Brito Guevara v. Francisco Castro: Fifth Circuit Reaffirms De Novo Review of the Hague Convention’s “Well‑Settled” Defense and Elevates Immigration Instability as a Weighty Consideration

Introduction

This Fifth Circuit decision revisits a Hague Convention child‑abduction dispute between Venezuelan parents over their daughter, A.F. After the mother, Samantha Estefania Francisco Castro, removed A.F. from Venezuela to the United States without the father’s consent, the father, Jose Leonardo Brito Guevara, sought the child’s return under the Hague Convention on the Civil Aspects of International Child Abduction and its U.S. implementing statute, the International Child Abduction Remedies Act (ICARA).

The district court denied return, finding the child “well‑settled” in Texas under Article 12 of the Convention. On rehearing, a Fifth Circuit panel withdrew its earlier opinion, reaffirmed that the “well‑settled” determination is reviewed de novo as a primarily legal question, and reversed. The court ordered the child’s return to Venezuela, determining that the mother failed to carry the burden to show that A.F. is now so settled in Texas that return would no longer be in her best interests.

The opinion addresses two headline issues: (1) the standard of appellate review for the Article 12 “well‑settled” defense after the Supreme Court’s decisions in Monasky v. Taglieri and Bufkin v. Collins; and (2) how to weigh the conventional “well‑settled” factors, with particular emphasis on how uncertain immigration status can permeate and destabilize the child’s ties to a new environment.

Summary of the Judgment

Procedural posture: The panel treated the petition for rehearing en banc as a petition for panel rehearing, granted panel rehearing, denied rehearing en banc, withdrew its prior opinion, and substituted this opinion.
Holding on standard of review: The court reaffirmed that, in the Fifth Circuit, the “well‑settled” defense under Article 12 presents a mixed question, but the ultimate balance is a primarily legal determination reviewed de novo. Factual findings are reviewed for clear error.
Merits: Applying de novo review to the district court’s legal assessment of the well‑settled factors, the panel held that the child is not so deeply settled in Texas that return is contrary to her best interests. It emphasized the child’s young age, residential and economic precarity, and—most significantly—the pervasive instability caused by uncertain immigration status for the child and mother.
Disposition: Reversed and remanded with instructions to enter an order directing A.F.’s return to Venezuela. The court did not reach the father’s separate argument that district‑court delay affected the well‑settled analysis.
Dissent: Judge Douglas would apply clear‑error review to the entire well‑settled inquiry (in light of Monasky and Bufkin), would affirm the district court’s findings, criticizes the majority for reweighing evidence and overly speculating about instability, and cautions against assuming the failure of pending immigration claims.

Analysis

Precedents and Authorities Cited and Their Influence

Hague Convention, Article 12; ICARA (22 U.S.C. § 9001 et seq.)
These establish the default remedy of prompt return to the country of habitual residence, subject to narrow affirmative defenses including the “well‑settled” defense when proceedings commence more than one year after wrongful removal or retention.
England v. England (5th Cir. 2000)
Reiterates the Convention’s twin aims: restore the pre‑abduction status quo and deter parents from forum shopping. The majority returns to these first principles in ordering return.
Abbott v. Abbott (U.S. 2010)
Affirms that a child’s best interests are generally served by custody decisions made by courts in the child’s habitual‑residence country. This informs the strong presumption of return.
Lozano v. Montoya Alvarez (U.S. 2014)
Clarifies that equitable tolling does not apply to the Article 12 one‑year trigger, but concealment and delay can be considered as part of the factual well‑settled assessment. The Fifth Circuit references Lozano’s purposes and the limited scope of the exception.
Hernandez v. Garcia Pena (5th Cir. 2016)
The Fifth Circuit’s seminal articulation of a seven‑factor, non‑exclusive framework for assessing whether a child is “well‑settled.” The present opinion reaffirms Hernandez’s factor list and, crucially, its de novo review of the ultimate balance.
Monasky v. Taglieri (U.S. 2020)
Held that the habitual‑residence determination is a fact‑driven mixed question reviewed for clear error. The majority distinguishes Monasky as limited to habitual residence and not controlling for the Article 12 well‑settled defense, which the Fifth Circuit treats as primarily legal.
Bufkin v. Collins (U.S. 2025)
Addresses standards of review in the VA benefits context, holding that applying a statutory “approximate balance” rule is predominantly factual and reviewed for clear error. The Fifth Circuit distinguishes Bufkin, explaining that the Hague “well‑settled” factors are judicially crafted guides leading to a legal judgment, not a statutory evidentiary balance like in the VA regime.
Galaviz v. Reyes (5th Cir. 2024)
Confirms that Monasky’s clear‑error standard does not govern all Hague mixed questions; in particular, the Article 20 human‑rights exception entails primarily legal work. The panel analogizes this to Article 12.
Other circuit authorities
The majority aligns with the Second, Ninth, and Fourth Circuits in treating the ultimate well‑settled determination as de novo (e.g., Broca v. Giron; In re B. Del C.S.B.; Alcala v. Hernandez), and recognizes that the First and Eleventh Circuits have moved to clear‑error review post‑Monasky (da Costa v. de Lima; Cuenca v. Rojas), acknowledging an existing circuit split.

