75-4709. Telecommunications services of certain state agencies; extension to certain private, nonprofit agencies or governmental entities; records of services. (a) The executive chief information technology officer shall provide for and coordinate all telecommunications services for all divisions, departments and agencies of the state pursuant to policies established by the information technology executive council. The executive chief information technology officer shall have the authority to control the acquisition, retention and use of all telecommunications services for all divisions, departments and agencies of the state, and to develop and review plans and specifications for telecommunications services throughout the state.
(b) The executive chief information technology officer, when feasible, may enter into agreements with any entity defined in this subsection extending to such entity the use of state intercity telecommunications facilities and services under the control of the executive chief information technology officer.
(2) any hospital or nonprofit corporation which the executive chief information technology officer determines to be performing any state function on an ongoing basis through agreement or otherwise, or any function which will assist a governmental unit in attaining an objective or goal, bearing a valid relationship to powers and functions of such unit.
(c) Every record made, maintained or kept by the secretary of administration or the division of information systems and communications, prior to the effective date of this act, shall be maintained or kept by the executive chief information technology officer or the office of information technology services, or any agency or instrumentality thereof, which relates to the acquisition, retention or use of telecommunications services provided to any division, department or agency of the state, state officer or governmental unit and which pertains to individually identifiable individuals using such telecommunication services shall constitute for purposes of the open records act a record of the division, department or agency of the state, state officer or governmental unit to which such records relate. The official custodian of such records for the purposes of the open records act shall be the official custodian of the records of such division, department or agency of the state, state officer or governmental unit.
History: L. 1974, ch. 399, § 1; L. 1978, ch. 362, § 1; L. 1992, ch. 228, § 3; L. 1994, ch. 340, § 9; L. 1996, ch. 268, § 13; L. 1998, ch. 182, § 17; L. 2013, ch. 62, § 22; July 1.


Hi everyone. I decided to do this episode of the Immigration Lawyers Podcast as a legal review of an issue that a lot of my clients ask about, and actually came up a few years ago. Aspects of the issues and laws that I’ll be talking today about probably come up at least once a week for any professional immigration practice, especially for those that have clients that frequently travel outside of the U.S. and potentially spend a large part of their lives as lawful permanent residents residing or employed outside of the U.S. That issue is abandonment of Lawful Permanent Status.
I’ll be going over the history of the law in this area based on court cases spanning decades, to see how it is interpreted now. It will help practitioners analyze where their client’s potential abandonment case lies compares to precedent. Along the way interesting tidbits of related information will also be provided.
If you enjoy this episode, please like it and subscribe on youtube, facebook or itunes. And leave a comment or email me to discuss.
For every lawful permanent resident, the issue of losing their green card is a scary one. Different types of issues can cause inadmissibility leading to the loss of a Green Card, such as health, public charge, criminal and moral issues. But for those that don’t have these types of problems, a claim of “abandonment” can also lead them to lose their green card.
To start, let’s do an overview of the issue of losing one’s green card for abandonment: essentially now with an absence from the U.S. for more than 180 days, one initiates the risk of being accused of abandonment. Moreover, multiple exits from the US for such a period of time (or for more than a year) will increase that chance. Almost always an absence of 1-year will bring this issue up.
Many believe that reentering the U.S. every 5 and a half months and then leaving again will save them from a claim of abandonment. But a CBP Officer can still find these shorts stays in the U.S. as illegitimate and accuse the Resident of abandonment.
A person can challenge such a claim, at the time of reentry, by providing legitimate reason (with or without documentation) of their absence such as caring for a sick family member, temporary employment abroad, partaking in a study abroad program, or closing business dealing outside of the country. CBP officers have full authority to ask and search as they like at the port of entry.
If the CBP Officer thinks abandonment has occurred they may ask the resident to sign Form I-407, Record of Abandonment of Lawful Permanent Resident Status. This is not mandatory and an immigrant can and should resist and challenge this accusation and request a hearing on the claim of abandonment in removal proceedings. CBP doesn’t have the authority to take a person’s residency status away from them.
The best way to avoid this issue, if extended periods abroad are necessary, is for the client to obtain a Travel Document known as a Reentry Permit. Moreover, having strong ties to the U.S., through relatives, home, work, investments, paying taxes, school, and other ties can help.
Another option for a person that has had extended periods abroad is to apply for an SB-1 Returning Resident Visa from an Embassy or Consulate Abroad before reentering the U.S. I prefer avoiding this option since a denial of it would not look good, and the decisions of consular officers are unpredictable.
Also note that some foreign airports now have CBP stations, that can prevent even boarding the plane and entering the U.S Another note is that these absences can also be an issue at the time of naturalization.
In my case that I spoke about earlier, the client had been abroad for 3 years consecutively, the first two in college. Surprisingly, at the time of reentry into the US, the CBP Officers permitted reentry without a fuss. The issue arose during renewal of the I-551 with form I-90. The USCIS stated that abandonment had occurred and found the client was out of status and their Green Card invalid, telling the client to leave the country. As I will discuss based on case law, the Service’s decision and statement claiming the client did not have valid lawful permanent residency was not in jurisdictional power to do so. The legitimate method of taking away LPR status was to refer the client to Immigration Proceedings before an Immigration Judge.
Some notes on terminology: What we now refer to as inadmissibility and removal, used to be called exclusion and deportation. Moreover, the agency name of USCIS used to be INS. Finally, the legal term of an Arriving Alien used to be referred to as an Alien attempting Entry.
How is abandonment judged and what are the standards with which it can challenged?
One of the early cases that established the old methodology for judging abandonment was Rosenberg v. Fleuti, 374 U.S. 449 (1963). That case was before the U.S. Supreme Court. There, the LPR tried to reenter the U.S. after an afternoon trip across the border. At the border, the officer said that because of the person’s unlawful activities, they were not a “returning immigrant” as lawful permanent residents usually are after a trip abroad, and was considered to be coming back to the U.S. as an “Entry” which has lesser legal protections. I think the equivalent of “Entry” today is requesting “Admission,” a request an LPR does not normally have to make.
Astonishingly, the unlawful activity accused was that the LPR was a homosexual which was then considered a quasi-crime and moral turpitude issue. This criminal claim was successfully challenged in court, but brought up the debate of the kind of travel abroad that can raise the issue of abandonment.
When thinking about abandonment, the most important piece of information you have to know is the standard of review for these cases. Based on the Supreme Court case of Woodby v. INS 385 U.S. 276 (1966): Losing LPR status is a drastic depravation to an immigrant so the same standard used in denaturalization cases is required: No deportation order may be entered unless the Government, who has the burden, proves by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.
In Saxbe v. Bustos, 95 S.Ct. 272 (1974) an interesting nuance was established regarding those LPRs that live abroad, in particular LPRs who live (and even have home residences) in Mexico and Canada and commute to work in the United States. The Supreme Court affirmed Alien commuters are immigrants who are ‘lawfully admitted for permanent residence,’ and are ‘returning from a temporary visit abroad’ when they enter the United States, and this ‘special immigrant’ classification is applicable to both daily and seasonal commuters. They said that this has long been the administrative construction of the statute in the context of alien commuters. This includes those LPRs that are ‘returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding 1 year.’ even if their home is abroad and the do not intend to reside permanently in the U.S.!
