Abdelrahman Abouelmagd v. Semeniuk

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ABDELRAHMAN ABOUELMAGD,
Petitioner, MEMORANDUM AND ORDER
-against- 25-CV-4402 (OEM) (RML)
TETIANA SEMENIUK,
Respondent.
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ORELIA E. MERCHANT, United States District Judge:
Pro se respondent Tetiana Semeniuk (“Respondent”) filed two requests for a stay pending
appeal and filed a motion for reconsideration of the Court’s October 31, 2025, Memorandum and
Order (“October 31 Order”), Dkt. 33, granting the petition filed by Amr Abdelrahman Abouelmagd
(“Petitioner”) pursuant to the Hague Convention on the Civil Aspects of International Child
Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 (the “Hague Convention”), and the International
Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq. (“ICARA”). For the following reasons,
Respondent’s requests for a stay, Dkt. 35 and 36, and motion for reconsideration, Dkt. 40, are
denied.
BACKGROUND
Petitioner filed this Hague Convention petition on August 7, 2025, seeking return of his
three children Y.A., M.A., and A.A. (the “Children”), who had been wrongfully retained in New
York by their mother, Respondent, in August 2024. See Verified Petition for Return of the Children
to Canada (“Petition”), Dkt. 1. The October 31 Order sets forth the relevant facts, which are
summarized here. Abouelmagd v. Semeniuk, 25-CV-04402 (OEM) (RML), 2025 WL 3042413,
(E.D.N.Y. Oct. 31, 2025). Familiarity with the October 31 Order is assumed.
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Petitioner is a citizen of Egypt, and Respondent is a citizen of Ukraine. The Children, who
are two, four, and seven years old, are habitual residents of Canada. The Children are citizens of
Ukraine, but Y.A. was born in the United Arab Emirates, M.A. was born in the United States, and
A.A. was born in Canada.
Respondent and Petitioner made the mutual decision to move the family from Dubai to
Canada in 2021. Respondent arrived in Canada with the Children in August 2022, and Petitioner
joined them in May 2023. Respondent and the Children had received Canadian Ukrainian
Authorization for Emergency Travel (“CUAET”) visas, which permitted them to reside in Canada
for three years. Neither party has produced any real time reports by Respondent that Petitioner
was harming the Children during the entirety of the family’s residence in Canada.
In late 2023, the parties’ relationship began to deteriorate. The Royal Canadian Mounted
Police (“RCMP”) was called to the family’s household on three occasions in 2023 based on reports
of alleged domestic violence of Respondent by Petitioner. In June and July 2024, Petitioner made
allegations to the Canadian Ministry of Children and Family Development that Respondent had
hog-tied Y.A. On July 20, 2024, the Ministry investigated the matter further at the family home
and eventually ordered Respondent to reside elsewhere for three nights.
While residing elsewhere, Respondent sent a text to her biological daughter, A.S., telling
her to pack their bags. When she arrived back to the family home on July 25, 2024, Respondent
insisted that the family leave Canada to the United States to renew the Children’s Ukrainian
passports. Respondent asserts that she also urged the family to leave because the Children’s
CUAET visas were expiring (M.A.’s as early as August 31, 2024).
Petitioner felt that he had no alternative but to comply and traveled with the Respondent
and Children first to Seattle. Petitioner believed that the family was going to renew the Children’s
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passports and would return to Canada afterwards. When the embassy wait-time in Seattle was too
long, the family then traveled to New York on August 3, 2024. On August 9, 2024, Petitioner
contacted the RCMP stating that Respondent was threatening to take the Children and that he
would never see them again because Respondent had the Children’s passports and was forcing him
to stay in the United States illegally. On August 12, 2024, upon the belief that he could not return
with the Children, Petitioner returned to Canada alone. On August 21, 2024, Respondent received
a protective order from the New York State Family Court in Queens County (“Family Court”)
ordering Petitioner to stay away from Respondent and the Children (“Protective Order”), which
has been renewed and is effective through February 6, 2026. On or about November 4, 2024,
Respondent filed for asylum status in the United States for herself, Y.A., and A.A. Respondent
obtained a divorce decree from a Ukrainian court, effective November 12, 2024. The divorce
decree made no finding as to the Children’s custody, rejecting Respondent’s claim to determine
the place of residence of the Children with her. There is no custody order in place.
Since the filing of the Petition on August 7, 2025, the Court has held three hearings, two
of which Respondent appeared for once she had been served with the Petition. The Court issued
its decision on October 31, 2025, ruling that Respondent wrongfully retained the Children in New
York in breach of Petitioner’s custody rights and ordering that the Children be returned to Canada
by November 14, 2025, for their custody to be determined by a Canadian court. The parties were
further ordered to discuss the logistics of the Children’s return to Canada with the Eastern District
of New York Alternative Dispute Resolution Administrator.
On November 3, 2025, Respondent filed two motions to stay the October 31 Order: (1) an
emergency motion to stay, see Emergency Motion for Stay of the Court’s Return Order Pending
Appeal, Dkt. 35 (“First Motion to Stay” or “First Mot.”); Notice of Respondent’s Motion for Stay
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Pending Appeal, Dkt. 35-1; Respondent’s Motion & Memorandum of Law in Support of Stay
Pending Appeal, Dkt. 35-2 (“First Mot. Mem.”); Respondent’s Supplemental Memorandum of
Law (Updated Evidence – October 28, 2025), Dkt. 35-3; Declaration of Tetiana Semeniuk, Dkt.
35-4, and (2) a second motion to stay, see Respondent’s Motion to Stay Return Order Pending
Appeal, Dkt. 36 (“Second Motion to Stay” or “Second Mot.”).1 On November 3, 2025,
Respondent also filed a notice of appeal. Respondent’s Statement of Errors and Clarifications on
Appeal, Dkt. 37.
On November 4, 2025, the Court requested Petitioner file a response, if any, to
Respondent’s motions to stay by 12:00 p.m. (ET) on November 5, 2025. That same day, Petitioner
filed a response to Respondent’s notice of appeal. Petitioner’s Response to Respondent’s Appeal,
Dkt. 39. Therein, Petitioner identifies several reasons why Respondent will not likely be
successful on appeal such that the Court construes this response as Petitioner’s opposition to
Respondent’s motions to stay.
On November 5, 2025, Respondent submitted to the Court's Pro Se Office a notice
informing the Court that she has filed a request for action from the Department of Homeland
Security, which seeks to cancel the October 31 Order, see Notice to the Court at 1-5,2 Dkt. 40,
(“Notice to the Court”)3 and attached thereto a Motion for Reconsideration and Correction of Legal
1 Respondent asserts that if the Court denies her stay, she will seek a stay from the Court of Appeals for the Second
Circuit. Second Mot. at 1, Dkt. 36.
2 All page citations correspond to the ECF PageID pagination.
3 In her Notice to the Court, Respondent raises entirely novel claims as to the Children’s religious freedom and
education, which she also now appears to add as a basis of her pending asylum claim, see Notice to the Court at 3,
Dkt. 40, and attaches a letter purportedly written by Y.A. that she has not previously filed, see Notice to the Court at
16, Dkt. 40. To the extent that Respondent attempts to raise new issues for review on appeal, “‘[i]t is a well-established
general rule that an appellate court will not consider an issue raised for the first time on appeal.’” See Askins v. Doe
No. 1, 727 F.3d 248, 252 (2d Cir. 2013) (quoting In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir.
2008)).
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Errors and Request to Affirm DHS Protection for Children, id. at 6-18, Dkt. 40 (“Motion for
Reconsideration”), (entered on the docket by the Clerk’s office on November 7, 2025).
DISCUSSION
A. Motion for Reconsideration
Respondent seeks reconsideration of the October 31 Order, asserting that the Court made
“judicial errors and violations of federal law.” Motion for Reconsideration at 6-9, Dkt. 40. She
also raises new requests for relief including requests for recognition of “DHS exclusive jurisdiction
over Respondent’s pending asylum case and derivative protections,” for acknowledgment “that
federal law bars removal or transfer,” and for an order that Y.A., M.A. and M.A. remain in the
United States under DHS protection. Id. at 10. She further requests to “[d]ismiss the Hague
Convention petition in respondent’s favor, as further enforcement would violate federal law and
constitutional rights.” Motion for Reconsideration at 6, 10, Dkt. 40.
As an initial matter, the Court addresses whether it has jurisdiction to consider Respondent’s
motion for reconsideration, given that it was filed after her notice of appeal. Although the Federal
Rules of Civil Procedure do not provide for a “motion for reconsideration,” such motion “may be
construed as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b).” Hill v.
Washburn, 08-CV-6285 (CJS), 2013 WL 5962978, at *1 (W.D.N.Y. Nov. 7, 2013) (citing
Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989)).
The filing of a notice of appeal “confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case involved in the appeal.” Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). However, “if a party files a timely
motion to alter or amend the judgment, see FED. R. APP. P. 4(a)(4)(A)(iv), and files a notice of
appeal before the district court disposes of that motion, then the notice of appeal does not become
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effective until the order disposing of that motion is entered, see FED. R. APP. P. 4(a)(4)(B)(i).”
Biehner v. City of New York, 19-CV-9646 (JGK), 2021 WL 5827536, at *2 (S.D.N.Y. Dec. 8, 2021).
In addition, courts in this Circuit have concluded they have jurisdiction to resolve Rules 59(e) and
60(b) motions filed after a notice of appeal is filed. See Martinez v. Hasper, 15-CV-5724 (EK)
(LB), 2022 WL 118720, at *1 (E.D.N.Y. Jan. 12, 2022) (collecting cases). Alternatively, pursuant
to Federal Rule of Civil Procedure 62.1(a), the Court may address the pending motion through an
indicative ruling. Given that Respondent is pro se and the foregoing authority, the Court considers
the pending motion for reconsideration.
To succeed on a motion for reconsideration, the movant must show “an intervening change
of controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.” Metzler Investment Gmbh v. Chipotle Mexican Grill, Inc., 970 F.3d 133, 142
(2d Cir. 2020) (citations omitted). A motion for reconsideration “is not a vehicle for relitigating
old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise
taking [another] bite at the apple.” U.S. for Use & Benefit of Five Star Elec. Corp. v. Liberty Mut.
Ins. Co., 758 F. App’x 97, 101 (2d Cir. 2018) (alteration in original) (quoting Analytical Survs.,
Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)). Nor is it “an opportunity for a [party]
to . . . present arguments that could have been made before the judgment was entered.” Ethridge
v. Bell, 49 F.4th 674, 688 (2d Cir. 2022) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257
(2d Cir. 1995)). Reconsideration of a court’s previous order is “an extraordinary remedy to be
employed sparingly in the interests of finality and conservation of scarce judicial resources.” In
re Initial Pub. Offering Sec. Litig., 399 F. Supp. 2d 298, 300 (S.D.N.Y. 2005) (citations omitted),
aff’d sub nom. Tenney v. Credit Suisse First Bos. Corp., Inc., 05-CV-3430, 05-CV-4759, & 05-CV-
4760, 2006 WL 1423785, at *1 (2d Cir. 2006). The decision to grant or deny a motion for
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reconsideration is within “the sound discretion of the district court.” Aczel v. Labonia, 584 F.3d
52, 61 (2d Cir. 2009) (citation omitted).
Respondent does not raise any intervening change of controlling law under the Hague
Convention or any new evidence that is proper for this Court’s consideration. Respondent claims
that the Court clearly erred in the conclusions it made in its October 31 Order. “[T]o justify review
of a decision, the Court must ‘have a clear conviction of error on a point of law that is certain to
recur.’” Turner v. Vill. Of Lakewood, 11-CV-211 (A), 2013 WL 5437370, at *3 (W.D.N.Y. Sept.
