Demaj v. Sakaj

Filing 85

RULING: granting in part and denying in part 61 Motion to Compel. Signed by Judge Joan G. Margolis on 2/14/2012. (Rodko, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
-------------------------------------------------------X
:
ESHEREF DEMAJ,
:
Petitioner
:
:
V.
:
:
FRIDA SAKAJ,
:
Respondent
:
:
-------------------------------------------------------X

3:09 CV 255 (JGM)

DATE: FEBRUARY 14, 2012

RULING ON PETITIONER’S MOTION TO COMPEL
On February 11, 2009, Petitioner, Esheref Demaj, commenced this action pursuant
to The Convention on the Civil Aspects of International Child Abduction, done at the Hague
on October 25, 1980 [the “Convention”], and the International Child Abduction Remedies Act
[“ICARA”], petitioning this Court for the immediate return of his three minor children to Italy,
and for an immediate issuance of a show cause order to Respondent, Frida Sakaj, who
Petitioner claims illegally and wrongfully removed the minor children from Italy on or about
September 7, 2007, in violation of Petitioner’s custodial rights under Italian law. (Dkt. #1).
An Order to Show Caused issued by the late Senior United States District Judge Peter C.
Dorsey the next day (Dkt. #5), and the show cause hearing was subsequently rescheduled
five times at the request of counsel. (Dkts. ##8-9, 11, 13-16, 22-23, 27-28, 31-34, 39-40,
42). On March 26, 2009, Respondent filed her answer (Dkts. ##12, 17), and on April 21,
2009, Attorney Jennifer E. Davis was appointed as the guardian ad litem for the three minor
children at the request of both parties. (Dkt. #20; see Dkt. #18).
On January 10, 2012, this case was referred to this Magistrate Judge (Dkt. #52), and
the next day, an evidentiary hearing was scheduled for February 15-17, 2012. (Dkt. #55;
see also Dkts. ##53-54, 56). In light of further developments in the case, the hearing will

commence on February 16-17, and will be continued on March 27, 2012. (Dkts. ##64, 69,
72). Following the death of Judge Dorsey, on February 6, 2012, this case was transferred
to United States District Judge Vanessa L. Bryant, (Dkt. #73; see Dkts. ##74-76), and the
next day, the parties consented to trial before this Magistrate Judge. (Dkt. #80).
On January 25, 2012, Petitioner filed the pending Motion to Compel Production of
Documents, with brief and affidavit in support. (Dkts. ##61-63).1 Two days later, on
January 27, 2012, Respondent filed her brief in opposition (Dkt. #66),2 in response to which
Petitioner filed a reply brief four days thereafter, on January 31, 2012. (Dkt. #70).3
For the reasons stated below, Petitioner’s Motion to Compel (Dkt. #61) is granted in
part and denied in part.
I. FACTUAL BACKGROUND
Immediately following the commencement of this action, Judge Dorsey issued an
Order to Show Cause, which required Respondent to relinquish to the Clerk of the Court, “all
travel documents, including any passports, green cards, visas, residency permits, etc. that
would allow her and/or her minor children, Adelaide Demaj, Kimberly Demaj, and David
Demaj, to travel and/or remain outside of the State of Connecticut.” (Dkt. #5, ¶ 2). Rather
than surrender these documents to the Court, the parties agreed, and Judge Dorsey ordered
in Chambers, that counsel for Respondent would hold the documents of Respondent and her
children in escrow. (Dkt. #62, at 2).

1

Attached to Petitioner’s brief are copies of the Notice of Deposition Duces Tecum directed
to Respondent, dated January 4, 2012, and attachments (Exh. A); and copy of Objections to
Discovery Requests, dated January 23, 2012 (Exh. B).
2

Attached is a copy of case law.

3

Attached as Exhibits A-C are copies of case law.

