### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50783

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

n a t i v e s of Mexico, w ho seek reversal of the district court’s finding under t h e Hague Convention on t h e Civil A spects of International C hild Abduction that th ey were being wrongfully retained in the United States and should b e return e d to Angelica Sanchez, their m o ther. While this appeal was p ending, th e United States Citizenship and Immigration Services granted the children asylum. This

new evide n c e is critical to d etermining w hether o ne or more of the Hague Convention’s exceptions to return applies. U n i t ed S t a t e s C o u rt o f A p p e a l s F i f t h C i rc u i t 

### F I L E D Aug ust 1, 2014 Ly le W . Cay ce Clerk Case: 12-50783 Document: 00512719736 Page: 1 Date Filed: 08/01/2014No. 12-50783

On February 21, 2014, we vacated the district court order and remanded for f urther proceedings. See Sanchez v. R.G.L. , 743 F.3d 9 4 5 ( 5 t h C ir. 2014) (withdrawn on r ehearing). We issue d a s econd 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 n o t n e e d to be resolved because we were ordering the Government’s joinder on remand. See Sanchez v. R.G.L. , 2014 WL 2 532434 (5th Cir. 2014) (withdrawn by this opinion on rehearing). The chi l d r e n h a v e petitioned for panel r e hearing. 1 T hey 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 W ITHDRAW our previous opinion and issue the present opinion, which restates our initial conclusion that the district court had jurisdiction o ver Sanchez’s petition because the individual with physical c ustody over the children was a party. We reiterate our c o nclusion from the rehearing opinion that the Government should be joined in this lawsuit under Federal Rule o f Civil Procedure 19. The district court’s o rder t o return the child r e n is VACATED and the case is REMANDED for further proceedings consistent with this opinion. BACKGROUND R.G.L., S.I.G.L., a nd A.S.G.L., the three minor children involved in this appeal, were born and raised in M e x i c o and are Mexican citizens. They lived with their mother, Angelica Sanchez (“Sanchez”), and her boyfrie n d , Arturo Quinonez, in Ciudad Juarez, Chihuahua. On June 9, 2012, th e children’s aunt and uncle, Miriam Lopez Sanchez and J ose Sanchez, brought the children across the border into El P aso, Texas, either without Sanchez’s permission o r under

1 The occas ions w hen s econd rehearings are ap p rop riate are exceedi ngl y rare, but our legal error in the firs t rehearing op inion is s uch an ins tance. Petiti o n e r s ’ m otion to f ile f or rehearing out- of

- tim e is granted

. We cannot envis ion granting leave to f ile f or a third

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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 i n s t r u cted the children to cross into Mexico where Sanchez and Quinonez were waiting on them. As the children were walking a c r o s s the international bridge, they presented themselves to Depar t ment o f 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 i nterviewed the c hildren. R.G.L., t h e o l d est, told the officers that he and his brothers did not want to retu r n b e c ause Quinonez, who they claim was a member of the Azteca gang, was involved in drug t rafficking, 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 a nd were coming to the p assport control office, under FBI supervision, to s peak with the children. When Sanchez a n d Q u i nonez arrived, they were able to speak with R.G.L. briefly a n d w e r e themselves interviewed s eparately b y FBI agents. Sanchez denied the c hildren’s allegations of abuse and i nformed the agents that her children had been taken to El Paso against h er will. Sanchez was informed that DHS would retain custody of the children. She and Quinonez returned to Mexico without the children. DHS p romptly determined that the children were u n accompanied alien

c h ildren with a c redible f ear of returning to Mexico. According l y , D H S transferred the children to the custody of the Office o f Refugee Resettlement ( “ORR”), Division of Unaccompanied Children’s Services, which is responsible for coordinating and implementing the children’s c a re and p lacement. ORR, t h ough retaining legal custody, placed the children in the physical custody of Baptist Services Child and Family Services to provide for their care, including

e d u cation, travel, and medical care. Baptist Services placed the c hildr e n i n a

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foster home in San Antonio, where they remained until sometime durin g t h i s appeal. Because the children were declared by DHS to b e “unaccompanied alien children,” they e ntered mandatory removal p roceedings. ORR, as authorized by statute, appointed p ro b ono counsel for the children. See 8 U.S.C. § 1232(c)(5)- ( 6 )

