Case Update (2020): Raia v. Pompeo; Minor Child's Passport Issuance and its interplay with the 1980 Convention and COVID-19

Mr. Joseph Raia sued the U.S. Secretary of State and the U.S. Department of State requesting an immediate issuance of a new passport for his 10 year old son who is presently located in Italy and is the subject of a Hague Abduction return proceeding in that country.  The minor child’s passport, which was used by the child’s mother to remove the child from the United States and take the child to Italy, was cancelled after the petitioner father submitted a passport application and marked the passport as “lost.”  (Raia v. Pompeo and U.S. Department of State, 20-cv-1083 (JMA) (AYS) US District Court EDNY)

The father argued that the minor child is in need of an immediate passport, so that “when” the Italian courts order the child returned under the Hague Abduction Convention, the father can promptly return the child to the United States.  The father expressed a sincere concern over his child’s immediate safety, with the child having a serious heart condition that could be impacted by the COVID-19 outbreak in Italy. The father did note, however, that he was not going to exercise self-help, and was going to wait for a final decision in the Hague Abduction matter before effectuating his son’s return.  It is unknown when that decision may occur.

The father is unable to secure a new U.S. passport for the child because the father does not have a recent passport sized photograph of the child nor is he able to produce the child in person for his passport interview - requirements of the U.S. Department of State to ensure against fraud and abduction.  Petitioner is refusing to travel to Milan to conduct an interview in person with his son at the U.S. consulate in that city.  

In order for the court to grant a preliminary injunction to the petitioner father, petitioner must show (1) irreparable harm, (2) a likelihood of success on the merits or a balance favoring the moving party, and (3) that the injunction would be in the public interest.  In the April 21, 2020 order, the court found that petitioner could not meet any of these requirements, most prominently because he couldn’t even meet the underlying requirements of a photo and in-person interview for the child and was planning on waiting for a result from the Italian courts in the Hague Abduction case, which was, by no means, an automatic win for him, and might take a while to resolve, particularly given the pandemic.