International Child Custody Case at the Second Circuit

by Dalya Bordman


Ermini v. Vittori, 758 F. 3d 153 (2d Cir. 2014).

An Italian family, parents Emiliano Ermini, Viviana Vittori, and children Emanuele and Daniele, moved to the United States from Italy in August of 2011 in efforts to find treatment for Daniele who is autistic. The family moved to Suffern, New York and enrolled the children in public school and put their home in Italy up for sale. Daniele started Applied Behavioral Analysis (ABA) therapy shortly after the family moved to New York. After a violent altercation in the U.S. between Ermini and Vittori, divorce proceedings were instituted in Italy and a temporary order of protection issued in New York gave Vittori temporary custody of the children.

In September 2012, Ermini petitioned an Italian court for an order directing Vittori to return to Italy with their children and although granted, several provisions of the order were vacated by the Court of Appeals in Rome. The Rome Order granted Vittori exclusive custody of the children and did not require her to return to Italy with the children. Ermini subsequently filed a petition in the Southern District of New York pursuant to the Hague Convention seeking the return of both Emanuele and Daniele back to Italy. In determining whether the Hague Convention applied, the district court concluded that the boys’ habitual residence was Italy and that Vittori had wrongfully retained the children in the United States without the consent of Ermini. Accordingly, the court found that the Hague Convention did apply, however, ruled in favor of Vittori’s affirmative defense that returning the children to their habitual country posed a grave risk to Daniele. Thus, the court denied Ermini’s petition to return the children to Italy without prejudice.

The Second Circuit, however, called into question the district court’s determinations that (1) the family did not change its habitual residence from Italy to the United States, and (2) that Vittori breached Ermini’s custody rights. Firstly, the Second Circuit reasoned that the family may have changed their habitual residence to the United States as they had leased a house in the United States, put their home in Italy on the market, enrolled their children in public school and extracurricular activities in the United States, planned to open a business in the United States, and shifted all of Daniele’s medical care and treatment to the United States. Additionally, both Ermini and Vittori agreed that the move could be indefinite if Daniele’s treatment was succeeding. Secondly, based on the Rome Order, in which custody of the children was granted to Vittori, the court questioned whether or not Vittori’s keeping the children in the United States against Ermini’s wishes actually breached Ermini’s custody rights, as Ermini did not have legal custody of the children. The Second Circuit, however, did not overturn the district court’s ruling on those grounds because the issues of habitual residency and breach of parental rights were complicated, and instead affirmed the district court’s decision based on the affirmative defense of grave risk of harm to the child if returned. Thus, the Second Circuit assumed, arguendo, that the family had not changed their habitual residence from Italy to the United States and that Vittori did breach Ermini’s parental rights by keeping the children in the United States. The Second Circuit then affirmed the district court’s decision denying Ermini’s petition because the grave risk of harm defense was satisfied as, (1) Daniele would face a grave risk of harm if he was taken out of his therapy in the United States, and (2) the children faced a grave risk of harm in Ermini’s custody because he was physically abusive.  The Second Circuit then amended the district court’s judgment to deny Ermini’s petition with prejudice, reasoning that the Hague Convention is used to decide instances of wrongful child removal and when the Convention is invoked, a child is returned or he is not, once that decision is made, the Convention is no longer needed in that situation. Thus, the court affirmed the district court’s decision and amended its judgment to deny Ermini’s petition with prejudice.