27, 2013) (quoting U.S. v. Adegbite, 877 F.2d 174, 178 (2d Cir. 1989)), aff’d, 594 F. App’x 25 (2d
Cir. 2015). Respondent suggests that the Court violated 8 U.S.C. § 1158(a)(1), 8 C.F.R. §§ 208.2
& 208.22, and the Supremacy Clause by “declar[ing] that asylum is not a defense.” Motion for
Reconsideration at 6-7, Dkt. 40. She states that the October 31 Order “violates 14th Amendment
Due Process and Equal Protection” because M.A. is a U.S. citizen. Id. at 6. She also argues that
the October 31 Order “disregarded” the Protective Order and violated “VAWA § 2265” and “FCA
§ 842.” Id.
The Court has not made a “jurisdictional overreach” by not considering the Y.A. and A.A.’s
asylum applications and thus, the Court has not committed clear error in its October 31 Order by
“disregarding 8 U.S.C. § 1158(a)(1), 8 C.F.R. §§ 208.2 & 208.22.” Motion for Reconsideration at
6, Dkt. 40. Y.A. and A.A. have applied for asylum and withholding of removal, but there is no
evidence that their application has been granted. To date, the Court is only aware that Y.A. and
A.A. have applied for asylum and withholding of removal according to their “1589 – Application
for Asylum and For Withholding of Removal” (“Asylum and Withholding Application”),
“received” on November 4, 2024. See Respondent’s Supplemental Memorandum of Law in
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Opposition to Hague Petition and In Support of Enforcement of Family Court Order of Protection
at 26, Dkt. 29.
A noncitizen physically present in the United States may apply for asylum in accordance
with 8 U.S.C. § 1158. 8 U.S.C. § 1158 establishes the conditions for granting asylum, 8 U.S.C.
§ 1158(b), and further provides that once a noncitizen is granted asylum, “the Attorney General .
. . shall not remove or return the alien to that alien’s country of nationality,” id. § 1158(c)(1)(A).
Further, 8 C.F.R. § 208.2 summarizes the jurisdiction that U.S. Citizenship and Immigration
Services and immigration courts have over asylum applicants and 8 C.F.R. § 208.22 prohibits
removal of an asylum applicant that has been granted withholding of removal or deportation or
deferral of removal. Y.A. and M.A.’s Asylum and Withholding Application expressly states that
You may remain in the United States until your asylum application is decided.
Having a pending asylum application with USCIS does not preclude [ICE or CBP]
from placing you into removal proceedings. If you wish to leave the United States
while your application is pending, you must obtain advance parole . . . .
Respondent’s Supplemental Memorandum of Law in Opposition to Hague Petition and In Support
of Enforcement of Family Court Order of Protection at 26, Dkt. 29 (emphasis added). Respondent
has not proffered that Y.A. and M.A.’s Asylum and Withholding Application has been granted such
that their “removal” is prohibited by 8 U.S.C. § 1158 or 8 C.F.R. § 208.22. Moreover, the language
of the Asylum and Withholding Application itself contradicts the notion that Y.A. and A.A. are
prevented from leaving the United States.
The Court addressed the Children’s pending asylum application, October 31 Order at n.12,
and remains persuaded by the analysis of other circuit courts that have been faced with the issue
of children whose asylum applications are granted either before or during the proceedings of a
Hague Convention case. See Sanchez v. R.G.L., 761 F.3d 495, 509-11 (5th Cir. 2014) (vacating
and remanding district court’s decision where the children were granted asylum during appeal of
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district court’s order that the children be returned for the district court to consider applicability of
asylum evidence to the affirmative defenses); Salame v. Tescari, 29 F.4th 763, 771-73 (6th Cir.
2022) (affirming district court’s order that the children be returned where the children were granted
asylum before the district court’s order). While the grant of asylum may be relevant to whether
the Hague Convention affirmative defenses apply, it “does not remove from the district court the
authority to make controlling findings on the potential harm to the Child.” See Sanchez 761 F.3d
at 510; see also Salame, 29 F.4th at 771-72. Here, where asylum has not been granted, the Court
did not err in deciding the petition under The Hague Convention during the pendency of Y.A. and
A.A. Asylum and Withholding Application. See, e.g., Sanchez v. Sanchez, SA-12-CA-568, 2012
WL 5373461, at *4-5 (W.D. Tex. Oct. 30, 2012) (denying motion to stay despite the children’s
pending asylum applications because a prompt decision under the Hague convention outweighed
the merits of a stay).
Even if Y.A. and M.A’s asylum applications were to be granted, no authority has been offered
to show that “the discretionary grant of asylum confers a right to remain in the country despite
judicial orders under the Hague Convention” or that 8 C.F.R. § 208.2 divests the Court of its
jurisdiction to consider a Hague Convention petition. See Sanchez, 761 F.3d at 510 (rejecting
argument that grant of asylum superseded district court’s order, stating “[t]he asylum grant does
not supercede enforceability of a district court’s order that the children should be returned to [the
petitioner] as that order does not affect the responsibilities of either the Attorney General or
Secretary of Homeland Security under the INA.” (citing Sale v. Haitian Centers Council, Inc., 509
U.S. 155, 173 (1993))).
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As to Respondent’s argument that M.A.’s citizenship in the United States and Fourteenth
Amendment due process rights4 prohibit return, Motion for Reconsideration at 7, the Court
reiterates that citizenship is not an appropriate consideration for habitual residence nor is a child’s
nationality an express affirmative defense. See October 31 Order at n.12; see also Gitter v. Gitter,
396 F.3d 124, 134 (2d Cir. 2005) (establishing standard to determine habitual residence but not
including consideration of child’s nationality); Monasky v. Taglieri, 589 U.S. 68, 79 (2020) (noting
that the Hague Convention conference “deliberately chose ‘habitual residence’ for its factual
character, making it the foundation for the Convention's return remedy in lieu of formal legal
concepts like domicile and nationality.” (quoting Anton, the Hague Convention on International
Child Abduction, 30 Int’l & Comp. L. Q. 537, 544 (1982)). The affirmative defense based on
violation of human rights and fundamental freedoms under Article 20 of the Hague Convention
must be established by clear and convincing evidence and is only invoked “on ‘the rare occasion
that return of a child would utterly shock the conscience of the court or offend all notions of due
process.’” Souratgar v. Lee, 720 F.3d 96, 108 (2d Cir. 2013) (quoting Hague International Child
Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986)).
