Pierre Salame Ajami v. Veronica Tescari Solano

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0055p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

PIERRE SALAME AJAMI,

│

Petitioner-Appellee, │

> No. 20-5283

│

v. │

│

VERONICA TESCARI SOLANO, │

Respondent-Appellant. │

┘

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.

No. 3:19-cv-00161—Eli J. Richardson, District Judge.

Argued: October 27, 2021

Decided and Filed: March 29, 2022

Before: GUY, MOORE, GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Lyndsay A. Gorton, CROWELL & MORING LLP, Washington, D.C., for

Appellant. Ashley Goins Alderson, STITES & HARBISON PLLC, Nashville, Tennessee, for

Appellee. ON BRIEF: Scott L. Winkelman, Rebecca Baden Chaney, CROWELL & MORING

LLP, Washington, D.C., for Appellant. Ashley Goins Alderson, Rebecca McKelvey Castañeda,

STITES & HARBISON PLLC, Nashville, Tennessee, for Appellee.

GIBBONS, J., delivered the opinion of the court in which GUY, J., joined. MOORE, J.

(pp. 13–21), delivered a separate dissenting opinion.

No. 20-5283 Salame Ajami v. Tescari Solano Page 2

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Pierre Salame Ajami (“Salame”) petitioned

for the return of his two minor children under the Hague Convention on Civil Aspects of

International Abduction. The children were removed from Venezuela, their country of habitual

residence, to the United States by their mother, Veronica Tescari Solano (“Tescari”).

The district court granted Salame’s petition and ordered the children be returned to Venezuela.

We affirm.

I.

Tescari and Salame are Venezuelan citizens and have two minor children together, EAST

and PGST. In 2018, Tescari removed the children from their home in Barquisimeto, Venezuela,

and brought them with her to the United States. Salame filed a petition under the Hague

Convention seeking the children’s return on February 20, 2019. Tescari and, as derivative

family members, the children were granted asylum in the United States on June 10, 2019. The

district court held a bench trial on Salame’s petition on July 30, July 31, August 6, and December

6, 2019.

The parties stipulated to the applicability of the Convention and to the following facts:

(1) EAST and PGST are under the age of sixteen; (2) EAST and PGST’s habitual

residence is Venezuela for the purposes of the Convention; (3) Petitioner had

rights of custody, as contemplated by the Convention, under Venezuelan law at

the time the Children were removed from Venezuela; (4) Petitioner was

exercising rights of custody with respect to the minor Children at the time

Respondent removed them from Venezuela; (5) Pursuant to the Hague

Convention, Respondent wrongfully removed the Children from Venezuela and

their retention in the United States is wrongful under Venezuelan law; and

(6) Petitioner filed his Petition for Return on February 20, 2019, which is within

one year of the Children’s removal from Venezuela.

Ajami v. Solano, No. 3:19-cv-00161, 2020 WL 996813, at *3 (M.D. Tenn. Feb. 28, 2020). This

stipulation established Salame’s prima facie case of wrongful removal, so the only issue before

the district court was whether Tescari established an affirmative defense under Article 13(b) of

No. 20-5283 Salame Ajami v. Tescari Solano Page 3

the Hague Convention, Oct. 25, 1980, T.I.A.S. No. 11,670. See 22 U.S.C. § 9003(e)(2);

Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996).

The district court concluded Tescari failed to establish, by clear and convincing evidence,

her affirmative defense that returning the children to Venezuela would subject them to a grave

risk of physical or psychological harm or otherwise place them in an intolerable situation. It

therefore granted Salame’s petition and ordered that the children be returned to Venezuela.

II.

In 1988, the United States ratified the Hague Convention, which Congress implemented

through the International Child Abduction Remedies Act, 102 Stat. 437, as amended, 22 U.S.C.

§ 9001 et seq. The Convention attempts “[t]o address ‘the problem of international child

abductions during domestic disputes.’” Lozano v. Montoya Alvarez, 572 U.S. 1, 4 (2014)

(citation omitted). “It is the Convention’s core premise that ‘the interests of children . . . in

matters relating to their custody’ are best served when custody decisions are made in the child’s

country of ‘habitual residence.’” Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020) (alteration in

original) (citation omitted). Generally, the Convention requires the prompt return of children

wrongfully removed from their country of habitual residence. Id. But certain exceptions apply.

A court “is not bound to order the return of the child[ren] if . . . there is a grave risk that [their]

return would expose the child[ren] to physical or psychological harm or otherwise place the

child[ren] in an intolerable situation.” Convention, art. 13(b). The party seeking to avoid

removal must demonstrate this exception applies “by clear and convincing evidence.” 22 U.S.C.

§ 9003(e)(2)(A).

In cases involving a petition under the Hague Convention for return of children, we

review the district court’s findings of fact for clear error. Simcox v. Simcox, 511 F.3d 594, 601

(6th Cir. 2007). We review de novo the district court’s application of the Convention to the facts

and its conclusions about American, foreign, and international law. Id. Whether a child would

be exposed to a “grave risk” of harm or returned to an “intolerable situation” are mixed questions

of law and fact that we also review de novo. Id.; Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir.

No. 20-5283 Salame Ajami v. Tescari Solano Page 4

2001) (“The District Court’s application of the Convention to the facts it has found, like the

interpretation of the Convention, is subject to de novo review.”).

