SCOTUSblog: Lozano v. Alvarez
Discussion: Diana Lucia Montoya Alvarez ("Alvarez") and Manuel Jose Lozano ("Lozano"), both originally from Colombia, met and began dating in London in early 2004. Alvarez claimed Lozano was abusive. Despite this, they had a child together. In 2008, shortly after visiting her sister Maria in New York, Alvarez left the couple's apartment to bring the child to nursery school and never returned. For the next seven months, Alvarez and the child resided at a women's shelter. In early July of 2009, Alvarez and the child left the United Kingdom, eventually traveling to New York, where they have lived since that time. In New York, Alvarez and the child lived with Alvarez's sister Maria, along with Maria's partner, daughter, and granddaughter. She eventually overstayed her visa. On November 10, 2010, Lozano filed a Petition for Return of Child pursuant to Article 2 of the Hague Convention and the International Child Abduction Remedies Act, 42 U.S.C. § 11603 (2005) (ICARA), in the United States District Court for the Southern District of New York, requesting an order requiring that the child be returned to London to have a British court make a custody determination. The District Court concluded that Lozano had made out a prima facie case of wrongful retention under [the Hague Convention because: (1) the child was a habitual resident of the United Kingdom; (2) Alvarez's unlawful removal of the child breached Lozano's custody rights under English law; and (3) Lozano exercised parental rights at the time the child was removed. However, the court found that ICARA's one year statute of limitations had expired. Lozano argued that the statute of limitations should have been subject to equitable tolling until the time Lozano reasonably could have learned of his child's whereabouts, but the court disagreed. The Second Circuit affirmed.
Issue: The questions before the Court are (1) Whether a district court considering a petition under the Hague Convention on the Civil Aspects of International Child Abduction for the return of an abducted child may equitably toll the running of the one-year filing period when the abducting parent has concealed the whereabouts of the child from the left-behind parent; and (2) whether an abducted child can be “settled” in the United States, within the meaning of Article 12 of the Convention, where it is undisputed that both the abducting parent and the child are residing illegally in the United States, and the abducting parent presents no evidence of a legitimate pending application or basis under existing law for seeking a change in their immigration status.