Legal Reasoning

1) Standard of Review: A Primarily Legal, De Novo Determination

The Fifth Circuit underscores that while the well‑settled inquiry is a mixed question, the ultimate assessment—whether, given the non‑dispositive factors, the child is “so settled” that return would no longer be in her best interests—is primarily legal in nature. The panel:

Emphasizes that the seven factors are judicial guideposts, not statutory commands. They facilitate, but do not dictate, a holistic legal judgment.
Distinguishes Bufkin’s fact‑intensive evidentiary balancing under a congressionally codified “approximate balance” rule from the court‑crafted Hague factors that inform a normative legal conclusion.
Distinguishes Monasky’s clear‑error standard for habitual residence as confined to that specific, inherently factual inquiry.
Invokes the Fifth Circuit’s rule of orderliness: absent clear Supreme Court direction to the contrary, the circuit’s settled de novo standard for the ultimate well‑settled balance (Hernandez) governs.

2) Substantive Application of the Well‑Settled Factors

Applying de novo review to the legal balance, the majority concludes the Article 12 defense does not apply:

Age (factor 1): At seven (five at trial), A.F. is too young to have formed the kind of enduring attachments that justify overriding the Convention’s default of return. The majority rejects the district court’s “lukewarm” label and holds age meaningfully favors return.
Stability/duration of residence (factor 2): Two moves in roughly three years and present reliance on the mother’s boyfriend for housing undermine claims of stable, durable residence. If the relationship falters, another move would be likely.
School/day care (factor 3): While A.F. is enrolled and performing well, her young age and the overall instability around immigration, employment, and housing dampen the inference that her current schooling demonstrates durable settlement. She can re‑integrate in Venezuela.
Friends and relatives (factor 4): A.F. has friends and several relatives in Texas, but most extended family remain in Venezuela, and the father cannot get a U.S. visa. The familial ties in the U.S. largely derive from the abducting parent and may be destabilized by immigration uncertainties.
Community/extracurriculars (factor 5): Participation in church, playdates, and recreational activities is positive but not dispositive; many activities can be replicated in Venezuela.
Employment/financial stability (factor 6): The mother has worked steadily but with job changes, a period of unemployment, no demonstrated long‑term benefits, and reliance on her partner’s resources for housing and transportation. This suggests economic precarity rather than settled stability.
Immigration status (factor 7): Neither the mother nor A.F. holds lawful permanent residence. Pending asylum claims and work authorization do not equal stability. Given the district court’s finding of “next to zero” evidence of grave risk in Venezuela, the panel sees no basis to infer likely asylum success. The opinion characterizes immigration uncertainty as permeating the child’s life in the U.S., weighing heavily against a “well‑settled” finding.

Synthesizing these considerations, the majority holds the child has a “temporary foothold” in Dallas, not the enduring roots necessary to defeat the Convention’s return remedy. It reverses and remands with instructions to order return, rather than for further fact‑finding, because even crediting the district court’s factual findings, the legal balance is for return.

3) Treatment of Delay

The father argued the district court’s scheduling delay and the mother’s dilatory conduct inflated the post‑petition record of settlement. Because the panel renders judgment on other grounds, it does not reach this issue. The dissent discusses how, under Lozano, delay and concealment are to be folded into the existing factors rather than treated as a freestanding exclusionary rule for post‑petition evidence.

4) The Dissent’s Counter‑Framework

Judge Douglas would review the well‑settled determination for clear error, reading Monasky and Bufkin to require deferential review of the mixed question and emphasizing the heavily factual nature of assessing a child’s “best interests” under Article 12:

Contends the majority improperly reweighs evidence and conflates factors by letting immigration status “permeate” everything else, contrary to Hernandez’s treatment of immigration as just one factor.
Accuses the majority of speculation about the fragility of the mother’s housing, employment, and relationships.
Warns against assuming asylum failure based on a distinct grave‑risk standard; points out that the mother and child were represented as having Temporary Protected Status during appeal and that the mother married her long‑time partner.
Advocates that, even under de novo review, the district court’s findings support a conclusion that A.F. is well‑settled in Texas.