2

Both parties acknowledge that when Petitioner was in Connecticut in January 2010
to visit his children, Petitioner, while at a Petco store, made a statement in his native
Albanian, according to Petitioner, “curs[ing]”, or according to Respondent’s minor child,
Kimberly to whom Petitioner was speaking, “threaten[ing] to kill” Respondent and her
mother. (Dkts. ##62, at 2; Dkt. #66, at 1). Thereafter, Respondent filed a police report,
a warrant was issued for Petitioner’s arrest, and a mandated reporter made a referral of child
abuse to the Department of Children and Families [“DCF”], which resulted in a substantiated
report. (Dkt. #62, at 2; Dkt. #66, at 1-2).
According to Petitioner, on August 19, 2010, Respondent applied for a U-Visa. (Dkt.
#62, at 2). A U-Visa provides temporary immigration benefits to aliens who are victims of
qualifying criminal activity, and to their qualifying family members, as appropriate. See
http://www.uscis.gov/i-918 (Last visited Feb. 8, 2012).4 According to Respondent, by the
summer of 2010, Respondent and the minor children had lived in this country for almost
three years and their original visas had expired, so as to remain here legally, Respondent
applied for nonimmigrant status which was granted to her and the children in July 2011.
(Dkt. #66, at 2). With the approval of their new nonimmigration status of legal permanent
residents of the United States, Respondent and the children were issued Social Security
cards and Employment Authorization cards, which Respondent used to obtain a Connecticut
driver’s license, and to register the children for Connecticut’s Supplemental Nutrition

4

A U-Visa may be granted to a victim and qualifying members who are the victim of
qualifying criminal activity; have suffered substantial physical or mental abuse as a result of having
been a victim of qualifying criminal activity; possess information concerning the qualifying criminal
activity of which the applicant is a victim; a Federal, State or local government official investigation
or prosecuting a qualifying criminal activity certifies that the victim has been, is being, or will likely
be helpful to the official in the investigation or prosecution; and the criminal activity violated the
laws of the United State or occurred in the United States or its territories.
See http://www.uscis.gov/files/form/i-918instr.pdf (Last visited Feb. 8, 2012).

3

Assistance Program and the healthcare program. (Dkt. #62, at 3).
Petitioner contends that he did not learn of Respondent’s change in immigration
status until December 30, 2011, in response to Petitioner’s filing a motion to stay in the state
court divorce proceedings that Respondent initiated in 2009. (Id.).5 Petitioner contends that
upon information and belief, Respondent used her passport, to which she was not supposed
to have access, in accordance with this Court’s order, to apply for a U-Visa, and, according
to Petitioner, Respondent’s immigration status is relevant to this case. (Id. at 2-3). Further,
Petitioner contends that these documents are necessary for Petitioner to address
Respondent’s use of the “well-settled” defense at trial, as such documents will include
Respondent’s allegations of abuse which Petitioner will use in his case-in-chief, and to
impeach Respondent by questioning the credibility of any testimony she may provide at trial.
(Dkt. #62, at 5-6). Accordingly, Petitioner requests the production of documents concerning
Respondent’s U-Visa application. (Id. at 3-6).
In her brief in opposition, Respondent argues that all of the appropriate documents,
which documents include all visas, social security cards, and authorizations to work, have
been produced, and the other documents withheld are those which would violate the
attorney/client privilege or would violate the intent of protections found in 8 U.S.C. § 1367.
(Dkt. #66, at 3-4). Additionally, Respondent asserts that her immigration status is not an
important factor to the “well-settled” defense, and Petitioner has no standing to secondguess the Department of Homeland Security [“DHS”] and its decision to grant Respondent

5

According to Respondent, her disclosure was made voluntarily after Petitioner filed a
motion to dismiss in the pending divorce action, contending that Respondent was here illegally and
an illegal immigrant cannot file for divorce here. (Dkt. #66, at 2).

4

a U-Visa.6 (Id. at 4-6).
In his reply brief, Petitioner contends that courts have found “immigration status to
be of utmost importance to establishing the Article 12 well settled defense[,]” and the cases
upon which Respondent relies are inapposite.

(Dkt. #70, at 1-3)(citations omitted).

Furthermore, Petitioner responds that he is not requesting Respondent’s U-Visa application
to second-guess or challenge DHS’ decision, but because the sworn statements of abuse
made by Respondent are relevant to Respondent’s credibility as a witness and may be used
to impeach Respondent at trial. (Id. at 3). Moreover, Petitioner contends that the Court is
entitled to see the contents of the U-Visa application in deciding whether the statements
therein are consistent with the evidence presented. (Id.).
II. DISCUSSION
A. DISCOVERY REQUESTS
In Petitioner’s Motion, he seeks to compel production of documents responsive to
Request Nos. 1, 3, 4 and 5, which document requests seek documents or correspondence
related to Respondent and the children’s current immigration status (No. 1), and related to
any changes made to their immigration status since arrival in the United States (No. 3), as
well as documents and correspondence, including, but not limited to applications, affidavits
and all supporting documents submitted to the Department of Homeland Security or any
other Federal or State agency or officials related to their immigration status or the change
therein (No. 4), and any documents or correspondence between Respondent and the

6

Additionally, Respondent’s counsel makes clear that Respondent has “always had copies of
her passport and those of the children, as have [her] attorneys . . . .” (Dkt. #66, at 6). According
to Respondent, “[t]he court order regarding passports was clearly to prevent her and the children
from leaving the jurisdiction[,]” which they have not done. (Id.). Petitioner does not contest this
position in his reply brief.

5

Department of Homeland Security or any other Federal or State agency or officials (No. 5).
(Dkt. #62, at 3-4 & Exh. A). As stated above, in response, Respondent produced all visas,
social security cards, and authorizations to work, but objects to producing other documents
on grounds that such production would include attorney/client privileged correspondence,
and documents responsive to Request Nos. 4 and 5 as such documents would violate the
intent of protections under 8 U.S.C. § 1367. (Dkt. #66, at 3-4; see also Dkt. #62, Exh. B).
B. APPLICABLE LAW
The Hague Convention “establishes legal rights and procedures for the prompt return
of children who have been wrongfully removed or retained. . . . ” 42 U.S.C. § 11601(a)(4).
Both the United States and Italy have adopted the Convention. The United States enacted
ICARA, 42 U.S.C. § 11601, et seq., to implement the Convention in this country.7 Once a
petitioner establishes that the respondent wrongfully removed the children from their
habitual residence,8 the children must be returned to the country of habitual residence,
unless the respondent can establish one of four defenses. Hague Convention, arts. 12, 13.
At issue in this pending motion is the application of the “well-settled” defense, which defense
must be established by a preponderance of the evidence. 42 U.S.C. § 11603 (e)(2)(B). The
Convention itself does not define what constitutes a child being “settled in its new
environment.” Hague Convention, art. 12.

However, the U.S. State Department has

established that “nothing less than substantial evidence of the child's significant connections

7

The Convention and ICARA are further explained by Public Notice 957 of the State
Department, 51 Fed. Reg. 10494, 1986 WL 133056 (March 26, 1986).
8

Article 3 of the Convention provides in relevant part: The removal or the retention of a
child is to be considered wrongful where –(a) it is in breach of rights of custody attributed to a
person . . .under the law of the State in which the child was habitually resident immediately before
the removal or retention; and (b) at the time of removal or retention those rights were actually
exercised, . . . or would have been so exercised but for the removal or retention.

