children’s belief that the same situation
would exist if they were returned because they believed their mother would not
permanently leave Quinonez. Sanchez had abandoned Quinonez and that the
Mexican government had presented evidence that it could protect the children.
See Walsh, 221 F.3d at 219. The Convention’s exceptions to return, and Article
13(b) in particular, are prospective, whereas the psychological reports are
primarily retrospective in nature. The district court did not clearly err by failing
to account for the mostly retrospective harm allegedly suffered by the children,
or the conclusions of the psychologist, which were based on the children’s belief
that the same conditions would be present upon their return.


      III. Effect of asylum grant on the district court’s order
      The final issue we address is whether the children’s asylum grant should
be considered by the district court. The children first argue that an asylum
grant directly conflicts with the district court order, and the more recent asylum
grant should take precedence over Convention relief under the last-in-time rule.
See Ntakirutimana v. Reno, 184 F.3d 419, 426-27 (5th Cir. 1999). This argument
focuses on the effect of the asylum grant vis-a-vis the district court order and
views Sanchez’s attempt to secure the return of her children under ICARA as an
impermissible collateral attack on the grant of asylum. Alternatively, the
children argue that we should remand to the district court for reconsideration
of whether the Article 13(b) or 20 exception applies in light of the recent grant
of asylum, which is new evidence not considered by the district court.
      Sanchez responds that, if Convention relief is found to be in conflict with
the asylum grant, the return order should take precedence over the asylum
grant because the Convention proceedings were more thorough.              She also
disputes the argument that it is necessary for the district court to consider the
asylum grant because evidence related to that grant was already considered by


                                        19
    Case: 12-50783     Document: 00512719736       Page: 20    Date Filed: 08/01/2014



                                   No. 12-50783
the district court. In its amicus brief, the Government advances the position
that a grant of asylum is not dispositive of but is relevant to whether either the
Article 13(b) or 20 exception applies.
      The children were granted asylum pursuant to the Immigration and
Nationality Act (“INA”), as amended by the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (“TVPRA”), 8 U.S.C. §§ 1158,
1229a, 1232. To qualify for asylum, an applicant must either have suffered past
persecution or have a “well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A), incorporated by 8 U.S.C. § 1158(b)(1)(B)(i).8
The children’s grant of asylum was discretionary, 8 U.S.C. § 1158(b)(1)(A), and
provides that “the Attorney General shall not remove or return the alien to the
alien’s country of nationality . . . .” 8 U.S.C. § 1158(c)(1)(A).
      We disagree with the children’s argument that the asylum grant must be
revoked before they can be returned to Mexico pursuant to the Hague
Convention. The language of the INA indicates that the discretionary grant of
asylum is binding on the Attorney General or Secretary of Homeland Security.
See id.   No authority has been offered to support the argument that the
discretionary grant of asylum confers a right to remain in the country despite
judicial orders under this Convention. The asylum grant does not supercede the
enforceability of a district court’s order that the children should be returned to
their mother, as that order does not affect the responsibilities of either the
Attorney General or Secretary of Homeland Security under the INA. See Sale
v. Haitian Centers Council, Inc., 509 U.S. 155, 173 (1993).
      The children’s asylum grant, though, is relevant to whether the Hague
Convention exceptions to return should apply. We agree with the Government


      8
        Because the children were deemed to be unaccompanied alien children, the USCIS
made this determination. See 8 U.S.C. § 1158(b)(3)(C).

                                         20
   Case: 12-50783     Document: 00512719736      Page: 21   Date Filed: 08/01/2014



                                  No. 12-50783
that there is a significant overlap between the asylum inquiry and Article 13(b)
of the Hague Convention. Both focus on the level of harm to which the children
would be exposed if returned to their home country. An asylee has been found
to face persecution upon return to his or her country of nationality. 8 U.S.C.
§ 1101(a)(42)(A). Persecution has been defined as an “extreme concept” and
turns on whether suffering or harm is likely to be inflicted on the asylum
applicant.   Eduard v. Ashcroft, 379 F.3d 182, 187 & n.4 (5th Cir. 2004).
Similarly, Article 13(b) of the Hague Convention requires a respondent to show
that “there is a grave risk that his or her return would expose the child to
physical or psychological harm.” Hague Convention, art. 13(b). The level of
harm necessary to trigger the Article 13(b) exception must be “a great deal more
than minimal.” Walsh, 221 F.3d at 218.
      Despite similarities, the asylum finding that the children have a well-
founded fear of persecution does not substitute for or control a finding under
Article 13(b) of the Convention about whether return “would expose the child to
physical or psychological harm or otherwise place the child in an intolerable
situation.” Hague Convention, art. 13(b). The judicial procedures under the
Convention do not give to others, even a governmental agency, authority to
determine these risks. The district court makes an independent finding of
potential harm to the children, considering all offered relevant evidence. The
prior consideration of similar concerns in a different forum are relevant, but we
determine that an asylum grant does not remove from the district court the
authority to make controlling findings on the potential harm to the child.
      We note also that the evidentiary burdens in the asylum proceedings and
those under ICARA’s framework are different. To be granted asylum, the
children were required to show their eligibility by a preponderance of the
evidence. See 8 C.F.R. § 1208.13(a),(b)(1)(i). In order for a Convention exception
to apply, a respondent must establish the exception by clear and convincing