We affirm the district court’s conclusion that Tescari failed to present clear and

convincing evidence that an Article 13(b) exception applies. She failed to demonstrate that

returning the children to Venezuela would expose them to a grave risk of physical or

psychological harm or otherwise subject them to an intolerable situation. On appeal, Tescari

argues the district court’s conclusion was error because the children’s father is physically and

verbally abusive; Venezuela is a zone of war and famine; and the Venezuelan court system is

unable to adjudicate the parties’ custody dispute. She further claims the district court failed to

properly consider her and the children’s grant of asylum. We address each of her claims in turn.

A.

Tescari claims that returning the children to Venezuela would expose them to a grave risk

of harm due to Salame’s alleged history of domestic violence. In a Hague Convention case, our

precedent establishes three broad categories of abuse: minor, clearly grave, and cases in the

middle, in which the abuse “is substantially more than minor, but is less obviously intolerable.”

Simcox, 511 F.3d at 607−08. A case involving relatively minor abuse would likely not pose a

grave risk to the child nor place the child in an intolerable situation. See id. at 607. In such

cases, the district court has no discretion to refuse the petition to return because the Article 13(b)

threshold has not been met. Id. A case in which the abuse is clearly grave typically involves

“credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death

threats, or serious neglect.” Id. at 607−08. Cases in the middle category call for a fact-intensive

inquiry into “the nature and frequency of the abuse, the likelihood of its recurrence, and whether

there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the

child caused by its return.” Id. at 608.

First, Tescari contends the district court erred in finding that the claimed abuse towards

her, which was allegedly witnessed by the children, falls into the category of minor abuse.

Tescari claims that Salame physically abused her by dragging her through the house by her hair,

resulting in three bruises, and verbally abused her by telling her she can hang herself. She also

No. 20-5283 Salame Ajami v. Tescari Solano Page 5

argues the district court failed to consider the “entire mosaic” of the parties’ relationship and thus

erred in finding that there was no pattern of violent and abusive behavior. CA6 R. 42, Appellant

Amended Br., at 37−38. The district court found that Tescari established one incident of

physical abuse by Salame towards her in 2013, although it did not conclusively determine what

happened. See Ajami, 2020 WL 996813, at *8 (“Although the Court finds that something

happened between [Salame] and [Tescari] on one occasion in 2013, [Tescari’s] vague reference

to other incidents of violence is insufficient to establish that these additional incidents of abuse

occurred.”). It also determined that the parties “have a tumultuous relationship that negatively

affects EAST and PGST.” Id. at *7. Over the course of its multiday trial, the district court heard

testimony and considered evidence from both parties, and it was unable to find that Salame ever

abused the children. The district court made credibility determinations, and its factual

conclusions regarding Tescari’s allegations of abuse are not clearly erroneous.

For comparison, in Simcox, the petitioner repeatedly beat his children by hair pulling, ear

pulling, and belt whipping. 511 F.3d at 599. He also banged the respondent’s head on the

window of a car in which they were travelling and struck her in front of the children. Id. There,

we held that the abuse fell into the middle category because it was “somewhat less serious than

the abuse in which other courts have refused to order return … [b]ut [was] also decidedly more

serious than the abuse in those cases . . . in which courts have declined to find a ‘grave risk’ of

harm.” Id. at 609. Here, the district court found one credible incident of abuse. This incident—

even when considered alongside the other alleged and unproven conduct—is clearly less serious

and less frequent than the middle-level abuse detailed in Simcox. We agree with the district

court’s conclusion that the one incident of abuse falls into the relatively minor category, and we

echo its comment that calling such abuse “relatively minor” does not mean we find any type,

level, or frequency of abuse acceptable. Rather, the abuse does not rise to the level of a viable

defense to the children’s return under Article 13(b).

Second, Tescari claims the district court erred because “an order of return must be

supported by evidence of no potential future harm to the Children.” CA6 R. 42, Appellant

Amended Br., at 39. But this is only a relevant inquiry once the Article 13(b) threshold has been

met and the case involves clearly grave abuse. Simcox, 511 F.3d at 608 (explaining the court

No. 20-5283 Salame Ajami v. Tescari Solano Page 6

should refuse to grant a petition of return in cases where the abuse falls into the clearly grave

category “unless ‘the rendering court [can] satisfy itself that the children will in fact, and not just

in legal theory, be protected if returned to their abuser’s custody’” (quoting Van De Sande v. Van

De Sande, 431 F.3d 567, 570 (7th Cir. 2005))). Because the abuse in this case is relatively

minor, the district court had no discretion to refuse the petition nor to consider evidence of

potential future harm.

B.

Tescari claims the district court “erred in finding that the children do not face a grave risk

of physical or psychological harm from a return to Venezuela, a zone of war and famine”;

thereby placing herself and the children in an intolerable situation. CA6 R. 42, Appellant

Amended Br., at 22. The difference between exposing a child to a “grave risk of harm” and

subjecting a child to an “intolerable situation” is not clearly established in our court’s precedent.