. T h e ir counsel applied for relief from r emoval on a number of grounds, including asylum. Almost a y ear after the children had been removed from M exico, Sanchez filed this suit in district court against the children’s aunt and uncle, M i riam and Jose Sanchez, and against the director of Baptist Services, Asennet S egura. She sought access to t h e c h ildren, 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 A s p e c t s of International Child Abduction and also under the International C hil d A b du c ti on 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. N o. 11670, S. Treaty Doc. No. 99–11, and ICARA is the domestic implementing legislation. See42 U.S.C. § 11601, et seq

. Because Hague Convent i on petitions are intended to b e addressed expeditiously, the district court held a n evidentiary hearing one month after Sanchez filed her suit. Miriam and Jose Sanchez di d not participate. 2Baptist Services was r epresented at the h e a ring, 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 p roceedings. The children’s ORR-appointed asylum attorney appeared informally at the hearing o n t h e c hildren’s behalf, arguing

2 The d is trict court’s d ock et s h e e t i n d i c ates that M iriam and Jos e Sanchez w ere rep res ented by the s am e couns el as Bap tis t Services

. That couns el, how ever, d id not rep res ent to the court that he w as ap p earing on their behalf

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that the court should allow the children to intervene through Alex Hernandez,

as n ext friend, o r in the alternative, grant their motion for the appointment of

a guardian ad l item. The district court w ould later d eny the motion, but it allowed the children’s a ttorney to participate in all critical stages of the hearing. After the hearing, the court directed ORR, who was not formally a party t o t h e p roceedings, to answer these questions: “(1) whether this Court ha s jurisdiction under the Hague Conventi o n ; ( 2 ) does any procedure in the immigration court preempt or stay this Court’s actions; a n d (3) whether ORR has a p osition as to whether o r n o t t h e c hildren would be subject t o grave risk

or harm by b ei n g r e t u r n ed to their mother.” ORR, through the Office of Immigration Litigation (which has filed an amicus brief o n appeal), informed the court that it “does not take a position at this time” on the first a nd third question and moved that the district court h old the petit i o n in abeyance pending the disposition of the children’s asylum applications. On Au gu s t 3, 2013, the district court issued findings of fact and conclusions of l aw. It acknowledged the di fficulties presented by the parallel asylum proceedings but determined that the Hague Convention’s demands for expediency c ounseled against prolonging a resolution o f Sanchez’s petition. The court did n ot indicate w hat bearing, if any, the c h i l dren’s asylum proceedings would have on its grant of relief, though i t did suggest that it would b e relevant. The c o urt also did n ot address whether the United States Government, through O R R , w a s a proper party to the petition and denied the children’s r equest f o r representation. The district court concluded that the children were “wrongfully

r e t a i ned” within the meaning of the C onvention and none of the Convention’s exceptions to return applied. Therefore, the court ordered “the minor children be returned f

orthwith to the cu s t o d y o f Petitioner,” but later stayed the enforcement of the order pending this appeal.

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Two ot h e r post-judgment developments are important to this appeal. Shortly after the notice of appeal w as filed but before b riefing, the U n ited States Citizenship and I mmigration Services (“USCIS”) granted the c hildren asylum pursuant to 8 U .S.C. § 1158. 3 Among other things, that s tatute states that in the

case of aliens who a re granted asylum, “the Atto r n e y General

. . . shall not

remove or return the alien to the alien’s country of nationality.” § 1158(c)(1)(A). Secondly, b efore 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 Char i ties. The G overnment informed us that the transfer would take six to e ight weeks, and would vest legal custody, und e r T e x a s 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 b oth the district court’s handling of Sanchez’s petition a nd the enforceabili t y o f the district court’s order in light of the subsequent asylum grant. First, they argue that Sanchez did not have standing to p ursue her petition. T hey assert that the only way San c h e z w o u l d h ave had standing to pursue her petition was by naming ORR as a r e s pondent in her p etition. They also argue that even if Sanchez did have standing, none of the respondents meanin g f ully advanced their interests under the Convention and therefore they had th e ri gh t to f ormally participate in the district court proceedings. They also c o ntend that the district court erred in ordering their return in light of the evidence presented. As for the asylum grant, the children advance a lternative theories on how the court should proceed. First, they argue that the district court can no longer

3 It is unclear w hether U SCIS had more inf orm ation about t h e r i s k s t o the child ren t h an d id the d is trict court. Relevantly, there are tw o unres olved m otions related to the child ren’s as ylum grant. We grant the child ren’s m otion to tak e j ud icial notice of their as ylum grant but d eny the alternative to s up p lem ent the record