To refuse to return children under Article 20, “it will be necessary to show that the fundamental
principles of the requested State concerning the subject matter of the Convention do not permit it;
it will not be sufficient to show merely that its return would be incompatible, even manifestly
incompatible, with these principles.” ELISA PÉREZ-VERA, EXPLANATORY REPORT (“PÉREZ-VERA
REPORT”) ¶ 118 (1981).
4 While Respondent argues M.A.’s Fourteenth Amendment rights are implicated, these rights apply to state action.
The Court liberally construes Respondent’s argument to mean M.A.’s Fifth Amendment due process rights, as such
rights apply to federal actions.
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The Court has ordered that the Children be returned to Canada pending a custody
determination by a Canadian court. The Court has not ordered permanent removal of the Children
from the United States. Particularly, with respect to M.A., contrary to Respondent’s assertion, the
Court has not made a citizenship determination or permanent custody determination such that
M.A.’s due process rights are extinguished. Under the Hague Convention, the Court does not have
the jurisdiction to make an affirmative custody determination; it is solely involved in determining
which jurisdiction is best suited to make a custody determination. See Monasky, 589 U.S. at 72.
Indeed, the Article 20 defense is not to be used “as a vehicle for litigating custody on the merits.”
Souratgar, 720 F.3d at 108. Therefore, because M.A.’s Fifth Amendment rights have not been
adjudicated by this Court, the October 31 Order did not violate due process requirements or strip
M.A. of any protected interest. Finding that the public policy interests of the United States would
not be offended by allowing a Canadian court to adjudicate the custody dispute of the Children,
the Court did not clearly err in concluding that Respondent failed to meet her burden in establishing
the violation of human rights and fundamental freedoms affirmative defense.
Respondent argues the Court “disregarded” the Protective Order and thus violated “VAWA
§ 2265” and “FCA § 842.” Motion for Reconsideration at 6-7, Dkt. 40. Pursuant to 18 U.S.C. §
2265, states are required to accord “full faith and credit” to any protection order that is issued
consistent with the requirements of 18 U.S.C. § 2265(b). N.Y. FAM. CT. ACT § 842 sets forth the
requirements of an order of protection issued by a New York court.
Even if the Protective Order granted Respondent custody of the Children, and there is no
evidence that it has, “[t]he sole fact that a decision relating to custody has been given in or is
entitled to recognition in the requested State shall not be a ground for refusing to return a child
under this Convention, but the judicial or administrative authorities of the requested State may
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take account of the reasons for that decision in applying this Convention.” Hague Convention art.
17. A primary purpose of the Hague Convention was to prevent situations where a family member
would remove a child ‘to jurisdictions more favorable to [his or her] custody claims in order to
obtain a right of custody from the authorities of the country to which the child ha[d] been taken.’”
Mota v. Castillo, 692 F.3d 108, 112 (2d Cir. 2012) (quoting Gitter, 396 F.3d at 129); see also Tann
v. Bennett, 807 F.3d 51, 53 (2d Cir. 2015) (“holding that [the petitioner’s] petition is moot because
[the respondent] received a favorable custody determination in a potentially friendlier New York
court could encourage the jurisdictional gerrymandering that the Hague Convention was designed
to prevent.”). Here, Respondent urged the family to travel to the United States right after she
returned from her mandated stay away from the family residence and soon after Petitioner left the
United States, she unilaterally petitioned for divorce and custody of the Children in a Ukrainian
court and obtained the Protective Order from the Family Court in New York. These circumstances
suggest that Respondent was seeking a potentially more favorable forum to unilaterally establish
her custody rights. The purpose of the Hague Convention is to deter this behavior.
The outcome of the October 31 Order did not violate either 18 U.S.C. § 2265(b) or N.Y.
FAM. CT. ACT § 842. By ordering that the Children be returned to Canada for a Canadian court to
adjudicate their custody, the Court did not order the Children return to Petitioner’s custody and
therefore did not order a remedy that violated the Protective Order. The parties were directed to
communicate with the Eastern District of New York Alternative Dispute Resolution Administrator
to coordinate arrangements for the return of the Children, which allowed Respondent to advocate
for consideration of the Protective Order’s constraints.
For all intents and purposes, Respondent seeks another “bite at the apple” when she has
already had many. Respondent has filed numerous repetitive motions, letters, and attachments
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throughout these proceedings without leave of court.5 The Court granted Respondent substantial
leeway and considered and weighed all of Respondent’s voluminous and duplicative filings. The
Court ultimately rejected her arguments and found the evidence weighed in favor of Petitioner.
Reiterating those same arguments now, including arguments related to domestic violence, the
Protective Order, and “religious and educational context,” Motion for Reconsideration at 7, and
novel requests for relief, id. at 10, are not bases for reconsideration. Consequently, Respondent’s
Motion for Reconsideration is denied.
B. Motions to Stay
Respondent seeks a stay of the October 31 Order requiring return of the Children pending
her appeal of the decision. Pursuant to Federal Rule of Civil Procedure 62(c) (“Rule 62(c)”), a
district court may stay enforcement of a judgment while an appeal is pending. A party seeking a
stay pending appeal under Rule 62(c) bears a “difficult burden.” United States v. Private Sanitation
Indus. Ass’n, 44 F.3d 1082, 1084 (2d Cir. 1995). The court must consider four factors to determine
whether to issue a stay pending appeal.
(1) [W]hether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent
a stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.