But an “‘intolerable situation’ must be different from ‘physical or psychological harm,’ but

nevertheless serious,” meaning “either it cannot be borne or endured, or it fails some minimum

standard of acceptability.” Pliego v. Hayes, 843 F.3d 226, 233 (6th Cir. 2016). An “intolerable

situation” can arise when the state of habitual residence is experiencing civil instability. See id.

at 232−33. Similarly, a grave risk of harm exists when “return of the child puts the child in

imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a

zone of war, famine, or disease.” Friedrich, 78 F.3d at 1069. But an intolerable situation does

not arise merely when the child would be returned to a country “where money is in short supply,

or where educational or other opportunities are more limited than in the requested State.” Id. at

1068−69. Whether reviewed for grave risk of harm or intolerable situation, this is an inquiry that

evaluates both Venezuela’s overall dangerousness and the particular circumstances the children

would face if returned to Venezuela. See Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347,

1364 (M.D. Fla. 2002); see also Pliego, 843 F.3d at 232 (citing id. at 1364−65).

First, we note the lack of precedent identifying any country as a zone of war sufficient to

trigger the grave risk or intolerable situation exception.1 In Silverman v. Silverman, the Eighth

1

Neither the district court nor the parties cite any cases to the contrary.

No. 20-5283 Salame Ajami v. Tescari Solano Page 7

Circuit overturned the district court’s conclusion that violence in Israel “constitute[d] a ‘zone of

war,’ warranting application of the ‘grave risk’ exception.” 338 F.3d 886, 900 (8th Cir. 2003).

It based its decision, in part, on the fact that schools and businesses were open, the general

regional violence threatened everyone in Israel, and it was not putting the children in any more

specific danger than when their mother voluntarily moved them there. Id.

Turning to Venezuela, a district court in Massachusetts noted that the conditions in the

country are “analogous to countries experiencing war, famine, or disease, such as Syria, Somalia,

Afghanistan, and Iraq,” however it did not need to determine whether the child would face a

grave risk of harm if returned to Venezuela because the child had reached a degree of maturity

for his preference to be considered. Avendano v. Balza, 442 F. Supp. 3d 417, 431 (D. Mass. Feb.

25, 2020), aff’d, 985 F.3d 8 (1st Cir. 2021). On the other hand, a district court in Florida recently

considered Venezuela’s food and medicine shortages and violent protests, and it held these

conditions do not rise to the level of a zone of war, famine, or disease. Crespo Rivero v.

Carolina Godoy, No. 18-cv-23087, 2018 WL 7577757, at *4 (S.D. Fla. Oct. 12, 2018). We also

note that Venezuela is not actively torn by civil war—it remains a single integrated country

capable of signing international treaties. As such, it remains a fellow signatory to the Hague

Convention.

Here, the parties presented evidence of the humanitarian and political crises unfolding in

Venezuela and evidence of the particular circumstances the children would face if returned.

Admissible evidence included testimony regarding the frequent protests in Barquisimeto, an

incident of criminal violence against the family in their home approximately ten years ago, and

shortages of gas, water, food, electricity, and medication. But the district court also received

evidence that the protests are avoidable by not traveling on certain streets, the grocery store near

Salame’s home is stocked with food and water, Salame’s home is equipped with a generator, the

family has access to medical care and medication, and the children will return to their school and

soccer teams. Ultimately, Tescari and Salame paint very different pictures of family life in the

children’s home country. Considering both parties’ evidence, the district court determined

Salame could provide the children with shelter, food, and medication in Venezuela. This factual

finding is not clearly erroneous.

No. 20-5283 Salame Ajami v. Tescari Solano Page 8

We recognize that Venezuela has been suffering from years-long, well-documented

political and socioeconomic crisis, characterized by economic instability, power outages, food

and medicine shortages, and violent protests. But we must base our decision on the record

evidence, and we are required to consider the particular circumstances to which the children are

returning. EAST and PGST are being returned to a home with adequate shelter, food, water, and

medical care. Although the conditions in Venezuela are less stable than those the children likely

enjoyed in Murfreesboro, Tennessee, this does not mean they would face an intolerable situation

or a grave risk of harm upon return. Despite Venezuela’s political schisms and civil unrest,

Tescari failed to introduce sufficient evidence that it is a zone of war, famine, or disease

warranting an Article 13(b) affirmative defense.

C.

Tescari argues the district court erred by concluding that the Venezuelan court system

can adjudicate the parties’ custody dispute. She claims her custody dispute cannot be

adjudicated in her children’s home country because she “cannot travel to Venezuela to

participate in custody proceedings, nor will the Venezuelan court system meaningfully

adjudicate custody,” and this constitutes an intolerable situation. CA6 R. 42, Appellant

Amended Br., at 30. In Pliego, we held that an “intolerable situation” can “encompass situations

where the courts of the state of habitual residence are practically or legally unable to adjudicate

custody.” 843 F.3d at 232. Whether an intolerable situation exists is a mixed question of fact

and law we review de novo, but the district court’s underlying factual determination that

Venezuelan courts can adjudicate custody is reviewed for clear error. See id. (“[E]ven though a

showing that Turkish courts could not properly adjudicate custody in this case could amount to

an intolerable situation, the district court did not clearly err as a matter of fact in finding that

Turkish courts could adjudicate custody.”).

Tescari does not argue she is legally unable to adjudicate custody in Venezuela. Rather,

she claims that she cannot participate in custody proceedings there because she “cannot travel to

Venezuela without a grave risk of harm to herself.” CA6 R. 42, Appellant Amended Br., at 30.

