### 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

Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges. LESLIE H. SOUTHWICK, Circuit Judge: Three children who are natives of Mexico, through a n ext friend, appeal 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 a ppeal was pending, the United S t ates Citizenship and I mmigration S e rvi c es granted the c hildren asylum. Because w e find this new evidence criti c al to determining whether one or m o r e o f the Hague C onvention’s exceptions to return applies, we VACATE the district court order and REMAND. U n it e d S ta t e s C o u rt o f A p p e a l s

F i f t h C i rcu i t 

### F I L E D February21, 2014 Ly le W . Cay ce Clerk Case: 12-50783 Document: 00512540859 Page: 1 Date Filed: 02/21/2014No. 12-50783 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 Mexico an d a r e M e xican citizens. They lived with their mother, Angelica Sanchez (“Sanchez”), and her b o yfriend, Arturo Quinonez, in Ciudad J uarez, Chihuahua. On June 9, 2012, the c h ildren’s aunt and uncle, Miriam Lopez Sanchez and Jose Sanchez, b rought the children across the border into El P aso, Texas, either without Sanchez’s permission o r under false pretenses. S everal times, Sanchez asked for her children’s r e turn. On July 18, 2012, Miriam S anchez took the children to the Bridge of the A mericas in El Paso and instr u c t e d the children to cross into Mexico where Sanchez and Q u i nonez were waiting on them. A s the children were w alking acros s t h e international bridge, t h e y presented themselves to Department 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 t h e c h i ldren. R.G.L., the oldest, told the officers that he and his brothers did not want to return because Q uinonez, wh o t h e y claim was a member of the Azteca gang, was involved in dr ug 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 F B I supervision, to speak with the children. When Sanchez and Q u i n o n e z arrived, they were able to speak with R

. G

. L

. b r iefly and were themselves interviewed s epar ately by 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.

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DHS p r o mptly determined that the children w ere unaccompanied alien children with a credible f ea r o f r e t urning to Mexico. Accordingly, DHS transferred the chi l dren to the c ustody of the Office o f Refugee Resettlement (“ORR” ) , Division o f Unaccompanied Children’s Services, which i s responsible for coordinating and impleme n ting the children’s care and p lacement. 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

e d u c ation, travel, and m edical care. Baptist Services placed the childre n i n a foster home in San Antonio, where they remained until sometime d u r i ng this 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, a ppointed pro bono counsel for the children. See 8 U.S.C. § 1232(c)(5)- (6). Their c ounsel applied for relief from remov a l o n a number of grounds, including asylum. Almost a year 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

so u gh t a c cess to the children, their return, and an immediate temporary restraining order preventing the children’s transfer out of Texas. She claimed

e n t i t l e ment to this relief under the Hague C onvention on the Civil A spects o f International Child Abduction and also under the I nt e r n ati o n al C hild Abduction Remedies Act (“ICARA”). The Hague Convention is an international t r e a ty 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 Convention petitions are intended to be add r essed expeditiously, the district court held an evide n t iary hearing one month after

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Sanchez filed her suit. Mariam and Jose Sanchez did not participate. 1 Baptist S e r vices was represented at the hearing, but took no p osition on w hether th e 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 p arty t o the proceedings. The children’s ORR-appointed asylum attorney appeared informally at the hearing on the children’ s b e h a l f, arguing that the court should allow the children to i ntervene through Alex Hernandez, as next friend, or in the alternative, grant their m otion for the appointment of

a guardian ad l item. The district court would later deny the m otion, but it allowed the children’s attorney to participate in all critical s tages of the hearing. After the hearing, the court directed ORR, who was not formally a party to the proceedings, to answer these questions: “(1 ) w h e t h e r this Court has jurisdic t i o n u n der the Hague Convention; (2) does any procedure in the immigration cour t p r e empt or stay this Court’s a ctions; and (3) whether ORR has a p o s i t i o n a s to whether or n ot the c hildren would be subject t o grave risk

or harm by b eing r eturned to their moth e r . ” O R R , through the Office of Immigration Litigation (which has filed an a micus brief on appeal), informed the court that it “does not take a position at this time” on the first a nd third question and moved t h at the district court hold the petition in abeyance pending the disposition of the children’s asylum applications. O n August 3, 2013, the district court issued findings of fact a n d 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 an y , the children’s asylum proceedings

