Saturday, September 15, 2018

Godfrey Muwonge, Hostage takers abducted U.S. citizen in the Republic of Trinidad and Tobago, extradited to U.S., District of Columbia Circuit ponders whether Hostage Taking Act applies in cases where the alleged victim obtained U.S. immigration status or citizenship by fraud

Hostage takers abducted U.S. citizen in the Republic of Trinidad and Tobago, extradited to U.S., District of Columbia Circuit ponders whether Hostage Taking Act applies in cases where the alleged victim obtained U.S. immigration status or citizenship by fraud

Defendants Wayne Pierre, Ricardo De Four, Zion Clarke, Kevon Demerieux, Kevin Nixon, Christopher Sealey, and Anderson Straker, nationals of the Republic of Trinidad and Tobago, throughout the years abducted wealthy individuals, held them captive, and extorted ransoms from their family and friends. 

On April 6, 2005, they abducted a Trinidad-native and a United States citizen, Balram Maharaj, who visited his children in Trinidad. The defendants delivered Maharaj to an isolated camp deep within the forest where they tied him to a post and gave him little food and water. Maharaj suffered from severe diabetes, hypertension and tuberculosis. The defendants ignored his pleas for medication and used his worsening health as leverage to demand three million Trinidadian dollars from his family. After six days in captivity, missing the medication, Maharaj slipped into a diabetic coma and died. Defendants dismembered his body, packed the remains in Styrofoam containers and buried them in the woods. 

In late 2005, assisted by FBI, the Trinidad and Tobago Police Service uncovered evidence of Maharaj’s death. The United States sought the extradition of the defendants and charged them with conspiracy and hostage-taking resulting in death in violation of The Hostage Taking Act, 18 U.S.C. § 1203. As the United States immigration status or citizenship is an essential element of a Hostage Taking Act prosecution, defendants argued that Maharaj secured his immigration status or citizenship through fraud. He had allegedly failed to disclose an assault on his wife in his U.S. immigration applications. The district court denied this argument. The jury convicted defendants of all charges, and the district court sentenced them to life imprisonment without the possibility of release. Defendants appealed.
The United States Court of Appeals for the District of Columbia Circuit affirms defendants’ convictions and the judgment of the district court.
The issue here is whether The Hostage Taking Act, 18 U.S.C. § 1203, that prescribes criminal penalties for foreign nationals who abduct American citizens, applies if after the crime was committed the victim’s immigration status or citizenship is found invalid.

The Hostage Taking Act was enacted to fulfill the United States’ obligations under the International Convention Against the Taking of Hostages. Section 18 U.S.C. § 1203, and makes extraterritorial hostage-taking a criminal offense when the victim is a United States national.
Before the trial defendants uncovered evidence they claimed demonstrated that Maharaj obtained his naturalization through fraud, by misrepresenting facts on his green card application, and later on his naturalization application. The defendants thus argued that because conviction under the Hostage Taking Act requires U.S. immigration status or citizenship and because Maharaj’s fraud negated his immigration status or citizenship, the district court lacked jurisdiction.
“The district court disagreed. Citing a long and unbroken line of Supreme Court precedent, see, e.g., United States v. Zucca, 351 U.S. 91, 95 & n.8 (1956); see also Bindczyck v. Finucane, 342 U.S. 76, 83 (1951), the district court held that 8 U.S.C. § 1451, which permits the United States Attorney to institute denaturalization proceedings in a federal district court, is the exclusive procedure for voiding the immigration status or citizenship of a person naturalized due to fraud. United States v. Clarke, 628 F. Supp. 2d 1, 9 (D.D.C. 2009). Immigration status or citizenship, the court held, remains valid until a district court, acting upon a United States Attorney’s section 1451 motion, determines that naturalization was ‘procured by concealment of a material fact or fraud.’ Id. at 6 (quoting 8 U.S.C. § 1451(a)). Given that no district court had ever made such a finding as to Maharaj, the court denied the motion. Clarke, 628 F. Supp. 2d at 10.”
“The district court also granted the government’s motion in limine to exclude from trial any evidence regarding Maharaj’s alleged fraud. Id. at 13. Conviction under the Hostage Taking Act, the court held, requires the government to prove that the victim acquired immigration status or citizenship by birth or naturalization. Id. at 13. Evidence disputing whether the victim should have been naturalized or the circumstances surrounding naturalization is irrelevant. Id. The court therefore rejected defendants’ argument that they had a Sixth Amendment right to present evidence regarding Maharaj’s alleged fraud to the jury. Id. at 14. ‘[T]he jury,’ the district court concluded, ‘may not decide the validity of Maharaj’s immigration status or citizenship.’ Id. at 13.”
Furthermore, defendants argued that “[a] claim that an element of the offense is unsatisfied—that the victim was not a United States citizen, for example—goes only to a defendant’s guilt or innocence. In other words, jurisdiction hinges not on the merits, but rather on the court’s constitutional or statutory power to adjudicate the case. Lamar v. United States, 240 U.S. 60, 64 (1916) (‘Jurisdiction is a matter of power, and covers wrong as well as right decisions.’). Under 18 U.S.C. § 3231, federal district courts possess statutory authority over ‘all offenses against the laws of the United States.’ Because violation of the Hostage Taking Act is an offense against the laws of the United States, our jurisdictional inquiry ends and we turn to the merits of defendants’ appeal. United States v. Fahnbulleh, 752 F.3d 470, 476 (D.C. Cir. 2014) (‘If an indictment or information alleges the violation of a crime set out in Title 18 or in one of the other statutes defining federal crimes, that is the end of the jurisdictional inquiry.’) (internal quotation marks omitted).”
“[…] [T]he Hostage Taking Act. Section 1203(b)(1)(A) criminalizes hostage-taking that occurs outside the United States if ‘the person seized or detained is a national of the United States.’ A ‘national of the United States’ is, in turn, defined by reference to the Immigration and Nationality Act as ‘a citizen of the United States.’ 18 U.S.C. § 1203(c); 8 U.S.C. § 1101(a)(22). By its plain language, then, section 1203 broadly protects United States citizens. The statute imposes no restriction on this protection. It does not, for example, exclude citizens who, in retrospect, are unworthy of the honor. Nor does it exclude persons whose immigration status or citizenship might at some later time be invalidated. In other words, section 1203 protects victims according to their status at the time of the hostage-taking.”
“True, section 1203 is written in the present tense—the statute applies if ‘the person seized or detained is a national of the United States.’ But that clause appears in a criminal statute that requires examination of past events—whether the victim was seized or detained. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (use of backward-looking language such as ‘resulted in’ and ‘involved’ in federal habeas statute, 28 U.S.C. § 2254(d), requires examination of the state-court decision at the time it was made). […]Determining whether an American citizen was seized or detained under the Hostage Taking Act requires examination of the victim’s status at the time of the abduction.”
The Court concludes that “Congress has vested sole naturalization authority in the Attorney General, 8 U.S.C. § 1421(a), and a certificate of naturalization represents conclusive evidence of the Attorney General’s determination, Tutun v. United States, 270 U.S. 568, 577 (1926); 8 U.S.C. § 1443(e). […] [W]hether the Attorney General, acting through INS, should have issued a certificate to Maharaj—as opposed to whether the certificate was itself authentic—is irrelevant under the Hostage Taking Act”, and affirms district court’s decision.
Citation: U.S. v. Straker, 800 F.3d 570 (D.C. Cir. 2015).

