Rodrigues Da Silva v. Silveira Da Silva et al
| Massachusetts District Court | |
| Judge: | Allison D Burroughs |
| Case #: | 1:24-cv-11280 |
| Nature of Suit | 890 Other Statutes - Other Statutory Actions |
| Cause | 46:1156 Administrative Procedure Act |
| Case Filed: | May 14, 2024 |
| Terminated: | Mar 13, 2025 |
| Last checked: Sunday Nov 10, 2024 3:50 AM EST |
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Defendant
Jessica Silveira Da Silva
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Represented By
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Plaintiff
Edervaldo Rodrigues Da Silva
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Represented By
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| TERMINATED PARTIES | |
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Defendant
Gilberto Lucas
Terminated: 10/17/2024
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Represented By
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GPO
Feb 28 2025
Judge Allison D. Burroughs: Order entered. Findings of Fact and Conclusions of Law. ...Accordingly, Edervaldo da Silva's Petition for Return of Child Under the Hague Convention is GRANTED. IT IS HEREBY ORDERED that A.R. shall be retg A.R. to Brazil.IT IS FURTHER ORDERED that Respondent shall not, absent leave of this Court,remove A.R. from the District of Massachusetts pending his return to Brazil.IT IS FURTHER ORDERED that counsel for Respondent shall file a notice with urned to Brazil, his country of habitual residence, at Respondent's expense at a reasonable date and time mutually agreed upon by the parties.IT IS FURTHER ORDERED that Respondent shall make all necessary arrangements associated with returninthe Clerk of Court immediately upon A.R.'s arrival in Brazil, indicating that Respondent has fully complied with the terms of this Order.SO ORDERED.(CAM) Replaced with redacted version on 3/13/2025 (CAM). (Additional attachment(s) added on 3/13/2025: # (1) Unredacted Findings of Fact - SEALED) (CAM). |
| Docket last updated: 3 hours ago |
| Friday, April 18, 2025 | ||
| 54 | 54
appeal
Supplemental ROA Sent to USCA
Fri 04/18 7:42 PM
Supplemental Record on Appeal transmitted to US Court of Appeals re49 Notice of Appeal, Documents included: ECF No. 53 (MAP) |
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| 53 | 53
order
Order on Motion to Stay
Fri 04/18 1:49 PM
Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Presently before the Court is Jéssica Silveira da Silva?s (?Respondent?) Motion for Stay of Order for Return of the Child Pending Appeal. [ECF No.44 ]. In evaluating a motion to stay return, the Court must assess ?(1) whether the stay applicant has made a strong showing that [she] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.? Chafin v. Chafin , 568 U.S. 165, 179 (2013) (quoting Nken v. Holder , 556 U.S. 418, 434 (2009)). The Supreme Court has cautioned against granting stays ?as a matter of course,? as ?routine stays... would conflict with the Convention?s mandate of prompt return to a child?s country of habitual residence.? Id. at 178. For the reasons set forth below, the motion is DENIED . In relation to the first factor, Respondent argues that she is likely to succeed on appeal because the Court improperly considered certain factors in determining that A.R. is not well-settled in the United States. [ECF No. 44 at 7?9]. The Court, however, carefully considered the parties? evidence and engaged in a thorough analysis of the pertinent facts. See [ECF No. 41 at 20?26]. Not one factor was dispositive in the Court?s ultimate conclusion, and it instead, as it was required to, weighed the relevant factors, in light of the evidence presented, under a totality of the circumstances analysis. [ Id. ]. As to the second factor?irreparable injury to the Respondent?the Court cannot agree with Respondent?s reasoning that A.R.?s return to Brazil presupposes that her appeal will fail or that any relief would be automatically rendered ineffective. [ECF No. 44 at 5?6]; [ECF No. 50 at 1]; see Chafin , 568 U.S. at 171?76 (concluding that a district court?s return order and subsequent removal of a child outside of the United States does not render an appeal of that order moot); id. at 175 (?No law of physics [would] prevent[] [A.R.?s] return from [Brazil],? and Petitioner ?might... decide to comply with an order against [him] and return [A.R.] to the United States.?); Lukic v. Elezovic , No. 20-cv-3110, 2021 WL 804384, at *3 (E.D.N.Y. Mar. 3, 2021) (?While respondent claims that effectuating a re-return order after a favorable appeal would be nearly impossible, she provides no evidence for this assertion.? (internal quotation and citation omitted)). Nor is the Court persuaded that Respondent?s apprehension about the status of her asylum application in the United States should she temporarily leave the country offers a sufficient basis for the Court to find irreparable harm, and Respondent offers no authority that it is. [ECF No. 44 at 5?6]; [ECF No. 50 at 1?3]. The second factor thus disfavors Respondent. The third factor, the balance of harms, similarly weighs against Respondent. A stay pending appeal would substantially injure Edervaldo Rodrigues da Silva (?Petitioner?), who has not seen A.R. in person for nearly three years. A.R. ?would [similarly] lose precious months [he] could have [spent] readjusting to life? in Brazil. Chafin , 568 U.S. at 178. The Court acknowledges that A.R. will be returned while his asylum application is still pending, with possible implications to the international law principle of non-refoulement. Nonetheless, the Court, even understanding that the interplay between that principle and the Hague Convention has not yet been resolved, is not persuaded that this sufficiently tips the scale. Cf. , Salame v. Tescari , 29 F.4th 763, 772?73 (6th Cir. 2022) (?[T]he district court has the authority to order the return of wrongfully removed children, regardless of whether the children were previously granted asylum.?). The fourth factor, which considers the public interest, favors denial of the motion. Mendoza v. Silva , 987 F. Supp. 2d 883, 909 (N.D. Iowa 2013) (?[T]he Convention and [International Child Abduction Remedies Act] demonstrate a public interest in expeditious resolution of petitions for return of children, ?for the sake of the children who find themselves in such an unfortunate situation.?? (quoting Chafin , 568 U.S. at 179)). In balancing the stay factors, therefore, the Court finds that they favor denial of Respondent?s motion. That said, the Court is nonetheless mindful of A.R.?s best interests and would like to see his return conducted in a manner that is minimally disruptive to his life. Thus, in order to facilitate A.R.?s transition to Brazil, the Court hereby stays the Order of Return until July 1, 2025 , which will allow him to finish the school year here. (CAM) |
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| Monday, April 14, 2025 | ||
| 52 | 52
appeal
USCA Case Number
Mon 04/14 10:22 AM
USCA Case Number 25-1360 for49 Notice of Appeal, filed by Jessica Silveira Da Silva. (MAP) |
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| 51 | 51
appeal
Abbreviated Electronic Appeal Record Sent to USCA
Mon 04/14 9:13 AM
Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re49 Notice of Appeal. (MAP) |
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