Article: Humanitarian Aid is Never a Crime? The Politics of Immigration Enforcement and the Provision of Sanctuary

In September 2010, the United States Court of Appeals for the Ninth Circuit reversed the federal criminal conviction of humanitarian Daniel Millis for placing water for migrants crossing the United States-Mexico border in the Buenos Aires National Wildlife Refuge.[1]  In 2008 Mr. Millis, an activist with the Sierra Club and the Tucson faith-based organization No More Deaths/No Mas Muertes,[2]  had been found guilty of “Disposal of Waste” pursuant to 50 C.F.R. § 27.94(a), in the United States District Court for the District of Arizona.[3]  No More Deaths, along with other faith-based organizations in Southern Arizona,[4]  have adopted the slogan “Humanitarian Aid is Never a Crime” in support of their mission to leave water for migrants crossing the desert near the United States-Mexico border.[5]  Although the district court rejected Mr. Millis’ defense that “leaving full jugs of life-sustaining water for human consumption does not constitute littering,[6]  two judges on the three-judge panel of the Ninth Circuit that heard Mr. Millis’ case found that the term “garbage” in the regulation under which Mr. Millis was prosecuted is ambiguous, and vacated his conviction on those grounds.[7]

The Ninth Circuit’s ruling in United States v. Millis was lauded by immigrants’ rights groups, border activists, humanitarian and faith groups as a victory for Good Samaritans and peaceful protestors of federal immigration policy.[8]  Supporters of Mr. Millis and sympathetic observers were buoyed by what they believed to be the implication of the Court’s decision—that “we do not want to be a country that puts humanitarians in prison for giving water to people dying of thirst.”[9]  However, nowhere in the Court’s opinion is there any indication—implicit or otherwise—that the Court’s rejection of the Government’s prosecution of Mr. Millis under 50 C.F.R. section 27.94(a) is a commentary on federal immigration policy generally.  The Ninth Circuit overturned Mr. Millis’ conviction because it determined that the regulation governing his conviction is ambiguous; it did not explicitly address his humanitarian defense in its holding, and did nothing to signal either its approval or disapproval of the provision of humanitarian aid to those seeking refuge within our borders.[10]

The Ninth Circuit’s silence regarding Mr. Millis’ motivation for leaving water in the desert—the desire to protect and sustain human life—belies the role that Congress, the Department of Justice, the Department of Homeland Security, and the federal courts play in creating and sustaining an immigration policy that causes hundreds of people to die in the desert on the United States-Mexico border each year, and countless more migrants to live in the shadows once their journey to the United States is complete due to our government’s “enforcement only” immigration policies.  Contributing to the climate of fear are recent attempts to criminalize the provision of humanitarian aid to undocumented immigrants by federal, state, and local governments,[11] which present a new and troubling challenge for people of faith and conscience who feel compelled to “welcome the stranger,”[12] even in the face of potential prosecution.

This Article argues that the unprecedented increase in the enforcement of immigration law—on both the border and the interior—and the politics surrounding comprehensive immigration reform has given rise to a renewed need for the provision of sanctuary for undocumented immigrants, and surveys the different forms of action that can constitute sanctuary.[13]  Part I discusses Mr. Millis’ case in order to examine in further detail his legal defense—and personal belief—that “humanitarian aid is never a crime,” and the Court’s discussion of whether water left in the desert for humanitarian purposes is “garbage,” “litter,” or something else entirely.  Part II discusses the current effort by legislatures in states such as Alabama, Arizona, Georgia, Indiana, Oklahoma, South Carolina, and Utah to further criminalize and prosecute individuals who provide humanitarian aid for “harboring” or “transporting” undocumented immigrants at the state level, including those who provide food, shelter, and medical treatment.  Part III examines previous federal prosecutions of providers of humanitarian aid to migrants, particularly those affiliated with the faith-based Sanctuary Movement of the 1980s, while also looking at the various forms of action sanctuary for undocumented immigrants can take.  In doing so, this section discusses the missions of several organizations involved in the contemporary New Sanctuary Movement that has arisen in response to the immigration enforcement policies of the G.W. Bush and Obama administrations, as well as the non-cooperation policies and affirmative benefits for undocumented immigrants provided by so-called modern “sanctuary cities.”[14]  The Article concludes with Part IV, which discusses how the provision of sanctuary to undocumented immigrants has been linked to the unpopular political term “amnesty,” how this negative framing of the issue has hindered reasonable proposals for immigration reform such as the DREAM Act,[15] and offers suggestions for how we can move toward crafting comprehensive immigration reform that puts the sanctity of human life on par with national security.