1 The dis trict court’s dock et s heet ind icates that M ariam and Jos e Sanch ez 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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would have on its grant of relief, though i t did suggest that i t w ould b e relevant. The court also did not address whether the United States, 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 C o nvention’s exceptions to return applied. Therefore, the court ordered “the minor children be returned f orthwith to the custody of Petitioner,” but later stayed the e nf o r c e m ent o f the order pending this appeal. Two other post-judgment developments a r e important to this appeal. Shortly after the notice of appeal w as filed but before briefing, the U n ited States Citizenship and I mmigration Services (“USCIS”) granted the c hildren asylum pursuant to 8 U .S.C. § 1158. 2 Among other things, that statute states that in the

c a s e of aliens w ho are granted asylum, “the Attorney General

. . . shall n ot

remove or return the a lien to the alien’s country of nationality.” § 1158(c)(1)(A). Secondly, before w e held oral argument in this case, the United States informed the court that it was in the process of transferring the children to the physical custody o f Catholic Charities. The United States infor m s u s t his transfer will also vest legal custody under Texas law in Catholic Cha r i t i es. Based on the Governmen t ’ s representation that transfer takes six to e ight weeks, Baptist Services no longer has p hysical custody of the children, and Catholic Charities is now their legal and physical custodian. The children, who are the sole a ppellants i n this c ase, challenge both the district court’s handling of Sanchez’s p e t i t ion and the enforceability of the district court’s order in light of the subsequent asylum grant. First, they argue

2 It is unclear w het h e r U S C I S h a d m ore inf orm ation about the ris k s to the child ren than d id the d is trict court. Relevantly, there are t w 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 U nited States to s eal the as s es s m ents in s up p ort of the child ren’s as ylum grant. 5 Case: 12-50783 Document: 00512540859 Page: 5 Date Filed: 02/21/2014No. 12-50783

that Sanchez did not have standing to pursue her petition. They assert that the only way Sanchez would have had standing to p u rsu e h e r p e t ition was by naming ORR as a respondent i n her p e t ition. They also argue that even if Sanchez did have standing, none of t he respondents meaningfully advanced th eir interests under the Convention a nd therefore they had the right to fo r m ally 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 a lternative theories on how the c ourt should proceed. First, they argue that the district court can no longer order their return to Mexico because their asylum status p rohibits 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 be returned. Thre e o t h er interested parties, including the U nited States, filed amicus briefs in this case. The United States, whose interpretation of a treaty is afforded special weight, also asks the court to remand the proceedings to the district c ourt w ith instructions f or it to consider evidence of the children’s a sylum grant. See Abbott v. Abbott , 130 S .Ct. 1983, 1993 (2010). DISCUSSION I. Whether the Children Have Standing to Appeal Our threshold is s u e is whether the children, w ho 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 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 participat e d in the proceedings below”; (2) whether “the equities weigh in favor of h earing the appeal”; and (3) whether “the non-party has a personal stake in the o utcome.”

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SEC v. Forex Asset Mgmt. LLC, 242 F.3d 325, 329 (5th Cir. 2001) (quot a t i on marks omitted). The factors weigh in favor of finding that the children should be allowed to appeal. With regard to the first factor, the c hildren’s attorney played an active role in the e videntiary hearing, submitting briefs a nd evidence, and arguing issues before the court. O thers who might have responded t o the p etit i o n

– the children’s aunt a nd uncle, their foster parent s, the foster agency, or the government – did not respond meaningfully and failed to a ssert 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 qui t ies and the children’s strong p ersonal stake in the outcome weigh in favor of perm i t t i n g their appeal. “In e very case under the Hague Convention, the w ell-b e ing of a child is at stake.” Chafin v. Chafin, 133 S. Ct. 1017, 1027 (2013). If the appeal is not a llowed, we wil l n o t be able t o consider the arguments that their wellbeing will be a dversely a ffected by the ruling. W e conclude t h e c h i ldren have standing to appeal. II. Whether the District Court Erred in Ordering the Children’s Return Before we address the m erits 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 r e tained in any Contracting State; and b) to ensure that rights o f custody and of access under the law of one Contracting State are effectively respected in the other C ontracting States.” Hague Convention, art. 1