6

to the new country is intended to suffice to meet the respondent's burden of proof” in
asserting the well-settled defense. Public Notice 957, Text & Legal Analysis of Hague
International Child Abduction Convention, 51 Fed. Reg. 10494, 10509, 1986 WL 133056
(March 26, 1986). Several factors are considered in determining whether or not a child has
become settled:
the age of the child[;] the stability of the child’s residence in the new
environment[;] whether the child attends school or day care consistently[;]
whether the child attends church [or other religious institutions] regularly[;]
the stability of the mother’s employment[;] and whether the child has friends
and relatives in the new area.
Lozano v. Alvarez, No. 10-CV-8485(KMK), 2011 WL 3667444, at *28 (S.D.N.Y. Aug. 22,
2011)(citations omitted); In re Koc, 181 F. Supp. 2d 136, 152 (E.D.N.Y. 2001)(same); see
also In re: Filipczak, No. 11 Civ. 1178(VM), 2011 WL 6980845, at *7 (S.D.N.Y. Dec. 23,
2011), citing Lozano, 2011 WL 366744, at *28; Matovski v. Matovski, No. 06 Civ. 4259(PKC),
2007 WL 2600862, at *13 (S.D.N.Y. Aug. 31, 2007)(multiple citations omitted)(same); Reyes
Olguin v. Cruz Santana, No. 03 CV 6299 JG, 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13,
2005)(citations omitted)(same); Diaz Arboleda v. Arenas, 311 F. Supp. 2d 336, 343 (E.D.N.Y.
2004)(citation omitted)(same). To reach a finding of settled, the Court must be presented
with substantial evidence of significant connections to the new environment. Koc, 181 F.
Supp. 2d at 152 (internal quotations & citation omitted).
In the bulk of cases in which immigration status is considered, it is done so after an
assessment of the foregoing factors, and it is considered as only one element among many
pointing either in favor of a finding of significant ties to the United States, or in finding a

7

lack of significant ties to the United States.9 See e.g., In re Sasson, 327 F. Supp. 2d 489,
499-501 & n. 15 (D.N.J. 2004)(finding of well-settled when child is “well adjusted[,]” has
continuous schooling, participates in extra-curricular activities, speaks English, has extended
family close by, parent is holder of a O-1 artist visa, and intends to apply for permanent
residency); In re Ahumada Caberera, 323 F. Supp. 2d 1303, 1314 (S.D. Fla. 2004)(finding
of not settled when moved five times in two and one-half years, no other family in the United
States; court noted that “any stability . . . is significantly undermined by Respondent’s
uncertain immigration status” which status also affects long-term employment prospects);10
Koc, 181 F. Supp. 2d at 152-55 (child not settled because although the child lived in the U.S.
for two and a half years, he moved three times, attended three different schools, did not
socialize with others, did not participate in extracurricular activities, and there was uncertain
immigration status). As observed last summer by U.S. District Judge Kenneth M. Karas in
our sister court, “[c]ourts that have found that a child was not settled have tended to do so
where . . . a child has moved frequently and therefore not had a stable living situation.”
Lozano, 2011 WL 3667444, at *30 (citations omitted); see also Filipczak, 2011 WL 6980846,

9

Conversely, in cases in which immigration status is not mentioned, it is often the case that
there is evidence of stability, and the other factors weigh strongly in favor of establishing the
defense. See Matovski, 2007 WL 2600862, at *14 (a finding of well-settled when remained in the
same house, same school for two years, a “stable environment[,]” participation in extra-curricular
activities, attachment to extended family, consistent employment, involvement in church; no
reference to immigration status); Reyes Olguin, 2005 WL 67094, at *8-9 (a finding of well-settled
when in the U.S. for eighteen months, performing well in school, after trauma in the home country,
engaged in a stable routine, fluent in English; no reference to immigration status); Diaz Arboleda,
311 F. Supp. 2d at 343 (finding of well-settled when in same school for over two years, mother had
stable employment, friends, involved in extracurricular activities; no reference to immigration
status)
10

The district judge explained that because the child would not be threatened with the
possibility of deportation if she were living in Argentina, “the Court finds that it is better for the
child to return to Argentina now than for her to be deported at a later date when she has become
firmly settled in the United States.” 323 F. Supp. 2d at 1314, citing Koc, 181 F. Supp. 2d at 154.

