Johan Sebastian Alzat Calixto v. Hadylle Yusuf Lesmes

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 6, 2019
• Docket: 17-15364
• Status: Unpublished

Opinion

Case: 17-15364 Date Filed: 03/06/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15364 Non-Argument Calendar ________________________

D.C. Docket No. 8:17-cv-02100-VMC-JSS

JOHAN SEBASTIAN ALZAT CALIXTO,

Plaintiff - Appellant,

versus

HADYLLE YUSUF LESMES,

Defendant - Appellee.

________________________

Appeals from the United States District Court for the Middle District of Florida ________________________

(March 6, 2019)

Before JORDAN, ROSENBAUM, Circuit Judges, and MARTINEZ, * District Judge.

* Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida, sitting by designation. Case: 17-15364 Date Filed: 03/06/2019 Page: 2 of 3

PER CURIAM:

When this Hague Convention case was last before us, we remanded for further

factual findings and retained jurisdiction over the appeal. See Calixto v. Lesmes,

909 F.3d 1079, 1093 (11th Cir. 2018). On remand, the district court ruled that, as of

November of 2016, M.A.Y.’s habitual residence had changed to the United States

based upon Mr. Calixto’s unconditional consent. See D.E. 87 at 6–11.

Specifically, the district court credited Ms. Lesmes’ testimony and found that

(1) the romantic relationship between Ms. Lesmes and Mr. Calixto ended in August

of 2015; (2) the parties were not a couple in October or November of 2015; (3) the

travel consent form (signed in November of 2015) indicated Mr. Calixto’s agreement

that M.A.Y. would move to the United States; (4) the return date on the travel

consent form indicated that Mr. Calixto wanted M.A.Y. to visit him in Colombia if

he could not gain entry into the United States; and (5) Mr. Calixto never applied for

permanent residency in the United States. Based upon these factual findings, the

district court concluded that Mr. Calixto shared with Ms. Lesmes an unconditional

intent to change M.A.Y.’s habitual residence to the United States, regardless of his

own ability to enter and move to the United States and live there with Ms. Lesmes

and M.A.Y. as a family. As a result, Mr. Calixto had not established that M.A.Y.

was a habitual resident of Colombia in November of 2016—and therefore had not

made out a prima facie case under the Hague Convention.

2 Case: 17-15364 Date Filed: 03/06/2019 Page: 3 of 3

Having reviewed the parties’ supplemental briefs, we affirm the district

court’s denial of Mr. Calixto’s Hague Convention petition. Simply stated, the

factual findings on shared intent made by the district court—some of which were

based on credibility determinations—are not clearly erroneous. See Gomez v.

Fuenmayor, 812 F.3d 1005, 1007–08 (11th Cir. 2016); Ruiz v. Tenorio, 392 F.3d

1247, 1251–52 (11th Cir. 2004).

AFFIRMED.