A new Hague case

[SageDad]

A new decision was issued in Mexico on Friday.  I sent my caseworker at the State Dept. the below email describing the new sentence.

Mr. Meyer,

On Friday November 5th a new decision was issued by the Guanajuato State Appeals Court in Mexico related to my son’s abduction.

This is the 8th decision to be issued by Mexican courts.  To date there has been a Guanajuato State family court trial, a State appeals trial, four federal Amparos, one judicial review of an Amparo and, most recently, this new State Appeals court decision.

As I’ve previously explained at length, the Mexican High Court should have issued the final decision that would bring over 2 years of litigation to an end in August.  Rather than do so they declared a mistrial and sent the case back to the State appeals court to have my, now three old, son’s wishes more “adequately” heard independently of his parents.  In compliance with that high court decision the State appeals court issued the attached decision dated 11/05/2010.

In this decision the State appeals court ordered what might, in technical terms, be called a complete “do over.”  They have sent the case back to the State family court to start the entire lengthy procedure over from the very beginning.

After well over two years and spending a not-so-small fortune litigating in Mexico, while being represented by a private attorney who specializes in international child abduction cases in five different Mexican courts, it would seems that I will now be beginning a new Hague Convention case for my son that is largely identical to the one I have just fruitlessly gone through.

Before the federal High Court declared their nonsense mistrial the standing order was for my son to be returned.  My wife, who holds a masters degree in Mexican law, knows she lost the first extended set of proceedings and, now that she’s been granted a chance to start over, will certainly seek to invent and introduce new evidence.

Just as my wife will now get a new opportunity to introduce new arguments and evidence so do I.  I will be translating my university transcripts to send to you for your transmission to the Mexican Central Authority for use in the new Hague Convention case.  Please provide me with an address to send these documents to.

Additionally, during the first set of Hague Convention proceedings I asked the Office of Children’s Issues to provide me with copies of any and all Entry/Exit records for my son to prove my wife was lying about the date of the abduction.  These records were never given to me.  Now that we are doing the whole thing over I would like to, once again, request that these records be provided to my attorney or the Mexican Central Authority as evidence that supports the actual date of my son’s abduction.

In addition, my wife began to argue in federal courts that she lacked the immigration status to enter the United States legally if my son were returned.  This is completely false.  She had a tourist Visa valid for 10 years even before she became a legal US Permanent Resident following our marriage.  As such I am also requesting your office provide me with documentation demonstrating my wife’s immigration status, legal Visa and the United States policy of providing temporary Visas to parents litigating custody in the United States even where the foreign parent actually does lack the appropriate documentation to enter the United States.

Time is of the essence right now.  My lawyer will be in the Salamanca, GTO office Monday (tomorrow) morning to request that the family court judge use special expedited procedures she refused to use during the first Convention trial she adjudicated.  Even if she chooses to treat this Convention case like any other civil dispute (like she did last time), the period for submitting evidence will pass quickly

To summarize, please provide me with, as soon as possible, the mailing address I can use to send you my documentary evidence, with translations, for use in my new Hague case and inform me if your office can provide me,  my attorney, or the Mexican courts directly, with the Entry/Exit records for my son and proof of my wife’s immigration and Visa status and of the US Visa program allowing parents litigating custody to be issued a special Visa.

Thank you,.

[liesl78]

Carlos,

Good luck! Please let us know if there's anything we can do to help.

[kmoor88]

Carlos,
Count me in for any project to help with your case. I feel so bad that you have worked so hard to get your son back. You are a really great Dad and he is missing out on that experience. It makes me so mad. 

[dmdaven2]

NIIIICE! glad to see you're still going strong. That's a really good letter. Hopefully they provide you with the information you requested in a timely manner.

Good Luck Carlos...

[SageDad]

More half-truths, pretexts and excuses about how they can't do anything...

Dear Mr. Bermudez:

Following up to your other requests, visa records and other visa information are considered confidential under section 222 (f) of the Immigration and Nationality Act, and therefore we cannot provide any information regarding your wife’s current immigration status.  There does not currently exist a ‘Special Visa’ for those foreign parents who may need to travel to the United States in order to attend a Hague hearing or custody hearing. Those individuals who cannot obtain a tourist visa for this purpose may request to be paroled into the United States for either of these purposes; the final adjudication authority for these requests rests with the United States Customs and Immigration Service (USCIS).

The Office of Children’s Issues does not have access to entry/exit records of U.S. citizens to the extent they exist; you may be able to request a records search from any agency that may possess such records using the Freedom of Information Act, and the Privacy Act of 1974. You may find additional information at this website:  http://www.state.gov/a/ips/c36405.htm which discusses the regulations governing release of such records under Title 22, Section 171 of the Code of

Federal Regulations.

If your records request is for use in litigation, you must comply with the regulations set forth in Title 22, Section 172 of the Code of Federal Regulations.  Pursuant to that section, in order to request documents for use in litigation, you must provide a written request to the following address:

                The Executive Office, Office of the Legal Adviser
                Room 5519
                U.S. Department of State
                2201 C Street NW
                Washington, DC  20520-6310

I hope that this information has been helpful


Regards

Hank Meyer
Citizens Services Officer
Western Hemisphere
Office of Children's Issues
Bureau of Consular Affairs

[sue]

That's awful.  This makes me so angry, I can't imagine what it does to you.  As a father don't you have the right to know when your son travelled in and out of the states?  They certainly could do all of this work for you, isn't that their job?  This should be copied and sent to someone who could do something about this.  It's absurd.