8

at *7-8 (immigration not considered but finding of not settled when lived in multiple cities
and attended multiple schools, caring and intact family in both countries, and guardian ad
litem testified children are readily adaptable to any environment). In Lozano, while Judge
Karas noted concern that both the Respondent and the child had overstayed their visas, and
thus were here illegally, he considered the other factors referenced above which evidenced
their connection to the United States, before concluding that the child was, in fact, well
settled in her current environment. Lozano, 2011 WL 3667444, at *31. Following the Ninth
Circuit’s lead, see In re B. Del C.S.B., 559 F.3d 999, 1010-14 (9th Cir. 2009), “the idea that
immigration status should render an otherwise settled child not settled” was rejected,11 and
Judge Karas concluded that “immigration status should only be a significant factor in the
settled analysis if there is an immediate concrete threat of deportation.” Lozano, 2011 WL
3667444, at *30, citing B. Del C.S.B., 559 F.3d at 1010-14. The rationale for this position,
with which this Court agrees, is grounded in the language of the Convention.

The

Convention is concerned with the present as the Article 12 defense applies to a child “now
settled in its new environment[,]” and the determination of the child’s future well-being is
left to the court conducting custody proceedings. See Hague Convention, art. 12 (emphasis
added); B. Del C.S.B., 559 F.3d at 1013.
In this case, Respondent represents to the Court that she applied for and was granted

11

See Alonzo v. Claudino, No. 1:06CV00900, 2007 WL 475340, at *5-6 (M.D.N.C. Feb. 9,
2007)(no steps taken to acquire legal status in the United States, no family ties to the United
States; court concludes “cannot be considered ‘settled’ . . . considering illegal status”). While
Petitioner relies on the strong language in Casimiro v. Chavez, Civil Action No. 1:06-CV-1889-ODE,
2006 WL 2938713, at *5-6 (N.D. Ga. Oct. 13, 2006), that found the child’s “uncertain immigration
status very troubling[,]” in that case the parties stipulated that the Respondent “cannot make the
showing required by any for the foregoing affirmative defenses.”

9

nonimmigrant status in July 2011.12 (Dkt. #66, at 2). Even if this Court were to consider
immigration status as a “most important factor” in the “well-settled” defense, the Court need
only consider the status, which status is evident from the existence of the U-Visa. Thus, to
the extent not already produced, on or before February 16, 2012, Respondent shall
produce copies of their current visas.
Petitioner contends that Respondent has gained this status by obtaining a U-Visa, and
thereby has “attempted to improve her litigation position through fraud . . . . ” (Dkt. #62,
at 5). However, in order to obtain U Nonimmigrant Status, the petitioner for such status
must provide “a certification of helpfulness from a certifying agency. That means the victim
must provide a U Nonimmigrant Status Certification . . . from a U.S. law enforcement agency
that demonstrates that the petitioner ‘has been helpful, is being helpful, or is likely to be
helpful’

in

the

investigation

or

prosecution

of

criminal

activity.”

See

http://uscis.gov/portal/site “Questions & Answers: Victims of Criminal Activity, U
Nonimmigrant Status Q: What Prevents Any Foreign National From Claiming This Status By
Saying They Were a Victim of a Crime?” (Last visited Feb. 9, 2012). Additionally, an
application for such visa does not entitle one to such a visa. Rather, the relevant statutes
and regulations leave the final decision to the discretion of the Department of Homeland
Security. See 8 U.S.C. § 1101(a)(15)(U)(the Secretary of Homeland Security determines
whether petitioner has fulfilled statutory criteria); 8 C.F.R. § 214.14(c)(4)(giving United
States Citizenship and Immigration Service [“USCIS”] “sole discretion” to determine the
“evidentiary value” of the materials submitted by a petitioner); 8 C.F.R. § 214.14(c)(5)(i) (“If

12

An individual granted U Nonimmigrant status may, after three continuous years of
physical presence in the United States, apply for a green card.