She argues that because she was granted political asylum in the United States, allegedly due to

her fear of the Maduro regime, she cannot return to adjudicate custody as it would place her in an

No. 20-5283 Salame Ajami v. Tescari Solano Page 9

intolerable situation or subject her to a grave risk of harm. Notably, this is not an argument she

raised in the district court proceedings. Generally, we “decline to entertain arguments not

presented in the first instance to the trial court.” Brown v. Crowe, 963 F.2d 895, 897 (6th Cir.

1992). Although Tescari’s claim of fear may be relevant to her ability to adjudicate custody in

Venezuela, this is a matter of first impression on appeal, and we decline to consider it.

Tescari next argues that the district court erred in concluding that she failed to prove the

corruption of the Venezuelan courts and the undue influence of Salame. Tescari points to

testimony about general corruption in the Venezuelan judiciary, testimony about persecution of

political opposition leaders, and her attorney’s testimony about proceedings being biased in favor

of Salame due to his political connections. However, there was also evidence that Tescari’s

attorney has been able to file documents, review case files, and even secured a new judge to

oversee the parties’ custody dispute after requesting recusal of the previous judge. Ultimately,

the district court found that delays in court proceedings among the parties and other examples of

purported corruption “are not so severe as to indicate the Venezuelan courts are corrupt or that

they would be unable to fairly adjudicate the custody dispute.” Ajami, 2020 WL 996813, at *19.

This factual finding is not clearly erroneous, and any defects in the Venezuelan court system fall

short of what is required for an intolerable situation. Pliego, 843 F.3d at 235.

D.

Lastly, Tescari argues the district court failed to properly consider her grant of asylum,

thereby “threaten[ing] the sovereignty of the executive branch.” CA6 R. 42, Appellant Amended

Br., at 43. She claims the district court’s order effectuating return, despite the children’s asylee

status, usurps Congress’s authority and renders null the executive branch’s asylum

determination. (Id. at 25.) We find Tescari’s argument without merit because the district court

has the authority to order the return of wrongfully removed children, regardless of whether the

children were previously granted asylum.

The Fifth Circuit considered a similar question in Sanchez v. R.G.L., 761 F.3d 495 (5th

Cir. 2014). In Sanchez, three children sought reversal of the district court’s finding under the

Convention that they should be returned to their mother in Mexico. Id. at 499. While their

No. 20-5283 Salame Ajami v. Tescari Solano Page 10

appeal was pending, the children were granted asylum in the United States pursuant to 8 U.S.C.

§ 1158, which states “the Attorney General … shall not remove or return the alien to the alien’s

country of nationality.” Id. at 501−02. This grant of asylum is discretionary and requires that

the recipient have suffered past persecution or demonstrate a “well-founded fear of persecution

on account of race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42)(A), incorporated by 8 U.S.C. § 1158(b)(1)(B)(i). On appeal,

the children argued that the grant of asylum superseded the district court’s order. Sanchez,

761 F.3d at 509.

The Fifth Circuit rejected this argument, refusing to hold that the grant of asylum must be

revoked before the children could be returned to Mexico. Id. at 510. The court held that “[t]he

language of the INA indicates that the discretionary grant of asylum is binding on the Attorney

General or Secretary of Homeland Security.” Id. However, no authority was offered “that the

discretionary grant of asylum confers a right to remain in the country despite judicial orders

under this Convention.” Id. Moreover, “[t]he asylum grant does not supercede the

enforceability of a district court’s order that the children should be returned to their mother, as

that order does not affect the responsibilities of either the Attorney General or Secretary of

Homeland Security under the INA.” Id. The court recognized that the factors relevant to an

asylum grant may also be “relevant to whether the Hague Convention exceptions to return should

apply.” Id. But Sanchez did not hold that the fact asylum was granted, in and of itself, is a basis

for remand. Id. Rather, it was the newly available evidence associated with the asylum

proceedings that the Fifth Circuit remanded for the district court to consider. Further, “[d]espite

similarities, the asylum finding that the children have a well-founded fear of 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 place the child in an

intolerable situation.’” Id. (citation omitted).

The case before us is slightly different in that Tescari and, derivatively, the children were

granted asylum before the district court ordered return of the children. But, as in Sanchez, she

and the children were granted asylum under 8 U.S.C. § 1158, and we adopt the Fifth Circuit’s

reasoning here. “The judicial procedures under the Convention do not give to others, even a

No. 20-5283 Salame Ajami v. Tescari Solano Page 11

governmental agency, authority to determine [the] risks” children may face upon return to their

country of habitual residence. Sanchez, 761 F.3d at 510. Thus, “an asylum grant does not

remove from the district court the authority to make controlling findings on the potential harm to

the child.” Id. The district court made independent findings on whether the children would face

an intolerable situation or a grave risk of harm in Venezuela, considering all offered, admissible,

and relevant evidence. “The prior consideration of similar concerns in a different forum” may be

relevant, but a grant of asylum does not strip the district court of its authority to make controlling

findings regarding circumstances the children may face upon return. Id.

We also note the difference in evidentiary burdens between asylum proceedings and

those under the Convention’s framework. To be granted asylum, eligibility must be shown by a

preponderance of the evidence. See 8 C.F.R. § 1208.13(a), (b)(1)(i). But for an Article 13(b)

affirmative defense to apply, the respondent must establish the exception by clear and convincing

evidence. 22 U.S.C. § 9003(e)(2). Additionally, the opportunity for participation by interested

parties may be different—here, Salame did not participate in the asylum proceedings.

