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trialburden of proofasylum

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Salame v. Solano

Facts

Pierre Salame Ajami and Veronica Tescari Solano are Venezuelan citizens with two minor children. In 2018, Tescari removed the children from Venezuela to the United States. Salame filed a petition for their return under the Hague Convention in February 2019, after Tescari and the children were granted asylum in the U.S. The district court held a trial to determine whether Tescari could establish an affirmative defense against the return of the children based on claims of abuse and the conditions in Venezuela.

Pierre Salame Ajami and Veronica Tescari Solano are Venezuelan citizens with two minor children. In 2018, Tescari removed the children from Venezuela to the United States.

Issue

Did Tescari establish an affirmative defense under Article 13(b) of the Hague Convention that returning the children to Venezuela would expose them to a grave risk of harm or place them in an intolerable situation?

Did Tescari establish an affirmative defense under Article 13(b) of the Hague Convention that returning the children to Venezuela would expose them to a grave risk of harm or place them in an intolerable situation?

Rule

Under Article 13(b) of the Hague Convention, a court is not bound to order the return of a child if there is a grave risk that their return would expose them to physical or psychological harm or otherwise place them in an intolerable situation. The burden of proof lies with the party seeking to avoid return, who must demonstrate this exception applies by clear and convincing evidence.

Under Article 13(b) of the Hague Convention, a court is not bound to order the return of a child if there is a grave risk that their return would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

Analysis

The court found that Tescari failed to present clear and convincing evidence that returning the children to Venezuela would expose them to a grave risk of harm or an intolerable situation. The single incident of domestic abuse cited by Tescari was deemed relatively minor and insufficient to meet the threshold for an affirmative defense. The court also noted that conditions in Venezuela, while concerning, did not rise to the level of creating an intolerable situation for the children.

The court found that Tescari failed to present clear and convincing evidence that returning the children to Venezuela would expose them to a grave risk of harm or an intolerable situation.

Conclusion

The court affirmed the district court's decision to grant Salame's petition for the return of the children to Venezuela, concluding that Tescari did not meet the burden of proof required to establish an affirmative defense under the Hague Convention.

The court affirmed the district court's decision to grant Salame's petition for the return of the children to Venezuela.

Who won?

Pierre Salame Ajami prevailed in the case because the court found that Tescari did not provide sufficient evidence to support her claims of grave risk or intolerable situation, thus upholding the return of the children to Venezuela.

Pierre Salame Ajami prevailed in the case because the court found that Tescari did not provide sufficient evidence to support her claims of grave risk or intolerable situation.

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