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19-3740-cv

Valles Rubio v. Veintimilla Castro

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY 

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 

11th day of May, two thousand twenty.

Present: JOHN M. WALKER, JR.,

ROSEMARY S. POOLER,

GERARD E. LYNCH,

 Circuit Judges.

_____________________________________________________

SEGUNDO MELCHOR VALLES RUBIO,

Petitioner-Appellee,

v. 19-3740

OLGA KATERINE VEINTIMILLA CASTRO,

Respondent-Appellant.

_____________________________________________________

For Respondent-Appellant: Yoav M. Griver (Bryan D. Leinbach, on the brief), Zeichner 

Ellman & Krause LLP, New York, N.Y.

For Petitioner-Appellee: Saurabh Sharad (Robert H. Pees, on the brief), Akin Gump Strauss 

Hauer & Feld LLP, New York, N.Y.

Appeal from the United States District Court for the Eastern District of New York (Matsumoto, 

J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
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Respondent-Appellant Olga Katerine Veintimilla Castro (“Castro”) appeals from the 

October 15, 2019 memorandum decision and order of the U.S. District Court for the Eastern 

District of New York (Matsumoto, J.) granting the petition of Petitioner-Appellee Segundo 

Melchor Valles Rubio (“Valles”) for the repatriation of his and Castro’s son, B.V., to Ecuador, 

pursuant to the Hague Convention on the Civil Aspects of International Child Abduction

(“Hague Convention” or “the Convention”), Oct. 25, 1980, T.I.A.S. No. 11670, reprinted in 51 

Fed. Reg. 10,494 (Mar. 26, 1986), as implemented by the International Child Abduction 

Remedies Act (“ICARA”), 22 U.S.C. §§ 9001-9011. We assume the parties’ familiarity with the 

underlying facts, procedural history, and specification of issues for review.

“We review the district court’s interpretation of the Convention de novo and its factual 

determinations for clear error.” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013). “Our review 

under the clearly erroneous standard is significantly deferential,” and “[w]e must accept the trial 

court’s findings unless we have a definite and firm conviction that a mistake has been 

committed.” Id. (internal quotation marks and citations omitted). “The district court’s application 

of the Convention to the facts is subject to de novo review.” Marks ex rel. SM v. Hochhauser, 

876 F.3d 416, 418 (2d Cir. 2017). 

Under ICARA, if a petitioner for repatriation establishes wrongful removal of the child, 

then the child must “be promptly returned unless one of the narrow exceptions set forth in the 

Convention applies.” 22 U.S.C. § 9001(a)(4). As is relevant here, a respondent can contest 

repatriation by establishing by clear and convincing evidence, 22 U.S.C. § 9003(e)(2)(A), that 

“there is a grave risk” that repatriation of the child “would expose the child to physical or 

psychological harm or otherwise place the child in an intolerable situation,” Hague Convention, 

art. 13(b). Even if the repatriation poses a grave risk of harm, however, “the district court is not 

necessarily bound to allow the child to remain with the abducting parent.” Blondin v. Dubois, 

189 F.3d 240, 246 n.4 (2d Cir. 1999). Rather, a “federal district court retains, and should use 

when appropriate, the discretion to return a child, despite the existence of a defense, if return 

would further the aims of the Convention.” Id. (internal quotation marks and citation omitted). 

Accordingly, we have explained that “[i]n cases of serious abuse, before a court may deny 

repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine 

the full range of options that might make possible the safe return of a child to the home country.” 

Blondin v. Dubois, 238 F.3d 153, 163 n.11 (2d Cir. 2001); see also Saada v. Golan, 930 F.3d

533, 539 (2d Cir. 2019) (explaining that the district court must “take into account any 

ameliorative measures (by the parents and by the authorities of the state having jurisdiction over 

the question of custody) that can reduce whatever risk might otherwise be associated with a 

child’s repatriation” (internal quotation marks and citation omitted)).

The district court concluded that, though evidence of Valles’s physical and psychological 

abuse of B.V. established that B.V. faced a grave risk of harm if returned to Valles’s custody, 

ameliorative measures such as litigation in Ecuadorian courts were sufficient to protect B.V., and 

it therefore granted Valles’s petition for B.V.’s return. Castro contends on appeal that this was 

error, primarily arguing that the district court (1) erroneously placed the burden of proving the 

unavailability of ameliorative measures on Castro; (2) insufficiently developed the record to 

support its conclusion as to the existence of enforceable ameliorative measures; and (3) 
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disregarded that Castro would not return to Ecuador if B.V. were repatriated. In response, Valles 

argues that Castro failed to satisfy her burden to show a grave risk of harm, that ameliorative 

measures were sufficient to protect B.V. from any risk of harm, and that this Court should take 

judicial notice of the joint status update (“JSU”) the parties filed with the district court setting out 

the parties’ agreed-upon ameliorative measures.

As a preliminary matter, we grant Valles’s motion to take judicial notice of the JSU 

pursuant to Federal Rule of Evidence 201, under which we may judicially notice an 

“adjudicative fact” that “is not subject to reasonable dispute because it . . . can be accurately and 

readily determined from sources whose accuracy cannot reasonably be questioned.” It is beyond 

dispute that the JSU is a public document, filed with the district court pursuant to the district 

court’s order that the parties meet and confer regarding B.V.’s repatriation. Further, because the 

parties’ arguments focus in large part on the measures available to protect B.V. upon 

repatriation, the JSU is clearly relevant to our determination, on appeal, as to whether 

ameliorative measures sufficiently mitigate the risk of harm to B.V. Accordingly, the Court 

GRANTS Valles’s motion to take judicial notice of the JSU. 

