Unreported / Non-Citable
Background
Sergio Sanchez Lozano and Maria Isabel Herrera Perez married in Mexico and later divorced. Their Mexican divorce decree awarded Herrera Perez full custody of their two sons and granted Sanchez Lozano restricted, alternating-weekend visitation. In December 2022, Sanchez Lozano authorized their younger son, M.A.S., to travel to the United States for up to one year. Herrera Perez brought M.A.S. to Texas in January 2023, and Sanchez Lozano learned around August 2023 that the family did not intend to return to Mexico.
Sanchez Lozano initiated Hague Convention proceedings in Mexico in December 2023 and filed a federal return petition in May 2024. After a two-day hearing, the district court found that Herrera Perez had wrongfully retained M.A.S. but denied return under two Convention exceptions. It found that M.A.S. was well-settled in the United States and that returning him to Mexico would create a grave risk of harm or place him in an intolerable situation because of Sanchez Lozano’s cartel connections and ongoing cocaine and alcohol abuse.
The Court’s Holding
On rehearing, the Fifth Circuit denied panel and en banc rehearing, withdrew its prior opinion, substituted a new per curiam opinion, and again affirmed the denial of Sanchez Lozano’s petition. The court held that the district court’s factual findings were not clearly erroneous and that the grave-risk exception applied even under de novo review, the less deferential of the potentially applicable standards.
The panel concluded that clear and convincing evidence supported the determination that returning M.A.S. to Mexico would expose him to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation. It relied on credited testimony concerning Sanchez Lozano’s ties to drug traffickers, his brother’s cartel-related disappearance, and Sanchez Lozano’s longstanding and continuing cocaine addiction and alcohol abuse. Because the grave-risk exception independently supported denial of return, the court did not decide whether the district court correctly applied the well-settled exception.
Key Takeaways
- A Hague Convention return remedy is not absolute; Article 13(b) permits denial when clear and convincing evidence establishes a grave risk of physical or psychological harm or an intolerable situation.
- The Fifth Circuit upheld the district court’s credibility-based findings concerning the father’s cartel connections and substance abuse.
- The panel left unresolved both the proper appellate standard for reviewing application of the grave-risk exception and whether the child was well-settled in the United States.
Why It Matters
The decision illustrates that credible evidence of a parent’s ongoing drug addiction and close connections to dangerous criminal actors can satisfy Article 13(b)’s demanding grave-risk standard. It also underscores that a Hague Convention proceeding determines whether a child must be returned for custody proceedings, not which parent should ultimately receive custody.