DiMartile v. Hochul, 80 F.4th 443, 456 (2d Cir. 2023) (quoting Nken v. Holder, 556 U.S. 418, 433-
34 (2009)); see also Chafin v. Chafin, 568 U.S. 165, 179 (2013) (explaining that courts should
apply the four traditional stay factors under Nken v. Holder in considering whether to stay a return
order in a Hague Convention case). “To satisfy the ‘success on the merits’ factor, the moving party
5 See, e.g., Respondent’s Declaration in Opposition to Petitioner’s Affidavit, Dkt. 21; Respondent’s Response to
Petitioner’s Letter (Dated October 7, 2025), Dkt. 23; Respondent’s Short Response and Request for Immediate Denial,
Dkt. 25; Urgent Letter to Judge Orelia Merchant, Dkt. 27 to 27-1; Respondent’s Supplemental Memorandum of Law
in Opposition to Hague Petition and In Support of Enforcement of Family Court Order of Protection, Dkt. 29; and
Respondent’s Memorandum of Law and Facts, Dkt. 31.
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must show that his chance of success on the merits is more than a ‘mere possibility.’” DiMartile,
80 F.4th at 456 (quoting Nken, 556 U.S. at 434). “A stay pending appeal is not a matter of right.”
Id. While the first two factors “are the most critical,” “a stay is ‘an exercise of judicial discretion’,
and ‘the party requesting a stay bears the burden of showing that the circumstances justify an
exercise of discretion.’” New York v. U.S. Dep’t of Homeland Sec., 974 F.3d 210, 214 (2d Cir.
2020) (quoting Nken, 556 U.S. at 433-34).
“In every case under the Hague Convention, the well-being of a child is at stake; application
of the traditional stay factors ensures that each case will receive the individualized treatment
necessary for appropriate consideration of the child’s best interests.” Chafin, 568 U.S. at 179.
District courts “can and should take steps to decide these cases as expeditiously as possible.” Id.
“[A]ny unnecessary delay renders the subsequent return more difficult for the child, and
subsequent adjudication more difficult in the foreign court.” Friedrich v. Friedrich, 78 F.3d 1060,
1063 (6th Cir. 1996).
Respondent has not shown that any of the four factors weighs in favor of a stay and has
therefore not met her burden to justify a stay of the October 31 Order.
1. Likelihood of Success on Appeal
Because the Court’s ruling did not turn on a novel issue of law but was instead based upon
findings of fact, Respondent’s chances of success on appeal are low. See Sanguineti v. Boqvist,
15-CV-3159 (PKC), 2015 WL 4560787, at *19 (E.D.N.Y. July 24, 2015) (denying stay pending
appeal). Although the Second Circuit reviews de novo a district court’s interpretation of the Hague
Convention and its application of the Hague Convention to the facts, it reviews a district court’s
factual determinations for clear error. Mota, 692 F.3d at 111 (citing Gitter, 396 F.3d at 129). More
specifically, the Supreme Court has clarified that appellate review of a district court’s habitual
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residence determination is for clear error. See Monasky, 589 U.S. at 71. Similarly, the Court’s
well-settled defense analysis is subject to review for clear error. See Lomanto v. Agbelusi, 23-CV-
993, 2024 WL 3342415, at *2 (2d Cir. July 9, 2024).
Respondent states that she has a likelihood of success on appeal on the basis that factual
and legal errors exist in the October 31 Order. First, she claims that the October 31 Order
incorrectly determined that Canada was the Children’s habitual residence. First Mot. at 1, Dkt. 35.
Second, Respondent argues that the Court failed to properly consider the following material
evidence: (1) the New York Child Protective Services (“CPS” or “ACS”) report and Family Court
order; (2) the Ukrainian divorce decree; (3) Petitioner’s “May 2024 arrest” in the United States
and arrest in Canada; and (4) Petitioner’s return to his job and the family residence in Canada.
First Mot. at 1, Dkt. 35; First Mot. Mem. at 1-4, Dkt. 35-2; Second Mot. at 2-3, Dkt. 36. Third,
Respondent argues that the Court erred in making its well-settled defense determination. First
Mot. Mem. at 4, Dkt. 35-2. And, last, Respondent contends that the Court mischaracterized
immigration and legal status constraints in its Article 13(b) and Article 20 analyses. First Mot.
Mem. at 1, 4, Dkt. 35-2; First Mot. at 1, Dkt. 35. The Court takes each of these arguments in turn.
a. The Court Properly Determined the Children’s Habitual Residence.
Respondent contends that the October 31 Order “incorrectly determined” Canada was the
Children’s habitual residence, First Mot. at 1, Dkt. 35, and “misapplied habitual residence,” First
Mot. Mem. at 1, 2-3, Dkt. 35-2. The October 31 Order explains the Court’s reasoning as to why
it concluded that Canada was the Children’s habitual residence. October 31 Order at 16-20.
Regardless of whether the CUAET visa program was temporary, the parties last mutually intended
for the Children to reside in Canada. Id. at 16-18. Petitioner reinforces this intent, stating he never
consented to the Children being retained in the United States. Petitioner’s Response to
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Respondent’s Appeal at 1, Dkt. 39. The Children’s acclimatization to the United States was not so
established prior to their wrongful retention such that returning them to Canada would be
tantamount to taking them out of the environment in which their lives had developed. October 31
Order at 18-20.
b. The Court Properly Considered the Evidence.
i. ACS Investigation, Family Court Protective Order, and Social Worker
Report
Respondent claims that the Court erred in failing to properly consider the ACS
investigation and Family Court social worker report recommending against supervised visitation
and by not obtaining those reports. See First Mot. at 1, Dkt. 35; First Mot. Mem. at 3, Dkt. 35-2;
Second Mot. at 2, 3, Dkt. 36. She states that the October 31 Order “underweigh[ed] unrebutted
safety findings from professionals tasked with child protection [which is a] legal error affecting
Article 13(b) and Article 20.” Second Mot. at 3, Dkt. 36.