(1) Purpose for Departing. The traveler should normally have a definite reason for proceeding abroad temporarily. Examples are education and professional training, employment for a definite, “albeit extended period,” such as by accepting a two-year teaching position with a foreign university, indefinite employment abroad when assigned by one's United States employer, liquidation of assets, etc.
(2) Termination Date. The visit abroad should be expected to terminate “within a period relatively short, fixed by some early event.” If unforeseen circumstances cause an unavoidable delay in returning, the trip would retain its temporary character, so long as the alien continued to intend to return as soon as his original purpose was completed. For example, war might inhibit travel or the alien might be drafted, there might be illness, there might be a death requiring remaining abroad to settle an estate.
(3) Place of Employment or Actual Home. The traveler must intend to return to the United States as a place of employment or business, or as an actual home. They must possess the requisite intention to return at the time of departure from the U.S., and must maintain it during the course of the visit. Moreover note the significance of the location of the alien's ties, such as family, job or property, as an aid in determining the alien's intent.
The above factors are obviously interrelated one with another. The more limited the temporary purpose of the trip abroad, the shorter the trip, and the stronger the ties in the United States, the more likelihood that permanent residence status has not been abandoned. The variance in these factors is well illustrated by the case of Serpico v. Trudell, 46 F.2d 669 (1928). There a boy was sent to Italy for schooling, and remained out of the United States for ten years attending secondary through medical schools. The Court noted that he did not intend to remain abroad indefinitely or to practice his profession there, but intended to return to his home in this country as soon as he completed his professional training; that he was returning to a home which had been kept for him by his father and mother, during all the time he was away.
An important exception to the limitations of USCIS in enforcing abandonment came up in Matter of Abdoulin 17 I. & N. Dec. 458 (BIA) (1980). There a visa petitioner left the United States for 11 years following his admission as a lawful permanent resident and then reentered thrice as a nonimmigrant visitor. He failed to prove his burden of establishing lawful permanent residence so as to confer preference status to his spouse and his petition was properly denied by the service even though no adjudication against him in deportation proceedings had been made.
Here, the immigrant had left the US for an extended period of time and then married and petitioned for his wife. The District Director denied the visa petition and found that petitioner was not a permanent resident of the United States and that he was not returning from a temporary visit abroad. He concluded that the petitioner had not carried his burden of proof in conferring benefits under section 203(a)(2) of the Act, because he had not established that he was a permanent resident of the United States pursuant to section 101(a)(20) of the Act, 8 U.S.C. 1101(a)(20). The issue, then, is whether or not a visa petition can be denied on the ground that the petitioner has not established that he is entitled to permanent resident status, even though no adjudication of this status has occurred in deportation or exclusion proceedings.
In visa petition proceedings, the burden is always on the alien to show that he is entitled to confer benefits. Matter of Brantigan, 11 I & N. Dec. 493 (BIA 1966). However, in removal proceedings, the burden is on the Government to show by clear, convincing, and unequivocal evidence that the alien is deportable. Thus the USCIS Officer could not take away residency status, but could prevent the Petitioner from trying to confer benefits to others based on that status.
The updated standard for abandonment was further analyzed in Chavez-Ramirez v. INS, 792 F.2d 932 (9th Cir. 1986) In that case, Zenaida Calderon de Chavez was brought to the United States sometime during 1966 or 1967 as a nun, acquiring lawful permanent resident status 1968. During 1973, Chavez learned that her mother had been hospitalized and was seriously ill. No other members of Chavez's family were able to assist or provide the financial assistance to meet her mother's mounting medical needs. Consequently, Chavez requested early vacation from the Church Order so that she could care for her mother in Mexico. The Order granted Chavez a three-month leave of absence. Chavez's mother was released from the hospital, but she failed to recuperate fully. Chavez worked in a school kitchen during the day to earn the money required to meet her mother's medical expenses, while a neighbor cared for Chavez's mother. Chavez cared for her mother at night. After three months, her mother's health had not improved, and Chavez was forced to request an additional three-month leave of absence from the Order. The Order granted the request. After the additional three-month leave had expired, Chavez's mother was still incapable of caring for herself. Chavez's request for additional time from the Order was denied, and she was forced to resign and stay in Mexico. Two more years passed during which time Chavez continued to care for her mother. In January, 1976, Chavez's sister became estranged from her husband and came to live with her mother. She assumed Chavez's role in her mother's care. Shortly after her sister's return, Chavez married and gave birth to her first child. Chavez testified that she always intended to return to the United States, but that she and her husband could not afford to return until they actually did so in 1978 (after 4 years of absence). Chavez stated that she and her husband remained in Mexico after their marriage so that they might defray additional medical expenses incurred by Chavez's mother and so that they could accumulate enough money to live on while they sought employment upon returning to the United States. At no time before mid-1978, however, did Chavez ever inquire about her permanent resident status. Further, when she visited the American Consulate in 1978, she applied for a visitor's visa although she testified that she presented her green card at that time as well.
The BIA found that Chavez had abandoned her permanent resident status. It understood that an alien might not immediately take up residence in the United States for economic reasons, but could not conclude under the totality of the circumstances of this case, that an affirmative intent to move to the United States permanently at such time as her financial and familial situation permitted. The Board noted in this regard that [Chavez] took no steps whatsoever to inquire about or to preserve her status as a lawful permanent resident subsequent to her resignation from her Order. The Board also noted that it considered Chavez's lack of property holdings, family ties, or employment in the United States as affirmative indications that Chavez harbored no intent to return to the United States. These factors coupled with the Board's conclusion that Chavez's stay in Mexico was not fixed by some early event led the Board to conclude that her visit could not be considered a “temporary visit abroad” for the purposes of 8 U.S.C. § 1101(a)(27)(A).
In Matter of Huang 19 I. & N. Dec. 749 (BIA), Interim Decision 3079, 1988 WL 235431 (1988), It was found that absence from the U.S. due to a husband's contract to work and study at a Japanese university could not be said to be a temporary visit abroad fixed by some early event, where the record does not show a clear demarcation as to when her husband's relationship with the university would end. The husband, after receiving his Green Card, returned to Japan to continue studying and working at a university's medical school as a medical doctor in the field of neurosurgery with a contract for a period of 5 years. His wife and two children remained in Los Angeles, California, for approximately 3 to 4 weeks at the home of her husband's sister, a United States citizen. Thereafter, she and the children returned to Japan. The wife and her two children last sought to reenter the U.S. (four years later) at which time they were placed in exclusion proceedings. In a sworn statement dated that same day, the applicant reported that she intended for her children to go to school in the United States and to live in this country forever, while she planned to return to Japan in 2 months.
The wife testified that that she and her two children had returned to the United States every year since 1982 for 3 or 4 weeks in March or April in order to maintain her lawful permanent resident status, staying with her husband's sister. The children attended school in the U.S. for very brief periods of time. The husband had not returned to the United States since 1982 and had never worked in the United States.
The BIA acknowledged the Applicant’s ties to the US, including the sister-in-law, investment property, payment of taxes and bank account. However, they never maintained a home or life in the U.S., except for brief visits. In addition to extended absences, living and working in Japan for many years, lead to the conclusion that their status changed and that their absences were not temporary in nature, and that they are therefore not entitled to admission to the United States as returning permanent residents.
One important thing to note from the line of cases from Huang and after is that a Parent’s abandonment will be imputed to children. See Matter of Zamora, 17 I&N Dec. 395 (BIA 1980).