. It accomplishes these objectives through the r eturn remedy. E.g. , Abbott , 130 S .Ct. at 1989. T his means that under t h e C o n v e ntion, a “wrongfully r e moved” child is returned to his or her home country; the return order is not a determination as to p ermanent legal o r p h y sical custody of the

c hild. Id. at 1987. By focusing on the child’s return, the Convention seeks t o

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“restore the pre-abduction status quo and to deter parents f rom crossing borders in search of a more s ympathetic court.” England v. England , 234 F.3d 268, 271 (5th Cir. 2000) (quotation marks omitted). The return remedy determines the country in which th e custody decision is to be made; it do e s n o t make that decision. The implementing statut e p r ovides 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 tice of an action brought under subsection (b) o f this section shall b e given in accordan c e w i th the applicable law governing notice in interstate child custody procee d ings.” 42 U.S.C. § 11603(c). The applicable la w c o m es from the U n iform Child Custody Jurisdiction and Enforceme n t Ac t (“UCCJEA”). See Livanos v. Livanos , 333 S.W.3d 868, 876 (Tex. App. – Houston [ 1 D ist.] 2 010). As codified in Texas, the UCCJEA states “ notice a nd an opportunity to be heard

. . . must be given to all
persons entitled t o notice u nder the law o f t h i s state as in child custody
p r o c e e dings between residents of this state, any parent whose parental ri gh t s 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 expl a i ns both what the petitioner must establish i n order to obtain relief and what “a respondent who
opposes the return of the child” must show. 3 42 U.S.C. § 11603(e)(2). T o secure the return of the ch i l d , t h e petitioner m ust establish that the child “has been wrongfully removed or retained within t h e meaning of the Convention.” 42 U.S.C. § 11603(e)(1)(A). Article 3 of the Hague C onvention requires a showing

3 A p etitioner is d ef

ined as “any p ers on w ho, in accord ance w ith t h i s 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 p etition is f iled in court, in accord ance w ith this chap ter, w hich s eek s relief und er the Convention. ” 42 U

. S. C. § 11602( 4) , ( 6)

. A p e rs 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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that the petitioner had some “rights of custody” that are derived from the child’s home country and that she was exercisin g h e r c u s tody rights at the time of removal. Hague C onvention, art. 3; see also Larbie v. Larbie , 690 F.3d 295, 307 (5th Cir. 2012). The burden then shifts t o t h e r e s pondent to establish “by clear and convincing e vidence that one of the exceptions set forth in Article 1 3(b) or 20 of the Convention applies.” 42 U.S.C. § 11603(e)(2)(A). N o ne of the exceptions turn

on w hether the person removing or retaining was p roperly exercising custody rights. Article 13(b), f or example, concerns whether “there is a grave risk that his or her return would expose the child to physical or psychologi c a l h a r m or otherwise place the chi l d in an intolerable situation.” Hague Convention, art. 13b. This exception derives n ot from aconcern 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 Priv ate International Law , ¶ 29, in 3, Acts and Documents of the Fourteenth Session, Child Abduction 4 26, 464 (the “Explanatory Report”). 4 If the respondent fails to show that one of the exceptions applies, the court “shall order the return of t h e c h i l d forthwith.” Hague Convention, art. 12. A. Proper party defendants The children first assert that the district court lacked jurisdiction to grant Hague Convention relief because Sanchez failed to sue the proper p arty. They label this issue with the w ord “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 ry in fa ct.’” Lujan v. Defenders of Wildlife, 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 i nju ry a n d th e co n d u ct co m p l a in e d o f” m u st e x ist. Id

. T h a t is, th e in ju rym u st b e “fa irly

4 We have p revious ly relied up on the Exp lanatory Rep ort “as the of f icial h i s t o r y , com m entary, and source of back ground on the m eaning of the provis 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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t r a c e 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 fo re th e co u rt.” Id

. ( q u o ta tio n

m a rk s o m i tte d)

. L a s t, “it m u st b e l ik e ly , a s o p p o se d to m e re ly s p e cu la tiv e , th a t th e inju ry w ill b e re d re s se d b y a fa v o ra b le d e c i s io n . ” Id

. a t 5 6 1 ( q u o ta tio n

m a rk s o m itte d). Questions of standing are reviewed de novo. Bonds v. Tandy , 457 F.3d 409, 411 (5th Cir. 2006). The children’s argument focuses primarily o n the last elem e nt of the inquiry, which i s redressability. 5 They a rgue that the district court order could not redress Sanchez’s injury because Segura, the m ost significant respondent in this case, cannot be compelled in her officia l c apacity as director of Baptist Services to return the children because s h e w a s n o t the actual p hysical c u stodian of the children, and even if she could, Baptist Services lacked the legal authority to return her children to her. Instead, the chi l d r e n a ssert that O RR, as the children’s temporary legal guardian, was the only r espondent who had the auth ority to return the children. Therefore they argue S anchez should have named O RR 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 h ave failed because the H ague Contention cannot be used to compel the United States to return children within their legal custody. E ssentia l l y , the childr en argue that Convention relief was not available to Sanchez given the unusual circumstances. Sanchez responds that, under the Hague Convention, the person t hat “controls the body” is the person appropriate for suit. Sanchez does not identify the source of this controls-the-body concept, b ut she argues that the person with

