da Silva v. de Aredes, 953 F.3d 67

Background

In December 2016 Marcelene de Aredes took her daughter A.C.A. from Brazil to the U.S. without the father's consent; Nelio Nelson Gomes da Silva filed a Hague Convention petition in U.S. District Court (Nov. 2018) seeking return.
The district court concluded the removal was wrongful, held a four-day bench trial, and rejected two asserted affirmative defenses: (1) grave risk of physical/psychological/sexual harm (art. 13b) and (2) "now settled" (art. 12).
Relevant facts: parents had a tumultuous relationship; the court found some physical abuse of the mother but no evidence that A.C.A. was ever abused; allegations of sexual abuse concerned the older child M.A. and were supported mainly by a therapist’s impressions, not definitive expert proof.
De Aredes later filed a formal asylum application (Oct. 30, 2019) and argued the immigration hearing date (Feb. 16, 2023) removed imminent deportation risk and made A.C.A. "now settled." The district court denied a new-trial motion.
The district court ordered A.C.A. returned to Brazil on Jan. 2, 2020 and included language saying A.C.A. shall reside "in the care and custody" of da Silva; the First Circuit affirmed the rulings but remanded to modify the injunction’s wording to avoid an improper custody determination.

Issues

Issue	de Aredes' Argument	da Silva's Argument	Held
Grave-risk defense (art. 13b) — would return expose A.C.A. to grave physical/psych harm?	Prior physical abuse of mother and parental conflict put A.C.A. at grave risk of harm.	Evidence showed only limited domestic incidents, no abuse of A.C.A., and weak, inconsistent testimony.	Affirmed: district court not clearly erroneous — mother failed to meet clear-and-convincing burden.
Sexual-abuse allegations (re M.A.) as basis for grave risk to A.C.A.	Therapist testimony and family statements indicate sexual abuse in household creating grave risk for A.C.A.	Testimony was speculative, not corroborated as to A.C.A., no expert medical certainty.	Affirmed: evidentiary showing insufficient to establish grave risk.
Now-settled defense (art. 12) — was A.C.A. "now settled" in U.S. (petition filed >12 months after removal)?	Child had school, community ties, and asylum proceedings that stabilized status long-term.	Totality of circumstances (attendance, adjustment, family stability, unsettled immigration status) show A.C.A. not settled.	Affirmed: preponderance not met; district court reasonably weighed factors (immigration status not dispositive).
Motion for new trial based on asylum hearing date (newly discovered evidence)	Asylum hearing date (2023) prevented imminent removal and was newly discovered material evidence that would change result.	Immigration filing was foreseeable/cumulative; hearing date was not newly discovered and would not likely change outcome.	Affirmed: district court did not abuse discretion — evidence was cumulative/foreseeable.
Injunction language — did the order improperly decide custody?	The wording ("reside in the care and custody of petitioner") effectively decided custody.	(No objection to clarifying language at argument.)	Court directed district court to modify injunction to make clear it does not decide custody; return order otherwise affirmed.

Key Cases Cited

Monasky v. Taglieri, 140 S. Ct. 719 (2020) (mixed-question standard of review for Hague issues; emphasizes expedition and clear-error review).
Danaipour v. McClarey, 286 F.3d 1 (1st Cir. 2002) (grave-risk standard and importance of expert/medical evidence to prove sexual abuse).
Yaman v. Yaman, 730 F.3d 1 (1st Cir. 2013) (interpretation of Convention; totality-of-circumstances test for "now settled").
Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000) (example of grave risk where severe, witnessed abuse to family supported non-return).
Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012) (immigration status may be one factor among many in the "now settled" analysis).
Duffy v. Clippinger, 857 F.2d 877 (1st Cir. 1988) (standards for a new trial on the basis of newly discovered evidence).