Another pivotal case was Singh v. Reno 113 F.3d 1512 (9th cir. 1997). Alien, an Indian Citizen, challenged finding that he abandoned permanent resident status based upon his extended time abroad and his minimal contacts in United States. He originally had obtained LPR status by being a special agricultural worker in Dec. 1990. But from that date till 1993, only spent less than one-third of his time in the U.S. Upon arrival from trip to Great Britain, he was put in proceedings as an alien not in possession of a valid immigrant status.
The court said that Singh's trips abroad, sometimes eight or nine months in consecutive duration, could not be described as “relatively short.” If the alien's trip abroad is not “relatively short,” it is a “temporary visit abroad” only if the alien has “a continuous, uninterrupted intention to return to the United States during the entirety of his visit.” The relevant intent is not the intent to return ultimately, but the intent to return to the United States within a relatively short period.
The court found that Singh's decision to spend most of his time abroad is evidence of his lack of ties to the United States. Nor did Singh's employment history provide any evidence of an intent to reside permanently in the United States. Although Singh attained his permanent resident status as a special agricultural worker, he quickly changed careers. Singh worked at a restaurant in Carmel, California, but his long absences from the country were such that his employment history was sporadic. When working at the restaurant, Singh lived in housing provided by his employer. He never established his own residence in the United States during his entire time as a permanent legal resident.
Singh listed an address in England as his permanent address on his replacement Indian passport, issued less than two months after attaining permanent resident status in the United States. One month later, Singh applied for and received a visitor's visa at the U.S. consulate in London. In his consular interview for that visa, Singh did not raise the issue about his permanent residence status. Singh used that visa to enter the U.S. four times, even though a permanent resident does not require such a visa. On Singh's last visit to the United States, he checked “NO” when asked if he resided permanently in this country, checked “PLEASURE” for the purpose of his visit, and wrote that he expected to stay 3 weeks. As such the majority confirmed the abandonment.
However, the dissent in this case challenged this assertion by saying that Singh had a well-intentioned, and temporary absence—in this case, spending time abroad with his wife and young child while waiting for the INS to grant the visa petition allowing them to join him here. The dissent further stated that contrary to the majority's assertion, no prior case even remotely suggests, let alone compels, this result. It is undisputed that Singh lawfully obtained permanent resident status in this country, worked and invested large sums of money in this country, spent a substantial and ever-increasing amount of time in this country, and filed an immigrant visa petition so that his family could join him in this country. Singh's daughter was only an infant at the start of the period in question—she was born in 1990, the year that Singh lawfully obtained permanent resident status—and his wife was in poor health following childbirth. The majority correctly acknowledges that the determinative question in this proceeding is that of Singh's intent. It does not dispute that Singh was awaiting “the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time,” namely, the approval of the immigrant visa petition that he had filed on behalf of his wife and daughter.
For practitioners, note this can happen to F2A spouses that petitioner for and are waiting for their alien spouse to become current before getting the consular interview and being allowed to permanently resettling in the U.S. Advise clients in similar situation that absence of 180 days (especially if multiple such absences) can lead to an abandonment claim.
In Alaka v. Elwood, 17 I. & N. Dec. 458 (BIA 2002), On August 8, 2001, Alaka returned to the United States after spending eight months in Nigeria. She applied for admission into the country as a returning lawful permanent resident. INS officials apprehended and detained Alaka when they discovered that she had an outstanding federal warrant. Although the charged violation was later dismissed, the INS continued to detain Alaka because of her criminal history, asserting that her criminal conviction made her removable from the United States. A Notice to Appear given to her said she was an “arriving alien” based on her earlier conviction. The Notice to Appear also charged that her conviction constituted a crime of moral turpitude and rendered her ineligible for admission and subject to removal. She also had a foreign crime conviction which a judge held had constructively abandoned her status as a permanent resident.
Legally, if an arriving alien falls within one of the categories of “inadmissible” aliens, the arriving alien will be deemed inadmissible. Most importantly, any alien convicted of committing a crime of moral turpitude will be deemed inadmissible. If an immigration officer determines that an arriving alien (including those lawful permanent residents) is not clearly admissible, the alien is placed into one of two types of removal proceedings: “expedited removal” or “regular removal”. Under regulations, verified lawful permanent residents are never subject to expedited removal. See, 8 C.F.R. § 235.3(b)(5)(ii). They are placed in regular removal proceedings before an immigration judge. Alaka's status as a lawful permanent resident prevented her from expedited removal and she was subject to regular removal proceedings pursuant to INA § 235(b)(2). The appeal of the case was actually over the issue of bond hearings, so the merits of abandonment were not discussed or decided upon.
In Moin v. Ashcroft, 335 F.3d 415 (5th cir. 2003) the court found abandonment despite the applicant having obtianed reentry permits!!! In August 1991, Zeba Moin, a native and citizen of Pakistan, was lawfully admitted for permanent residence in the United States as the unmarried daughter of a permanent resident father. Two months later, in October 1991, she left this country to return to Pakistan. Over the next fifty-four months, Moin made several trips between the two countries. During that period, her total stay in the U.S. was approximately six months. On February 2, 1996, Moin returned to the United States from her latest trip, accompanied by her son, Moiz Ullah. She had left Pakistan on a round-trip airline ticket with a return date of 3 months later. Upon her arrival in the United States, she presented her permanent resident card and Pakistani passport to the primary immigration officer at Houston Intercontinental Airport. She was then referred to secondary inspection to process her son for admission. The secondary officer deferred her inspection to the INS Houston District Office because of the length of time she had spent outside the United States. An INS inspector ultimately concluded that Moin had abandoned her status as a lawful permanent resident and was therefore inadmissible to the United States. The IJ found Moin had abandoned her lawful permanent resident status in October 1991 and ordered Moin and her son excluded and deported from the United States.
Importantly, Moin argued that her trips to Pakistan were “temporary visits abroad” for two reasons. First, she notes that no trip exceeded two years, and she obtained a reentry permit valid for two years. However, the court said that “temporary visits” are not defined in terms of elapsed time alone. Also, a reentry permit, in and of itself, does not prevent a finding that an alien has abandoned her permanent residency status. Practitioners should note: “A reentry permit does not guarantee [an alien's] return if he or she is found inadmissible on seeking reentry.” A reentry permit merely serves as evidence of an alien's intent to return, which the Government may refute by clear, unequivocal, and convincing evidence. Moin’s various returns to the United States from Pakistan were not linked to any identifiable triggering event occurring within a reasonably short time frame.
Second, Moin argues that she always intended to reside permanently in the United States. “The relevant intent, [however], is not the intent to return ultimately, but the intent to return to the United States within a relatively short period.” An applicant's desire to maintain her status as a permanent resident, without more, is insufficient; the alien's intent must be supported by her actions.
In October 1991, two months after arriving in this country, Moin returned to Pakistan at her parents' urging, to consider several marriage proposals and obtain a husband. She expressed an intent to be away from the United States for only a few months, but instead stayed in Pakistan almost a year. While in Pakistan, Moin soon married. The wedding ceremony and related cultural events extended for a period of three months. Moin's stay in Pakistan was further extended when she became pregnant with her first child. She remained in Pakistan throughout the pregnancy because she was occasionally sick and because her husband was not able to come with her to the United States. Moin finally returned to the U.S., leaving her husband and newborn child in Pakistan. Here, she filed a visa petition for her husband and obtained a re-entry permit for herself that was valid for two years. Approximately two months later, in December 1992, she returned to Pakistan because her husband asked that she do so to care for her child, who was ill. The child ultimately died. Moin did not return to the United States until later, explaining that she had become emotionally distraught following the death of her child and that her doctors had advised her not to travel. She ultimately returned to the United States shortly before her re-entry permit was to expire. Moin stayed in this country for approximately two more months and then left again after receiving telephone calls from her husband, expressing his loneliness and desire that she return. She had intended to stay in Pakistan only a month or two but actually stayed until much more. In the meanwhile, she became pregnant with her second child. She claimed that this second child was also sickly, which required her to wait three months after his birth before returning to the United States.