. We als o grant the unop p os ed m otion of the G overnm ent to s eal the as s es s m ents in s up p ort of the child ren’s as ylum grant. 6 Case: 12-50783 Document: 00512719736 Page: 6 Date Filed: 08/01/2014No. 12-50783

order their return to Mexico because their asylum status p r ohibits their return. In the alternative, they argue that this case should be remanded to the district court w ith i nstructions for it to c o nsider their a sylum grant in order to determine whether they should b e r e t urned. Three other interested parties, i n c l u d ing 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 O ur threshold issue is whether the children, who were not parties, h a v e 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 S anchez’s petition for return, even though the district c ourt denied their motion to intervene a s r espondents. 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 o utcome.” 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 e videntiary hearing, submitting briefs and evidence, and arguing issues before the court. O t h e r s who might have responded to the petition – the children’s aunt a nd uncle, their foster parents, the f oster agency, or the Government – did not r espond meaningfully and f ailed to assert the Convention exceptions that are designed, in part, to account for the harms that could result from the children’s return. A s to the other factors, both the e quities and t h e

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children’s strong p ersonal stake i n t h e outcome weigh in favor of permitting their appeal. “In e very 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 a llowed, we will not be able t o c o n sider the arguments that their wellb e i n g will be adversely affected by the ruling. We c onclude the children h a v e 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 i mplemented through ICARA

. The Hague Convention has two stated objectives: “ a) to secure the p r ompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and o f access under the law of one Contracting State are effectively respected in the o ther Contracting States.” Hague Convention, art. 1

. It accomplishes these objectives through the return remedy. E.g. , Abbott v . A b b o t t , 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 i s not a determination as t o permanent legal or physical custody of the child. Id. at 1987. By focusing o n the child’s return, the Convention seeks to “restore the pre-abduction status quo a nd to deter p arents f r o m crossing borders in search o f a more sympathetic c ourt.” England v. England , 234 F.3d 268, 2 71 ( 5 t h C i r . 2 000) (quotation marks omitted). The return remedy determines the country in which the custody decision is to be made; it d oes not make that decision. The implementing s t a t ute provides concurrent original jurisdiction o ver

a Hague Convention petition in state and federal court; it s ets v enue at the location of the c hild. 42 U.S.C. § 11603(a), (b )

. “ N o t i c e of an action brought under subsection (b) o f this section shall b e giv e n i n a ccordance with the

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applicable law go v erning notice in interstate child custody proceedings.” 42 U.S.C. § 11603(c). T h e applicable law comes from the U n iform Child Custody Jurisdiction and Enforcement Act (“ U C C J E A”). See Livanos v. Livanos , 333 S.W.3d 868, 876 (Tex. App.

– Houston [1 Dist.] 2010). As codified in Texas, the UCCJEA states “ notice a nd an opportunity to be heard

. . . must be given to all
p e r s o n s entitled to notice under the l aw of this state as in child custody proceedings between resi d e n t s o f this s tate, any parent w hose parental rights have n ot been previously terminated, and any person h aving physical custody of the child.” T E X

. FAM

. C O D E AN N

. § 152.205(a). Once a petitioner files and gives notice, ICARA explains bo t h what the petitioner must establish i n order to obtain relief and what “a respondent who
opposes the return of the child” must show. 4 4 2 U.S.C. § 11603(e)(2). T o secure the return of t h e c h i l d , the petitioner m ust establish that the child “has been wrongfully removed or retained within the meani n g of the Convention.” 42 U.S.C. § 11603(e)(1)(A). Article 3 of the Hague C onvention requires a showing that the petitioner had s ome “rights of custody” that a re derived from the child’s home country and that she was exercising her custody righ t s a t t h e 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 est a b l i s h “by clear and convincing evidence that one of the exceptions s et forth in Article 13(b) or 20 of the Convention applies.” 42 U.S.C. § 1 1 603(e)(2)(A). None of the exceptions turn

on w hether the person removing or retaining was p roperly exercising custody rights. Article 13(b), for example, concerns w hether “there i s a grave risk that

4 A p etitioner i s d e fined as “any p ers on w ho, in accord ance w ith this chap ter, f iles a p etition in court s eek ing relief und er the Convention, ” and a res p ond ent is “any p ers on agains t w hos e interes ts a petition is f iled in court, in accord ance w ith this chap ter, w hich s eek s relief und er t h e Convention. ” 42 U

. S. C. § 11602( 4) , (6)

. A p ers on includ es “any ind ivid ual, ins titution, or other legal entity or bod y. ” 42 U

. S. C. § 11602( 5)