In the October 31 Order, the Court acknowledged the ACS and Family Court social worker
reports to the extent that the reports were filed or evidenced in Respondent’s filings. See October
31 Order at 11, n.8. However, in its analysis of whether the Children faced a grave risk of harm if
returned to Canada, the Court credited little weight to them because the record lacked clear and
convincing evidence of physical and or psychological harm that would come to the Children. Id.
at 24-28. The Court remains unconvinced that the Family Court social worker’s report obtained
over a year after the Children had physical contact with Petitioner can demonstrate by clear and
convincing evidence that Petitioner subjected the Children to domestic violence, especially given
that there is no real time corroborating evidence. Notably, Respondent cites no contemporaneous
reports made during the time the family lived together in Canada finding that the Children were
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the target of abuse by Petitioner. For the same reasons, the Court declined to request or subpoena
the documents.
Further, the Court declined to interview the Children given the Children’s young ages and
likely influence of their mother, with whom they have lived for the past year. See Hague
International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510
(Mar. 26, 1986) (recognizing the undue influence an abductor parent may have on a child in
considering the child’s objections to being returned). Moreover, the Hague Convention does not
require that courts interview children, particularly in light of the need for expedited resolution.
ii. Ukrainian Divorce Decree
With respect to the Ukrainian divorce decree obtained in abstencia by default judgment on
November 12, 2024, after the date of wrongful retention, Respondent now mistakenly construes it
to be a custody determination. See Second Mot. at 3, Dkt. 36. As explained in the October 31
Order, the Ukrainian divorce decree plainly states that Respondent’s request to determine the
Children’s place of residence was “rejected,” and the divorce decree made no finding as to the
Children’s custody. October 31 Order at 12 (noting that the divorce order made no custody
determination as to the Children because it stated “[f]or the above reasons, the court concludes that
the plaintiff’s claim to determine the place of residence of the minor children with their mother
shall be rejected” (quoting Respondent’s Complete Response Bundle (in Opposition to the Petition
for Return of the Minor Children), Exhibit M at 160, Dkt. 19)).
iii. Petitioner’s Purported Arrests
As to the Court’s consideration of Petitioner’s arrest in Canada, there was no allegation that
Petitioner’s arrest arose out of any mistreatment of the Children. First Mot. Mem. at 4, Dkt. 35-2;
Second Mot. at 2, Dkt. 36. In fact, it appeared to be tied to the domestic dispute occurring between
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Respondent and Petitioner in December 2023, and Respondent dropped the charges. The Court is
unaware of the “May 2024 protective order violation” that Respondent now alleges, as no such
record is part of the docket in this case. See Second Mot. at 2, Dkt. 36. To the extent that
Respondent intended to instead reference records she submitted suggesting Petitioner’s arrest on
May 12, 2025, in New York, there is no evidence that this arrest was associated with any abuse
targeting the Children. Thus, there is no clear and convincing evidence that the Children would
be placed at grave risk of harm or otherwise in an intolerable situation if returned to Canada. See
Hague Convention art. 13(b). Therefore, the Court did not err in its analysis.
iv. Petitioner’s Job History and Residence upon Return to Canada
Respondent also argues that the Court misstated Petitioner’s job history and living
arrangements upon his return to Canada. First Mot. Mem. at 4, Dkt. 35-2. The Court’s
determination of witness credibility is subject to review for clear error. See FED. R. CIV. P. 52(a).
The Court based its findings of fact on the record. It weighed Petitioner’s evidence that he returned
to the family’s shared residence and his job after leaving New York against Respondent’s
contention, based on unsubstantiated emails, that the apartment the family had been living in was
given to a different family in their absence and that Petitioner had not returned to his job. See
October 31 Order at 9-10. The Court remains persuaded by Petitioner’s testimony.
c. The Court Appropriately Conducted Its Well-Settled Affirmative Defense
Analysis.
Respondent argues that the Court miscalculated the wrongful-retention timing, First Mot.
Mem. at 1, Dkt. 35-2, and that the Court inappropriately identified August 9, 2024, as the wrongful
retention date in its well-settled defense analysis, id. at 3. Respondent does not clarify how the
Court mis-identified the date of wrongful retention but reasons that certain “legal constraints made
departure from New York at the time of wrongful retention unlawful or impracticable,” including
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“ACS investigation hold periods,” passport processing and inability to lawfully reenter Canada,
and the Protective Order. First Mot. Mem. at 3, Dkt. 35-2. Respondent argues that the Court
should have reached the issue of her “documented provision of stability in New York.” See id. at
3.
The facts Respondent raises are not relevant to the Court’s analysis of when the wrongful
retention occurred. See PÉREZ-VERA REPORT ¶ 108 (The decisive date in wrongful retention cases
is “that on which the child ought to have been returned to [his or her] custodians or on which the
holder of the right of custody refused to agree to an extension of the child’s stay in a place other
than that of its habitual residence.”). It is unclear what Respondent means by referencing “ACS
investigation hold periods” or her basis for asserting that an ongoing investigation by ACS
prohibits the Children’s return to Canada. At the time of the wrongful retention on August 9, 2024,
the Children’s CUAET visas had not expired, and Petitioner sought their passports to return to
Canada, which Respondent refused him access to. These facts demonstrate that the Children had
the ability to reenter Canada at the time of wrongful retention. Additionally, Respondent did not
obtain the Protective Order until August 21, 2024, which was after the date of wrongful retention.
Further, the facts Respondent raises are consistent with the Court’s finding that August 9,
2024, was the operative date. On August 9, 2024,6 Petitioner reported to the RCMP that
Respondent was refusing to give him their passports, threatening to take the Children, and forcing
him to stay in the United States illegally. It was clear to Petitioner on that day that if he returned
to Canada, he would not be returning to Canada with the Children. See October 31 Order at 28-
6 Petitioner states that “on or about August 4, 2024,” he sought assistance from the local police in New York that
Respondent was attempting to compel him to remain in the United States. Petitioner’s Response to Respondent’s
Appeal at 1, Dkt. 39. The Court maintains that August 9, 2024, was the date of wrongful retention, when Petitioner
raised the same concerns with the RCMP in addition to his concerns about his custody rights as to the Children, that
is, that Respondent’s apparent refusal to permit the Children to return to Canada. See October 31 Order at n.6, 30-31.