                                       21
    Case: 12-50783    Document: 00512719736      Page: 22    Date Filed: 08/01/2014



                                  No. 12-50783
evidence. 42 U.S.C. § 11603(e). The level of participation by interested parties
in the two proceedings may also be different, a point Sanchez makes when
arguing she did not have an opportunity to make a meaningful presentation
prior to the asylum grant.
      As the district court recognized, the USCIS grants of asylum are relevant
to any analysis of whether the Article 13(b) or 20 exception applies. When faced
with a motion to stay the proceedings while the children’s asylum application
was pending, the district court determined that the interests of a prompt answer
under the Convention outweighed the merits of a stay. Now that the children
have been granted asylum, though, all available evidence from the asylum
proceedings should be considered by the district court before determining
whether to enforce the return order.


                                 CONCLUSION
      The district court’s return order is VACATED. The case is REMANDED
to the district court with instructions to determine the current physical and legal
custodian; to join the Government, if it still retains temporary legal custody, as
a party respondent; to appoint the children a guardian ad litem; and to consider
the asylum grants, assessments, and any related evidence not previously
considered that relates to whether Article 13(b) or 20 applies. Any remaining
issues such as whether the oldest child is no longer subject to these proceedings,
can be addressed. Finally, we repeat our previous statement, which was echoed
in the previous dissent, that the United States Government should take “all
appropriate measures” to fulfill its Convention-imposed duties, including an
obligation to “facilitate the institution of judicial or administrative proceedings
with a view to obtaining the return of the child.” Hague Convention, art. 7.




                                        22
   Case: 12-50783    Document: 00512719736     Page: 23   Date Filed: 08/01/2014



                                No. 12-50783
HAROLD R. DeMOSS, JR., Circuit Judge, DISSENTING:
      In my judgment, the proper disposition of this appeal would be for this
court to affirm the district court’s October 30, 2012 decision which ordered
that the children be returned to the custody of their mother pursuant to the
Hague Convention on the Civil Aspects of International Child Abduction (“the
Hague Convention”). See 42 U.S.C. § 11601, et. seq.
      As the district court acknowledged, this case is peculiar because
collateral to their mother’s Hague Convention action in the district court the
boys were seeking asylum in administrative proceedings. After the district
court issued its order, the boys were granted asylum. I am unaware of any
controlling authority which indicates that a grant of asylum necessarily
precludes the return of a child under the Hague Convention.
      Turning to the Hague Convention analysis, the district court
determined that Mexico was the children’s country of habitual residence, that
their mother had rights of custody, that the children were being wrongfully
retained, that the mother was exercising her custodial rights or would have
been exercising those rights absent the removal or retention, and that no
exceptions to returning the children were applicable. The record reflects that
the district court spent a tremendous amount of time and effort considering
whether exceptions to returning the children under the Hague Convention
were applicable. The district court went as far as interviewing the two older
children.   Ultimately, I am unpersuaded that the district court erred in
finding that the exceptions to the Hague Convention were inapplicable.
      Finally, I want to address the fact that the mother filed her case under
the Hague Convention nearly a year after the boys left Mexico. In my mind,
such a delay is likely attributable to the facts of this case. It appears as
though the mother is a woman of limited means, and after leaving Mexico the
children have been shuffled between various administrative agencies and


                                     23
   Case: 12-50783       Document: 00512719736    Page: 24   Date Filed: 08/01/2014



                                  No. 12-50783
foster organizations.    Given these facts, it is no wonder that it took the
mother several months to file a lawsuit. As the majority notes, the United
States has certain responsibilities under the Hague Convention.        I urge the
Department of State, the designated Central Authority, to fully comply with
its statutory duties. See id. at § 11606; Exec. Order No. 12,648, 3 C.F.R. 579
(1988).




                                       24