*** Godfrey Muwonge is an attorney in Milwaukee, Wisconsin. Author of “Immigration Reform: We Can Do It, If We Apply Our Founders' True Ideals, Revised Edition” (Univ. Press of America, 2010), which was selected as one of top-10 Books that Drive the Debate (2009) by U.S. Chamber of Commerce's National Chamber Foundation. See

Godfrey Muwonge, Novel issues under Hague Child Abduction Convention, including whether separating a child from autism therapy is sufficiently grave to trigger exceptions to the general rule

Second Circuit addresses novel issues under Hague Child Abduction Convention, including whether separating a child from autism therapy is sufficiently grave to trigger exceptions to the general rule that children wrongfully removed or retained should be returned to their country of habitual residence

The case Ermini v. Vittori arose out of the marital dissolution of an Italian couple. The couple moved to the United States with their two sons and signed a one-year lease on a New York apartment in August 2011 after they were unable to secure adequate treatment in Italy for their autistic son Daniele. They enrolled Daniele in a Comprehensive Application of Behavior Analysis to Schooling (“CABAS”) program in Stony Point, New York. The program offered personalized instruction with an educational team, including a special educational teacher, an occupational therapist, a speech and language therapist, several classroom assistants, and a full-time one-on-one teaching assistant. Daniele’s mother, Viviana Vittori (Vittori), instituted divorce proceedings against Daniele’s father, Emiliano Ermini (Ermini) in April 2012 after numerous incidences of domestic abuse. Ermini had remained employed in Italy and traveled between Italy and the United States to visit his family, but petitioned the district court during the divorce proceedings and ensuing custody dispute to have both children returned to Italy pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. Specifically, Ermini petitioned the return of his two sons to Italy alleging that the two boys who were Italian citizens had been retained in the United States by Vittori, also an Italian citizen without Ermini’s consent. After a trial, the district court denied the petition without prejudice to renewal if Daniele was not able to continue with his current CABAS program. The Italian court system issued a final order requiring the return of the children to Italy. 

Daniele was diagnosed with autism on March 14, 2008, when he was approximately two years old. Both parents were committed to helping Daniele and took him to several doctors in Italy as well as abroad to Scotland for medical treatment. When their own resources were inadequate to pay for the treatments, they solicited donations through a website dedicated to Daniele. Dr. Antonucci was Daniele’s primary treating professional in Italy from December 2008 until May 2010. One of the treatments that Dr. Antonucci recommended was hyperbaric oxygen therapy, which was eventually administered in a hyperbaric chamber installed in the family home in Italy. Daniele’s support teacher in Italy was not familiar with any specific techniques for treating autistic children. On their own initiative, the parents attended training in Applied Behavioral Analysis (“ABA”) techniques at a private institution. With permission from Daniele’s school principal, Vittori spent two hours daily at Daniele’s school instructing the support teacher in ABA techniques. Both parents consulted another physician in Italy, Dr. Claudia Lerz, to develop an ABA treatment plan for Daniele. According to Vittori’s expert, Dr. Fiorile, ABA therapy is the most common treatment for children with autism in the United States and it can have an enormous impact on the life of an autistic child. Dr. Antonucci also endorsed ABA treatment. Vittori estimated that she personally provided 70-80% of Daniele’s thirty to forty weekly hours of ABA treatment while the family was living in Italy. Professional ABA treatment would have been preferable but very expensive. The Italian national health care system covered 90 minutes a week of psycho-motility therapy for the first year after Daniele’s autism diagnosis, with an extra 90 minutes of speech therapy during the second year. However, it did not cover other types of treatment or therapy. Both parents were dissatisfied with the options for Daniele’s schooling and therapy in Italy as they did not see results in his developmental progress. They began to look elsewhere for treatment options. In Spring 2010, the parents met Dr. Giuseppina Feingold in Italy. Dr. Feingold was an Italian-speaking pediatrician with a practice in Suffern, New York specializing in children with special needs. In August 2010, they traveled with both sons to Suffern so that Dr. Feingold could assess and begin treating Daniele. The family stayed with Vittori’s cousins at their Connecticut home.

