Articles Posted in U.S. 2nd Circuit Court of Appeals

by
Petitioner, an Italian citizen, sought the return of his two sons from the United States from their Italian citizen mother under the Hague Convention on the Civil Aspects of International Child Abduction, T.A.S. No. 11, 670, 1343 U.N.T.S. 89, as implemented in the United States by the International Child Abduction Remedies Act, 42 U.S.C. 11601-10. The court affirmed the district court's holding that returning the children would pose a grave risk of harm under Article 13(b) to one of the sons, who has severe autism, and that separating the siblings would pose a grave risk of harm to both of them. The court held, however, that the district court's decision to deny the petition without prejudice to renewal was error and amended the judgment to deny the petition with prejudice. View "Ermini v. Vittori" on Justia Law

by
Petitioner, a citizen of Vietnam, sought review of an order of the BIA dismissing her appeal from a decision of the IJ, which ordered her removed and denied her petition to remove conditions placed upon her residency in the United States. The USCIS denied the petition after finding that petitioner was her husband's half-niece, concluding that the marriage was incestuous and therefore void. The court affirmed the IJ's factual determination that petitioner and her husband were related as half-blooded niece and uncle. The court certified to the New York Court of Appeals the issue of whether such relationships were void for incest under New York's Domestic Relations Law, N.Y. Dom. Rel. Law 5(2). View "Nguyen v. Holder" on Justia Law

by
Respondent, the mother, appealed the district court's grant of petitioner's, the father, petition for the return of his daughter from New York to New Zealand under the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670, 1343 U.N.T.S. 90, and its implementing legislation, the International Child Abduction Remedies Act, 42 U.S.C. 11601 et seq. The court held that New Zealand was the daughter's habitual residence immediately prior to her removal to New York; petitioner had some custody rights to the daughter and did not consent to the mother taking her to New York indefinitely; the daughter had not "acclimated" to life in New York such that it was the equivalent of a new habitual residence; and the district court should determine, in the first instance, whether to order respondent to pay petitioner the costs associated with bringing this action in the district court and on appeal. View "Hollis v. O'Driscoll" on Justia Law

by
Plaintiff, on behalf of herself and her three children, filed suit under 42 U.S.C. 1983 against defendants, alleging that the removal of the children from plaintiff's home without a court order violated their rights to due process of law and to freedom from unreasonable seizures. The court held that the state official who takes a child into custody without parental consent or court order was entitled to qualified immunity if there was an objectively reasonable basis to believe that there was an imminent threat of harm to the child. Based upon the evidence in the record - including the history of domestic violence between plaintiff and the children's father, the violation of the protective order, and the Superior Court's finding that the children were in immediate physical danger - defendants' decision to take the children into state custody was objectively reasonable. Accordingly, the court affirmed the district court's grant of summary judgment to defendants based upon qualified immunity. View "Doe v. Whelan" on Justia Law

by
Plaintiff, a recipient of Supplemental Security Income (SSI) benefits, appealed from the district court's judgment sua sponte dismissing his amended complaint under 28 U.S.C. 1915(e)(2)(B). Plaintiff sought an Order to Show Cause, a temporary restraining order, and a preliminary injunction enjoining defendants from levying against his SSI benefits to enforce a child support order. At issue was whether 42 U.S.C. 659(a) authorized levy against SSI benefits provided under the Social Security Act, 42 U.S.C. 301 et seq., to satisfy the benefits recipient's child support obligations. The court concluded that SSI benefits were not based upon remuneration for employment within the meaning of section 659(a); section 659(a) did not preclude plaintiff's claims; and the Rooker-Feldman doctrine and the exception to federal jurisdiction for divorce matters did not preclude the district court from exercising jurisdiction over the matter. Accordingly, the court vacated the judgment to the extent the district court dismissed plaintiff's claims against the agency defendants and remanded for further proceedings. However, the court affirmed the portion of the judgment dismissing plaintiff's claims against Bank of America because his complaint had not alleged facts establishing that the bank was a state actor for purposes of 42 U.S.C. 1983. View "Sykes v. Bank of America" on Justia Law