Impact and Practical Significance

1) Standard of Review: A Reinforced Circuit Split

In the Fifth Circuit, the ultimate “well‑settled” determination remains a primarily legal conclusion reviewed de novo. This invites robust appellate correction of district‑court balances even where underlying fact findings stand.
The court expressly aligns with the Second, Ninth, and Fourth Circuits and distances itself from post‑Monasky First and Eleventh Circuit cases applying clear‑error review to the ultimate determination. Litigants should calibrate briefing accordingly in cross‑circuit litigation.

2) Immigration Instability Can Weigh Heavily

This opinion places unusual emphasis on how uncertain immigration status can undermine multiple facets of a child’s life—housing, schooling, family ties, and activities—especially where there is no record of likely lawful permanence.
Respondents relying on Article 12 should be prepared to put on detailed, case‑specific immigration evidence: procedural posture, likelihood of relief, and how current status concretely supports stability. Work authorization alone may not carry the day; lawful permanent residence or other strong legal footholds can be critical.

3) Young Children and the “So Settled” Threshold

The court underscores that younger children form durable attachments more slowly. Evidence of school enrollment and activities, while helpful, may not suffice for very young children absent durable legal and residential anchors.

4) Remedies and Case Management

The panel’s decision to render judgment and order return signals the court’s readiness to enforce the Convention’s default remedy when the Article 12 defense fails as a matter of law.
Although not reaching delay, both opinions reflect the Convention’s insistence on expeditious proceedings. Parties who face undue delay can consider tools like mandamus or formal requests for “statement of delay” contemplated by Article 11.

5) Strategy for Petitioners and Respondents

Petitioners should develop the record on: the child’s young age; lack of durable residence; dependency on third‑party relationships; the non‑permanent character of immigration status; and the availability of comparable schooling and activities post‑return.
Respondents should marshal concrete evidence of legal stability (e.g., permanent or firmly prospective status), long‑term employment with benefits, formal leases independent of partners, and entrenched, non‑derivative community ties. For immigration, provide documentation indicating realistic likelihood of relief and timelines.

Complex Concepts Simplified

Hague Convention default rule: If a child is wrongfully removed from their habitual residence, courts generally must return the child promptly so custody is decided at home. Limited exceptions apply.
Article 12 “well‑settled” defense: If the case starts more than a year after removal, a court can refuse return if the child is now settled in the new environment. “Well‑settled” means settled enough that return is no longer in the child’s best interests.
ICARA: The U.S. statute implementing the Convention. It sets burdens of proof and authorizes courts to order return.
De novo vs. clear‑error review: De novo means the appellate court makes its own legal judgment without deferring to the trial court. Clear error means the appellate court defers to the trial court’s fact‑finding unless left with a firm conviction that a mistake was made.
Habitual residence vs. “well‑settled”: Habitual residence relates to where the child was ordinarily living before the removal and is typically fact‑driven. “Well‑settled” is an exception to return focused on post‑removal integration.
Immigration status terms: Lawful permanent residence (green card) is long‑term status; asylum grants protection to those with a well‑founded fear of persecution; Temporary Protected Status suspends removal and authorizes work for designated nationals but is not permanent and can end; work authorization may be issued while other statuses are pending but does not itself confer permanence.
Rule of orderliness (Fifth Circuit): A panel cannot overrule prior panel precedent unless an intervening Supreme Court decision unequivocally requires it or the court sits en banc.

Conclusion

This substituted opinion in Brito Guevara v. Francisco Castro sets two important markers in Fifth Circuit Hague Convention law. First, it reaffirms that the Article 12 “well‑settled” defense culminates in a primarily legal conclusion reviewed de novo, notwithstanding Monasky and Bufkin. Second, it signals that immigration uncertainty can be a weighty, cross‑cutting destabilizer when assessing whether a child is truly “so settled” that return would be against their best interests—especially for very young children whose attachments are still forming.

By reversing and ordering return, the court reinforces the Convention’s central commitments: restoring the pre‑abduction status quo and discouraging parents from crossing borders to re‑litigate custody. At the same time, the dissent highlights a competing vision: deferential review of a fact‑intensive best‑interests analysis, wariness toward speculative instability, and caution against conflating grave‑risk and asylum concepts. The result is a sharpened circuit split on standard of review and a clearer blueprint for litigants on both sides of the Article 12 defense about what evidence will, and will not, carry the day in the Fifth Circuit.