[SageDad]

The State Department has a long and sordid history of claiming they are unable to do things that they are perfectly capable of doing.  Their decision to not help me is purely discretionary.  I already responded to the above email with the following:

Mr. Meyer,

I should clarify, that I do not need any of this information delivered to me or my attorney personally.  As the natural and legal representative of an abducted American child I am requesting it be submitted to the Mexican Central Authority for use in litigation related to the illegal abduction and ongoing retention of my American son -- litigation which is clearly germane to the documentation I have requested.

Regarding Visas, section 222 (f) says (emphasis mine):

-----------------------------------------------------------------------------------------------

(f) The records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States, 1a/ except that--


(1) in the discretion of the Secretary of State certified copies of such records may be made available to a court which certifies that the information contained in such records is needed by the court in the interest of the ends of justice in a case pending before the court.


(2) the Secretary of State, in the Secretary's discretion and on the basis of reciprocity, may provide to a foreign government information in the Department of State's computerized visa lookout database and, when necessary and appropriate, other records covered by this section related to information in the database--


(A) with regard to individual aliens, at any time on a case-by-case basis for the purpose of preventing, investigating, or punishing acts that would constitute a crime in the United States, including, but not limited to, terrorism or trafficking in controlled substances, persons, or illicit weapons; or


(B) with regard to any or all aliens in the database, pursuant to such conditions as the Secretary of State shall establish in an agreement with the foreign government in which that government agrees to use such information and records for the purposes described in subparagraph (A) or to deny visas to persons who would be inadmissible to the United States.

------------------------------------------------------------------------------------------------

In addition, according to the State Dept. publication, "Foreign Affairs Manual 1700 CHILDREN’S ISSUES INTERNATIONAL PARENTAL CHILD ABDUCTION" (emphasis mine)

"...you may be asked to assist in obtaining a significant benefit parole visa for the taking parent, in coordination with CA/OCS/CI, to permit that parent’s participation in custody proceedings in the United States. See 9 FAM 42.1 N4, Parole."

Is this information not accurate?

As the sponsor of my wife's change of immigration status I find it hard to believe that records related to that status are denied to me by the Privacy Act as they are just as much my records as they are hers.  I spoke with USCIS on numerous occasions during the immigration process and they never claimed I was precluded from receiving information.

Is it your position that the Office of Children's Issues does not have the authority and ability to expeditiously request records from other government agencies?  The FOIA is a slow and time consuming process and one which is entirely inappropriate and unsuitable given the time constraints.  Such a categorical inability by this office, designated as the USCA, represents a violation of the preamble of Article 7, as well as several sections therein, of the Hague Abduction Convention.

In any case, I will submit a formal written request for the above documentation to the "The Executive Office, Office of the Legal Adviser," though I consider this to be obstruction on the part of this office.  My ongoing litigation is well established with this office and the utility of the above requested documentation is self-evident.

[sue]

Good letter!  I sure hope they get you what you need.

[Jara]

Carlos, terribly sorry to hear this.  Would be curious to know exactly what foundation the court felt they had to declare a mistrial....
Anyway, as my Grandmother used to say "Jara, there are many ways to skin the same cat".  So true.  If I needed my husbands Immigration records and I were still the legal spouse that I was the sponsor, I would be tempted to go down to my local Federal Building and sweet talk a clerk...Something like "were are planning a lovely Christmas holiday in Afghanistan, and I desperately need them for our visas"
Good luck, let us know if you need any assistance. 

PS.  Did you catch the segment on Dateline last week? 

[Bob D'Amico]

And the government wonders why the public hates bureaucrats.

That letter from Mr. Meyer reads as if it was used in a script for the old BBC TV sitcom "Yes Minister."

"In government, many people have the power to stop things happening but almost nobody has the power to make things happen. The system has the engine of a lawn mower and the brakes of a Rolls Royce."

[JmeMre]

May I ask who your attorney in Mexico is and for her contact info?

[SageDad]

May I ask who your attorney in Mexico is and for her contact info?

Check your email.

[sue]

Do you have any up dates or anything new with your case?

[SageDad]

The high court decision prompted a long round of all the courts notifying each other of the decision and acknowledging to each other that they had, in fact, been notified.  I think, everyone has now finally finished notifying each other, confirmed their notification status and confirmed their confirmations (but I've been thinking that for months now so who knows.)

A few days ago the family court formally sent out notification of the new proceeding (as opposed to the notifications of the high court decision) to the State attorney's office of Mexico's Child and Family Services so that they can act as the child's representative and allow my son to have his voice heard.  Once that notification is also complete the new family court judge should schedule hearings for the trial and notify the parties of the date.

I look at all this bureaucratic paper shuffling and can't help but wonder if they will make any sort of final decision while my child is still a child. 

[StrngConviction]

I am not sure if what he did was legal or not but an officer of DHS border patrol division told me exactly when my son flew out., what flight, when he was suppose to return and that at the last moment DNB (did not board) and who was flying with him aaaaand why they at the last minute did not board ( because her boyfriend who was deported from here for illegal activities and considered a menace to society was denied boarding when they found out who he was so she stayed there with him )