Although the Fifth Circuit vacated the district court’s return order and remanded the

matter to the district court to consider the newly “available evidence from the asylum

proceedings,” we do not find remand necessary here. Sanchez, 761 F.3d at 511. Here, the

district court did not explicitly mention the grant of asylum in its Order. But the grant of asylum

was discussed at trial, and the district court admitted into evidence Tescari’s “Asylum Approval”

document.2 Tescari had the opportunity to present evidence from the asylum proceedings, which

may have also been relevant to the instant proceedings, to the district court but failed to do so.

Now, on appeal, she fails to point to any evidence that would have been elicited from the asylum

proceedings that the district court failed to cover over the course of the four-day trial. Her

argument rests solely on the district court’s lack of a discussion of the effect of the grant of

asylum itself in its Order. But a grant of asylum does not substitute for the district court’s

determination that Tescari failed to establish an Article 13(b) affirmative defense based on grave

2

On appeal, Salame claims we may not rely on this document, marked D-20 at trial, because it was not

admitted into evidence. Although Salame’s attorney objected to D-20 when it was shown to Tescari at trial, she

withdrew her objection the next day. The updated exhibit list also indicates that D-20 was admitted.

No. 20-5283 Salame Ajami v. Tescari Solano Page 12

risk of harm or intolerable situation. Nor does it substitute for our own de novo finding of the

same.

While the factors that go into a grant of asylum may be relevant to determinations under

the Hague Convention,3 the district court has a separate and exclusive responsibility to assess the

applicability of an Article 13(b) affirmative defense. We reject Tescari’s argument that a grant

of asylum deprives federal courts of authority to enforce the Hague Convention.

III.

We affirm the district court’s order that EAST and PGST be returned to their habitual

residence in Venezuela.

3

We do not hold that a district court need not consider a grant of asylum at all. Rather, under these

circumstances, in which Tescari had the opportunity to present evidence related to her asylum to the district court

and fails to point to any evidence from the asylum proceedings that may also have been relevant to the Article 13(b)

analysis, remand is not necessary for the district court to mention the piece of paper itself. The effects of the asylum

grant may be relevant to the Article 13(b) analysis, but Tescari’s argument on appeal is that the district court’s

failure to examine her asylum grant “threatens the sovereignty of the executive branch.” CA6 R. 42, Appellant

Amended Br., at 43. This argument is without merit and irrelevant to the Article 13(b) analysis. Insofar as Tescari

argues the grant of asylum affects her other claims, these issues were not raised in the district court and, as discussed

above, we decline to consider them.

No. 20-5283 Salame Ajami v. Tescari Solano Page 13

_________________

DISSENT

_________________

KAREN NELSON MOORE, Circuit Judge, dissenting. The Hague Convention governs

proceedings when children are wrongfully removed from their country. But other international

and domestic human rights obligations provide special protections for refugees. Although grants

of asylum do not control the outcome of a proceeding under the Hague Convention, they do

inform the Hague Convention’s application, and a district court abuses its discretion when it

declines even to consider them. I respectfully dissent.

A. Statutory and International Law Background

Before turning to the specifics of this case, I start by discussing the mandates imposed by

the Hague Convention and international and domestic asylum law. The Hague Convention on

the Civil Aspects of International Child Abduction has the dual purposes of “secur[ing] the

prompt return of children wrongfully removed to or retained in any Contracting State” and

“ensur[ing] that rights of custody and of access under the law of one Contracting State are

effectively respected in the other Contracting States.” Hague Convention, art. 1, Oct. 25, 1980,

T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (“Hague Convention”). Wrongful removals and

retentions are those that are “in breach of rights of custody . . . under the law of the State in

which the child was habitually resident immediately before the removal or retention” if “those

rights were actually exercised . . . or would have been so exercised but for the removal or

retention.” Id. art. 3.

The International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001–11,

implements the Hague Convention. ICARA provides that parents may petition a federal or state

court to return children who have been wrongfully removed, id. § 9003(b), and the petitioner

must show by a preponderance of evidence “that the child has been wrongfully removed or

retained within the meaning of the Convention,” id. § 9003(e)(1)(A). “[A] court in the abducted-

to nation has jurisdiction to decide the merits of an abduction claim, but not the merits of the

underlying custody dispute.” Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996).

No. 20-5283 Salame Ajami v. Tescari Solano Page 14

The Hague Convention establishes various affirmative defenses for respondents who

oppose children’s return. Two are relevant to this case. The first, found in Article 13(b), applies

when “there is a grave risk that [the child’s] return would expose the child to physical or

psychological harm or otherwise place the child in an intolerable situation.” The second, found

in Article 20, is operative when “[t]he return of the child . . . would not be permitted by the

fundamental principles of the requested State relating to the protection of human rights and

fundamental freedoms.” A respondent must establish these defenses by clear and convincing

evidence. 22 U.S.C. § 9003(e)(2).

Although these exceptions are “narrow,” they are not insignificant. 22 U.S.C.

§ 9001(a)(4). This court has previously cautioned against “making the threshold so

insurmountable that district courts will be unable to exercise any discretion in all but the most

egregious cases.” Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007). These affirmative

defenses are important because “the Convention’s mandate of return gives way before the

primary interest of any person in not being exposed to physical or psychological danger.” Id. at

609 (internal quotation omitted).