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Kristina M. Campbell: Assistant Professor of Law and Director, Immigration and Human Rights Clinic, University of the District of Columbia David A. Clarke School of Law.

[1].  See generally United States v. Millis, 621 F.3d 914 (9th Cir. 2010).

[2].  No More Deaths/No Mas Muertes was formed in 2004, and became affiliated with the Unitarian Universalist Church of Tucson as an official church ministry in Summer 2008.  See Unitarian Universalist Church of Tucson, No More Deaths, No Más Muertes: Humanitarian Aid is Never a Crime, (last visited Sept. 10, 2012).

[3].  United States v. Millis, No. CR 08-1211, 2009 WL 806731, at *6 (D. Ariz. Mar. 20, 2009).  Mr. Millis was the driver of a vehicle containing four individuals (including himself) affiliated with No More Deaths for the purpose of placing water in the desert for migrants.  Id. at *1.

[4].  No More Deaths works closely with two other groups in Southern Arizona that provide humanitarian aid on the U.S.-Mexico border, Humane Borders and the Tucson Samaritans.  See Millis, 2009 WL 806731, at *6.

[5].  See, e.g., Unitarian Universalist Church of Tucson, Numbing Numbers, (last visited Sept. 19, 2012) (“No More Deaths adheres to the principle that Humanitarian Aid is Never a Crime.”).  This stance is part of a larger international movement that asserts that the provision of humanitarian aid should not be criminalized in any situation, including armed conflict.  See generally Joakim Dungel, A Right to Humanitarian Assistance in Internal Armed Conflicts Respecting Sovereignty, Neutrality and Legitimacy: Practical Proposals to Practical Problems, J. Humanitarian Assistance (May 15, 2004),

[6].  See Millis, 2009 WL 806731, at *4.  In her opinion, United States District Judge Cindy K. Jorgenson stated that

Millis’ argument that his conviction cannot stand because the water jugs were of value and would have provided life-sustaining water for human consumption fails to recognize that if every person was permitted to subjectively determine if something placed on the ground is of value, no discarded item could be the basis of a littering conviction.

Id. at *5.

[7].  See Millis, 621 F.3d at 918.  In vacating Mr. Millis’ conviction due to the ambiguity of the statute, the court determined that the rule of lenity applied in this case.

(The narrow question we consider today is whether the term ‘garbage’ within the context of the regulation was sufficiently ambiguous that the rule of lenity would apply in this case. Here, given the common meaning of the term ‘garbage,’ coupled with the regulatory structure, we conclude that [50 C.F.R.] § 27.94(a) is sufficiently ambiguous in this context that the rule of lenity should apply . . . .  The only question is whether the rule of lenity should be applied to the offense charged.  We conclude that it does apply, and we reverse the judgment of the district court.).

[8].  See, e.g., Unitarian Universalist Church of Tucson, Humanitarian Action Triumphs Over Legal Action, (last visited Sep. 10, 2012)

(Attorney Bill Walker, who represented Walt Staton, Dan Millis and 13 other humanitarians on citations they got for ‘littering’ while doing humanitarian aid work on the Buenos Aires National Wildlife Refuge has notified us that ‘the government has abandoned their appeal in the Millis case and has asked that the Staton case be remanded to the trial court for dismissal.  This is a great double victory for us.  We are now three for three against the government in Humanitarian aid cases!!!’).

[9].  See Adam Cohen, The Crime of Giving Water to Thirsty People, Time Mag., Sept. 8, 2010,,8599,2016513,00.html.

[10].  In fact, the Court pointed out that had Mr. Millis simply been charged with violating a different federal statute, it is possible that a conviction for leaving water in the desert without a permit could have been sustained on appeal.  See Millis, 621 F.3d at 918 (“Millis likely could have been charged under a different regulatory section, such as abandonment of property or failure to obtain a special use permit. However, that is not the question presented here.”).