During that visit, they met other parents at Dr. Feingold’s clinic who shared provisions for special needs children at the local schools in Suffern. Both were impressed by the treatment options available in the United States. Around this time, they began to formulate a plan to relocate to the United States for two or three years, during which time they would decide if it would be feasible to make a permanent move to the United States. Meanwhile, Ermini met with Marcello Russodivito about potentially investing in Russodivito’s restaurant so that he could obtain a business visa for himself and derivative ones for his family in order to pursue treatment for Daniele in the United States. On September 2, 2011, the couple co-signed a one-year lease for a house near Russodivito’s restaurant. On September 15, 2011, Vittori and her two sons moved into that house. In September and November, the boys were enrolled in the local public school. In an email to Vittori, Ermini said that they should ship “books, clothing, any furniture we can’t sell, ornaments, dishes, sheets, blankets” in a cargo container from Italy to the United States. On September 13, 2011, he wrote to the U.S. Consulate in Rome to apply for visas for himself and his family for the purpose of “exploring the possibilities of entering into a business partnership with Mr. Marcello Russodivito who already owns an established Italian restaurant in the city of Suffern, NY. I also wish to request a B-2 visa for my wife and 2 children, who will accompany me in this trip to the United States.” Vittori traveled with the children to Italy to renew their visas in November 2011 and then returned to Suffern. Meanwhile Ermini traveled to Italy to finish settling the family’s affairs and did not return to the United States until December 2011. Ermini left again for Italy in early January 2012, following an altercation with Vittori. Although the children had not left the United States since November 2011, but Vittori left the country again in April 2012 to attend court proceedings in Italy. On December 1, 2012, Vittori and the two children moved to their current residence in Suffern. Ermini never relocated to the United States.
Meanwhile, on September 20, 2012, Ermini had applied to the Italian court for an order directing Vittori to return to Italy with the children. With only Ermini in attendance, the court in Velletri ordered Vittori to return to Italy with the children and also ordered temporary measures including that the parents live separately but share parental authority; Vittori and the children would live in the family home; Ermini could visit 8–12 hours per week; and that Ermini would pay spousal and child support of 1,600 Euros per month. At the time of trial, Vittori had not complied with the Italian court’s order to return to Italy with the children, nor had there been visitation or other contact between Ermini and the children. Vittori appealed the Velletri court’s order and on April 5, 2013, the Court of Appeals in Rome vacated several provisions of the September 20, 2012, order and granted her exclusive custody of the children. The April 5, 2013 order also withdrew the Velletri Court’s order thereby revoking both the award of the family home to Ermini. However it did not preclude Ermini’s application to the district court because it was only a temporary order, which appeared to have been designed to conform with U.S. Family Court protective orders.
Due to Daniele’s limited capacity for speech, he did not appear in court. Vittori testified that she took care of feeding Daniele, grooming him and ensuring that he was properly supervised. According to Vittori and Dr. Fiorile, Daniele had shown significant progress in his school environment in the United States. When he first began school in the United States, Daniele’s test results were far below average; at age six, he demonstrated the motor skills of a three-year old. Dr. Fiorile suggested that Daniele performed poorly on the testing because his Italian treatments had been deficient. According to Dr. Fiorile, the CABAS program offered the best ABA curriculum available to autistic children. Dr. Fiorile further testified that Daniele had one-to-one instruction throughout the day and had made exceptional progress. Dr. Fiorile explained that the high level of intervention in Daniele’s current classroom setting was the key to his success. Moreover, she believed that Daniele required this program in order to continue experiencing meaningful progress in cognition, language, social and emotional skills. While the United States has over 4,000 board certified ABA practitioners, Dr. Fiorile knew of fewer than twenty in Italy. Therefore, she concluded in her January 11, 2013 report that if Daniele were separated from his CABAS program, he “will most certainly fail to make the same level of progress and will, without doubt, demonstrate significant skill regression” and that it would be “extremely harmful” to return him to Italy at this time. The Court found that separating Daniele from CABAS would put him in an intolerable situation due to the grave risk of deterioration of his condition and denial of needed rehabilitation.
On the contrary, Ermini argued that Vittori and the children did not currently have legal immigration status in the United States, as they had overstayed their visas in April 2012. In October or November of 2012, Vittori applied for a visa for both herself and the children on the basis of the domestic abuse. Her application was currently pending.
The district court found that the then couple intended to move to the United States as a family for a period of two to three years, during which time medical and rehabilitative treatment would be pursued for Daniele, and also agreed that it was possible that the move would be made permanent at the end of the three-year period, circumstances permitting. Notwithstanding the plan to sell their house in Italy to fund the restaurant investment, there was no agreement to abandon the family’s ties to Italy.
The court ultimately concluded that the children’s habitual residence for Hague Convention purposes at the time of their retention in the United States was Italy; that the retention was in breach of Ermini’s custody rights under the law of Italy; and that Ermini was exercising those rights at the time of the children’s retention in the United States.