by
Respondent appealed the district court's grant of her husband's petition for repatriation of their son from New York to Singapore. At issue was whether respondent's affirmative defenses to repatriation should have prevailed in the district court. The court concluded that, under the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11, 670, 1343 U.N.T.S. 89, and its implementing statute, the International Child Abduction Remedies Act, 42 U.S.C. 11601-10, the evidence did not establish that the child faced a grave risk of physical or psychological harm upon repatriation (Article 13 defense). The court also held that it was not inclined to conclude that the presence of a Syariah Court in a foreign state whose accession to the Convention had been recognized by the United States was per se violative of all notions of due process; the court was also mindful of the need for comity; and, therefore, the district court did not err in rejecting respondent's Article 20 defense. Respondent's remaining arguments were without merit and the court affirmed the judgment. View "Souratgar v. Fair" on Justia Law

by
Petitioner, the father, initiated this action under the Hague Convention and the International Abduction Remedies Act (ICARA), 42 U.S.C. 11601 et seq., alleging that respondent, the mother, had wrongfully removed the child from Italy. The district court held that the father had not established that the child's habitual residence was Italy and denied the father's petition for return of the child. The court found no clear error in the district court's finding regarding the parents' shared intent that the child would reside in New York; the parents never shared an intent for their child to abandon his prior habitual residence in the United States; and the father waived any arguments with respect to "acclimation." Accordingly, the court affirmed the judgment dismissing the petition. View "Guzzo v. Cristofano" on Justia Law

by
Petitioner initiated proceedings pursuant to Article 3 of the Hague Convention on Civil Aspects of International Child Abduction, 51 Fed. Reg. 10, implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11601 et seq., and sought return of his children to Canada from New York in order to allow the Canadian courts to determine which parent was to be awarded custody of the children. The court concluded that the district court properly determined under the Convention that the parties' last shared intention regarding the children's residence was that they live in Canada and for that reason the habitual residence of the children remained in Canada; there was no basis to conclude that the district court clearly erred in finding that the children have not become so acclimatized to life in New York that returning them to Canada would be harmful to them; and respondent failed to prove any affirmative defense. The court considered respondent's remaining arguments and found them to be without merit. Accordingly, the court affirmed the judgment. View "Hofmann v. Sender" on Justia Law

by
Plaintiff appealed from the district court's judgment dismissing her claims against her ex-husband and his brother for failure to state a claim and untimeliness. Plaintiff alleged that, in representing a certain investment as worthless and concealing the $5.5 million received on its account, defendants conspired in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962(d), committed common law fraud, and breached fiduciary duties, and that her ex-husband was unjustly enriched. The court held that the district court's reasons for dismissing the fraud-based claims were erroneous and that the district court erred in ruling on the existing record that the RICO, common law fraud, and breach of fiduciary duty claims were time-barred. The court sustained the dismissal of the unjust enrichment claim as untimely. Accordingly, the court affirmed in part and vacated and remanded in part. View "Cohen v. Cohen" on Justia Law

by
In this criminal fraud case, defendant appealed from the district court's order denying his motion to release $3.7 million in assets that were frozen in a parallel civil enforcement action. Defendant and his wife had purchased a house in her name using funds unrelated to the alleged fraud. Pursuant to the divorce settlement, defendant received title to the house and gave his wife a $12.5 million distribution award, at least $6 million of which was directly traceable to defendant's alleged fraud. The court held that the district court properly applied the tracing analysis from United States v. Banco-Cafetero. The court rejected defendant's claim that the district court made two related erroneous evidentiary rulings at the Monsanto hearing. Accordingly, the court affirmed the judgment of the district court. View "United States v. Walsh" on Justia Law