Lozano v. Alvarez
697 F.3d 41
2d Cir.2012Background
- Lozano appeals district court denial of a petition under ICARA/Article 12 seeking return of child to UK.
- District court held the child is settled in the United States and its decision to deny repatriation was discretionary.
- Now settled defense is not subject to equitable tolling under Article 12, and immigration status is not dispositive in the settled analysis.
- District court conducted a two-day evidentiary hearing, reviewed multiple expert reports, and weighed factors for settlement.
- Lozano argued tolling should apply and immigration status should bar settlement; the district court rejected both arguments.
- The court ultimately declined to order repatriation and Lozano appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Article 12’s one-year period is subject to tolling. | Lozano argues tolling applies due to concealment. | Alvarez contends tolling is inappropriate for Article 12. | No tolling; one-year period not tolled. |
| Whether lack of legal immigration status precludes a finding that the child is settled. | Lozano asserts undocumented status bars settlement. | Alvarez argues status is just one factor. | Status is not dispositive; multiple factors govern settlement. |
| Whether the district court’s multi-factor settled analysis was properly applied. | Lozano challenges weight given to factors including immigration status. | Alvarez contends court properly balanced all factors. | District court’s factual findings not clearly erroneous; balanced factors appropriately. |
| Whether the district court should have repatriated despite settled status. | Repatriation should be ordered if within the one-year framework. | Court may refuse repatriation if settled and in child’s best interests. | Courts may refuse repatriation when the child is settled; court did not err in not ordering return. |
Key Cases Cited
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (treaty interpretation; settlement concept under Article 12; de novo review of application to facts)
- Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2009) (multifactor settled analysis; immigration status as one factor)
- Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) (equitable tolling discussed in some circuits; limits on tolling under Article 12)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (application of Convention to facts; standard of review for factual determinations)