5 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 ariam Sanchez are not p res ently caus ing their m other injury, ev e n i f t h ey d id initially tak e them f rom their 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. 10 Case: 12-50783 Document: 00512540859 Page: 10 Date Filed: 02/21/2014No. 12-50783

physical custody, a s opposed to le g a l c ustody, is the appropriate respondent under the Convention because that party can physically complete the return. In the usual Convention case, Sanchez is correct that the person with c ustody of the child is the respondent, regardless of whether the respondent has l egal custody. For instance, had Jose and M a r i a m Sanchez continued t o retain the children after they entered th e U nited States, they w ould have been proper ICARA respondents, irrespective of whether they e xercised a ny l e gal custody of the children. The issue here i s w hether Sanchez’s failure to serv e notice on the actual physical custodia n s (the unidentified foster parents) or ORR, as the temporary legal custodian, deprived the district court of Article III authority over Sanchez’s petition. We first c onclude that n o jurisdictional defect arises from the f act that Segura was n ot the actual physical custodian of the children. The record indicates that Sanche z w as diligent in t rying to determine the l ocation of her chil d r e n a n d the i dentity 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 servi c e but not the foster parents. Consequently, Sanch e z could not serve n otice on the children’s actual but unknown physical c ustodi a n s . The best she could do was serve her petition on Segura, the person i dentified by the United States. Though S egura was not the actual p hysical custodian, 6 she had knowledge of the children’s location and had

6 We note that even if Sanchez had nam ed the unid entif ied fos ter p arents as John and Jane Doe in her p etition, s he could not have s erved the petition on them , and thus could not have given them the notice required by ICARA. B y virtue of Sanchez’s s erving the p etition on Segura, John and Jane D oe received the s am e notice they w ould have received had they been nam ed , that is , t h ey received w hatever inf orm ation Segura chos e to com m unicate to them

. M oreover, the child ren argue that Bap tis t S e r vices could have been s erved

. That m ay be correct, 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

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the authority over the Baptist Services t o direct their p lacement. That is enough to oversee the children’s return, which would redress Sanchez’s injury. We also do not perceive the absence of ORR as a party to b e a m eaningful defect. Sanchez did not initially name ORR i n its p etit ion, b ut ORR later received notice of the petition and had an opportunity to respond. See 42 U.S.C. § 11603(c); T E X

. FAM

. C O D E AN N

. § 152.205(a). It therefore had t h e s ame opportunity as Segura to contest the district court’s authority to order the children’s return, a n d it d eclined to offer its view on w ho was a proper respondent in this case. M oreover, the United States, in i ts amicus brief, has not suggested that it p erce i v e s a jurisdictional defect in the return o rder or otherwise indicated that it will not assist in the children’s return. Despite the children’s r epresentations that ORR’s interests are truly adverse to their return, the United States has consistently represented, both to u s an d t o the district court, that it is amenable t o returning the childre n t o t h e i r mother. Its only qualification was that the district court consider the asylum application; now it argues that this court should consider the children’s asylum grant. 7 Fin a l ly, the children contend that H ague C o nvention relief cannot be granted when the government assumes legal custody of a c h ild, but th ey offer no authority for this assertion. Again, given the position of the United States that the Hague Convention is a t least a p r o p er mechanism for the recovery of Sanchez’s children, we decline to fore c lose Sanchez’s one c lear mechanism for

r e l i ef based on an u nidentified alternative. Here, the remedy granted by the

7 The child ren’s s tand ing a r g u m ent is p rem is ed on the id ea that legal cus tod y tak es p reced ence over p hys ical cus tod yund er the Convention. U nd er the Convention, the d is trict court is prohibited f

rom m ak ing any d eterm inations that w o u ld alter the legal interes ts betw een the p arties , and the d is trict court was caref ul not to d o s o here. For the U nited States to as s ert any legal cus tod y it has over the child ren, it would , lik e any other p arty w ith legal
r i gh t s , h a ve to as s ert thos e rights in the child ren’s country of habitual res id ence. But even then, this res ult w ould s eem to be p rop er u n d e r the Convention, if the d is trict court d eterm ines that the child ren’s return w as p rop er, i. e. , none of the Convention def ens es ap p ly. 12 Case: 12-50783 Document: 00512540859 Page: 12 Date Filed: 02/21/2014No. 12-50783