The evidence also reflected that Moin lived with her parents most of the time that she was in the U.S., with one short stay at a brother's house. Moin had only a few personal items at her parents' home and owned no real property in the United States. She had no verified employment, although she claimed to have performed some brief babysitting chores, and she had paid no income taxes in the United States. During the same time period, Moin was listed as joint owner with her husband of two shops and an apartment in Pakistan; her husband purchased a car for her in Pakistan; and her husband bought a home in Pakistan while Moin was in the United States. Further, although Moin initially entered the United States in 1991 on a one-way airline ticket, her later entries were always with round-trip tickets, including the last entry in February of 1996. Moreover, the immigration judge noted evidence that, in the Pakistani culture, a wife is expected to abide by her husband's wishes, and it is unacceptable for a wife to live apart from her husband absent extraordinary circumstances. The immigration judge also expressed concern over the lack of documentation as to the nature and extent of the illnesses of both children. Finally, he perceived certain inconsistencies between the testimony of Moin and her relatives, and also between her testimony and her earlier sworn statement given to immigration officials. They said that the totality of the record and not any single finding perspective, provided evidence so compelling in Moin's favor that no reasonable person could have made the same findings and conclusions, affirming the abandonment.
In Khodagholian v. Ashcroft, 335 F.3d 1003 (9th Cir. 2003) Khodagholian was admitted to the United States as an LPR on July 5, 1993, when he was 41 years old. He arrived with his wife and their two children, who were also admitted as lawful permanent residents. Khodagholian made the admission that when he and his family first came to the United States, he was not sure whether they would stay, in light of all the uncertainties associated with such a move. They brought $14,000 with them, but did not sell off everything they owned in Iran. In the five years in the United States from July 1993 to September 1998, excluding the periods he was in Iran, Khodagholian and his family lived in the Los Angeles area. He worked sporadically doing electrical work, telemarketing, and painting. It is not clear how often he worked or how much he was paid, but it appears from the record that he worked intermittently at best. Khodagholian's wife was employed during much of that time. Their son attended high school in this country from 1993 to 1997 and college starting in 1997. Their daughter attended school here as well, at least from 1996.
The challenge to Khodagholian's status is based primarily upon three trips he made to Iran during the five years and two months between his first arrival to the U.S. and return from his third trip The First for roughly four months, to sell some items and gather documents needed for the children's schools and other purposes in the U.S. His wife and children went with him to Iran, but they returned to California after two months. Second by himself for five to six months to care for his dying mother and his recently orphaned nephews. Third, Khodagholian was gone for roughly 15 months. That trip was made alone, while his wife and children remained in the United States. The stated purpose was to sell the family's house in Iran. When Khodagholian arrived in Iran, he was stopped by Iranian police at the airport and notified of a tax bill from a partnership he had sold before coming to the United States. He was told that he was barred from leaving Iran until the taxes were paid. However, he did not return to the United States immediately after that issue was cleared up, a fact that the IJ concluded to be significant. Khodagholian argued that he had borrowed the money to pay the tax bill, and had to stay on in order to pay back that debt.
Upon re-entry into the U.S. he was stopped. After an interview, the INS suspected that he did not qualify as a “returning resident,” because he had overrun the one-year regulatory limit on re-entering without needing a re-entry permit. He was issued a Notice to Appear, which charged him as an inadmissible alien under INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), “who at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border identification crossing card, or other valid entry document required by the [INA].” And was found in court to have abandoned status and subject to removal. The IJ acknowledged the authenticity of the document Khodagholian introduced showing that he was not cleared to leave Iran until 11 months into his 15 month trip, but took issue with the subsequent four months during which Khodagholian remained in Iran, ultimately concluding that the cumulative impact of the evidence showed lack of an intent on the part of Khodagholian to reside permanently in the United States. Regarding the three trips, the IJ found that “not any one of these absences” was sufficient to show abandonment, but that only “cumulatively,” with all the other factors, could such a finding be established.
However, the 9th circuit concluded that, whether viewed cumulatively or individually, Khodagholian's absences did not support a conclusion that he abandoned his permanent residence in the United States. Khodagholian was in the United States for a substantial majority of the time between his initial entry in 1993 and the initiation of these proceedings. During that time he made three trips back to his native Iran. Although each of his three trips back to Iran was for a somewhat extended period, those absences did not demonstrate an intent or desire on his part to remain in Iran and give up his LPR status in the United States. To the contrary, during those trips he sold assets and sought to wind up his affairs in Iran. Such actions weigh against the notion that he had abandoned his LPR status in the United States in favor of remaining in Iran.
His wife and children remained in the United States for almost the entire time. His son was attending college and his daughter high school, both in this country. His wife was unemployed at that time, but previously had worked, also in the United States. He spent a larger share of the time since 1993 together with them, in California. His return to Iran for six months to care for his terminally ill mother and for his recently orphaned nephews fall within the category of contingencies which had a “reasonable possibility of [terminating] within a relatively short period of time” and thus do not support a conclusion that he had abandoned his LPR status. Neither did the purposes of the other two trips, to sell property and other assets in Iran and to gather documents needed in the United States.
The unusual duration of the third trip to Iran, when Khodagholian was gone for 15 months, could represent substantial evidence of abandonment in other circumstances. But he was required to remain in Iran involuntarily due to the unanticipated tax claim. Since the only evidence regarding the purpose of that trip is that he went to Iran with the intention of selling his house (an action inconsistent with an intent to remain in Iran), this visit would also have “terminate[d] upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time.” The fact that he stayed on for just four months after resolving his tax problem cannot reasonably show that he lacked a continuous, uninterrupted intention to return. Much is made on appeal of Khodagholian's employment and tax history. To be sure, Khodagholian does not seem to have a prosperous career in the United States. His spotty employment history, however, would have more weight if he had a job or business in Iran, but neither the IJ nor the government on appeal asserts that he worked in Iran on any of the trips. In cases where employment has been held against aliens, they have generally worked abroad. We believe that the fact that Khodagholian was not consistently employed in the United States weighs against him in the overall abandonment inquiry, but that is insufficient to overwhelm the other factors showing an intent to reside in the United States. The same goes for taxes. Even though Khodagholian did not file a United States tax return, given the totality of other factors, this fact is insufficient to conclude that he abandoned his residence in the United States. In sum, from these facts, it cannot reasonably be concluded that the INS carried its burden by clear, unequivocal, and convincing evidence that Khodagholian lacked a “continuous, uninterrupted intention to return to the United States. Abandonment was not found.
