Jose Jaimes Sierra v. Nasly Riascos Tapasco

Case: 16-20660 Document: 00514036552 Page: 1 Date Filed: 06/16/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-20660
Fifth Circuit
FILED
June 16, 2017
JOSE PRIMITIVO JAIMES SIERRA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
NASLY XIMENA RIASCOS TAPASCO,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-640
Before DAVIS, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Primitivo Jaimes Sierra (“Jaimes”) filed a petition under the Hague
Convention for return of K.J.R., his now 7-year-old daughter, to Mexico. Nasly
Ximena Riascos Tapasco (“Riascos”), the child’s mother, took K.J.R. from
Mexico to Texas without Jaimes’s approval in July 2014. The district court
held that Jaimes carried his burden to prove by a preponderance that K.J.R.’s
habitual residence was supplanted to Mexico. Riascos appeals. Because we
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-20660
conclude that the district court did not err in finding that Jaimes carried his
burden to prove the parties shared a mutual intent to change K.J.R.’s habitual
residence to Mexico, we AFFIRM.
I.
This suit arises under the Hague Convention on the Civil Aspects of
International Child Abduction (“Convention”), as implemented by Congress
through the International Child Abduction Remedies Act, 1 which creates a
remedy for the return of a child under the age of 16 to his or her country of
habitual residence upon a showing that the child was wrongfully removed. 2
Jaimes and Riascos met in Charlotte, North Carolina in 2006, moved in
together, and never married. Riascos had K.J.R. on July 23, 2009. Jaimes is
a Mexican national who was living in the United States illegally. Riascos, a
Colombian national, is legally in the United States on a visa.
In 2011, Jaimes pleaded guilty to a domestic violence charge brought
against him for injuries Riascos sustained. 3 Jaimes was given the option to
either leave the United States voluntarily with the possibility of returning
legally in the future, or be deported. Jaimes chose to leave voluntarily and
return to Mexico. Riascos executed a notarized travel authorization letter to
allow K.J.R. to travel with Jaimes to Mexico. Jaimes and K.J.R. left North
Carolina for Mexico in October 2012. Riascos remained in the United States.
Jaimes and K.J.R. initially lived with Jaimes’s mother and eventually
moved into their own apartment in Mexico City. Two months after Jaimes left
the United States, in December 2012, Riascos visited Mexico, stayed with
Jaimes and K.J.R. in Jaimes’s apartment, and returned to the United States
1 22 U.S.C. §§ 9001-9011, formerly cited at 42 U.S.C. §§ 11601-11610.
2 See Convention, arts. 1-5.
3 The parties dispute Jaimes’s actual guilt–Jaimes claims that Riascos hit herself with
a notebook while Riascos claims that she was a victim of Jaimes’s physical abuse. Regardless,
Jaimes said he pleaded guilty to the charge so that they could maintain custody over K.J.R.
2
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without taking the child. Riascos visited Mexico again in June 2013 for a few
days, stayed in Jaimes’s apartment, and returned to the United States without
taking the child. Riascos again returned to Mexico the following month in July
2013 to celebrate K.J.R.’s birthday and stayed for approximately 20 days. After
that trip, Riascos returned to the United States without taking the child.
Jaimes and K.J.R. traveled from Mexico to Colombia in December 2013.
Riascos met them in Colombia a couple weeks later. The three stayed in
Colombia for about a month and a half. Jaimes testified that he asked Riascos
if she wanted to take K.J.R. with her to the United States and she declined. At
the end of their trip, Riascos executed a second travel authorization letter
allowing K.J.R. to travel with Jaimes back to Mexico.
In February 2014, Jaimes updated K.J.R.’s immunizations and enrolled
her in school for the upcoming fall term. In the following months, Riascos
claims that Jaimes threatened her and told her that she would never see K.J.R.
again.
Riascos returned to Mexico for K.J.R.’s fifth birthday in July 2014. From
this point onward, through the child’s abduction, the parties’ stories greatly
diverge.
Jaimes testified he never saw Riascos in Mexico in July 2014; in fact, he
said he had not seen her since their trip to Colombia earlier that year. Jaimes
testified that he dropped K.J.R. off at his sister’s home on the evening of July
22 to spend the night, did some shopping for his daughter’s birthday party the
following day, spent the night in his own home that evening, and heard from
his sister the following morning that K.J.R. was missing.