district court – that “the minor children be r eturned forthwith to the c u stody of Petitioner” – can be accomplished either by Segura or O RR, both of w hom had the opportunity to oppose the petition, knowledge of the children’s location, and authority over the foster parents to r e move the children from their foster home. The district court did not lack jurisdiction to enter the order. B. The children’s motion to intervene or appoint a guardian ad litem The children’s second argument is whether the district court s hould have granted their motions to intervene or to appoint a guardian a d litem i n light of the fact that none of the r espondents asserted the C onvention’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 a l o n e o r 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 f or intervention as a matter of right when a prospective party “claims an interest r elating 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 th e m ovant’s ability to protect its interest, unless existing parties adequately represent that i nterest.” Rule 17(c)(2) provides that a court “must appoint a guardian ad litem – or issue anoth e r a p p r opriate o rder – to protect a minor or incompetent person who is unrepresented in a n action.” We will review de n ovo the d enia l o f a m o tion to intervene as a m atter of right. H e a t o n v . Monogram Credit Card Bank of Georgia , 297 F .3d 4 16, 422 (5th Cir. 2002). Denial of an appointment a guardian ad litem is reviewed for abuse of discretion. See Fernandez-Vargas v. Pfizer , 522 F.3d 55, 66 (1st Cir. 2008). Children ar e n o t u s u ally p arties to Hague Convention proceedings, though nothing in the Convention expressly p rohibits a court from allowing c hildren to

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intervene. The First Circuit has stated that some cases, b u t n o t “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 (1st C ir. 2000). District courts have sometimes allowed children to participate through guardians ad litem when their interests were not a dequately represented by e ither 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 can achieve t h e e nds of the C onvention and ICARA – and protect t h e w e l l-being of the affected c h ildren

– through the familiar judicial tools . . . .” Chafin , 133 S. Ct. 1026-27. As we have acknowledged, the circumstances o f this case a re exceptional. The abducting respondents have disclaimed any responsibility for the children. The c hildren’s physical guardian was r epresented by counsel and partici p a t e d in the matter when it was before the district court but appeared t o be concerned with her own interests. And the United States, the children’s temporary legal guardian, chose not to assert the Convention defenses for the children when queried by the district court. Moreover, n one o f the respond e nts named in Sanchez’s petition h ave participa t e d i n this a ppeal. Without the informal participation o f the children’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 despite the considerable informal a llowances made for the children’s attorney, we find that the chil d r e n should n ow be appointed f ormal legal r epresentation. The children’s fundamental interests are at stake in the district c ourt’s proceedings, and no respondent is making a n effort to r epresent those interests. Rule 17(c)(2) requires a court to appoint counsel for an unrepresented minor in the

14 Case: 12-50783 Document: 00512540859 Page: 14 Date Filed: 02/21/2014No. 12-50783

proceedings, and these c hildren’s interests w ere unrepresented. On remand, the district court should appoint the children a 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 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 pe r h aps some o ther e vidence, in considering whether any of the Hague Convention’s exceptions to return apply. The Seventh Circuit determined that the district c ourt should have considered psycho l o g i c al evidence suggesting 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 t o the same threatening s ituation as they were in when they left Mexico. The psychological e vidence presented by the children centered mostly on harm Quinonez was inflicting on their mother and 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. 8 The district court, t h o u gh, determined that Sanchez had abandoned Quinonez and that t h e M e xican government had presented evidence that it could pro t e ct the children. See Walsh , 221 F.3d at 219. The Convention’s exceptions to return, and Article 13(b) in p articular, are prospective, whereas the ps y c h ological reports are primarily retrospective in nature. The district court did not clearly err by failing to account for the mostly

8 The p sychologis t w ho evaluated R. G

. L. als o of f er s her op inion about the s uitability of p lacing the child ren in f os ter care in M exico, but that op inion d oes not ap p ear to be
s up p orted by her f

actual f ind ings

. The p s ychologis t w ho evaluated the ot h e r tw o child ren s tates that the child re n ’ s r e turn to M exico, regard les s of the changed circum s tance, w ould p rovok e a “heightened traum a res p ons e, ” but d oes not exp ound on this conclus ion. 15 Case: 12-50783 Document: 00512540859 Page: 15 Date Filed: 02/21/2014No. 12-50783