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his or her return w o u l d expose the child t o physical or psychological harm or otherwise place th e child in an intolerable situation.” Hague Convention, art. 13b. This exception derives n ot 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 C onference on Private I nternational Law , ¶ 29, in 3, Acts and Documents of the Fourteenth Session, Child Abduction 4 26, 464 (the “Explanatory Report”). 5 If the respondent fails to show that one of the exceptions applies, the court “ s h a l l o r d er the return of the child forthwith.” Hague Convention, art. 12. A. Proper party defendants T h e c h i ldren begin b y arguing the district court lacked j urisdiction t o grant Hague Convention relief because Sanchez failed to s ue the proper party. The y l a b e l this issue with the word “standing,” which h a s th re e e le m e n ts. “F irst, th e p la in tiff m u st h a v e su ffe re d a n‘in ju ryinfa ct.’” Lujan v. Defenders of W ildlife, 5 0 4 U .S

. 5 5 5 , 5 6 0 (1 9 9 2 ). S e co n d , “a ca u sa l c o n n e ctio n b e tw e e n th e inj u ry a n d th e co n d u ct co m p la in e d o f” m u st e x ist. Id

. T h a t is, th e inju ry m u s t b e “fa irly tra ce a b le to th e ch a lle n g e d a ctio n o f th e d e fe n d a n t, a n d n o t th e re su lt

o f th e in d e p e n d e n t a ctio n o f so m e th ird p a rty n o t b e f o re th e c o u rt.” Id

. (q u o ta tio n m a rk s o m itte d)

. L a st, “it m u st b e lik e ly , a s o p p o s e d to m e re ly
sp e cu la tiv e , t h a t t h e inju ry w ill b e re d re sse d b y a fa v o ra b le d e cisio n . ” Id

. a t 5 6 1 (q u o ta tio n m a rk s o m itte d). Questions of s tanding ar e reviewed de novo. Bonds v. Tandy , 457 F.3d 409, 411 (5th Cir. 2006). Additionally, all elements of standing should be dete r m i n e d “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 p revious ly relied up o n t h e E xp lanatory Rep ort “as the of f icial his tory, com m entary, and s ource of back ground on the m eaning of the p rovis ions of the” Convention. Sea led A p p el la nt v . Sea led A

p p el lee , 394 F. 3d 338, 343 ( 2004)

.

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The children’s argument focuses pr i marily on the last e lement of the standing inquiry, w h i c h i s redressability. 6 They a rgue that the district court order could not red r e s s Sanchez’s i njury because Segura, the most significant respondent in this case, cannot be compelled i n her official capacity as director of Baptist Services to return the children because she w a s n o t the actual physical custodian of the children, a nd even if she could, Baptist S ervices lacked the leg a l a u thority to return her children t o her. Instead, the children assert that ORR, as the children’s temporary legal guardian, was the o nly respondent who had the authority to r eturn the children. T herefore, they a r g u e Sanchez should have named ORR i n her petition in order t o b e 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 c a nnot be used to compel the Government to return children within their legal custody. Sanche z r e s p onds that, under the Hague C onvention, the person who “controls the body” is the p erson appropriate for suit. S he a rgues that is so because th e necessary respondent under the Convention is th e party who can physically complete the return, if ordered. Legal custody is then resolved in the

new f orum. Thus, she argues, the legal c ustodian i s not needed for jurisdiction. Sanchez is correct that the person with physical custody of the child m ust be a respondent, r egardless of whether someone else has legal custody. For instance, had Jose and Miriam Sanchez continued to retain the children af t e r they entered the United States, they would have b een proper I CARA respondents. The issue here i s whether Sanchez’s failure to jo i n the actual physical c ustodians (the

6 The child ren als o d is p ute w hether any p arty nam ed in the p etition caus ed her injury. They s ugges t that Jos e and M iriam Sanchez are not p res ently caus ing the i r m o t her injury, even if they d id initially tak e them f ro m t h e i r m other. Regard les s , w e d is cus s later that Segura is a nam ed p arty who at the tim e of s uit w as s aid to be w rongf ully w ithhold ing cus tod y f rom the child ren’s m other. 11 Case: 12-50783 Document: 00512719736 Page: 11 Date Filed: 08/01/2014No. 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 t a king a position on whether it should have b een or m ust be made a respondent. The district court directed the Government to e xplain its position on “whether this court has jurisd i c t i o n