The burden then shifted to Vittori to assert affirmative defenses against the return of the children to Italy. The court accepted Vittori’s argument that return to Italy posed a “grave risk” of harm to Daniele, pursuant to Hague Convention, Article 13(b), which precludes repatriation of a child where 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”, and ruled in Vittori’s favor.
The district court denied Ermini’s petition for return to Italy as to both children without prejudice to renewal if Daniel is no longer able to participate in the CABAS program. Ermini appealed.
The United States Court of Appeals for the Second Circuit affirmed the district court’s denial and amended the judgment to deny the petition with prejudice.
The key issue here is whether the psychological and physical harms of separating a child from autism therapy were sufficiently grave to allow a displaced child to remain in the country where they receive the therapy.
The Court reviewed de novo the district court’s interpretation of Hague Convention.
“The Hague Convention is a pact among nation-states to protect children in limited, though important, circumstances. It establishes uniform standards, on one side, for ensuring the swift return of children wrongfully removed or retained from their home states, and, on the other, for barring return to a home state when doing so would create a grave risk of harm to the children or violate their fundamental human rights and freedoms. See Hague Convention, arts. 13 & 20.”
“The Convention was adopted in 1980 ‘to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.’ Hague Convention, pmbl., 51 Fed.Reg. at 10498. The Convention is not designed to adjudicate custody claims, but only to determine the merits of claims of wrongful removal and abduction. See id., art. 19 (‘A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.’)”
“Under the Convention, removal or retention of a child is deemed ‘wrongful’ when:
[1] it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;
[2] at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Hague Convention, art. 3.”