The affirmative defenses are implicated when a family has received asylum. To qualify

for asylum, a person must have been persecuted or have “a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42), incorporated by 8 U.S.C. § 1158(b)(1)(B)(i). “In the case of

an alien granted asylum,” as is the case with Tescari and her children, “the Attorney General . . .

shall not remove or return the alien to the alien’s country of nationality.” Id. § 1158(c)(1)(A).

Recognizing the overlap between the Hague Convention’s affirmative defenses and the

asylum inquiry, the Fifth Circuit held in Sanchez v. R.G.L., 761 F.3d 495, 510 (5th Cir. 2014),

that “[t]he children’s asylum grant . . . is relevant to whether the Hague Convention exceptions to

return should apply.” The Fifth Circuit recognized that “[t]he district court makes an

independent finding of potential harm to the children,” in part because “the evidentiary burdens

in the asylum proceedings and those under ICARA’s framework are different.” Id. Nonetheless,

it concluded that “grants of asylum are relevant to any analysis of whether the Article 13(b) or 20

exception applies.” Id. at 511. The Fifth Circuit remanded the case to the district court “to

No. 20-5283 Salame Ajami v. Tescari Solano Page 15

consider the asylum grants, assessments, and any related evidence not previously considered that

relates to whether Article 13(b) or 20 applies.”1 Id. In short, although the Fifth Circuit

acknowledged that an asylum grant does not control the outcome of a case brought pursuant to

the Hague Convention, the asylum grant is relevant, and the district court should consider it.

At least one court outside of the United States has considered the interplay between

asylum and the Hague Convention. In A.M.R.I. v. K.E.R., [2011] O.N.C.A. 417 (Can. Ont.

C.A.), the Court of Appeals for Ontario that held that the Hague Convention did not require the

return of a child who had been granted refugee status. The Canadian court explained:

[T]he principle of non-refoulement is directly implicated where the return of a

refugee child under the Hague Convention is sought. Nothing in the [Immigration

and Refugee Protection Act (IRPA)] purports to exempt child refugees from the

application of s. 115 in a Hague Convention case. Nor does the Hague

Convention purport to elevate its mandatory return policy above the principle of

non-refoulement.

In our view, properly interpreted, the Hague Convention contemplates respect for

and fulfillment of Canada’s non-refoulement obligations. Specifically, art. 13(b)

of the Hague Convention permits the refusal of an order of return concerning a

child, who would otherwise be automatically returnable under art. 12, if “there is

a grave risk that his or her return would expose the child to physical or

psychological harm or otherwise place the child in an intolerable situation.” In

addition, art. 20 provides for the denial of an order of return if it would not be

permitted “by the fundamental principles of the requested State relating to the

protection of human rights and fundamental freedoms.” In accordance with the

interpretive principles set out above, arts. 13(b) and 20 must be construed in a

manner that takes account of the principle of non-refoulement.

[2011] O.N.C.A. 417 ¶¶ 67–68. The court further explained that “[u]nder both s. 115 of the

IRPA and its international human rights obligations, Canada is prohibited from engaging in the

refoulement of Convention refugees, including refugee children.” Id. ¶ 71. “Consequently, the

exception to return under art. 20 is engaged in cases involving refugee children.” Id. Likewise,

“when a child has been recognized as a Convention refugee by the [Immigration and Refugee

Board], a rebuttable presumption arises that there is a risk of persecution on return of the child,”

1

After the Fifth Circuit’s decision, the mother withdrew her request for the children’s return, so the district

court never considered this issue. Sanchez v. Sanchez, No. SA-12-CA-568-XR, 2015 WL 3448009, at *6 (W.D.

Tex. May 27, 2015).

No. 20-5283 Salame Ajami v. Tescari Solano Page 16

which “clearly implicates the type of harm contemplated by art. 13(b) of the Hague Convention.”

Id. ¶ 74.

The Canadian court’s opinion is “entitled to considerable weight” because it comes from

a “sister signatory.” Abbott v. Abbott, 560 U.S. 1, 12 (2010) (quoting El Al Israel Airlines, Ltd.

v. Tsui Yuan Tesng, 525 U.S. 155, 176 (1999)). “The principle applies with special force here,

for Congress has directed that ‘uniform international interpretation of the Convention’ is part of

the Convention’s framework.” Id. (quoting 42 U.S.C. §§ 11601(b)(3)(B), now codified at 22

U.S.C. § 9001(b)(3)(B)).

To summarize: the Hague Convention generally favors the return of children, but its

affirmative defenses create exceptions. As both domestic and international courts have

recognized, those defenses are implicated when a party has received asylum. With this as

background, I turn to Article 13(b), Article 20, and their application in this case.

B. Article 13(b)

First, the asylum grants implicate the court’s analysis under Article 13(b). This provision

creates an affirmative defense to the Hague Convention’s requirements when “there is a grave

risk that [the child’s] return would expose the child to physical harm or otherwise place the child

in an intolerable situation.” Hague Convention, art. 13(b). The “intolerable-situation” exception

in Article 13(b) is “different from ‘physical or psychological harm,’ but nevertheless serious.”

Pliego v. Hayes, 843 F.3d 226, 233 (6th Cir. 2016). An intolerable situation either “cannot be

borne or endured, or it fails some minimum standard of acceptability.” Id. In a case such as this,

in which a parent is granted asylum and children are granted derivative asylum, the “grave risk

of harm” exception is not implicated, but the “intolerable situation” exception is.