In October 1994, Hana returned to the United States with an INS-issued multiple-entry re-entry permit that was valid until October 26, 1994. Hana testified that when she left Iraq in 1994, it was her intention not to leave the United States again, but to wait here for her children to immigrate from Iraq. Hana also testified that she brought with her from Iraq over $10,000 in gold jewelry and money, which she gave to her brother in Michigan, so that she could purchase a home and a car and help provide for her children when they arrived in the United States. Hana nonetheless returned to Iraq in December 1994, in response to repeated telephone calls from her husband stressing her mother-in-law's critical health condition. Before leaving for Iraq, Hana obtained another re-entry permit valid until December 28, 1996.
Upon returning to Iraq in 1994, Hana resumed her employment at the Central Bank. She testified that she had not planned to return to work in Iraq in 1994, but that she did because “they contacted me to return to work and I am afraid to refuse because maybe the [Iraqi] security agents would come…and they'd hurt my children....” Hana also testified that she worked to help out with the cost of living. Hana testified that she attempted to return to the United States in January of 1996 (nearly a year before the expiration of her re-entry permit), but that when she “tried to leave at the border ... they wouldn't allow [her].” According to Hana she did not attempt to return to the United States prior to January 1996 because she was waiting for her son, who finally arrived here in December 1995, and because of her mother-in-law's failing health.
Hana returned to the United States on December 13, 1996, roughly two weeks before her re-entry permit was set to expire. She was detained at JFK airport for questioning by INS agents. During the interview Hana stated that she was returning because her re-entry permit was about to expire and she “did not want to lose [her] green card.” She also stated that she had a ticket for a return flight to Jordan in four months, but that she would not leave the United States unless she first obtained another re-entry permit. In her answer to a question asking whether she ever intended to take up residency in the United States, Hana responded, “Yes, I go back because my children are there when they can come here I will stay. I petitioned for them in 1992.” Practitioners should note that these types of statements will get their client in trouble. Also note that a reentry permit was challenged again. Hana never worked in the United States and worked in Iraq until tendering her resignation, that she had never paid income taxes in the United States, and that she owned no property in the United States. Based on these responses and the length of her absence from the United States, the INS refused Hana's admission and charged her with excludability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an immigrant without a valid visa.
Upon obtaining LPR status for herself Hana immediately filed immigration petitions for her husband and four children. She testified, and there is no evidence to the contrary, that she was told that her children would be granted visas within three years, and she was clearly under the impression that so long as she returned to the United States before the expiration of her re-entry permit, she could travel to Iraq to prepare her family members for their emigration and not risk losing her cherished LPR status. Part of that preparation included helping out with her sick mother-in-law and continuing her job at the Central Bank so that Saddam's henchman did not harm her family members on the eve of their emigration. Another component was transporting her valuables to America so that she could lay the foundation for her family's life in the United States. It is obvious that Hana's intent all along was to facilitate her family members' joining her in the United States within a few short years, not to throw away the LPR status that she had waited eleven years to obtain. Finally, it is certainly worth noting that Hana's efforts to bring her family to the United States were ultimately successful. As of the date of the hearing before the IJ, two of Hana's children and her husband had been admitted to this country on the basis of Hana's LPR status.
Hana's failure to put down roots in the United States was due almost entirely to her desire to help her loved ones safely flee a brutal totalitarian regime and to her obligation to assist in the care of her terminally ill mother-in-law. The evidence in this record demonstrates that Hana's clear intent was “to return within a period relatively short, fixed by some early event”-the safe emigration of her family from Iraq, which she expected to occur anytime within three years.
It distinguished this case with the Singh case, due to the circumstances the person faced. Singh obtained LPR status in 1990 and then spent the better part of the next two and a half years in Great Britain visiting his wife and child, whose immigration petitions were pending in the United States at the time. While Singh's wife and child could not reside in the United States while their petitions were pending, the court said they were free to visit U.S., yet Singh still chose to spend the bulk of his time in Great Britain. Unlike Singh, who was traveling freely between two relatively safe democratic nations, Hana was acting to protect her family from a dictatorial regime with an infamous human rights record. Although we view Singh as a close case, especially given the INS's heavy burden in proving abandonment, it is clearly distinguishable from Hana's situation in at least this one crucial respect: while Singh's decision to spend most of his time abroad was arguably motivated by convenience, Hana's similar decision was clearly motivated by the safety and welfare of her family.
An important note was that although the court this distinguished this case from Singh, Singh was in the 9th circuit, which this 6th circuit court said is not binding it.
If found abandoned, good facts and fighting can save you.
But overall, advise clients to keep ties to the US (familial, financial) and avoid absences!


Social Security classifies the physical exertion requirements of work into five categories: sedentary, light, medium, heavy, and very heavy. See 20 C.F.R. § 404.1567. However, most disability denials will be based on either sedentary or light exertional work.
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. See 20 C.F.R. § 404.1567(b). Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. See 20 C.F.R. § 404.1567(b). To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. See 20 C.F.R. § 404.1567(b). If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. See 20 C.F.R. § 404.1567(b).
In Huber v. Berryhill, 2018 WL 2084793, at *3, the Seventh Circuit found that before the ALJ could find the plaintiff capable of light work, the ALJ was required to consider the consultative examiner’s opinion that the claimant had trouble standing and walking. See Roddy v. Astrue, 705 F.3d 631, 636, 639 (7th Cir. 2013) (remanding because ALJ did not address doctor’s opinion that claimant couldn’t work beyond six hours per day).
The Seventh Circuit found that “[g]iven that the ALJ concluded that Huber could do a good deal of walking or standing (‘light work’), the ALJ needed to confront the contrary opinion of the agency’s own examining physician before reaching this conclusion.” Id.


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My work leverages advanced machine learning and artificial intelligence along with design and domain expertise to address growing global health inequities. Specifically, I use novel ML/AI techniques to understand how social, environmental, and economic factors interact to create health disparities. I believe that the greatest source of precision and impact will come from these contextual factors and not from genetics.
I am a computer scientist leading a global health research institute at the Icahn School of Medicine at Mount Sinai. I pursued this wonderful opportunity because of a fundamental misalignment in incentives in mainstream academia: as a computer scientist, I was rewarded for creating new methods, while the world needs new solutions to momentous problems (global change, growing inequality, water-food-energy shortages, etc.). Instead, I realigned my incentives and joined an endeavor that encourages and rewards large-scale problem solving over methods for methods' sake. My long-term research goal is to develop data science tools that accelerate scientific discovery and yield actionable insights that cannot be attained using traditional modes of discovery (e.g. experimentation or simulations). We are hiring in several data science positions including tenure-track faculty.
Chen, X.C., Y. Yao, S. Shi, S. Chatterjee, V. Kumar, and J.H. Faghmous. A General Framework to Increase the Robustness of Model-Based Change Point Detection Algorithms to Outliers and Noise. SIAM International Conference on Data Mining (SDM), 2016 (to appear).
Faghmous, J.H., H. Nguyen, M. Le, and V. Kumar. Spatio-temporal Consistency for Autonomous Dynamic Object Identification in Continuous Spatio-Temporal Fields. Twenty-Eighth Conference on Artificial Intelligence (AAAI) 2014.
Faghmous, J.H., M. Le, M. Uluyol, and V. Kumar. Parameter-Free Spatio-Temporal Data Mining to Catalogue Global Ocean Dynamics. Thirteenth IEEE International Conference on Data Mining (ICDM) 2013.
Faghmous, J.H., M. Uluyol, M. Le, L. Styles, V. Mithal, S. Boriah, and V. Kumar. Multiple Hypothesis Object Tracking for Unsupervised Self-Learning: An Ocean Eddy Tracking Application. Twenty-Seventh Conference on Artificial Intelligence (AAAI) 2013.