“Wrongful removal or retention, however, does not end the matter. If a parent establishes that the removal or retention was wrongful, the child is to be returned unless the defendant establishes one of four defenses. See Blondin v. Dubois (Blondin II), 189 F.3d 240, 245 (2d Cir. 1999); see also 42 U.S.C. § 11601(a)(4). These defenses, or as they are also called, “exceptions,” are to be are to be construed narrowly. See 42 U.S.C. § 11601(a)(4).”
“Two of the four exceptions are to be established by clear and convincing evidence. See id. § 11603(e)(2)(A). The first applies if ‘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.’ Hague Convention, art. 13(b). The second governs when the return of the child ‘would not be permitted by the fundamental principles ... relating to the protection of human rights and fundamental freedoms.’ Id., art. 20. The remaining exceptions are to be established by a preponderance of the evidence. See 42 U.S.C. § 11603(e)(2)(B). The first exception subject to this lesser standard applies if judicial proceedings were not commenced within one year of the child’s abduction and the child is well-settled in the new environment. Hague Convention, art. 12. The second applies if the plaintiff not actually exercising custody rights at the time of the removal. Id., art. 13(a).”
“Finally, it should be noted that, since the Convention is a pact among nation-states, Congress has emphasized ‘the need for uniform international interpretation of the Convention.’ 42 U.S.C. § 11601(b)(3)(B). In light of this necessity, the Supreme Court has made clear that, in interpreting the Convention, we are to give the opinions of our sister signatories ‘considerable weight.’ Air France v. Saks, 470 U.S. 392, 404, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985) (quoting Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir.1978)).” (internal quotation marks omitted).
“The Hague Convention does not concern itself with situations where two parents commit to settle a family in a new location, and where in so migrating, neither parent breaches the other’s custody rights. Familial migration across borders is a facet of family life for many, and unless there is wrongful removal or retention of children from their habitual residence and breach of custody rights, the Hague Convention is neither concerned nor involved. […]”
While the Court accepts the district court’s findings that both wrongful retention and breach of custody rights had occurred here, thereby triggering the Convention’s applicability, it doubts as to the district court’s conclusions of law on these issues.
“We have before stated that, in determining habitual residence, courts are to focus on whether a ‘child’s presence at a given location is intended to be temporary, rather than permanent.’ Gitter v. Gitter, 396 F.3d 124, 132 (2d Cir.2005). And the two-three year trial period here may well have influenced the district court’s conclusion that this move was temporary. We have also earlier credited a district court’s finding that a habitual residence did not change because a move was of a ‘trial nature’ and ‘conditional. Id. at 135. And here, the district court, again with reason, focused on the fact that the parents were to reassess their stay in the United States at the end of what appeared to be a trial period. Ermini, 2013 WL 1703590, at *11-12.”

“But we stress that the period of time of a move is not the only relevant factor in the analysis. Indeed, our sister signatories have clarified that a habitual residence may be established even when a move is for a ‘limited period’ and indeed ‘indefinit[e].’ Shah v. Barnet London Borough Council and other appeals, [1983] 1 All E.R. 226, 235 (Eng.H.L). Drawing on the approach in Shah, the Ninth Circuit has placed emphasis on divining not just the duration of the move but instead, more broadly, the shared intent and ‘settled purpose’ of the parents. Mozes v. Mozes, 239 F.3d 1067, 1074 (2001). As the Third Circuit has stated, when similarly confronted with a two-year relocation, ‘the fact that the agreed-upon stay was of a limited duration in no way hinders the finding of a change in habitual residence. Rather, ... the parties’ settled purpose in moving may be for a limited period of time....’ Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir.2004); see also Gitter, 396 F.3d at 132 (adopting the ‘shared intent’ approach). We thus want to emphasize that the time period attached to a move is but one factor in determining, in a fact-intensive manner, what the settled intent among the parents was in making the move.”
“Nor, as we see it, is it clear that Vittori breached Ermini’s custody rights. Rights of custody are ‘rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’ Hague Convention, art. 5(a). Custody rights are provided by ‘the law of the State in which the child was habitually resident immediately before the removal or retention.’ Id., art. 3(a). The district court determined, quite properly, that, under Italian law, custody rights are defined by ‘mutual agreement’ of the parents, and therefore focused on Ermini and Vittori’s agreement. Ermini, 2013 WL 1703590, at *14; see also Title IV, Italian Civil Code of Law, Art. 316 (‘A child is subject to the authority of its parents until majority ... or emancipation. The authority is exercised by both parents by mutual agreement....’).”
“[…][T]he legal issues surrounding custody rights, and defining the family’s habitual residence, are complicated. As a result, while we have doubts about the district court’s conclusions and thought it important to clarify the governing legal standards, we choose not to ground our decision on those issues. The case can be resolved, and the district court’s decision readily affirmed, because we believe—even assuming arguendo that the children’s habitual residence was in Italy and that Vittori breached Ermini’s custody rights—that return would be barred because the children faced a ‘grave risk’ of harm if returned. […]”
The Court then turns to analyze the “grave risk” of harm issue under the Convention. Although the Court agrees with the district courts finding that the risk of harm Daniele faced if removed from his therapy and returned to Italy was grave enough to meet the Hague Convention’s standards, the Court also holds that Ermini’s history of domestic violence towards Vittori and the children was itself sufficient to establish the Hague Convention’s “grave risk” of harm defense.
“We have in the past ruled that a ‘grave risk’ of harm does not exist when repatriation ‘might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences.’ Blondin IV, 238 F.3d at 162. But we have also stressed that a grave risk of harm exists when repatriation would make the child ‘face[] a real risk of being hurt, physically or psychologically.’ Id. The potential harm ‘must be severe,’ and there must be a ‘probability that the harm will materialize.’ Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013).”