u n d e r the Hague Convention.” The Government, represented b y the Office o f Immigration Litigation in the Civil Division o f the Department of Justice, answered that “as a general matter, the c ourt has juris d i c t i on over a Hague Convention case,” but it e x pressly did “ not take a p osition at this time on whether the petitioner has n a m e d a p roper respondent in this case.” It also suggested the c ourt hold the case in a b e y ance pending th e 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 , o n a p peal, the Government, in its amicus brief, has not suggested that ORR is a necessary respondent in t h i s c ase. It has contended that the executive branch’s proposed i nterpretation of a treaty, “particularly in light of th e Department of State’s involvement” in the treaty process, i s 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 a micus b rief, the Government said that its interest i n this c ase “arises out of its treaty obligations and federal i mmigration law.” It did not state that it had any vested interest by virtue of its legal gua r d i a n s h i p of the children or its contractual relationship with Segura or Baptist Services. The clear implication of t h e briefing was: the Executive Branch did not dispute the district court’s j urisdiction to e nter a n order that the children could b e returned to their mother, even without ORR as a party to this

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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 a s s ertions, the children raise a variety o f hypothetical scenarios regarding what the Government m i ght do if the district court issues

a return order. The primary argument in their petitions f or rehearing is that Segura will not have authority to carry out the order because ORR may prevent her f rom returning the children. The children, however, have yet t o identify any authority to suggest that the Hague Convention or I CARA requires the Government, as temporary l egal custodian, to b e involved in this suit. Put another way, they have fail e d to identify what would prevent Segura from returning t h e children p ursuant to a judicial order. As explained above, the Hague Convention was designed to afford the child’s h ome country the right to decide legal c ustody disputes: “ O r d e r i n g a return remedy does not alter the existing allocatio n o f custody rights

. . . but d o es allow the c o urts of the home

co u n t r y t o decide what is i n 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 i n order to effectuate the expedited return of the children to their home country. We first c onclude that no jurisdictional defect aris e s from the f act that Segura was n ot the actual physical custodian of the children. The record indicates that Sanchez was diligent in t r ying to determine the l ocation of her children and the identity of their custodians. The U n i t e d S tates had an obligation under the Convention to assist with her application. See Hague Convention, art. 7

. It identified the foster s ervice but not the foster parents. Consequently, Sanchez could not s erve notice on t he children’s actual but unknown physical custodians. The best s he could d o was serve h er p etition on Segura, the person identified by the United States. Though S egura was not the

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actual physical custodian, 7 she had knowledge of the children’s l ocation and, as director of child placement, had authority o ver the B aptist 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. Furt h e r , we h old that Sanchez’s failure t o name the Government as a respondent did not create a jurisdictional defect. The di strict court did not lack jurisdiction to ent e r its order because Segura, as either physical custodian or

someone with authority over the physical custodian a t the time the petition was filed, could provide Sanchez relief under the C onvention by overseeing the return of the children to their home country. When “establishing redressability, [a plaintiff] need only show that a favorable r uling c ould potentially lessen its injury; i t need not definitively demonstrate that a victory would completely remedy the h arm.” A ntilles 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 c onclude that joinder of the Government is required in this action. A party must be joined, if f easible, when j oi n der is required for certain purposes enumerated in Federal R u l e o f 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 c o u r t of subject-matter jurisdiction must be joined as a party if: (A) in that person’s absence, the court cannot accord c omplete relief among existing parties; or

7 We note that even if Sanchez had nam ed the unid entif ied f os ter p arents as John and Jane Doe in her p etition, s he could not have s ervedthe p etition on them , and thus could not have g i v e n t h em the notice required by ICARA. Moreover, the child ren argue that Bap tis t Services could have been s erved

. That m ay b e c o r r e c t , but they d o not exp lain w hy Segura cannot accom p lis h the s am e acts as the Bap tis t Services

. 14 Case: 12-50783 Document: 00512719736 Page: 14 Date Filed: 08/01/2014No. 12-50783 (B) that p erson claim s an interest relating to the subject of the action and is so situated that disposing of the a ction in th e person’s absence may: (i) as a p ractical matt er impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial ri sk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. F E D

. R. C I V

. P. 19. There are legitimate concerns that, absent the Government as a party, the

c arrying out of any court order could become difficult. Although the court h a s j u ri s di c ti o n , th e G o vernment h as been the temporary legal custodian thr o u gh o u t this action and s elected the children’s physical c ustodian. As previously noted, the record is u nclear on whether the Government still retains temporary legal custody and whether Baptist Services retains p h y s i c al 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 c ourts a t 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 tempo r a r y l egal custodian in a s ituation where a change in ph y s i c a l custody during the appeal h as been suggested, presents