Faghmous, J.H., Y. Chamber, F. Vikebø, S. Boriah, S. Liess, M. d.S. Mesquita, and V. Kumar. A Novel Spatio-Temporal Method for Ocean Eddy Monitoring. Twenty-Sixth Conference on Artificial Intelligence (AAAI) 2012.
Faghmous, J.H, S. Shekhar, and V. Kumar. Computing and Climate: Guest Editors' Introduction to the Special Issue. IEEE Computing in Science and Engineering (CiSE), 17(6), 2015.
Faghmous, J.H., I. Frenger, Y. Yao, A. Lindel, R. Warmka, and V. Kumar. A Daily Global Mesoscale Ocean Eddy Dataset From Satellite Altimetry. Scientific Data, 2, 2015.
Faghmous, J.H., A. Banerjee, A.R. Ganguly, S. Shekhar, M. Steinbach, N. Samatova, and V. Kumar. Theory-Guided Data Science for Climate Change. IEEE Computer (11):74-8, 2014.
Faghmous, J.H. and V. Kumar. A Big Data Guide to Understanding Climate Change: The Case for Theory-Guided Data Science. Big Data 2(3), 2014.
Ganguly, A.R., Kodra, E. A., Banerjee, A., Boriah, S., Chatterjee S., Chatterjee, S., Choudhary, A., Das, D., Faghmous, J.H., et al. Toward enhanced understanding and prediction of climate extremes using physics-guided data mining techniques. Nonlinear Processes in Geophysics 2014.
Faghmous, J.H. Machine Learning. In A.M. El-Sayed and S. Galea, Eds., Systems Science & Population Health. Oxford University Press, 2016 (to appear).
X. Chen, A. Khandelwal, S. Shi, S. Boriah, J.H. Faghmous, and V. Kumar. An Unsupervised Method for Global Water Extent Monitoring. In V. Lakshmanan, E. Gilleland, A. McGovern, and M. Tingley, Eds., Machine Learning and Data Mining Approaches to Climate Science: Proceedings of the Fourth International Workshop on Climate Informatics, Springer, 2015.
Faghmous, J.H. and V. Kumar. Spatio-Temporal Data Mining for Climate Data: Advances, Challenges, and Opportunities. In W. Chu, Ed., Data Mining and Knowledge Discovery for Big Data: Methodologies, Challenges, and Opportunities. Springer, 2013.
Karpante A., Faghmous J.H., Kawale J., et al. Earth Science Applications of Sensor Data. In C. Aggarwal, Ed., Managing and Mining Sensor Data. Springer, 2012.

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At the defendant’s initial appearance on a petty offense or other misdemeanor charge, the magistrate judge must inform the defendant of the following: . . . (H) that a defendant who is not a United States citizen may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendant’s country of nationality that the defendant has been arrested—but that even without the defendant’s request, a treaty or other international agreement may require consular notification.
Fed. R. Crim. P. 58(b)(2)(H). This amendment took effect on December 1, 2014.
The United States is party to the Vienna Convention on Consular Relations, which is an international treaty that governs the consular relations between different nations. Article 36 of the Vienna Convention on Consular Relations provides that a foreign citizen who is arrested and detained may request that his consul be notified of his arrest and detention. Further, the United States is party to numerous bilateral agreements that fully require the arresting and detaining nation to notify the foreign citizen’s consul of his arrest and detention.
This subsection requires a magistrate judge to provide every defendant with this information in order to ensure that all United States treaty obligations, including the Vienna Convention on Consular Relations and bilateral agreements, are satisfied. A determination of the defendant’s citizenship does not need to be made before the information is provided to him or her.
In Sanchez-Llamas v. Oregon, the Supreme Court held that where a foreign citizen defendant is not apprised of his Article 36 rights, he has no judicial remedy. However, this new subsection does not address these potential rights and remedies.
The previous rule of (6) stated: (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by–or from information transmitted by–someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
The new language of (6) states: (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by–or from information transmitted by–someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
The rationale for the change to (6) is an effort to clarify that once the proponent has established “regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification,” then it becomes the opponent’s burden to prove that the source of the information or method or circumstances of preparation are untrustworthy. Not all courts have consistently imposed this burden on the opponent, and such an imposition is appropriate because the proponent’s establishment of the basic admissibility requirements is enough to advance a presumption that the record is reliable.
The previous language of (7) stated: (7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.
The new language of (7) states: (7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
The rationale for this change in the language is an effort to clarify that once the proponent has established the stated requirements of the exception in Rule 803(6), the opponent bears the burden of showing that the possible source of the information, or some other circumstances, indicate a lack of trustworthiness. This language change is consistent with the language change to (6).
The previous language of (8) stated: (8) Public Records. A record or statement of a public office if: (A) it sets out:(i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
The new language of (8) reads: (8) Public Records. A record or statement of a public office if:(A) it sets out:(i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
The rationale for the changes to (8) is once again to clarify who bears the burden once the proponent has satisfied the initial requirements of the Rule. The burden shifts to the opponent to show that the source information or other circumstances are untrustworthy. Courts have previously been inconsistent regarding upon which party this burden is placed. (8), as with (7), maintains consistency with (6) in this aspect.
Recent changes have been made to Federal Rules of Evidence 801, which focuses on exclusions from heresy. Statements defined as heresy are statements that a declarant did not make while testifying at the current trial or hearing and that a party offers in evidence to prove the truth of a matter asserted in the statement. Prior to the change, which became effective December 1, 2014, Federal Rule of Evidence 801(d)(1)(B) stated that a declarant-witness’s prior statement is not heresy if “the declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . (B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.” Fed. R. Evid. 801(d)(1)(B). Essentially, before the rule change took place, consistent statements could be only substantively used to rebut recent fabrication or improper motive charges. Therefore, many prior statements were potentially admissible only for rehabilitating a witness’s credibility. This left out using consistent statements to substantively rebut general charges against a witness’s credibility, such as charges of inconsistency or faulty memory.
The new rule reads “a statement that meets the following conditions is not hearsay: (1) the declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . (B) is consistent with the declarant’s testimony and is offered (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground”. Fed. R. Evid. 801(d)(1)(B). The new change retains the original purpose and limitations of the rule in that it allows parties to bring prior consistent statements before the fact finder for credibility purposes. However, the change now extends the substantive effect to prior consistent statements of rebutting other attacks on a witness’s credibility besides just charges of recent fabrications or recent improper motives. The changes results in a broader application in use of consistent statements, but it does not make any consistent statement admissible that was not admissible before.
The proposed amendment would limit the broad scope of the current rule by requiring that discovery be “proportional to the needs of the case.” The text of the proposed rule is as follows: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefits.” The proposal would eliminate the option to have discovery “relevant to the action” and instead limits discovery to the claims and defenses in the action.
The Advisory Committee has decided to enact this more tailored version of the previous rule due to the fact that the old rule allowed discovery of any information so long as it was reasonably calculated to lead to the discovery of admissible evidence. Despite a revision of the rule in 2000, many lawyers and judges reading that language have concluded that, since almost any information could potentially lead to relevant and admissible evidence, almost anything is discoverable. Given the growth in electronically stored information (“ESI”) and advances in storage capability, such an interpretation has rendered the discovery process unduly burdensome and expensive. The new rule will become effective on December 1, 2015.