“Domestic violence can satisfy the defense when the respondent shows by clear and convincing evidence a ‘sustained pattern of physical abuse and/or a propensity for violent abuse.’ Id. at 104 (internal quotation marks omitted). And we concluded that a ‘grave risk’ of harm from abuse had been established where the ‘petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question.’ Id. at 105. Spousal violence, in certain circumstances, can also establish a grave risk of harm to the child, particularly when it occurs in the presence of the child. See id. at 103-04 (stating that spousal abuse is relevant insofar as it ‘seriously endangers the child’); see also *165 Khan v. Fatima, 680 F.3d 781, 787 (7th Cir.2012). We have also been careful to note that ‘[s]poradic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.’ Id. at 104.”
As stated above, the Court finds district court’s conclusion of law as correct when district court concluded that a “grave risk” of harm existed if Daniele would be removed from his current therapy and returned to Italy.
“This is the first occasion for this Court to consider this kind of psychological harm pursuant to Article 13(b). We note, however, that Article 13(b) explicitly lists ‘psychological’ harm and ‘physical’ harm as appropriate harms for triggering the Convention’s affirmative defenses, both of which are implicated by a developmental disorder such as autism. And we hold that the facts as found by the district court lend themselves straightforwardly to the conclusion that the risk of harm was grave.”
“First, the district court’s findings established there was a ‘probability that the harm w[ould] materialize.’ Souratgar, 720 F.3d at 103. Indeed, the district court credited testimony that does not speak in terms of probability but instead of near certainty: ‘if [Daniele] leaves the Stony Point CABAS program even temporarily, he will face a significant regression in his skills and [] without such an intensive, structured program, [Daniele] will not develop the cognitive, language, social, emotional and independent living skills that he is likely to acquire through such a program.’ Ermini, 2013 WL 1703590, at *16 (emphasis added).”
“Second, the court’s finding that Daniele would lose the ability to develop cognitive, emotional, and relational skills, and potentially lead an independent life, if removed from his current therapy and repatriated, establishes harm of a ‘severe’ magnitude manifestly sufficient to satisfy the exception. Souratgar, 720 F.3d at 103. The harm, in fact, is of such a severity that it threatens to strike to the very core of the child’s development individually and of his ability to participate as a member of society.”
In support of its determination, the Court of Appeals cited a number of cases from countries who were also signatories to the Hague Convention and had ruled on the harm inherent in removing an autistic child from treatment:
J.M.H. v. A.S., [2010] 367 N.B.R.2d 200 (N.B.Fam.Ct.) (Can.) (concluding that the risk to the wellbeing of a child who exhibited signs of autism in removing the child from treatment was sufficiently grave);
DP Commonwealth Cent. Auth., [2001] HCA 39 (High Ct. Austl.) (finding that a lack of adequate treatment facilities for a child with autism in his country of habitual residence was a reason for refusing to return the child).
The Court also agreed with the district court’s decision related to the separation of children, and states:
“[I]n light of the children’s close relationship to each other, and, significantly, the conclusion we reached with respect to abuse, we determine as well that it was not error for the district court to decline to separate the children. See Ermini, 2013 WL 1703590, at *17 (“Courts in this Circuit have frequently declined to separate siblings, finding that the sibling relationship should be protected even if only one of the children can properly raise an affirmative defense under the Hague Convention.’).”
The Court, however, does not agree with district court denial of Ermini’s petition without prejudice to renewal if Daniele is not able to continue with his current CABAS program and the Italian court system issues a final order requiring the return of the children to Italy.
“[…][A]s we believe the district court’s approach—which is, so far as we can tell, the first such instance of denial without prejudice in a Hague Convention case—to constitute an error of law, neither justified nor allowed by the Convention. Since the ‘proper interpretation of the Hague Convention is an issue of law,’ we review the district court’s decision de novo. Blondin IV, 238 F.3d at 158 (internal quotation marks omitted).”
“‘In interpreting a treaty, it is well established that we begin with the text of the treaty and the context in which the written words are used.’ Swarna v. Al-Alwadi, 622 F.3d 123, 132 (2d Cir.2010) (internal quotation marks and alteration omitted). The Hague Convention provides either for the ‘return of the child forthwith’ if the child is wrongfully removed, pursuant to Article 12, or for a ‘determin[ation] that the child is not to be returned,’ pursuant to Article 16. The Convention authorizes these decisions alone, and stresses the importance of deciding matters ‘expeditiously.’ See Hague Convention., art. 11. It also explicitly keeps courts out of deciding, or acting under the Convention, ‘on the merits of rights of custody.’ Id., art. 16.”
“Furthermore, as the Hague Convention’s Explanatory Report—which we have construed as being an authoritative and official history of the Convention proceedings, see Blondin II, 189 F.3d at 246 n. 5-has explained, the Convention ‘is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision ... on the basis of facts which have subsequently changed.’ Elisa Perez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426 (1980), (“Explanatory Report”) ¶ 71.”

