Action Under the Hague Convention in a Federal Court

In Gaudin v. Remis (9th Cir. 2004) 379 F.3d 631, the court held that a Canadian mother lacked domicile in the United States, and therefore could not maintain her action under the Hague Convention in a federal court in Hawaii seeking the return of her children. Gaudin had entered the United States a visa. The court held that she "is barred by law from possessing the requisite intent to establish domicile in Hawaii." (Id. at p. 638.) The court stated as follows: "Notwithstanding the objective evidence of Gaudin's move to Hawaii and the uncertainty concerning her subjective intent to relocate permanently there, we disagree with the district court's conclusion. We base our judgment on the fact that, at present, Gaudin is precluded by law from relocating permanently to the United States. Gaudin is a Canadian citizen who has invoked the Immigration and Nationality Act ('INA') 101(a)(15)(B), 8 U.S.C. 1101(a)(15)(B), as the basis for her current presence in the United States. That provision describes, in relevant part, the following class of 'nonimmigrant aliens': 'an alien . . . having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.' (Id.) The Supreme Court has cited this provision as an example of a statute in which 'Congress has precluded the covered alien from establishing domicile in the United States.' Toll v. Moreno, 458 U.S. 1, (1982). & n. 20, Indeed, the Court has referred to Section 1101(a)(15)(B) as a statute in which Congress 'expressly conditioned admission . . . on an intent not to abandon a foreign residence or, by implication, on an intent not to seek domicile in the United States.' Elkins v. Moreno, 435 U.S. 647, 665, (1978). In Carlson v. Reed, 249 F.3d 876 (9th Cir. 2001), the Court held that even if an alien temporarily in the United States 'could establish' a subjective intent to remain permanently in a state,' she would 'lack the legal capacity to establish domicile in the United States.' Id. at 881; see also Graham v. INS, 998 F.2d 194, 196 (3d Cir. 1993). ('If petitioner complied with the terms of his temporary worker visa, then he could not have had the intent necessary to establish a domicile in this country. On the other hand, if he did plan to make the United States his domicile, then he violated the conditions of his visa and his intent was not lawful. Under either scenario, petitioner could not establish "lawful domicile" in the United States while in this country on a nonimmigrant, temporary worker visa.')." (Id. at p. 637-638.)