We do not agree with Valles that Castro failed to meet her burden to show a grave risk of 

harm to B.V., however. The district court found clear and convincing evidence of physical and 

emotional abuse, including, inter alia, four beatings with a belt, one beating with a stick, frequent 

verbal abuse, using B.V. as cover to transport firearms in Valles’s car, and handing B.V. a loaded 

firearm while making threatening comments. On this record, we agree that Castro adequately 

demonstrated that B.V. could face a grave risk of harm if repatriated. See Souratgar, 720 F.3d at

103 (“Under Article 13(b), a grave risk of harm from repatriation arises . . . in cases of serious 

abuse or neglect, . . . when the court in the country of habitual residence, for whatever reason, 

may be incapable or unwilling to give the child adequate protection.” (internal quotation marks, 

italics, and citation omitted)).

Nevertheless, in light of the protective measures set out in the JSU and the record of 

Castro’s successful litigation in Ecuadorian courts, we cannot conclude that the district court 

abused its discretion in ordering B.V.’s repatriation. The JSU provides for weekly visits between 

B.V. and Castro’s family, daily conversations by video or telephone between Castro and B.V., 

and restrictions on B.V.’s access to firearms, including prohibitions on the presence of any 

firearms where B.V. resides. Castro has failed to establish on appeal that these measures are 

inadequate to protect B.V., nor has she shown why she cannot avail herself of the Ecuadorian 

courts or the equitable power of the district court to enforce ameliorative measures for the 

protection of B.V. 

Castro’s arguments to the contrary are unavailing. First, the district court did not err in 

failing to hold explicitly that Valles had the burden to show the availability of ameliorative 

measures, because the district court concluded that ameliorative measures were available based 

on the existing factual record. Over the course of a three-day hearing, the district court heard 

testimony about and received submissions from the parties’ litigation in Ecuadorian courts, 

including the adjudication of child support, child abuse allegations against Castro, and Castro’s 

multiple successful requests for permission from Ecuadorian courts to take B.V. for trips outside 

of Ecuador. We therefore conclude that the district court sufficiently developed the record as to 
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the ability of the Ecuadorian courts to enforce adequate ameliorative measures to support its 

order of repatriation.

We agree with Castro, however, that the district court too quickly discounted her 

argument that she would not return to Ecuador with B.V., and that the efficacy of any protective 

measures would need to be assessed in light of her absence. See Valles Rubio v. Veintimilla

Castro, No. 19-CV-2524, 2019 WL 5189011, at *31, (E.D.N.Y. Oct. 15, 2019) (reasoning that 

“where an ameliorative measure would include court-ordered custodial arrangements to protect 

the child, a respondent should not be rewarded for declining to ameliorate the risk by refusing to 

return with a child to the habitual residence, and thus risk losing custody”). This Court has 

instructed that “[i]n cases of serious abuse, before a court may deny repatriation on the ground 

that a grave risk of harm exists under Article 13(b) [of the Hague Convention], it must examine 

the full range of options that might make possible the safe return of a child to the home country.” 

Blondin, 238 F.3d at 163 n.11. Such ameliorative conditions “balanc[e] our commitment to 

ensuring that children are not exposed to a grave risk of harm with our general obligation under 

the Hague Convention to allow courts in the country of habitual residence to address the merits 

of custody disputes.” Saada, 930 F.3d at 541. Thus, where repatriation would return a child to 

the sole physical custody of their abuser, a district court does not properly weigh the safety of the 

child if it fails to examine the full range of ameliorative measures, including those that are 

enforceable when the respondent parent has chosen not to return. See, e.g., Blondin, 189 F.3d at

249 (finding “merit in the District Court’s reasons for avoiding a remedy that would effectively 

transfer the children directly into” the abusive parent’s custody, and accordingly instructing the 

district court to exercise its “broad equitable discretion” on remand to consider a range of 

potential ameliorative measures).

Here, however, the district court did not simply order repatriation without any 

ameliorative measures. Rather, the district court ordered the parties to negotiate the terms of the 

repatriation, and report back to the court on the terms on which they had agreed. In response to 

that order, the parties filed the JSU, providing ameliorative measures for B.V.’s repatriation to 

Valles’s custody in Ecuador. As discussed, Castro has failed to show that these measures or the 

protection of the Ecuadorian courts are inadequate, even if she remains in the United States; nor 

did she petition the district court to amend the terms of the JSU. Accordingly, even if the district 

court failed to specifically examine the enforceability of ameliorative measures in light of 

Castro’s decision not to return to Ecuador, we cannot conclude that the ameliorative measures 

currently in place are insufficient to mitigate the risk of harm to B.V., such that B.V.’s 

repatriation was an abuse of discretion. 

Castro argues on appeal that Valles has not fully complied with the terms of the JSU 

since B.V.’s return to Ecuador. In the absence of any effort by Castro to make a record on this

subject by petitioning either the Ecuadorian courts or the district court for relief in light of these 

alleged derelictions, we decline to consider such allegations in the first instance.
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We have considered the remainder of Castro’s arguments and find them to be without 

merit. Accordingly, the order of the district court hereby is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk