United States v Fazal [US 2002]No. 02-1065 (1st Cir. 04/03/2002)
07 International Abduction [USA 2002]

13 Feb 2002

v. ) CRIMINAL NO. 01-10274-PBS
Defendant. )



001 Defendant Fazal-Ur-Raheman Fazal, a citizen of India,
has been charged in a one-count Indictment with kidnapping
his two minor children in violation of the International
Parental Kidnapping Crime Act (“IPKCA”), 18 U.S.C.  1204.
The government alleges that defendant abducted his children
from the United States with the intent to obstruct the
lawful exercise of custody by the children’s mother and his
estranged wife, Ms. Saihba Ali, formerly a citizen of India.

002 Defendant has filed a motion to dismiss the
Indictment on the grounds that IPKCA violates the equal
protection provision of the Fifth Amendment because it
discriminates against Indian nationals; that defendant
removed the children to India under a valid Indian court
order; and that the mother failed to follow the procedures
set forth in the Hague Convention. Pro se defendant also
moves for dismissal on a variety of grounds. After a
non-evidentiary hearing, the Court DENIES defendant’s Motion
to Dismiss for the following reasons:

1. Equal Protection Claim

003 Defendant claims IPKCA violates his right to equal
protection under the Fifth Amendment on the ground it
criminalizes his conduct because of his nation of origin.
He argues that IPKCA should be strictly scrutinized because
it distinguishes between abducting parents of children who
are citizens of countries that are signatories to the Hague
Convention on the Civil Aspect of International Parental
Child Abduction (“the Hague Convention”), and parents of
children who are not.

004 The government responds that IPKCA does not preclude
criminal prosecutions of a parent even where the Hague
Convention is applicable, but simply encourages a civil
remedy under the Hague Convention. Section 1204(d)

This section does not detract from The Hague
Convention on the Civil Aspects of
International Parental Child Abduction, done
at The Hague on October 25, 1980.

See 18 U.S.C.  1204(d).

005 Moreover, the legislative history contains the
following sense of the Congress:

It is the sense of the Congress that, inasmuch
as use of the procedures under the Hague
Convention on the Civil Aspects of
International Parental Child Abduction has
resulted in the return of many children, those
procedures, in circumstances in which they are
applicable, should be the option of first
choice for a parent who seeks the return of a
child who has been removed from the parent.

Pub. L. No. 103-173,  2(b), 107 Stat. 1998 (1993).

006 “[A]ll laws that classify citizens on the basis of
race . . . are constitutionally suspect and must be strictly
scrutinized.” Hunt v. Cromartie, 526 U.S. 541, 546, 119
S.Ct. 1545, 1548-49 (1999). “A facially neutral law
[however] . . . warrants strict scrutiny only if it can be
proved that the law was motivated by a racial purpose or
object, or if it is unexplainable on grounds other than
race.” Id. Because IPKCA does not facially target any
particular nationality or race, it is not subject to strict
scrutiny. Cf. United States v. Amer, 110 F.3d 873, 879 (2d
Cir. 1997) (rejecting the challenge that IPKCA violates the
Free Exercise Clause because it is a neutral law of general
application that “punishes parental kidnappings solely for
the harm they cause.”)

007 Under a rational basis analysis, defendant loses. Of
course, it would be the preferred route in these painful
international child custody disputes to attempt a civil,
rather than criminal, resolution. However, with countries
(like India) that are not signatories, an international
civil remedy through the Hague Convention’s mechanisms is
not available, and criminal prosecution is an effective
recourse to deter child kidnapping. IPKCA is a rational tool
for fulfilling the “enforcement-gap-closing” function. Id.
at 882; cf. City of Cleburne, Texas v. Cleburne Living
Center, Inc., 473 U.S. 432, 446-441 (1985) (holding that the
government need only demonstrate a rational basis for the
disparate treatment).

2. The Affirmative Defense

008 Defendant argues that the case should be dismissed
because defendant’s custody decree in India was obtained in
conformity with the Uniform Child Custody Jurisdiction Act
(the “Act”), and that he should prevail as a matter of law
on his affirmative defense pursuant to 18 U.S.C. 
1204(c)(1). Defendant also argues that the Massachusetts
custody order violates this Act as a matter of law.
However, the indictment alleges that the defendant took the
children before the issuance of either court order. The
argument regarding the validity of an affirmative defense is
thus not properly resolved through a motion to dismiss
because, among other things, it is intertwined with hotly
contested fact issues concerning defendant’s intent at the
time he took the children to India. See United States v.
Russell, 919 F.2d 795, 797 (1st Cir. 1999).

3. The Hague Convention

009 Pro se defendant has moved to dismiss on additional
grounds detailed in his supplemental brief. Among other
things, he argues that the Indictment should be dismissed
because his former wife failed to follow the Hague
Convention procedures. Moreover, he argues that under those
standards (i.e., consideration of the best interests of the
child), he should prevail. The Court DENIES the motion to
dismiss because the Hague Convention standards are not


The motion to dismiss is DENIED.