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31. Thus, Petitioner refused to agree to an extension of the Children’s stay. Because the Petition
was filed on August 7, 2025, within one year of the wrongful retention on August 9, 2024, the
Court had no reason to reach the issue of the Children’s purported “documented provision of
stability in New York.”
d. The Court Did Not “Misapprehend Current Law-Governed Constraints” in
Its Affirmative Defense Analyses.
Respondent states that the Court did not consider “federal protections under the Violence
Against Women Act [(“VAWA”)], asylum proceedings, and ICARA Article 20, which prohibits
return when fundamental human rights are at risk.” First Mot. Mem. at 1, Dkt. 35. Respondent
also contends that the Court mischaracterized immigration and legal status constraints that were
pivotal to its Hague Convention Article 13(b) and Article 20 analysis. First Mot. Mem. at 1, 4,
Dkt. 35-2. She states that the Court inappropriately reasoned that
Petitioner ‘can’ provide healthcare ‘in Canada,’ but did not reconcile that [M.A.] is
a U.S. citizen enrolled and thriving in religious school here; [Y.A. and M.A.] lack
valid Canadian visas; CUAET is over; no identified lawful entry for them; [A.A.],
age 2, applied for asylum with his family and is subject to federal protection . . .
and immediate return would cut off ongoing medical coverage and schooling the
Court recognized as settled.
Id. at 4. Respondent also re-alleges her concern that there are “no Islamic full-time schools . . .
available in their prior region” and adds that Canadian schools charge fees for children under five.
Second Mot. to Stay at 3, Dkt. 36.
The Court found that Respondent did not meet her burden of showing that the Children
were well settled in New York for more than one year before Petitioner commenced the
proceedings. See October 31 Order at 28-31. The Court also addressed the Children’s healthcare
and schooling when addressing Respondent’s affirmative defenses of grave risk, id. at 27-28, and
violation of human rights and fundamental freedoms, id. at 32-33. The Court concluded
Respondent did not establish by clear and convincing evidence that the Children would be exposed
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to a grave risk of harm or that the return of the Children would be incompatible with the United
States’ laws and due process. Id. at 28, 33. The Court reasoned that Petitioner had the ability to
provide the Children with healthcare and the Children would have access to the same schooling
that they were enrolled in previously. Id. at 27-28, 32-33. Indeed, Petitioner points out that
“[d]uring their entire time in Canada, the children were enrolled in school and fully integrated in
the community, [and] benefitted from public health coverage as well as additional insurance
through [his] employment.” Petitioner’s Response to Respondent’s Appeal at 1-2, Dkt. 39.
Petitioner also adds that Canadian education is free. Id. at 2.
In addition, the Court previously found that the Children’s religious education was not
impeded by their schooling in Canada to the extent of harm considered under Article 13(b) and
Article 20. See October 31 Order at 27-28, 32-33. Moreover, Respondent’s concerns do not
establish either a grave risk of harm to the Children or that their return would not be permitted by
the fundamental principles of the United States relating to the protection of human rights and
fundamental freedoms. See, e.g., Blondin v. DuBois (Blondin IV), 238 F.3d 153, 162 (2d Cir. 2001)
(finding that “situations where repatriation might cause inconvenience or hardship, eliminate
certain educational or economic opportunities, or not comport with the child’s preferences” “do
not constitute a grave risk of harm under Article 13(b).”)).
The Court also addressed Respondent’s claim that Y.A. and M.A., who were not born in
Canada, would lack legal status. It accorded little weight to their legal statuses and pending asylum
claims given that, under applicable Hague Convention case law, domicile, nationality, residency,
and pending asylum applications are not appropriate factors for the Court’s determination of
habitual residence or consideration of a respondent’s affirmative defenses. See October 31 Order
at 28 & n.12.
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Similarly, Respondent’s claim of federal protections under the Violence Against Women
Act is misplaced. Again, the Court emphasizes that the Hague Convention seeks to prevent
Children from facing a grave risk of harm and Respondent’s allegations of domestic violence of
Respondent did not show that Petitioner posed a grave risk to the Children by virtue of any alleged
harm of or efforts to control Respondent. See October 31 Order at 24-25 (citing Souratgar v. Lee,
720 F.3d 96, 103-04 (2d Cir. 2013)).
Respondent also avers that “Petitioner’s legal status in Canada is temporary and unstable,”
which makes return to Canada “unsafe and legally uncertain” for the Children. Second Mot. at 3,
Dkt. 36. She provides no evidence to support this contention, and it is controverted by Petitioner’s
claim that he has applied for permanent residence as a pathway to citizenship for the entire family.
October 31 Order at 13.
The Court maintains that a finding in favor of the grave risk defense, Article 13(b), or
violations of human rights and fundamental freedoms defense, Article 20, require substantially
higher evidentiary burdens than what Respondent has established.
With regards to analysis of the affirmative defenses asserted in this matter, the Court
reiterates that even if Respondent had established any affirmative defense, the Court retains the
discretion to order the Children’s return and is not bound to permit the Children to remain in the
United States. See October 31 Order at 23-24 (citing Souratgar, 720 F.3d at 103 (citing Blondin v.
DuBois (Blondin II), 189 F.3d 240, 245 (2d Cir. 1999)); see also Hague International Child
Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986)
(acknowledging that the legislative history of the Hague Convention intended for the exceptions
to be narrowly interpreted and used only in meritorious cases, when the respondent meets their
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burden of proof and noting that “a finding that one or more of the exceptions provided by Articles
13 and 20 are applicable does not make refusal of a return order mandatory.”).
