Argued: March 21, 2019
from the United States District Court for the Middle District
of Tennessee at Nashville. No. 3:18-cv-00137-Aleta Arthur
Trauger, District Judge.
D. Ifland, FROST BROWN TODD, Lexington, Kentucky, for
Song, Birmingham, Alabama, for Appellee.
D. Ifland, Alex S. Fisher, FROST BROWN TODD, Lexington,
Kentucky, for Appellant.
Song, Birmingham, Alabama, for Appellee.
Before: BATCHELDER, McKEAGUE, and NALBANDIAN, Circuit Judges
MCKEAGUE, CIRCUIT JUDGE.
father Edison Alberto Carvajal Vasquez ("Carvajal")
brought his one-year-old son, TCG, to the United States. The
plan was for TCG to stay with his Colombian mother, Paola
Andrea Gamba Acevedo ("Gamba"), who was attempting
to immigrate to the United States from Colombia. But Gamba
was detained by INS in Texas, so Carvajal instead left TCG
with Gamba's sister in Tennessee and returned to his home
in Colombia. Gamba was subsequently released on bond and
joined TCG in Tennessee. About five months later, Carvajal
visited Gamba and TCG in the United States, then returned to
Colombia, again leaving TCG in the United States. Soon after,
Carvajal and Gamba's relationship deteriorated. Almost a
year later, Carvajal filed a petition in federal court
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction, claiming that TCG had been
vacationing in the United States and that Gamba had
wrongfully retained him there, beyond the expiration of his
tourist visa. The district court denied Carvajal's
petition, finding that the United States was TCG's
habitual residence and therefore that Gamba's retention
of the child in the country was not wrongful. Carvajal
appeals, and we AFFIRM.
and Gamba are the unmarried parents of minor child TCG. All
three are Colombian citizens. TCG was born in
Medellín, Colombia, on October 6, 2014. Until the
summer of 2016, TCG lived with Gamba in an apartment in
Colombia owned by Gamba's parents. Carvajal lived with
his own parents, at least during the week, though he claims
he lived with Gamba and TCG on the weekends. By the summer of
2016, Carvajal and Gamba had developed a plan for the family
to travel to the United States, though the reason for that
travel is disputed. Carvajal and TCG were able to obtain
tourist visas, but Gamba's multiple visa applications
were unsuccessful. Gamba then changed tactics, traveling to
Mexico in July 2016 and hiring "coyotes" to smuggle
her across the United States border. On August 7, she was
discovered and detained by immigration authorities. At trial,
Gamba claimed that Carvajal planned and funded the scheme,
including wiring money to the coyotes in Mexico. Carvajal
dissembled when asked about the wire transfers to Mexico and
whether he knew about Gamba's plan to cross the border,
but he admitted that he at least had "suspicions"
about her intentions. When Gamba was detained, Carvajal wired
about $3, 000 to Gamba's sister, Kelly Chambers, to hire
an immigration attorney for Gamba and to help her post bond.
Gamba was in immigration custody, on August 26, 2016,
Carvajal continued on with the plan and flew with TCG to the
home of Gamba's sister and brother-in-law, Kelly and
David Chambers, in Tennessee. He then returned to Colombia
two days later, leaving TCG in their care. Gamba was released
on bond about a month later, on September 30, and flew to
Tennessee on October 13. She and TCG would live at the
Chambers' home for the next several months.
came to Tennessee again on December 19, 2016, and stayed with
Gamba and TCG at the Chambers' home for a few weeks. On
December 11, shortly before Carvajal arrived, Gamba claims
she received a call from a married Colombian woman named Luz
Elena stating that Elena and Carvajal were in a
relationship-not the first time Gamba had received evidence
of such a relationship. In contrast, Elena testified that she
has never been in a relationship with Carvajal and claimed
that romantic emails between the two were planted by Gamba.
When Carvajal arrived in December, he and Gamba reconciled,
and Carvajal proposed marriage, which Gamba accepted.
Carvajal left Tennessee on January 9, 2017, and, when he
arrived in Colombia, he gave away Gamba and TCG's
possessions, according to Gamba and her mother. Carvajal
claims that TCG's toys are still stored at his house.
several months in Tennessee, Gamba traveled with TCG to
Houston, Texas, for a February 2 immigration hearing. They
stayed in Houston for about five months, first because
Gamba's court date was rescheduled and then so Gamba
could work a new job. TCG's tourist visa expired sometime
in February. Also during February, Gamba broke off her
engagement with Carvajal, apparently because she was again
contacted by Luz Elena. According to the district court, on
February 24, 2017, Carvajal filed a criminal complaint in
Colombia against Gamba for the crime of arbitrary exercise of
custody of an underage child. Gamba and TCG returned to
Tennessee at the beginning of July, where they rejoined the
Chambers' household. Gamba filed an application for
asylum for herself and TCG in the spring of 2018. Her case is
set to be heard in January 2021.
filed a petition under the Hague Convention in Tennessee on
February 9, 2018, almost a year after Gamba broke off their
engagement, alleging that Gamba had wrongfully retained TCG
in the United States. The district court heard five days of
testimony from Carvajal, Gamba, and their relatives and
acquaintances. Carvajal claimed that TCG's time in the
United States had always been intended as a vacation, and
that he had planned to take TCG back to Colombia when he
visited Tennessee in December 2016, though he admitted that
he had purchased a return ticket for himself but not TCG. He
then claimed that, because TCG was happy in Tennessee, he let
TCG stay there, but expected that Gamba's sister Kelly
would bring TCG to Colombia before the expiration of
TCG's tourist visa in February 2017. Kelly denied that
Carvajal ever asked her to do so. Gamba ...