Last week, the Circuit rejected an argument that the International Parental Kidnapping Crime Act was unconstitutionally vague as applied to a father who refused to bring his United States-citizen children to the US from Yemen to visit with their mother, even though the children had been living in Yemen for a number of years and he had not abducted them.
The facts, briefly
Mr. Houtar and his ex-wife have two daughters who were born in the United States. Both parents left their daughters in Yemen for some time, while they returned (separately) to the United States. While here, Mr. Houtar’s ex-wife sought custody of the girls, and the Family Court ordered Mr. Houtar to bring them back to the United States to visit with their mother. Instead, Mr. Houtar returned to Yemen himself. He might have remained there had he not applied for a new United States passport, triggering an INTERPOL alert, and his eventual arrest and prosecution.
Circuit upholds the constitutionality of IPKCA
Under IPKCA, the government must prove: (1) that the child had previously been in the United States; (2) that the defendant took the child from the United States to another country or kept the child from returning to the United States from another country; and (3) that the defendant acted with the intent to obstruct the lawful exercise of another person’s parental rights.
Mr. Houtar argued that the statute was vague as applied to “someone who retained children abroad, without having abducted them, when the children had been abroad for years before their presence abroad became an unlawful retention.” He argued that because his children had not “been in the United States” in many years, the statute did not apply.
The Circuit rejected that argument, saying that both of Mr. Houtar’s children had been in the United States for significant periods of time. One child had lived in the United States for 2 years and 7 months and the other for 5 months.
The opinion does leave open the possibility for a future challenge if a child has a more de minimis connection to the United States.
Circuit also affirms Mr. Houtar’s sentence
The court also rejected Mr. Houtar’s sentencing challenges, finding that his flight from the United States was a “substantial interference” with the administration of justice, and that he had fraudulently “used” his passport, under U.S.S.G § 2L2.2(b)(3), when he lied that his old passport had been stolen in applying for a new one.
Practice note
Mr. Houtar pleaded guilty to the IPKCA charges (and a charge of passport fraud) but preserved his right to appeal his constitutional issue. While the appeal didn’t work out this time, it is a good reminder to keep an eye out for ways to preserve appellate rights even without a trial.
Eunice Lee of the Federal Defenders represents Mr. Houtar.
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