Francisco Merchan Rocha v. Veronica Florez , 605 F. App'x 657 ( 2015 )

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NOT FOR PUBLICATION MAY 21 2015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.
3