Riascos testified that she did not tell Jaimes she was coming to Mexico
for K.J.R.’s birthday, but she showed up at his home on July 22. When Riascos
arrived, she said Jaimes started insulting and hitting her. She said that
Jaimes took K.J.R. out of her arms and threw K.J.R. on the bed. Eventually,
3
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she said, Jaimes took Riascos and K.J.R. to his sister’s home to spend the night.
Early the next morning, Riascos and K.J.R. left Mexico on a bus heading to
Riascos’s home in Houston.
Jaimes filed a verified complaint and petition for return of child under
the Convention. Riascos filed a motion to dismiss on forum non conveniens
grounds and alternatively to abstain. The district court denied the motion and,
after an evidentiary hearing, held that Jaimes carried his burden to establish
that K.J.R’s habitual residence was Mexico, that Jaimes had the “rights of
custody” required, and that he was exercising those rights during the time
K.J.R. was removed from Mexico. 4
II.
The only significant issue before the Court is whether the district court
erred in determining the habitual residence of the child was supplanted to
Mexico and whether the parties shared a mutual intent that the child abandon
her U.S. residence and establish one in Mexico. 5
To prevail in a petition for return of child, Jaimes must prove by a
preponderance of the evidence:
(1) that [Riascos] removed or retained the child somewhere other
than the child’s habitual residence; (2) that the removal or
retention violated [Jaimes’s] rights of custody under the habitual-
residence nation’s laws; and (3) that at the time of removal or
retention, [Jaimes] was exercising those rights or would have
exercised those rights but for the removal or retention. 6
4 Jose Jaimes Sierra v. Nasly Riascos Tapasco, No. 4:15-CV-00640, 2016 WL 5402933,
at *5-8, 11 (S.D. Tex. Sept. 28, 2016).
5 Riascos also complains that the district court erred in denying her motion to dismiss
on forum non conveniens grounds. We have reviewed the district court’s ruling on this motion
and are satisfied that the district court did not abuse its discretion.
6 Delgado v. Osuna, 837 F.3d 571, 577 (5th Cir. 2016) (citing Larbie v. Larbie, 690 F.3d
295, 307 (5th Cir. 2012)); see also 22 U.S.C. § 9003(e)(1) (setting out the preponderance of the
evidence standard).
4
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So a court’s primary inquiry, and the sole issue before us, is whether the
child was wrongfully removed from her country of “habitual residence.” 7
To determine a child’s “habitual residence,” the court “begins with the
parents’ shared intent or settled purpose regarding their child’s residence.” 8
And “the threshold test is whether both parents intended for the child to
abandon the [habitual residence] left behind.” 9 “The mere fact that the parents
have consented for the child to move to a new country does not prove that they
share the necessary intent to make that new location the child’s habitual
residence.” 10 “Absent shared intent, prior habitual residence should be deemed
supplanted only where the objective facts point unequivocally to this
conclusion.” 11 The district court held that Jaimes and Riascos shared the
intent to supplant K.J.R.’s habitual residence to Mexico. “This court reviews a
district court’s shared intent determination for clear error.” 12
The facts recited above support the district court’s findings that K.J.R.’s
habitual residence was Mexico and the parties shared a mutual intent that
K.J.R. abandon her U.S. residence and establish a new one in Mexico. We
therefore AFFIRM the district court’s judgment.
7 Berezowsky v. Ojeda, 765 F.3d 456, 465 (5th Cir. 2014).
8 Larbie, 690 F.3d at 310.
9 Berezowsky, 765 F.3d at 466 (alteration in original) (quoting Larbie, 690 F.3d at 310-
11).
10 Id. at 467.
11 Id. at 466 (quoting Larbie, 690 F.3d at 311).
12 Delgado, 837 F.3d at 578; see also Berezowsky, 765 F.3d at 466 & n.7 (“We affirm
the district court’s determination that the parents shared an intent to make a particular
country their child’s habitual residence unless it is implausible in light of the record as a
whole. . . . [W]e join our sister circuits in treating the shared intent determination as a factual
finding that is reviewed for clear error.”).
5