u n usual risks. In o rder to assure complete relief to Sanchez, the Governmen t should be joined pursuant to Rule 19(a)(1)(A). Additionally, the c hildren have contended that Segura lacks authority to comply w ith 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 w ithin HHS). Instead, they maintain B a p t i s t Services, as physical custodian, is simply a contractor with ORR and cannot move the children w ithout O R R ’ s p r i o r consent. As a
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result, a return order entered by the di strict court could put Segura, or Baptist S e r v i c es, i n the difficult position of disobeying a court order or b reaking contractual and legal obligations to maintain physical custody. In order to avoid potentially imp o s i n g i n c o nsistent obligations on Segura, the Government should be joined pursuant to Rule 19(a)(1)(B)(ii). We therefore hold that the Government s hould be joined on remand. We leave it for the district court t o determine w hether the United States, ORR, its director, o r 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 a d litem The children’s second argument is whether the district court s hould have granted their motions to intervene or to a ppoint a guardian ad litem in light of the fact that none of the respondents asserted the Convention’s exceptions. The children argue they h ave the “right to b e heard” but were not a llowed to exercise that right in the district c ourt. It is unclear whether they seek r eversal on this b a s i s a l o ne or whether they are asking the court to p rovide instruction to the district court to allow them to intervene if it decides that remand on oth e r grounds is warranted. Federal Rule of Civil Procedure 24(a) p rovides 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, a nd is so situated that disposing of the action may as a practical matter impair or impede the mo v a n t’s ability to protect its interest, unless existing parties adequately represent that i nterest.” F E D

. R. C I V

. P

. 2 4(a). Rule 17(c)(2) p rovides that a court “must appoint a guardian ad litem – or iss u e a n other appropriate order – to protect a minor or incompetent person who is unrepresented in an action.” F E D

. R. C I V

. P. 17(c)(2). We review de n ovo the d enial of a motion t o i n t e r v e n e a s a matter of right. Heaton v. M

onogram Credit Card Bank of Georgia , 297 F.3d 416, 4 22 (5th Cir.

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2 0 0 2 )

. Denial of appointment of a guardian ad litem is r eviewed for abuse o f discretion. See Fernandez-Vargas v. Pfizer , 522 F.3d 55, 66 (1st Cir. 2008). Children are n ot usually parties to Hague C o nv e nti o n p r o ceedings, though nothing in the Convention expressly prohibits a court from allowing c hildren to intervene. The First Circuit has stated that some cases , b u t not “very many,”
may warrant a child’s formal representation in a H ague Convention p roceeding. S ee Walsh v. Walsh , 221 F.3d 204, 213 (1 s t C ir. 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 a ppointed

a guardian ad litem ); Lieberman v. Tabachnik , 2007 WL 4548570, *2 (D. Colo. Dec. 19, 2 007) ( appointing a guardian a d l i t e m ). Granting th e children representation in appropriate situations is consistent with the Supreme Court’s view that “courts c a n a chieve the ends of the C onvention and ICARA – and
p r o t e ct the well-being of the affected children – through th e familiar judicia l tools . . . .” Chafin , 133 S. Ct. at 1026-27. As we have acknowledged, the circumstances o f this case a re exceptional. The abducting r espondents have disclaimed any responsibility for the children. The c hildren’s p h y s ical guardian was represented by counsel and p articipated in the matter when it was before the district court but appeared to be concerned with her own in t e r e s t s . And the Government, the children’s temporary legal guardian, chose not to assert the Convention defenses for the children when queried by the district cou r t. Moreover, none of the respondents named in S a n c h ez’s petition h ave participated in this appeal. Without the informa l participation of the c hildren’s ORR-appointed counsel, the children would have had no advocates before the district court. Despite the district c ourt’s clear concern for the children, and d espite the considerable informal a llowances made for the children’s attorney, we find that

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the children should now be appointed formal leg a l r e presentation. The children’s fundamental interests are at stake in the district court’s proceedings, and no respondent is m a king 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 c hil dren’s interests were unrepresented. On remand, the district court should app o int the children a guardian ad litem

. We reject, however, the children’s assertion that they should be allowed to intervene. The fact th at the children h ave obtained addition a l “rights” through their asylum grants d o e s not change their status vis-a-vis an I CARA p e tition. Our concern here is that the c hildren’s fundamental interes t s are represented as embodied in the H ague C onvention. 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 r elevant Hague Co n v e n t ion defenses, which c a n b e 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 di strict court’s return or d er. “The district court’s findings of fact a r e r e v i e w e d for clear error . . . . ” Sealed Appellant , 394 F.3d at 342. Relying in particular o n Khan v. Fatima , 680 F.3d 781 (7th Cir. 2 012), they argue that the district court erred by failing to mention the children’s psychological evaluations, a nd perhaps some othe r e vidence, in considering whether any of th e Hague C onvention’s exceptions to return apply. The Seventh C ircuit determined that the district court should have considered psychological evidence sugg e s t i n g that the return of the children to the petitioner would subject them to psychological harm. Id. a t 788. Here, critical to the district court’s legal conclusion was its factual finding that the children would not b e returned to the same threatening situation as they were in when they left M exico. The psychological evidence presented by the children centered m ostly on harm Quinonez was inflicting on their mother and