The intolerable-situation exception “can encompass situations where the courts of the

state of habitual residence are practically or legally unable to adjudicate custody.” Pliego,

843 F.3d at 232. This exception is highly relevant in a case such as this, in which a parent has

received asylum. In Pliego, we looked to decisions by foreign courts that held that the exception

applied when a parent was unable to return to the country to which the other parent sought to

have the child returned. Id. at 234–35 (collecting cases); see Neumann v. Neumann, 684 F.

No. 20-5283 Salame Ajami v. Tescari Solano Page 17

App’x 471, 482 (6th Cir. 2017). For example, Australian courts have looked to whether a parent

is able to get a visa to return to the country where the custody proceedings would have taken

place. See State Cent. Auth. of Victoria v. Ardito (Unreported, Family Court of Australia, Joske

J, 29 October 1997) ¶ 50 (Austl.) (“[T]he fact that the respondent is unable to gain entry into the

United States for the purpose of appearing in these proceedings, amounts to what can only be

described as a serious denial of natural justice. . . . Accordingly, I am of the opinion that the fact

that the respondent is denied entry into the United States constitutes a grave, or in this case an

almost certain risk, that the child Y will be placed in an intolerable situation.”). A Canadian

court has similarly suggested that a situation may be intolerable when a parent is unable to leave

the country to participate in custody proceedings in other countries. See Chan v. Chow, [2001]

199 D.L.R. 4th 478, ¶¶ 65–66 (Can. B.C.C.A.).

The district court did not analyze whether Tescari can return to Venezuela. It did not

consider the grant of asylum.2 The district court evaluated the children’s living situation whether

Tescari “chooses to return to Venezuela with the Children” or “chooses not to return to

Venezuela with the Children.” Ajami v. Solano, No. 3:19-cv-00161, 2020 WL 996813, at *9

(M.D. Tenn. Feb. 28, 2020). It also analyzed whether corruption in the Venezuelan courts

rendered them unable to adjudicate the custody dispute. Id. at *18–20. However, it never

considered Tescari’s grant of asylum in either of these discussions. Nor did it make an

independent assessment of whether Tescari would be able to return to Venezuela, let alone

whether she would be able to do so in light of her asylum status.3

This oversight is significant. Even apart from the risks that an asylee faces in their home

country, an asylum grant impacts that person’s ability to return. Individuals who are granted

asylum in the United States may be unable to return to their home country without facing a

substantial risk that their asylum will be revoked. See U.S. Citizen & Immigration Servs., Policy

2

The district court opinion discusses asylum only in the context of Salame’s testimony that he did not give

permission for Tescari to travel abroad with the children because he believed Tescari was planning to seek asylum in

the United States. 2020 WL 996813, at *2, 5.

3

The majority incorrectly implies that, on appeal, Tescari’s asylum argument is wholly disconnected from

her Article 13(b) analysis. Maj. Op. at 12 n.3. However, Tescari’s brief explicitly links her asylum grant, her

inability to return to Venezuela, and Article 13(b). Appellant Br. at 30–31.

No. 20-5283 Salame Ajami v. Tescari Solano Page 18

Manual, Chapter 6 – Termination of Status and Notice to Appear Considerations, (A)(1),

https://www.uscis.gov/policy-manual/volume-7-part-m-chapter-6.

Children are placed in an intolerable situation when their parent is forced to choose

between the risk that the parent will lose their asylum status in the United States and the risk that

the parent will lose custody of the children if the parent fails to return to the country in which

custody will be adjudicated. Although Tescari’s attorney has continued to litigate on her behalf

in Venezuelan courts despite her absence, see, e.g., R. 101 (Tr. at 46) (Page ID #2658), it is

unclear how effective these efforts can be. At the very least, the situation that the family in this

case confronts is akin to a situation in which a parent cannot return the country of residence—a

situation that our court has recognized as intolerable in Pliego, and that other signatories have

likewise recognized as intolerable.

The intolerableness of this situation is further heightened in the asylum context because a

child’s parent must choose between living in the same country as the child and avoiding the

parent’s own well-founded fear of persecution. “[T]he Convention’s mandate of return gives

way before the primary interest of any person in not being exposed to physical or psychological

danger[.]” Simcox, 511 F.3d at 609 (citations and internal quotation marks omitted)). It cannot

be the case that the Hague Convention was intended to require the removal of children in such

circumstances.

The majority’s contrary holding relies almost exclusively on the Fifth Circuit’s opinion in

Sanchez, but it is irreconcilable with Sanchez’s holding. It is true that the Fifth Circuit held that

“the asylum finding that the children have a well-founded fear of persecution does not substitute

for or control a finding under Article 13(b) of the Convention.” 761 F.3d at 510. It is also true

that asylum adjudications apply a different evidentiary burden than the Hague Convention. From

these two statements, the majority extrapolates that a district court need not consider an asylum

grant at all. This all-or-nothing dichotomy stretches Sanchez past its breaking point and is

inconsistent with both the Hague Convention and the United States’s asylum obligations. An

asylum grant is not dispositive. It remains, however, “relevant to any analysis of whether the

Article 13(b) . . . exception applies.” Sanchez, 761 F.3d at 511. For this reason, the district

No. 20-5283 Salame Ajami v. Tescari Solano Page 19

court must consider a grant of asylum when deciding whether to order the return of a child

pursuant to the Hague Convention.

