US Supreme Court Orders 7-Year-Old Girl To Be Deported to Crisis-Torn Venezuela in 5-4 Split – Sotomayor & Jackson Dissent
In the last week of October, I had blogged about the Court of Appeals decision in Jose Leonardo Brito Guevara v. Samantha Estefania Francisco Castro
On November 13, 2025, the Supreme Court denied the stay
application in an unsigned order, vacating Alito's administrative stay and
permitting the Fifth Circuit's mandate to issue. Justices Sonia Sotomayor and
Ketanji Brown Jackson dissented, indicating they would have granted the stay.
This ruling means A.F. must be returned to Venezuela, though Castro's
forthcoming petition for a writ of certiorari remains pending review.
Certiorari review refers to the discretionary process by
which the U.S. Supreme Court decides whether to hear an appeal from a lower
court, granting a writ of certiorari to accept the case for full briefing, oral
argument, and a merits decision. In this context, Castro's forthcoming petition
for a writ of certiorari seeks Supreme Court review of the Fifth Circuit's
order to return A.F. to Venezuela, potentially addressing broader Hague
Convention issues like delay, grave risk, or asylum interplay. If granted
(which is rare, with acceptance rates under 2%), it would pause or alter
enforcement; denial would finalize the return without further federal review.
Issues ruled on by SCOTUS:
The Supreme Court's order addressed a narrow procedural
question: whether to grant Castro's emergency application to stay the issuance
of the Fifth Circuit's mandate pending her forthcoming petition for a writ of
certiorari. This stay would have prolonged A.F.'s presence in the United
States, potentially allowing time for full merits review of issues such as (1)
the application of the Hague Convention's one-year filing deadline and delay
considerations under Lozano v. Montoya Alvarez, 572 U.S. 1 (2014); (2)
whether A.F. faced a "grave risk" of harm justifying non-return under
Article 13(b) of the Convention; and (3) the interplay between Hague return
obligations and U.S. asylum protections for unlawfully present families. More
broadly, the application implicated the balance between the Convention's
emphasis on swift adjudication to discourage parental abductions and equitable
considerations of a child's acclimatization and welfare after prolonged absence
from the habitual residence.
Laws
Article 13(b) of the Hague Convention: https://www.hcch.net/en/instruments/conventions/full-text/?cid=24
Decision
In an unsigned order issued on November 13, 2025, the
Supreme Court denied Castro's application for stay by a 5-4 vote, vacated
Justice Alito's administrative stay, and permitted the Fifth Circuit's mandate
to issue forthwith. Justices Sonia Sotomayor and Ketanji Brown Jackson
dissented, noting they would have granted the stay to afford additional time
for certiorari review. Chief Justice Roberts and Justices Thomas, Alito,
Gorsuch, Kavanaugh, and Barrett implicitly joined the majority, though the
order provided no reasoning. The per curiam nature of the ruling underscores
its procedural focus, leaving open the possibility of plenary review if
Castro's certiorari petition is granted. As a result, federal authorities may
now enforce A.F.'s return to Venezuela, though practical
implementation—potentially involving U.S. Marshals or immigration
coordination—remains subject to ongoing asylum proceedings.
Analysis of the Decision
The Supreme Court's denial reinforces the Hague Convention's
paramount goal of prompt return in abduction cases, prioritizing deterrence of
wrongful removals over protracted U.S. litigation, even where immigration
overlays complicate enforcement. By vacating the administrative stay after just
over five weeks, the Court signaled skepticism toward delay tactics, aligning
with precedents like Chafin (urging "expeditious" handling)
and Lozano (holding that delay does not automatically bar return but may
inform equitable discretion). The 5-4 split, particularly the liberal justices'
dissent, highlights ideological tensions: Sotomayor and Jackson likely viewed
the stay as a safeguard for A.F.'s stability and asylum rights, reflecting
broader Court divides in immigration and child welfare matters (e.g., Dept.
of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020)). The majority's
silence on merits—typical for shadow docket orders—avoids endorsing the Fifth
Circuit's delay analysis but implicitly validates its application of ICARA's
rebuttable presumption for return.
Critically, the ruling underscores the Convention's
"summary" nature, designed to delegate custody disputes to the
child's habitual residence (Venezuela), not the forum of wrongful retention
(U.S.). Castro's arguments on irreparable harm and asylum disruption, while
sympathetic, falter against the undisputed wrongfulness of the 2021 removal;
without it, A.F. would have remained in a stable Venezuelan environment with
familial support. For Brito, the decision ends a two-year odyssey, restoring his
custody rights and enabling reunification, though Venezuela's instability poses
humanitarian risks unaddressed here. If certiorari is granted (odds low, given
the order's tone), it could clarify Hague-U.S. immigration intersections,
potentially influencing cases involving Central American abductions amid
migration surges. Absent review, the order exemplifies the Court's restraint on
emergency applications, conserving resources for argued cases while enforcing
treaty obligations. Overall, it prioritizes international comity and
anti-abduction norms, but at the potential cost of A.F.'s short-term upheaval,
inviting congressional scrutiny of ICARA's asylum carve-outs.
Link to Access the SCOTUS Decision: The full text of
the November 13, 2025, order is available on the Supreme Court's official
website via the docket for No. 25A376: https://www.supremecourt.gov/docket/docketfiles/html/public/25a376.html.
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