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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 l eave Quinonez. Sanchez h a d abandoned Quinonez a nd that the Mexican government had presented e vidence that it could protect the children. See W alsh , 221 F.3d at 219. T he Convention’s exceptions to return, and Article 13(b) in particular, are p r o s p ective, whereas the psychological reports are primarily retrospective in nature. The district court did not clearly err by failing to account for the m ostly retrospective harm allegedly suffered by the children,

or the conclusions of the psychologist, which were based on the c h ildren’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 c h ildren’s asylum grant should be c onsidered by the district court. The children f i r s t argue that an asylum grant directly conflicts with the district court order, and the m ore r ecent asylum grant should take precedence over Convention relief under the l ast-in-time rule. See N takirutimana v. Reno , 184 F.3d 419, 426-27 (5th Cir. 1999). This argument focuses on the effect o f the asylum grant v i s - a - vis the district court order and views Sanchez’s attempt to s ecure the return o f her children under ICARA as an impermissible collateral a ttack o n the g r a n t of asylum. Alternatively, the children argue that we should rem a n d t o the district c o urt 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 th at, if Convention relief is found to be i n conflict with the asylum grant, the return order should t a ke p recedence over the asylum grant because the C onvention proceedings were more thorough

. S h e also disputes the a rgument that it is necessary for the district court to consider the asylum grant b ecause evidence related to that grant was already considered by

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the district court. In its amicus brief, the Government adv a n c e s the position that a grant of asylum i s not dispositive of b ut is relevant to whether e ither the Article 13(b) or 20 exception applies. The children were granted asylu m p u rsuant to the I mmigration and Nationali t y Act (“INA”), as a mended b y the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), 8 U.S.C. §§ 1158, 1229a, 1232. T o qualify for asylum, an applicant m ust either have suffered p ast persecution or have a “well-founded f e a r o f p ersecution on account of race, religion, nationality, membership in a part i cular social group, or political opinion.” 8 U.S.C. § 1 101(a)(42)(A), i ncorporated by 8 U .S.C. § 1158(b)(1)(B)(i). 8 The children’s grant o f asylum was discretionary, 8 U.S.C. § 1 158(b)(1)(A), and provides that “the Attorney G eneral shall n ot remove o r return the alien to the alien’s country of nationality . . . .” 8 U.S.C. § 1158(c)(1)(A). We disagree with the children’s a rgument that the asylum grant must be revoked before they can be returned to Mexico pursuant to the Ha gue Convention. The language of the INA indicates that the discretionary grant of asylum is binding o n the Attorney General or Secretary of Homeland S ecurity. See id. No authority has been offered to s upport the a r gument that the discretionary grant of asylum confe r s a r i gh t to remain in the c ountry despite judicial orders under this Convention. The asylum grant does not supercede the enforceability of a district court’s o rder that the children should be returned to t heir mother, as that order does not a ffect the responsibilities of e i t h e r t h e 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 g r a n t, though, is relevant to whether the Hague Convention exceptions to r eturn should apply. We agree with the G overnment

8 Becaus e the child ren w ere d eem ed to be unaccom p anied alien child ren, the U SCIS
m ad e this d eterm ination. See8 U

. S. C. § 1158(b) ( 3) ( C)

. 20 Case: 12-50783 Document: 00512719736 Page: 20 Date Filed: 08/01/2014No. 12-50783

