Prof. Ann Estin on child welfare in abduction and asylum proceedings

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In the North Carolina Journal of International Law’s annual symposium issue, issue 4, Professor Ann Estin[1] argues that U.S. courts are able to manage new and complicated cases with existing procedures that involve intersections among family law, human rights, and immigration law.

Professor Estin begins by describing the facts of a recent Fifth Circuit case, Sanchez v. R.G.L., et al,[2] which embodied the tension between the Hague Child Abduction Convention (“Abduction Convention”) and custody rights over children that seek asylum in the United States. The court had to decide whether three Mexican children who were ordered to return to their mother by a district court under the Abduction Convention would be allowed to stay in the United States after the U.S. Citizenship and Immigration Services granted the children asylum.[3]

Ann Estin
University of Iowa law Prof. Ann Estin argues that U.S. courts
should use existing procedures and powers to cope with the
dramatically increased inflow of unaccompanied minors across
the nation's southern border.Photo via University of Iowa.

The facts of the case: Three young children were taken from Mexico into the United States by their uncle and aunt, either without their mother’s permission or under false pretense.[4] Their mother, Angelica Sanchez, reported that the children were kidnapped, and eventually pursued a claim under the Abduction Convention to secure the children’s return.[5] The Sanchez children had the chance to go back to their mother soon after arriving in Texas, but they stopped halfway across the Bridge of the Americas, which joins El Paso, Texas, and Ciudad Juarez, and told federal officers that they didn’t want to return because their mother’s boyfriend was abusive and a member of the dangerous Azteca gang.[6] In this case, two laws meant to protect children and their families were found be on opposite sides of the border.

Professor Estin asserts that “Sanchez illustrates the importance of understanding children as uniquely vulnerable actors in a global setting, with interests that include both protection for family ties and protection from family violence.”[7] The Abduction Convention and protection for asylum-seekers were not intended to be in conflict with each other.[8] Both laws have a “protective purpose”[9] and were meant to provide another layer of protection for extremely vulnerable populations. The Sanchez children were indeed in a vulnerable position, as are many other children crossing the Texas border.

Considering the growing number of unaccompanied minors involved in removal proceedings and more arriving at the United States border every day,[10] there will be more cases like Sanchez in the U.S. courts. Professor Estin highlights issues apparent from the Sanchez proceedings, and offers simple—and probably workable—solutions already available within the system to assist in the adjudication of these cases promoting the intent of both the convention and asylum laws.

Professor Estin suggests the courts should be better equipped to handle issues of unaccompanied minors. She argues that the structure and procedure are already in place to handle such difficult and complex cases.[11] Her proposed solutions are simple and pragmatic. Estin does not describe how this would work in practice, but the federal court system does have easily adaptable mechanisms, such as providing counsel and/or a guardian for the a asylum-seeking children which would “fall[] squarely within the scope of Rule 17 of the Federal Rules of Civil Procedure.”[12] Further, children’s representatives in Abduction Convention hearings should be trained in and understand applicable federal and state law, and should communicate with local child-welfare agencies. Professor Estin suggests that judges not order the return of children without informing local child-welfare agencies. Finally, courts deciding Abduction Convention cases should make use of resources from child-welfare agencies as well as international sources, like International Hague Judicial Network.[13] Professor Estin’s proposals use practices that already exist in the courts, and generalize these procedures to complicated cases like Sanchez. Providing more knowledge and increasing communication between agencies and courts in Abduction Convention cases will only assist in delivering the best outcome for this vulnerable population.


[1] Aliber Family Law Chair and Professor of Law at Iowa School of Law.

[2] 743 F.3d 945, 948–49 (2014).

[3] Id. at 956, Lopez Sanchez v. Lopez Sanchez, No. SA-12-CA-568-XR, 2012 U.S. Dist. LEXIS 109074 (W.D. Tex. Aug. 3, 2012).

[4] Sanchez v. R. G. L., 743 F.3d 945, 948 (5th Cir. 2014).

[5] Id.

[6] Id.

[7] Ann Estin, Child Welfare in Abduction and Asylum Proceedings, 41 N. C. J. Int’l L. (forthcoming June 2016) (manuscript at 6).

[8] Id. (manuscript at 1, 4).

[9] Estin, supra note 7, (manuscript at 41).

[10] U.S. Customs and Border Protection, United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien Children Apprehensions Fiscal Year 2016 (2016), http://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2016 [https://perma.cc/KX89-ZHZQ] (showing a 90% increase in the five months to February 29, 2016, compared to the year-earlier period).

[11] Estin, supra note 7, (manuscript at 39-40).

[12] Id. (manuscript at 40).

[13] Id. (manuscript at 37).


Posted by Elizabeth M. Hutchens on Mon. August 1, 2016 8:00 AM
Categories: Children's rights, Conflict of Laws, Hague Convention, Refugees/Asylum, Symposium

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