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Vasquez v. Gamba Acevedo

United States Court of Appeals, Sixth Circuit

July 24, 2019

Edison Alberto Carvajal Vasquez, Petitioner-Appellant,
v.
Paola Andrea Gamba Acevedo, Respondent-Appellee.

          Argued: March 21, 2019

          Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:18-cv-00137-Aleta Arthur Trauger, District Judge.

         ARGUED:

          Kirby D. Ifland, FROST BROWN TODD, Lexington, Kentucky, for Appellant.

          Chen Song, Birmingham, Alabama, for Appellee.

         ON BRIEF:

          Kirby D. Ifland, Alex S. Fisher, FROST BROWN TODD, Lexington, Kentucky, for Appellant.

          Chen Song, Birmingham, Alabama, for Appellee.

          Before: BATCHELDER, McKEAGUE, and NALBANDIAN, Circuit Judges

          OPINION

          MCKEAGUE, CIRCUIT JUDGE.

         Colombian 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.

         I.

         Carvajal 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.

         While 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.

         Carvajal 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.

         After 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.[1]

         Carvajal 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 ...


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