that there is a significant o verlap between the asylum inquiry and Article 13(b) of the Hague Convention. Both focus on the level o f harm t o which the children would be exposed if returned to their home country. An asylee has been found to face p ersecution upon r eturn to h is o r her country o f n ationality. 8 U.S.C. § 1101(a)(42)(A). Persecution has been defined as an “e x t r e m e concept” and turns on w hether suffering or harm is likely to be i nf l i c t e d o n the asylum applicant. Eduard v. A s h c r oft , 379 F.3d 182, 1 87 & n.4 (5th Cir. 2004). Similarly, Article 1 3(b) of the Hague C onvention requires a respondent to show that “there is a grave risk that his or her r e turn would e xpose the child to physical or psychological harm.” Hague C onvent i o n , a r t. 13(b). T he level of harm n ecessary t o trigger the Article 13(b) e xception must be “a great deal more than minimal.” Walsh , 221 F.3d at 218. Despite sim i l a r i t i e s , t h e a sylum finding that the children have a wellfou n d e d fear o f 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 p lace the c h i l d i n an intolerable situation.” Hagu e C o nvention, a rt. 13(b). The judicial procedures u nder the Convention do not give to others, even a governmental agency, authority to determine these risks. T he district court m akes an indep e n dent finding of potential h a r m to the children, considering all offered relevant evidence. The prior consideration of similar concerns in a different f orum a re relevant, but we determine that a n a sylum grant does not r emov e from the district court the authority to make controlling findings on the potential harm to the child. We note also that the evidentiary b urdens in the asylum proceedings and those under ICARA’s f ramework are different. To be granted a s y l u m , the child r en were required to show their eligibility by a p r eponderance of the evidence. See 8 C.F.R. § 1208.13(a),(b)(1)(i). I n order for a Convention e xception to apply, a r e s p o n d e n t must establish the exception by clear and convincing

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evidence. 42 U.S.C. § 11603(e). The level of participation by interested parties in the two proceedings may also be di fferent, a point Sanche z makes when arguing she did n o t h ave an opportunity to make a meaningful p r esentation prior to the asylum grant. As the district court recognized, the U SCIS grants of asylum are relevant to any a nalysis of whether the Article 13(b) o r 2 0 exception a pplies. When faced with a m o t i o n to stay the proceedings while the c hildren’s asylum application

was pending, the district court determined that the interests of a p r ompt answer under the Convention outweighed the merits o f a s tay. Now that the children have been granted asylum, though, all available evidence from the asylum proceedings should be consider ed by the district court before determining whether to enforce the return order.

CONCLUSION The district c ourt’s return o rder is VACATED. The case is R EMANDED 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 a ppoint the children a guardian a d l item ; and to consider the asylum grants, assessments, a n d any related evidence not previously considered that relates to whether Article 13(b) or 2 0 applies. Any re m a i n i ng issues s uch as whether the o ldest child is no longer subject to these proceedings,

can be addressed. Finally, we repeat our p revious statement, which was echoed in the previous d i s s ent, that the United States Government should take “all appropriate measures” to fulfill its Convention-imposed dut i es, including an obligation to “facilitate the i nstitution of judicial or administrative proceedings with a view to obtaining the return of the child.” Hague Convention, art. 7.

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HAROLD R. DeMOSS, JR., Circuit Judge, DISSENTING: In my jud g m e n t , the proper disposition of this appeal would be for this court to affirm the di s t r i ct c ourt’s October 30, 2012 decision which ordered that the children b e returned to the custody of their mother pu r s u a n t to the Hague Convention on the Civil Aspects of International C hild Abduction (“the Hague Convention”). See 42 U.S.C. § 11601, et. seq. As the district court acknowledged, th is c ase is peculiar becaus e collateral t o t h e i r mother’s Hague Convention action in the district court the boys w e r e seeking asylum i n administrative proceedings. After the district court issued its o r d e r , t he boys were granted asylum. I am unaware of any

con t r o l ling a uthority which indicates that a grant of asylum necessarily precludes the return of a child under the Hague Convention. Turning to the H ague Conventio n analysis, the district court determined that Mexico was the children’s country o f h abitual residence, that their mother h ad rights of custody, that t h e children were being wrongfully retained, t h at the mother was exercising her custodial rights or would have been exercising those ri gh t s a bsent the removal or retention, and that no exceptions to re t u rning the children were applicable. The record reflects that the district court spent a tremendous amount of time and effort considering whether excepti o n s to returning the children u nder the Hague Convention

were applicable. The district c o u r t went as far as i nterviewing the two older children. Ultimately, I am unpersuaded that t h e d i s t rict court erred in finding that the exceptions to the Hague Convention were inapplicable. F i nally, I want to address the fact that the mother filed her case unde r the Hague Convention nearly a y e a r a f t er the b oys left Mexico. In my mind, such a delay is likely attributable to the facts of this case. I t a ppears as though the m other is a woman of limited means, and a fter leaving Mexico the

c h i l dren have been s huffled between various a dministrative agencies and

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foster organizations. Given these facts, it is n o wonder that i t took the

m o t h er s everal m onths to file a lawsuit. As the majority notes, the United S t a t e s has c ertain r esponsibilities 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 N o. 12,648, 3 C.F.R. 579 (1988).

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