This appeal stems from a negligence suit against the City of New York and the New York City Police Department (NYPD) and addresses what evidence is necessary to establish that a special relationship existed between an individual and a municipality that would require the municipality to exercise a duty of reasonable care.
The plaintiff in this case, Jandy Coleson, had suffered verbal and physical abuse at the hands of her husband for years and had obtained several orders of protection against him. On June 23, 2004, plaintiff’s estranged husband attempted to force himself into her building and threatened to stab and kill her with the screwdriver he was carrying. Plaintiff called the NYPD, but when they arrived, Coleson had fled. After searching for him with plaintiff’s assistance, Coleson was apprehended the following morning. Plaintiff and her son were transported to the precinct where an Officer Reyes told her that Coleson had been arrested and “was going to be in prison for a while.” Reyes also told plaintiff she was going to be given protection. Plaintiff and her son were then taken to Safe Horizon, a non-profit domestic abuse victims’ organization. Later that evening, plaintiff received a telephone call from Officer Reyes, in which she was told that Coleson “was in front of the judge” and that “everything was okay.” Two days later, while picking her son up from school, plaintiff was approached by Coleson, who proceeded to stab her in the back with a knife. Plaintiff’s seven-year-old son was placed in a broom closet by an employee of the car wash across the street from the school, and upon coming out, witnessed his mother lying in a pool of blood.
The Court determined that there was sufficient evidence to conclude plaintiff raised a triable issue of fact as to whether a special relationship existed. The court emphasized that the “injured party’s reliance is . . . critical,” and also that in applying the factors set out in Cuffy v. City of New York, a jury could reasonably find for plaintiff. The Court also distinguished this case from a previous case relied on by the Appellate Division, stating that conduct of the police here was more substantial, involved, and interactive than the police conduct in Valdez v. City of New York. The case was remitted to the Appellate Division, First Department to be modified in accordance with the opinion.
The dissent objected on the grounds that opening up municipalities to tort liability in domestic abuse cases is a slipper slope that will lead to police officers giving as little information as possible to victims in order to avoid civil liability.
This appeal addresses whether a duplicity argument based on trial evidence must be preserved for appeal where the count is not duplicitous on the face of the indictment. The appellant/defendant, Terrell Allen (“defendant”), was charged with one count of second-degree murder and one count of attempted second-degree murder for the death of the victim. Accordingly, the defendant attempted to shoot the victim while he was in the street but the gun did not fire. Ten minutes later the defendant fired two shots at the victim near the front stoop of the victim’s house. One shot missed the victim but the other shot hit the victim in the head killing him. The victim’s wife witnessed some of the event and spoke to police offices about what she saw, which included naming Welds, the co-defendant (“Welds”). Welds told the police that the defendant had fired the gun at the victim. Three days later, the police arrested the defendant in New Jersey. A lineup was conducted at the 113th precinct in Queens, where the victim’s wife identified the defendant as the shooter. Ballistics evidence also showed that the bullet recovered at the scene and from the victim’s body were fired from the same gun. The defendant and Welds were charged in a single indictment. Welds case was severed from the defendants. Welds stood trial first and was convicted of murder in the second degree by the jury. In an exchange for a promise of leniency, Welds agreed to testify against the defendant.
After the defendant was convicted he claimed three errors at trial. First, the defendant claimed the indictment is duplicitous. The defendant filed a request for a bill of particulars seeking specification of the substance of each aspect of the defendants conduct in relation to each charge. The defendant also filed an omnibus motion, which challenged the indictment as multiplicitous. The defendant claimed that the count one (1) and two (2) of the indictment charging murder in the second degree and attempted murder in the second degree are multiplicitous since they encompass either the same or a single continuing offense and should not be separate counts. Second, the defendant claimed that the Supreme Court erred in denying his motion to suppress identification testimony, which he claimed was made in a lineup that was conducted in violation of his right to counsel. Third, the defendant claimed that the trial court erred in refusing to allow the defendant to introduce extrinsic evidence on a collateral matter to impeach the credibility of a witness.
The Appellate Division held that the indictment which charged the defendant with murder and attempted murder in the second degree were not duplicitous on its face. Accordingly an indictment is duplicitous when a single count charges more than one offence. People v. Alonzo. Here, the defendant contends that at trial, the charges for attempted murder did not become arguably duplicitous until the trial evidence suggested that there was another incident involving the defendant and the victim. However, at trial, the defendant did not object during the opening statement, witness’s testimony, or to the jury charge, which could have remedied any uncertainty at trial. The First and Second Departments have held that where it is claimed that the trial evidence has rendered a count duplicitous, the issue must be preserved for review. The preservation to the constitutional right to a public trial requires the preservation of public trial claims. Bringing a public trial violation to a judge’s attention would have ensured the timely opportunity to correct the errors. Therefore, the Appellate Division held that the defendant’s claim that the indictment became duplicitous based on trial evidence could not be considered since the defendant failed to preserve his claim for review.
As for the defendant’s second claim, the Appellate Division held that the trial court did err in denying the defendants motion to suppress the lineup identification, however such an error was deemed harmless. The Appellate Division found the error to be harmless beyond a reasonable doubt due to the overwhelming evidence of the defendant’s guilt. There were three eyewitnesses, ballistics evidence, a confession to one o the witnesses, and the defendant’s effort to avoid arrest by hiding in an attic. Therefore, the error of the admission of the lineup identification was deemed harmless.
Furthermore, the Appellate Division held that the trial court did not abuse its discretion in preventing the defendant from using the police reports to impeach the credibility of the victim’s wife at trial. Accordingly, “…prior statements are often collateral to the ultimate issue before the jury and bear only upon the credibility of the witness, the [statements] admissibility is entrusted to the sound discretion of the Trial Judge whose rulings are not subject to review unless there has been an abuse of discretion as a matter of law.” People v. Duncan. Here, the police records were properly found to be inadmissible extrinsic evidence on a collateral matter, and the defendant failed to show the source of the information in the police reports was the wife herself. Therefore, the Appellate Division found that the trial court did not abuse its discretion in preventing the defendant from using police reports to impeach the witness’s credibility at trial.
Accordingly, the Court of Appeals of New York held that the Appellate Division’s order should be affirmed.
This appeal addresses the severability of a municipal ordinance section and the constitutionality of a content-neutral restriction on the posting of signs on public property. The defendant, On Sight Mobile Opticians, had placed a sign advertising its business on public property. The Town of Brookhaven’s investigator filed informations charging the defendant with violation a section of the Town Code prohibiting the posting of signs on public property. The defendant moved for dismissal on the ground that the Town Code chapter at issue was unconstitutional.
The district court denied the motion, holding that the chapter was constitutional. The defendant pleaded guilty and then appealed to the appellate term. The appellate term found the section itself constitutional, but it held that the entire chapter “unconstitutionally favor[ed] commercial speech over noncommercial speech.” It then found that the unconstitutional parts of that chapter could not be severed and as a result reversed the convictions, dismissed the informations, and ordered any fines returned.
Here, the Court held that the code section at issue dealt only with the posting of signs on public property and thus had a discrete, independent legislative purpose. It could therefore be severed from the rest of the chapter in which it appeared.
Considering the constitutionality of the code section in isolation from the rest of the chapter, the Court found it to be a ban that affected both commercial and non-commercial signs without regard to content. It also found the section to “serve[ ] the Town’s valid interest in traffic safety and aesthetics.” Since it was content-neutral and served a valid government interest, the Court held the section constitutional and reversed the order of the appellate term.
