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Case Commentary: Salame v. Tescari, 29 F.4th 763 (6th Cir. 2022)

James D. Garbolino
February 17, 2023

Grave Risk | Domestic Violence | Effect of Asylum Grant | Zone of War or Famine | Inability of Local Courts to Fairly Adjudicate Custody Case

In this case, a mother argued that the return of her children to their father in Venezuela would subject them to grave risk or place them in an intolerable situation.


The Sixth Circuit affirmed the district court’s order to return the children to Venezuela. The district court did not commit error when it declined to sustain the mother’s allegations that Articles 13(b) and 20 were violated.


The mother and father stipulated to facts that established a prima facie case for return of the parties’ two children to Venezuela. A trial was held to address the mother’s affirmative defenses under Article 13(b) that returning the children would subject them to a grave risk of physical or psychological harm, or place them in an intolerable situation.

Discussion: Majority Opinion[1]

The mother’s Article 13(b) defenses were based on allegations that (1) the father was physically and verbally abusive, (2) Venezuela is a zone of war and famine, (3) the Venezuelan court system is unable to adjudicate the parties’ custody dispute, and (4) the U.S. grant of asylum to the mother and children precluded their return to Venezuela.

Domestic Violence. The district court found that there was evidence of one incident of spousal abuse, but the mother’s allegations of other incidents were vague and there was no evidence that the children were subject to abuse. Relying on precedent in Simcox v. Simcox,[2] the Sixth Circuit affirmed the district court’s finding that the single incident of abuse was minor and insufficient to support a grave risk defense. The mother also argued that the district court erred by failing to find there was no potential of future harm to the children. The appellate court disagreed, explaining that future harm to children must be considered if the “Article 13(b) threshold has been met and the case involves clearly grave abuse.”[3] The mother’s allegations did not meet this threshold.

Zone of War or Famine. The Sixth Circuit also affirmed the district court’s finding that the conditions in Venezuela did not constitute “war or famine,” as discussed in dicta in Friedrich v. Friedrich.[4] There was evidence that Venezuela experiences frequent protests as well as shortages of gas, food, and water. There was also evidence of an incident of violence against the family that had occurred ten years ago. But the evidence also established that the family had access to everyday essentials, and the children were able to return to their schools and sports activities. The political and social crises in Venezuela did not pose threats to providing the children with shelter, food, and medication.

Inadequacy of Venezuelan Court System. The mother also argued that she could not travel to Venezuela due to the threats against her and therefore that the Venezuelan court system could not adjudicate the parties’ custody disputes. She also stated that the bias and corruption of the Venezuelan judiciary made it unlikely she could have a fair hearing. The Sixth Circuit rejected both arguments, finding that the mother’s attorney was actively representing her in the Venezuelan custody proceedings.

Whether Existence of Asylum Grant Precluded Order of Return to Venezuela. The mother and the children were granted asylum by the United States. The mother’s argument that the asylum grant meant the children could not be compelled to return to Venezuela was not raised in district court and was dismissed by the Sixth Circuit. The mother also argued that the executive branch’s granting of political asylum precluded a judicial return order and that this argument was not properly considered by the district court. The Sixth Circuit acknowledged that the district court’s order did not explicitly mention the grant of asylum, but the court of appeals noted that the mother failed to present sufficient evidence at trial of the asylum proceedings and their relevance to the Article 13(b) or 20 inquiries. Acknowledging that factors relevant to a grant of asylum may be relevant in Hague proceedings,[5] the Sixth Circuit held that courts also have authority to order the return of wrongfully removed children who have been granted asylum. “We reject [the mother’s] argument that a grant of asylum deprives federal courts of authority to enforce the Hague Convention.”[6]

In reaching this conclusion, the court cited the Fifth Circuit case Sanchez v. R.G.L.[7] that found that discretionary grants of asylum by the executive branch did preclude a judicial order to return wrongfully removed children.[8] “‘The judicial procedures under the Convention do not give to others, even a governmental agency, authority to determine [the] risks’ children may face upon return to their country of habitual residence.”[9]

Discussion: Dissent[10]

The dissenting judge on the Sixth Circuit panel disagreed, concluding that a grant of asylum should inform a district court’s review of a Hague petition and failure to do so constitutes an abuse of discretion.[11] A grant of asylum itself is relevant to the exceptions to return in Articles 13(b) and 20.[12] The dissent also distinguished the Fifth Circuit Sanchez case, where the children were given asylum after the district court granted the petition for return and while the case was pending on appeal.[13]

The dissenting judge wrote, “Ordering the return of children, when our country’s asylum laws would prohibit the executive from enforcing such an order, cannot be consistent with the protection of human rights and fundamental freedoms. Such a return goes against the broad principles espoused by both domestic and international law.”[14]

The dissent noted a decision by the court of appeals of Ontario, Canada, finding that courts evaluating a petition for return under the Hague Convention must consider the principle of non-refoulement[15] and whether it prohibits return of children entitled to protection under the Canadian Refugee Protection Act.[16]

The dissent also noted the district court’s failure to consider whether the mother would forfeit her right to return to the United States should she return to Venezuela to litigate the parties’ custody case.[17] The judge found the legal issues sufficient to remand the case to the district court for further proceedings.

[1]. Judge Gibbons wrote for the majority of the three-judge panel.
[2]. Simcox v. Simcox, 511 F.3d 594 (6th Cir 2007).
[3]. Salame v. Tescari, 29 F.4th 763, 768 (6th Cir. 2022).
[4]. 78 F.3d 1060, 1067 (6th Cir. 1996).
[5]. Salame, 511 F.4th at 771. See also Sanchez v. R.G.L., 761 F.3d 495, 510 (5th Cir. 2014) (“While the factors that go into a grant of asylum may be relevant to determinations under the Hague Convention, the district court has a separate and exclusive responsibility to assess the applicability of an Article 13(b) affirmative defense.”).
[6]. Salame, 511 F.4th at 773.
[7]. Sanchez, 761 F.3d 495 (5th Cir. 2014).
[8]. Id. at 510.
[9]. Salame, 511 F.4th at 772.
[10]. Judge Moore dissented.
[11]. Salame, 511 F.4th at 773.
[12]. Id.
[13]. Sanchez, 761 F.3d at 511.
[14]. Salame, 511 F.4th at 778.
[15]. Non-refoulement refers to the refusal to force asylum seekers to return to a country where they may be subject to persecution. It is “a principle of international law providing a refugee or asylum seeker with the right to freedom from expulsion from a territory in which he or she seeks refuge or from forcible return to a country or territory where he or she faces threats to life or freedom because of race, religion, nationality, membership in a particular social group, or political opinion.” Non-refoulement, Merriam-Webster Dictionary, (last visited Feb. 16, 2023).
[16]. A.M.R.I. v. K.E.R., [2011] O.N.C.A. 417 (Can. Ont. C.A.).
[17]. In the event that a court orders a child to be returned, a question arises about the impact of that order on pending asylum claims. See Uzoh v. Uzoh, 2012 WL 1565345 (N.D.Ill. 2012) (where court found that mother failed to provide evidence of alleged Article 20 violation in her prospective return to the United Kingdom. See also Ambati v. Reno, 233 F.3d 1054, 1060–61 (7th Cir. 2000).