10

USCIS determines that the petitioner has met the requirements for U–1 nonimmigrant status,
USCIS will approve Form I–918.”). Further, as referenced above, there was a substantiated
report by DCF resulting from a referral of child abuse by a mandated reporter that arose from
the incident upon which Petitioner sought the benefits of a U-Visa. Thus, Petitioner’s claim
that Respondent “has attempted to improve her litigation position by obtaining a U-Visa
through fraud . . .” is not well-taken by this Court. (Dkt. #62, at 5).
Additionally, while it would appear that claims of abuse made in Respondent’s U-Visa
application are relevant to Respondent’s credibility as a witness and may be used to impeach
Respondent’s testimony at trial, disclosure of these documents for this purpose runs contrary
to the intent of the protections afforded by 8 U.S.C. § 1367,13 the purpose of which is to
protect the confidentiality of the applications by preventing disclosure of these documents
to alleged criminals as disclosure would allow, in this case the Petitioner, to interfere with or
undermine Petitioner’s immigration case.
In this case, in Request Nos. 4 and 5, Petitioner requests Respondent’s copies of all
documents that would be barred from disclosure by “the Attorney General, or any other
official or employee of the Department of Justice, the Secretary of Homeland Security, the
Secretary of State, or any other official or employee of the Department of Homeland

13

8 U.S.C. § 1367(a)(1) prohibits the use of information from spouses of battered aliens to
make determinations of admissibility or deportability under Title 8; 8 U.S.C. § 1367(a)(2) bars the
Attorney General or other agency personnel from using or disclosing information related to
battered aliens who are the beneficiaries of an application for relief for aliens subjected to
trafficking, or subjected to criminal activity, including domestic violence, see also Victims of
Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386 § 1513(a)(2)(A), 114 Stat.
1464, 1533-34(2000); 8 U.S.C. § 1101(a)(15)(T), (15)(U); Violence Against Women Act of 2005,
Pub. L. No. 109-162, 119 Stat. 2960 (2006)(codified at 8 U.S.C. § 1101); 8 U.S.C. § 1367(b)
provides for exceptions for disclosure, none of which are applicable to this case; and 8 U.S.C. §
1367(c) provides monetary and disciplinary penalties for willful use or disclosure of information in
violation of § 1367.

11

Security, or Department of State” under 8 U.S.C. § 1367(a)(2), but to the extent they are in
Petitioner’s possession, such disclosure, while arguably (see Dkt. #66, at 3-4) running afoul
of the letter of this section, is not prohibited by this statute. As discussed above, Congress
created the U nonimmigrant classification or U Visa in 2000 for victims of serious crimes and
some of their family members. See Victims of Trafficking and Violence Protection Act of
2000, Pub. L. No. 106–386, § 1513(a)(2)(A), 114 Stat. 1464 (2000). A U-Visa may be
granted to a victim and qualifying family members who have suffered substantial physical
or mental abuse and possess information about the qualifying criminal activity, which led to
a Federal, State or local investigation or prosecution, and that agency certifies that the victim
is,

or

will

likely

be

helpful

to

the

investigation

or

prosecution.14

See http://www.uscis.gov/files/form/i-918instr.pdf (Last visited Feb. 8, 2012). Although
Petitioner asserts that he seeks this information to determine whether the statements made
in the U-Visa application are consistent with the evidence presented, Petitioner also claims
that Respondent secured her change in immigration status through fraud, which he seeks
to establish at trial. Thus, while Petitioner may need the documents underlying and related
to Respondent’s U-Visa application as they may be relevant to her credibility and may be
used to impeach her, in order to use these documents in that manner, Petitioner must seek
to undermine the decision of DHS by challenging the veracity of Respondent’s statements,
upon which both DHS and law enforcement relied, thereby, interfering with Respondent’s
immigration case. Accordingly, Petitioner’s Motion to Compel production of documents
responsive to Request Nos. 4 and 5 is denied.

14

See also note 4 supra.

12

III. CONCLUSION
For the reasons stated above, plaintiff’s Motion to Compel (Dkt. #61) is granted in
part and denied in part.
Dated at New Haven, Connecticut, this 14th day of February, 2012.

_/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

13