Federal Court Judge Allows Mexican-Born Children to Stay in New York with Mexican Mother

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This month, a federal district court judge ruled that two children who illegally entered the United States with their mother were allowed to stay, despite their father’s attempts to remove them back to Mexico. The rule of law in this situation is the Hague Convention on the Civil Aspects of International Child Abduction, which promotes the returning of children who were wrongfully taken from their home country. The mother’s affirmative defense, allowed by the convention, is that the children are “well settled in their new environment” and it would be more disruptive for them to return to Mexico than to stay in Brooklyn.

Mirna Mariana Gil Giron married her husband, Jose Leonides Varillas Broca, in 1995. After several years, however, the relationship became both physically and emotionally abusive, motivating Gil in 2010 to flee Mexico for the United States, where she had family. After a “coyote” smuggled them into the United States, they eventually traveled to Brooklyn to stay with Gil’s sister. By the end of 2011, Varillas filed a petition for his children’s return, which a magistrate judge granted after a hearing.

Reviewing the magistrate’s holding de novo, Judge Sterling Johnson, Jr. concluded that J.V. and M.V., Gil’s two children who were under 16, were settled in Brooklyn with their mother, and therefore should stay. M.V., 15, testified that she had quickly learned English, made friends, and wishes to stay in the United States and become an attorney. She understood the risks of deportation and that she would be unable to return if that occurred. J.V., 10, did not testify and was shown to have a harder time in school and learning English, but Judge Sterling nevertheless held that because he had friends and was uneasy about leaving the United States, his situation met the threshold of the “well settled” affirmative defense. M.V. had the additional affirmative defense of being sufficiently mature to make her own decision to stay, which the judge also accepted.

The history of the abuse on Gil in Mexico was a large part of the district court’s fact pattern, which certainly had an effect on the holding, though he did rule that sending the children back to Mexico would not be a “grave risk” since there is no evidence of him abusing the children. Also, it seemed like the judge fudged the “well settled” test on J.V’s behalf to keep the family together, especially after he referenced the Judgment of Solomon in defense of keeping the family unit together. Was he correct in doing so?

This court never addresses Gil’s legal status in the United States. Is that relevant as well?

Sources: New York Law JournalBroca v. Giron, 2013 U.S. Dist. LEXIS 31708 (E.D.N.Y, Mar. 6, 2013)

One comment

  1. Given the facts here, it does seems as though the judge slightly stretched the “well settled” test to keep the family together in this case. The older child apparently met the threshold of the standard, but the younger child was not as thriving in the American community. I personally think the fact that their home in Mexico was a both physically and emotionally abusive environment for the mother swayed the judge’s decision. Although the children were not entirely embedded in their life here in the United States, sending them back to Mexico would subject them to a broken household. Also, the child that was having the issues was younger, and maybe not as mature and adaptable to change as the older child. I don’t think that the “well settled” test was stretched too far given the facts above, and therefore I would agree with the decision and facts as applied to the affirmative defense in this case. However, it is somewhat worrisome if a standard such as this isn’t applied meticulously and uniformly in every case–this leads to inconsistent results. Especially when dealing with such sensitive cases such as deportation, this should be severely cautioned against.

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