In sum, Respondent has not demonstrated that the Court erred in its consideration of the
evidence produced by Respondent or incorrectly analyzed Respondent’s affirmative defenses, such
that likelihood of success on appeal would be beyond more than a mere possibility.
2. Irreparable Harm to Respondent
Next, Respondent argues that returning the Children would cause irreversible harm by
separating them from their mother, disrupting their schooling, terminating their healthcare,
violating the family’s ongoing asylum protection valid through 2030, and placing them in a country
where they have no visa, housing, daycare, or guaranteed insurance. First Mot. at 2, Dkt. 35.
These allegations do not constitute irreparable harm. See Tereshchenko v. Karimi, 23-CV-
2006 (DLC), 2024 WL 195547, at *4 (S.D.N.Y. Jan. 18, 2024) (finding the respondent would not
suffer irreparable harm absent a stay because her claims that she and one of her children may not
be able to return if they leave, the children live a stable life and receive medical care in the United
States, and do not speak French did not constitute “irreparable harm.”). Petitioner has stated that
he has applied for a pathway to citizenship for the family and can obtain healthcare for the Children
through his job. October 31 Order at 28. The record reflects that the Children’s schooling in
Canada was appropriate. Id. at 32. The Court also did not order that the Children be separated
from Respondent or that the Children be permanently removed from the United States.
Respondent has not demonstrated that she or the Children would be prohibited from leaving the
United States or entering Canada, only that they were advised against doing so while Y.A. and
A.A.’s Asylum and Withholding Application is pending. While the return to Canada may prove
disruptive, it is not inherently and irreparably harmful. In addition, these circumstances are the
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product of Respondent’s wrongful retention of the Children, and it would be inconsistent with
Hague Convention to allow Respondent to rely on them to delay her compliance with the Court’s
October 31 Order.
Without expressly doing so, Respondent attempts to raise the “age and maturity defense”
by alleging the Children object to leaving the United States. Second Mot. at 3, Dkt. 36. “The
application of this exception is not mandatory” especially where there is “the potential for
brainwashing of the child by the alleged abductor” and “[a] child’s objection to being returned may
be accorded little if any weight if the court believes that the child’s preference is the product of the
abductor parent’s undue influence over the child.” Hague International Child Abduction
Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986). The Court
already held that there was no basis for this defense. See October 31 Order at n.10. As Petitioner
points out, the Children are between the ages of seven and two; they are unable to fully comprehend
the legal and long-term implications of this matter and are subject to potential undue influence by
Respondent. See Petitioner’s Response to Respondent’s Appeal at 2, Dkt. 39. Consequently, the
Court maintains that their age and immaturity weighs against considering their alleged objections.
Accordingly, there is no basis that Respondent would experience irreparable harm of
enforcement of the October 31 Order absent a stay.
3. Public Interest
Respondent contends that the United States has a compelling interest in upholding
domestic violence protections, safeguarding children under federal asylum law, and ensuring
accuracy and fairness in international child abduction determination. First Mot. at 2, Dkt. 35.
Yet, the public interest weighs strongly against a stay. The Hague Convention generally
requires the prompt return of a child. See Golan v. Saada, 596 U.S. 666, 670 (2022) (citing Hague
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Convention art. 1(a)). This requirement “‘ensures that rights of custody and of access under the
law of one Contracting State are effectively respected in the other Contracting States.’” Id.
(quoting Hague Convention art. 1(b)). The Court’s role under the Hague Convention is not to
determine custody, Hague Convention art. 16, nor determine whether repatriation would place the
respondent parent’s safety at grave risk, Souratgar, 720 F.3d at 104. Respondent also argues that
the public interest favors respect for the Protective Order. First Mot. at 2, Dkt. 35. But the October
31 Order did not flout the Protective Order; it merely ruled that the Children should return to
Canada. See, e.g. October 31 Order at 34-35. Thus, the October 31 Order is not at odds with the
public interest in upholding domestic violence protections and safeguarding children under federal
asylum law as it pertains to domestic violence.
4. Substantial Injury to Petitioner
Finally, Respondent argues that the harm to the Children if “removed” far outweighs any
potential inconvenience to Petitioner during appellate review. First Mot. at 2, Dkt. 35; First Mot.
Mem. at 2, 5, Dkt. 35-2. While she has filed an appeal, see Notice of Appeal as to Memorandum
and Opinion, Dkt. 37, Respondent has not filed for an emergency appeal pursuant to the Second
Circuit Rule 27.1(d). Any stay of the Court’s October 31 Order pending resolution of the appeal
in accordance with the Second Circuit’s typical timeframe for review would contravene the
requirement that Hague Convention petitions be resolved with expediency. Nevertheless, even if
the Second Circuit construes Respondent’s appeal liberally as an emergency appeal because she is
pro se, a more immediate consideration of her appeal would continue to deprive Petitioner of his
custody rights and prolong the Children’s retention outside of their habitual residence. Respondent
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wrongfully retained the children over a year ago. Petitioner has already experienced substantial
injury and will continue to experience it for as long as legal proceedings in this country last.
5. Respondent’s Request for Supervised Contact
Lastly, in her motions to stay, Respondent repeatedly raises a request that the Children’s
contact with Petitioner be supervised by a neutral person and alternatively argues that the Court
should have conditioned enforcement on supervised visitation. See, e.g., First Mot. Mem. at 4,
Dkt. 35-2; Second Mot. at 4, Dkt. 36. The issue should be addressed as part of a custody
determination to be made by a Canadian court, and the Court declines to rule on it at this time.
CONCLUSION
For the foregoing reasons, Respondent’s First Motion to Stay, Dkt. 35, Second Motion to
Stay, Dkt. 36, and Motion for Reconsideration at 6-18, Dkt. 40, are denied.
SO ORDERED.
/s/
ORELIA E. MERCHANT
United States District Judge
November 10, 2025
Brooklyn, New York
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