Garduno Guevara v. Soto Soto (TV2)

Filing 37

ORDER accepting in part and denying in part 36 Report and Recommendations. The Clerk of Court is DIRECTED to issue a Writ of Attachment. The Court will hold in abeyance ordering Respondent to appear on a date certain to show cau se as to why she should not be held in contempt of Court for failing to comply with the Courts prior 20 22 Orders. Petitioners 33 Motion To Reopen Case For The Issuance Of Provisional Remedies is denied. Signed by Chief District Judge Thomas A Varlan on 9/15/2016. (MDG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
EUGENIO GARDUNO GUEVARA,
Plaintiff/Petitioner,
v.
ALMA SOTO SOTO,
Defendant/Respondent.

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No.:

3:15-CV-548-TAV-CCS

ORDER
This civil matter is before the Court on the Report and Recommendation entered
by Magistrate Judge C. Clifford Shirley, Jr., on August 18, 2016 (the “R&R”) [Doc. 36].
Before the magistrate judge were Petitioner’s Verified Emergency Petition for Warrant of
Arrest in Lieu of Writ of Habeas Corpus and for Return of Child to Mexico [Doc. 29]
(“Emergency Petition”) and Petitioner’s Motion to Reopen Case for the Issuance of
Provisional Remedies (“Motion to Reopen”) [Doc. 33]. In the R&R, Magistrate Judge
Shirley recommends that the Emergency Petition [Doc. 29] be granted in part and denied
in part and that the Motion to Reopen [Doc. 33] be denied. There have been no timely
objections to the R&R, and enough time has passed since the filing of the R&R to treat
any objections as having been waived. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
In particular, the magistrate judge recommends that: (1) Respondent appear before
the district judge on a day certain to show cause as to why she should not be held in
contempt of Court; (2) the Clerk of Court issue a writ of attachment to direct the United

States Marshals Service to attach the child and deliver the child to the Tennessee
Department of Human Services for temporary placement, after which the Tennessee
Department of Human Services shall make the appropriate arrangements with the United
States Central Authority for the child’s return to Mexico or to Petitioner, and the
Tennessee Department of Human Services shall coordinate with Petitioner’s counsel and
the United States Central Authority to effectuate a smooth transfer of the child to
Petitioner or to Mexico at an appropriate border station; and (3) the child’s name be
placed in the Children’s Passport Issuance Alert Program so that Petitioner may be
alerted if someone applies for the child’s passport.
After a careful review of the matter, the Court adopts the magistrate judge’s
Findings of Fact and is in agreement with Magistrate Judge Shirley’s first two
recommendations. As to the recommendation that the child be placed in the Children’s
Passport Issuance Alert Program, according to the United States Department of State,
Bureau of Consular Affairs, parents may only enroll their children in the program if they
are United States citizens.

See Children’s Passport Issuance Alert Program,

International Child Parental Abduction, https://travel.state.gov/content/childabduction/en/
preventing/passport-issuance-alert-program.html (last visited September 9, 2016). Seeing
as the child in this matter is a Mexican citizen, the child’s name cannot be added to the
Children’s Passport Issuance Alert Program [See Doc. 1 ¶ 5 (“Father, Mother and the
child are all citizens of Mexico.”)]. The Court therefore ACCEPTS IN PART AND

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DENIES IN PART the magistrate judge’s report and recommendation [Doc. 36]
pursuant to 28 U.S.C. § 636(b)(1) and ORDERS as follows:
1.

The Clerk of Court is DIRECTED to issue a Writ of
Attachment, pursuant to Federal Rule of Civil Procedure 70,
ordering the United States Marshals Service to take possession
of the child, and to deliver the child to the Tennessee
Department of Human Services (or similar agency in the state
in which the child is found) for temporary placement, after
which said agency shall make the appropriate arrangements
with the United States Central Authority for the child’s return
to Mexico or to Petitioner, and said agency shall coordinate
with Petitioner’s counsel and the United States Central
Authority to effectuate a smooth transfer of the child to
Petitioner or to Mexico at an appropriate border station.

2.

The Court will hold in abeyance ordering Respondent to
appear on a date certain to show cause as to why she should
not be held in contempt of Court for failing to comply with the
Court’s prior Orders [Docs. 20, 22].

3.

Petitioner’s Motion To Reopen Case For The Issuance Of
Provisional Remedies [Doc. 33] is DENIED.

IT IS SO ORDERED.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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