C. Article 20

Although Article 13(b) alone suffices to show why the district court was required to

consider the asylum grant, there is a parallel reason found in Article 20. The Article 20

affirmative defense applies when “[t]he return of the child . . . would not be permitted by the

fundamental principles of the requested State relating to the protection of human rights and

fundamental freedoms.” Hague Convention, art. 20.4

It is true that Article 20 is for “the rare occasion that return of a child would utterly shock

the conscience of the court or offend all notions of due process.” 51 Fed. Reg. at 10,510.

Consequently, the exception has been only rarely applied by U.S. Courts. See Guerrero v.

Oliveros, 119 F. Supp. 3d 894, 916 (N.D. Ill. 2015) (“[T]he Court was unable to find[] a single

case where the court refused to return a child based on Article 20.”); Aly v. Aden, No. 12-1960

(JRT/FLN), 2013 WL 593420, at *19 (D. Minn. 2013) (“The Court has found no cases in which

a United States court has applied this exception to prevent the return of a child.”); but see

Galaviz v. Reyes, No. EP-21-00286-FM, 2022 WL 620702 (W.D. Tex. Feb. 22, 2022) (holding

that Article 20 applied because the child would be unable to attend school if returned to Mexico

because the school was unable to accommodate his special needs).

Nevertheless, asylum protections derive from “fundamental principles . . . relating to the

protection of human rights and fundamental freedoms.” Hague Convention, art. 20. The 1951

Convention Relating to the Status of Refugees (“1951 Convention”) provides: “No Contracting

State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of

territories where his life or freedom would be threatened on account of his [protected status].”

1951 Convention, art. 33, ¶ 1;5 see also Universal Declaration of Human Rights, art. 14 (1948)

4

Salame’s assertion that Tescari failed to Raise Article 20 issues before the trial court is incorrect. See R.

34 (Trial Br. at 5–6) (Page ID #614–15).

5

The United States acceded to this provision in the 1951 Protocol because it was adopted by the 1967

United Nations Protocol Relating to the Status of Refugees, to which the United States was a party. See 19 U.S.T.

6225, T.I.A.S. No. 6577 (1968).

No. 20-5283 Salame Ajami v. Tescari Solano Page 20

(“Everyone has the right to seek and to enjoy in other countries asylum from persecution.”). The

1951 Convention’s use of the phrase “in any manner whatsoever” demonstrates that this

principle is intended to reach broadly: it is incompatible with that language to look for loopholes

through which refugees can be removed.

Consistent with its international human rights obligations, Congress has enacted laws that

protect refugees against being returned to the country from which they fled. Federal asylum laws

prohibit the executive branch from removing such persons. See 8 U.S.C. § 1158(c)(1) (“[T]he

Attorney General . . . shall not remove or return the alien to the alien’s country of nationality.”).

I do not disagree with the majority that this provision directly applies to only the executive

branch and not the judiciary. But ordering the return of children, when our country’s asylum

laws would prohibit the executive from enforcing such an order, cannot be consistent with the

protection of human rights and fundamental freedoms. Such a return goes against the broad

principles espoused by both domestic and international law.

Although no U.S. court has squarely answered whether the Article 20 exception applies

in a situation in which a parent or child was granted asylum, the Ontario Court of Appeals in

A.M.R.I., [2011] O.N.C.A. 417 ¶ 71, held that the Article 20 exception applies to cases involving

refugee children. It explained that “[u]nder both [Canadian law] and its international human

rights obligations, Canada is prohibited from engaging in the refoulment of Convention refugees,

including refugee children.” Id. Additionally, the Fifth Circuit in Sanchez, 761 F.3d at 511,

explained that the asylum grants “are relevant to any analysis of whether the Article 13(b) or 20

exception applies.” Returning an individual who has been granted asylum to their country of

nationality violates basic human rights principles and shocks the conscience.

Finally, recognizing that a situation in which individuals have been granted asylum falls

within the Article 20 exception does not conflict with the purposes of the Hague Convention.

First, “the Hague Convention is generally intended to . . . deter parents from crossing borders in

search of a more sympathetic court.” Friedrich, 78 F.3d at 1064. This principle does not come

into play when a parent has a well-founded fear of persecution in their home country. In such

cases, parents are not crossing borders to forum shop; they are crossing the borders to avoid

persecution. Second, “[t]he Convention is based on the principle that the best interests of the

No. 20-5283 Salame Ajami v. Tescari Solano Page 21

child are well served when decisions regarding custody rights are made in the country of habitual

residence.” Abbott, 560 U.S. at 16. However, requiring the return of a child to a country that is

unable to adjudicate custody disputes “would defeat the Convention’s object and purpose,

because custody could not be adjudicated at all.” Pliego, 843 F.3d at 233. Because an individual

who has been granted asylum is likely unable to fully access the courts in the country from

which they have fled persecution, refusing return in such cases does not conflict with the Hague

Convention.

Tescari, who was a member of the political party that opposes the Maduro regime, was

granted asylum in the United States. R. 69-9 (Asylum Docs.) (Page ID #1112–13); R. 99 (Tr. at

154) (Page ID #2449). The children were granted asylum as well. R. 69-9 (Asylum Docs.)

(Page ID #1114–17). Yet, the district court’s opinion did not discuss whether the asylum grants

implicate the Hague Convention’s affirmative defenses. Because the district court abused its

discretion in failing to consider the asylum grants, I would remand this case for further

proceedings. I respectfully dissent.