retrospective harm a llegedly suffered by the children, or the conclusions of the psychologist, w hich 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 c h ildren’s asylum grant should be c onsidered by the district court. The c h i l d r en first argue that an asylum grant directly conflicts with the district court order, a nd 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 t h e e f

f ect of the asylum grant vis-a-vis the district court order and views Sanchez’s attempt to s ecure the return of h er children under ICARA as an impermissible collateral a ttack o n the grant of asylum. Altern a t i v e ly, the children argue that we should remand to the d i s t r i ct c o urt for reconsideration of w hether the Article 13(b) or 20 exceptions apply in light of th e recent grant of asylum, which is new evidence not considered by the district court. Sanchez responds that, if Convention relief i s f ound to be in conflict with the asylum grant, the retu r n order s hould t ake p recedence over the asylum grant because the C onvention proceedings were mor e t h o r o ugh. She 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 the district court. In its amicus brief, the United States advances the position that a grant of asylum is n ot dispositive of but is relevant to whether either the Article 13(b) or 20 exception applies. T h e children were granted a s ylum pursuant t o the Immigration and Nationality Act (“INA”), as amende d b y 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 h ave suffered p ast persecuti o n o r h a v e a “well-founded fear of persecution on account of race,

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religion, natio n ality, membership in a p articular 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). 9 The children’s grant o f asylum was discretionary, 8 U.S.C. § 1 158(b)(1)(A), and provides that “the Attorney General s hall 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 a sylum 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 S ecurity. See id. No authority has been offered to s upport the argument that t h e discretionary grant of asylum confers a right t o r e m a i n 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 the i r m o t h e r , a s 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 th e H ague Convention exceptions to return should a pply. We agree with the United States that there is a significant o verlap between the asylum inquiry and Article 13(b) of the Hague Convention. Both focus on the level of harm to w hich the children would be exposed if returned to their h ome 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). P e r s e c u t ion has been defined as an “extreme concept” and turns on w hether suffering or harm is likely to be i nflicted on t h e a s y l u m applicant. Eduard v. Ashcroft , 379 F.3d 182, 187 & n . 4 ( 5 t h Cir. 2004). Similarly, Article 13(b) of the Hague Convention requires a respondent to show

9 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)

. 17 Case: 12-50783 Document: 00512540859 Page: 17 Date Filed: 02/21/2014No. 12-50783

that “there is a grave risk that his or her return would e xpose the child to physical or psychological harm.” Hag u e C o n v ention, art. 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 similarities, t h e a s y l u m f i n d ing that the children have a wellfounded fear o f p e rsecution does not substitute for or control a finding under Article 13(b) of the Convention about whether r e turn “would expose the child to physical or psychological harm or otherwise p l a c e t h e child in an intolerable situati o n . ” Hague Convention, 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 independe n t finding of potential harm to the children, consider i n g all offered relevant evidence. The prior consideration of similar concerns in a different forum are relevant, but we determine that a n a sylum grant does not r emove fro m 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 th o s e u nder ICARA’s framework are different. T o be granted asylum, the children w ere required to show their eligibility by a p r eponderance of the evidence. See 8 C.F.R. § 1208.13(a),(b)(1)(i). In order for a Convention e xception to apply, a respondent m ust establis h t h e e x ception by clear and convincing 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 Sanchez makes when arguing she did not h a v e an opportunity to make a meaningful p r esentation prior to the asylum grant. As the district c ourt recognized, the USCIS grants of asylum are relevant to any analysis of whether the Article 13(b) o r 2 0 exception a pplies. When faced with a motion to stay the p r o c e e d i n gs while the c hildren’s asylum application

was pending, the district court determined that the interests of a prompt answer

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under the Conve n t i o n outweighed the m erits of a stay. Now that the children have been granted asylum, though, all available evidence from the asylum proceedings sho uld be c onsidered by the district court before determining whether to enforce the return order. Finally, w e note that the children’s legal and physical custodians
ap parently have c hanged since the appeal has been briefed, c omplicating compliance with our mandate. As we indicated abov e , under the C onvention, the
person in physical possession of the child is to be given notice of t h e p e t i t i o n . Th e G overnment should t ake “all appropriate measures” t o f u lf ill it s C o nv e nti o n imposed duties , i n c luding 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. The district court r eturn order is VACATED. The case i s REMANDED to t h e d i s t rict court to consider the asylum grants, assessments, and a ny related evidence not previously considered that relates to whether Articles 13(b) or 20.

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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 d uties. See id. at § 11606; Exec. Order N o. 12,648, 3 C.F.R. 579 (1988).

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