“[T]he uncertain immigration status of a parent and her child is a factor suggesting that a child is not settled.”
How later courts described this case
- “[T]he uncertain immigration status of a parent and her child is a factor suggesting that a child is not settled.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-CV-62149-KMM
ERIC JOHN HORACIUS,
Petitioner,
v.
ANNE CATHERINE RICHARD,
Respondent.
_______________________________/
ORDER GRANTING PETITIONER’S MOTION TO COMPEL
THIS CAUSE comes before the Court upon Petitioner’s Motion to Compel Production of
Respondent’s Immigration/Asylum Records (the “Motion”) (ECF No. 20). United States District
Judge K. Michael Moore has referred the Motion to the undersigned for appropriate disposition.
See (ECF No. 21). After review of the facts of this case, relevant case law, and applicable federal
statutes and regulations, the Motion is GRANTED for the reasons set forth below.
I. BACKGROUND
In November 2023, Petitioner filed a Petition for Return of Minor Child to Canada, alleging
that Respondent wrongfully retained the parties’ minor child in Florida. See (ECF No. 1). In
defense, Respondent asserts that “the child is now well-settled in her new environment” and should
therefore not be returned to Canada. (ECF No. 19 at 14) (Respondent’s Answer and Affirmative
Defenses). According to Respondent, she “is in the application process for permanent resident
status . . . [and] [t]he child is not under threat of removal.” Id. at 16.
In the current Motion, Petitioner seeks to compel Respondent to produce all documents
and communications submitted and received in connection with her efforts to obtain legal status
in the United States, arguing that Respondent’s and the child’s immigration status is “relevant in
determining whether Respondent has established the well-settled defense.” (ECF No. 20 at 2, 3).
Respondent objects to producing these documents “to the extent . . . [Petitioner] seeks documents
related to her efforts to obtain legal status through asylum proceedings, which commenced after
the alleged wrongful retention.” (ECF No. 27 at 2) (emphasis in original). Respondent also points
out that the parties have stipulated that Respondent has a pending application for temporary
status/green card before the United States Citizenship and Immigration Service, so any documents
related to her asylum proceedings are “wholly irrelevant.” Id. at 3.
II. DISCUSSION
The Motion is granted for several reasons. First, the asylum application is directly relevant
to Respondent’s “well-settled” defense, regardless of whether the immigration or asylum
applications were filed before or after the alleged wrongful retention. See Garcia v. Padilla, No.
2:15-CV-735-FTM-29CM, 2016 WL 881143, at *4 (M.D. Fla. Mar. 8, 2016) (“Asylum is one of
the ways to lawfully stay in the United States, and the likelihood of the asylum application
succeeding is directly relevant to whether the Mother may prevail on her ‘well-settled’ defense.”);
De Jesus Joya Rubio v. Alvarez, 526 F. Supp. 3d 1186, 1202-03 (S.D. Fla. 2021) (noting that courts
consider several factors in analyzing the “well-settled” exception, including the child and parent’s
immigration status, residential stability, and the extent to which the child maintains ties with the
country of habitual residence); Lopez v. Alcala, 547 F. Supp. 2d 1255, 1260 (M.D. Fla. 2008)
(“[T]he uncertain immigration status of a parent and her child is a factor suggesting that a child is
not settled.”). Even purportedly confidential documents, if relevant, are not immune from
discovery. See Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 692 n.5 (S.D. Fla. 2011); Fed. R.
Civ. P. 26(b)(1) (“Information within [the broad] scope of discovery need not be admissible in
evidence to be discoverable.”).
Second, although the Court is sensitive to the confidentiality generally afforded to asylum
applications and related documents, see, e.g., 8 U.S.C. § 1367; 8 C.F.R. § 208.6, this is not such a
circumstance. For example, the confidentiality provision in 8 U.S.C. § 1367 precludes disclosure
solely by the Attorney General, Department of Justice, Department of State, and Department of
Homeland Security. Similarly, 8 C.F.R. § 208.6 authorizes disclosure of otherwise confidential
asylum information upon written consent of the applicant or to any federal, state, or local court
considering any legal action “[a]rising from the proceedings of which the asylum application □ □ □
is a part.” See 8 C.F.R. §§ 208.6(a), (c)(2)(ii). Although Respondent has chosen not to consent to
disclosure of the requested documents, the documents are clearly relevant to this federal court
proceeding.
Il. CONCLUSION
Accordingly, Petitioner’s Motion to Compel Production of Respondent’s
Immigration/Asylum Records is GRANTED. Furthermore, in an abundance of caution and in an
effort to protect Respondent’s privacy, by January 5, 2024, the parties must file a proposed Joint
Confidentiality Order to govern the disclosure and limited use of the requested
immigration/asylum documents in this action. Thereafter, Respondent must produce the
documents to Petitioner by January 9, 2024.
DONE AND ORDERED in Chambers, at Fort Lauderdale, Florida on January 4, 2024.
ALICIA O. VALLE aa
UNITED STATES MAGISTRATE JUDGE
cc: U.S. District Judge K. Michael Moore
All Counsel of Record