United States v. 2008-06-30 | 06-56808 | DUARTE V. BARDALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 EMILIA DUARTE, No. 06-56808
Plaintiff-Appellant, D.C. No.
v. CV-06-00158-TJW
Southern District of  HECTOR BARDALES, California,Defendant-Appellee. San Diego
ORDER

Filed July 1, 2008
Before: Myron H. Bright,* Harry Pregerson, and
Carlos T. Bea, Circuit Judges.
ORDER
The majority of the panel has voted to deny petition for
rehearing by the panel. Judge Pregerson votes to deny the
suggestion for rehearing en banc and Judge Bright so recom-
mends. Judge Bea votes to grant the petition for panel rehear-
ing and suggestion for rehearing en banc.
The panel has voted to deny Appellant’s motion and
amended motion to strike appellee’s petition for panel rehear-
ing or rehearing en banc; motion and amended motion to seal
and motion and amended motion for sanctions.
We have, however, noted Appellee Bardales’ assertion that
the two children, now ages 11 and 10, would be subject to a
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
7901

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potentially abusive environment if returned to the custody of
the mother, Duarte, in Mexico.
The matter of abuse is not before us and was not reached
by the district court. Thus, it is a non-issue but, nevertheless,
a matter of concern. The proper place to assert such claim is
in the district court under appropriate provisions of the Hague
Convention and the affirmative defense of “Grave Risk”
which Bardales has asserted in district court but which was
never reached by the district judge.
We remind Bardales and his counsel that the Hague Con-
vention, Article 13(b) provides: “The requested State is not
bound to order the return of the child if the person . . . which
opposes its return establishes that (b) there is a grave risk that
his or her return would expose the child to physical or psy-
chological harm or otherwise place the child in an intolerable
situation.”
Bardales will have the opportunity to establish by appropri-
ate evidence that returning the children to the mother in Mex-
ico will put the children at great risk of physical or
psychological harm and that, therefore, the children should
remain in California.
Appellant’s motion and amended motion to strike appel-
lee’s petition for panel rehearing or rehearing en banc; motion
and amended motion to seal and motion and amended motion
for sanctions are DENIED.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote to rehear the matter
en banc. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED.
7902 DUARTE v. BARDALES

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