[11].  See infra Part II.

[12].  See Matthew 25:31- 46 (Self-Pronouncing ed., Meridian 1962).

[13].  As others have noted, the term “sanctuary” has Biblical roots, and been applied  in many social and legal contexts outside the provision of humanitarian aid to undocumented immigrants, including the American anti-slavery movement and the protection of Jews and other persecuted minorities in the World War II Holocaust.  Additionally, Professor Rose Cuison Villazor has suggested that in relation to sanctuary for undocumented immigrants, sanctuary can take two primary forms of action – those that occur in the “private sphere” (the provision of food, water, and shelter) and  those that occur in the “public sphere” (the policies enacted by “sanctuary cities”)

([A]cknowledging the public/private dichotomy of sanctuaries is useful in analyzing and critiquing current federal government policies and practices that have ignored the boundaries between public places, where federal immigration law enforcement employees typically enjoy great regulatory and enforcement powers, and private spaces, particularly one’s home, where the power of the federal government to implement immigration laws should be balanced against other concerns such as the right to property and right to privacy.).

See Rose Cuison Villazor, What is a “Sanctuary?”, 61 SMU L. Rev. 133, 150, n.109 (2008).

[14].  See infra Part III.D.1.

[15].  The Development, Relief, and Education for Alien Minors Act of 2010 (“DREAM Act of 2010”), S. 3992, 111th Cong. (2010), available at

Note: Statutory Purpose and Deferring to Agency Interpretations of Laws. The Immigration Law Paradigm: “Aged Out”—Get Deported!

K-2 visa holders are children of alien-fiancé(e)s of United States citizens, who are issued a visa to accompany their parents to the U.S.  An alien parent is issued a K-1 visa to travel to the U.S. to marry his or her U.S. citizen fiancé(e).  Pursuant to one’s marriage to a U.S. citizen, the alien-parent and one’s minor children would become eligible to adjust their status to that of legal permanent residents—i.e., to obtain green cards.  Until June 23, 2011, the Board of Immigration Appeals (“BIA”)—the agency appellate court that reviews judgments of immigration courts—interpreted the meaning of a “child” under 8 U.S.C. section 1101(a)(15)(K)(iii) as an unmarried person under the age of 21 at the time of adjudication of his or her petition to adjust one’s status.  This meant that if such a child turned 21 before the United States Citizenship and Immigration Services (“USCIS”) could review his or her case, one was no longer eligible to adjust status (i.e., “aged out”), and therefore, was subject to deportation.

This interpretation subverted the whole purpose behind the K-visa statute—family unification—and produced controversial, inconsistent, and absurd results.  Thus, when a person was admitted to the U.S. on a K-2 visa, he or she could immediately become ineligible for adjustment because of turning 21 just a few days following one’s admission.  Likewise, two K-2 visa holders, who were the exact same age upon admission to the U.S., could experience opposite outcomes based solely on USCIS’ efficiency in adjudicating their applications.

The doctrine of “Chevron deference” requires reviewing federal courts to defer to agency interpretations of ambiguous provisions of the statutes they administer.  The government has often used Chevron as a defense of its interpretation of the K-visa statute.  This note argues that reviewing courts should consider statutory purpose as part of the Chevron analysis.  In doing so, the note conducts a case study into the problem of “aging out” of K-2 visa beneficiaries.  It argues that, despite the recent favorable resolution of the K-2 “age out” problem by the BIA, this issue should have been resolved by an Article III court, and that the government would have failed the Chevron test.  Additionally, the note identifies another group of people currently struggling with a similar issue.  Finally, the note offers two solutions to produce more logical and coherent results: (1) to always use statutory purpose as part of the Chevron analysis and (2) to employ canons of statutory construction should statutory purpose prove difficult to ascertain.

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Ivan A. Pavlenko: J.D. Candidate, Syracuse University College of Law, 2013; B.A. International Relations, State University of New York at New Paltz, 2009.