“By denying the petition without prejudice to renewal, the district court allows the parties to call upon future events and engage in prospective modifications in light of changed facts in precisely the way the Convention intended to prohibit. As the Explanatory Report shows, the Convention is concerned with events at a particular *168 moment: it either requires return or, in light of the risks of harm or other circumstances, it does not. Once a determination properly applying the Convention to the facts at hand has been made, all other issues leave the realm of the treaty’s domain. The Convention is not, and cannot be, a treaty to enforce future foreign custody orders, nor to predict future harms or their dissipation. See, e.g., Redmond v. Redmond, 724 F.3d 729, 741 (7th Cir.2013) (‘The Hague Convention targets international child abduction; it is not a jurisdiction-allocation or full-faith-and-credit treaty. It does not provide a remedy for the recognition and enforcement of foreign custody orders or procedures for vindicating a wronged parent’s custody rights more generally.’); Mota v. Castillo, 692 F.3d 108, 112 (2d Cir.2012) (‘[T]he Convention’s focus is simply upon whether a child should be returned to her country of habitual residence for custody proceedings.’). Indeed, the Convention stresses the need for, and importance of, establishing swiftly a degree of certainty and finality for children.[12] See, e.g., Chafin v. Chafin, ___ U.S. ___, 133 S.Ct. 1017, 1030, 185 L.Ed.2d 1 (2013) (Ginsburg, J., concurring) (‘Protraction ... is hardly consonant with the Convention’s objectives.’); Blondin II, 189 F.3d at 244 n. 1 (noting the necessity that procedural and substantive decision-making be expeditious so they do not exceed the time that the child can endure the uncertainty of the process).”
The Court affirms the District Court’s denial of appellant’s petition, and amends its judgment to deny that petition with prejudice.
Citation: Ermini v. Vittori, 758 F.3d 153 (11th Cir. 2014).

*** Godfrey Muwonge is an attorney in Milwaukee, Wisconsin. Author of “Immigration Reform: We Can Do It, If We Apply Our Founders' True Ideals, Revised Edition” (Univ. Press of America, 2010), which was selected as one of top-10 Books that Drive the Debate (2009) by U.S. Chamber of Commerce's National Chamber Foundation. See

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