Rigano v. Vibar Const., Inc.
The issue decided in the case is whether a notice of mechanic’s lien can be amended nunc pro tunc to reflect the name of the true owner of the property or whether the misnomer invalidates the lien.
George Vigogna (sole shareholder of Vibar Constructions Corp.) and Nick Rigano (sole shareholder of Fawn Builders, Inc.) were business partners for over 35 years up until the dispute at question arose in 2007. Both parties often worked together, split their profits and rarely put their business agreements in writing.
The Court of Appeals reversed the Appellate Division’s holding. They referenced Matter of Niagara Venture v. Sicoli & Massaro, where they stated in that case that, “Substantial compliance . . . shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same . . . and a failure to state the name of the true owner . . . or a misdescription of the true owner, shall not affect the validity of the lien.” The Court also referenced Article 2 of the Lien Law which says they are to be construed liberally.
Combining these principles, the Court said in these particular circumstances, that the amendment sought was authorized and the defect in the lien was a misdescription, which allowed the amendment, and not a misidentification.
In this appeal, the Fourth Department examined whether the Court of Appeals decision in Rovello v. Orofino Reality Co., which held that under New York Civil Practice Law and Rules 3211(a)(7) “‘summary dismissal is appropriate . . . when the defendant’s evidentiary submissions establish conclusively that plaintiff has no cause of action,’” survived the Court of Appeals subsequent decision in Miglino v. Bally Total Fitness of Greater New York, Inc.
In 2006, the Plaintiff, Maple Court Apartments, contracted with the Defendant, Liberty Affordable Housing, Inc., for the sale of real property. The Plaintiff was unable to secure funding by the closing date, or by the December 31, 2007, extension to the closing date. In April 2009, the Defendant sent the Plaintiff a letter in which the Defendant made clear that the purchase agreement was terminated and that the Defendant would market the property to other buyers. Two years later, in 2011, the Plaintiff secured funding and made another offer on the property. In a September, 2011, letter to the Defendant, the Plaintiff indicated the need for a new purchase agreement. The Defendant rejected the Plaintiff’s offer and accepted a higher offer from a third party.
The Plaintiff’s argument was based on the language in Miglino where “the Court cited Rovello for the proposition that ‘3211(a)(7) . . . limits [courts] to an examination of the pleadings to determine whether they state a cause of action’” and therefore found “‘the case is not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits.’” The Plaintiff argued that this language from Miglino prohibits a court from considering evidentiary submissions when ruling on a 3211(a)(7) motion.
The court held for the Defendant, finding that Miglino did not change Rovello, but simply applied its framework. The court reasoned that “Miglino was ‘not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits’ because the evidentiary submissions were insufficiently conclusive, not because they were categorically inadmissible in the context of a 3211(a)(7) motion.” This reading of Miglino was in line with similar decisions in the First and Second Departments. Therefore, the court found it was proper for the supreme court to consider the documents the Defendant submitted in support of its motion to dismiss. Turning to the substantive question, the court found the Defendant’s evidentiary submissions conclusively showed the Plaintiff was not willing and able to perform its end of the contract by the contract’s closing date or a reasonable time afterward. Therefore, the Plaintiff had no cause of action for specific performance and the supreme court properly dismissed the suit under 3211(a)(7).
This appeal involves a sixteen-year-old high school student that anonymously posted pictures of high school classmates and other adolescents with sexually explicit descriptions of their personal lives on Facebook. A police investigation revealed defendant Marquan M. as the poster. The defendant admitted to the online activity, and was charged under Albany County’s cyberbullying law. The defendant moved to dismiss on the grounds that the law was unconstitutionally violative of his free speech rights under the First Amendment to the United States Constitution. Albany County conceded that parts of the law was unconstitutional, but that the law was severable, and the Court could delete the violative language.
Judge Graffeo, writing for the majority, reasoned that the law was overbroad, facially unconstitutional, and was not severable. The majority found that the text of the law was so broad as to encompass speech by adults and corporate entities, although the purpose of the law was to remedy the detrimental effects of cyberbullying on school children. The majority also wrote that while it was possible for the Court to sever the offensive provisions, it would be an impermissible use of judicial authority to do so. The law would need significant modification in order to be valid, and would bear “little resemblance to the actual language of the law. Such a judicial rewrite encroaches on the authority of the legislative body that crafted the position . . . .” The majority thus held the cyberbullying law overbroad and facially invalid under the Free Speech Clause of the First Amendment as drafted.

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On Nov. 5, the District 3 Court of Appeals issued its opinion in Derleth v. Cordova, Nos. 2012AP2018 and 2012AP2802, which affirmed in part, reversed in part and remanded with directions. The orders were rendered by the Judges Conrad Richards and Michael Bloom of Oneida County.
Missy Ann Derleth and Andrew Cole Cordova were married in 2006. They resided in the Appleton area, but moved to Rhinelander to enhance Cordova’s accounting career. When Derleth filed for divorce in 2011, she made arrangements to move back to the Appleton area with the children.
At trial, Derleth introduced a Mapquest map that showed her intended home in Menasha was about 147 miles away from the marital home. The trial court concluded that the best interests of the children were served by having placement restricted to a 45-mile area.
Derleth filed a notice of appeal from the divorce judgment in September 2012. The following month, she filed motions for contempt and for allowing a move of less than 150 miles.
Following a hearing, the court issued an order stating that Wis. Stat § 767.481 and Groh v. Groh 110 Wis. 2d 117, 327 N.W. 2d 655 (1983) clearly provide that the court may not preclude Derleth from moving within 150 miles. Therefore, Derleth was allowed to move. Cordova appealed.
In a decision penned by presiding Judge Michael Hoover, the Court of Appeals concluded that Groh is still good law and therefore the circuit court had no authority to prospectively order that Derleth not move beyond 45 miles from the marital home in Rhinelander.
Interestingly, the court found that, per Wis. Stat. § 767.481, the legislature has made a judgment that moves of less than 150 miles are not subject to the best interests of the children standard.
While the ultimate conclusion — that a court cannot condition placement on living within a geographically-prescribed area — is the right answer, the methodology of getting there was very confusing.
The appellate court said that Wis. Stat. § 767.481 “applies to the initial divorce judgment.” ¶17. But actually, it applies after the initial divorce judgment.
I wrote this, with Judith Hartig-Osanka, in “Removal After Kerkvliet,” as seen in The Wisconsin Journal of Family Law in April 2000.
A court does not grant placement to a geographical location. Rather, it grants placement to a parent. Although the “150 miles from the other parent” requirement in the automatic stay and removal statutes can be a guide to the court, it does not require that a court order a parent to live within that distance from the other parent. Instead, it serves as a prohibition during an action and a trigger for initiating a removal action after the initial award of placement.
The case also is troubling for finding that the best interests of the children are not a consideration for intrastate moves under 150 miles. First, the 150 miles only triggers the notice requirements of the removal statute. It is quite easy to contemplate intrastate moves under 150 miles that would substantially implicate a child’s best interests.
In fact, the Court of Appeals considered such a fact situation in Dohm v. Dohm, 2011AP2271 (January 10, 2013)(Not published, but citable). In Dohm, the Court of Appeals held that an intrastate move of under 150 miles constituted a substantial change of circumstances warranting a modification of placement.
Pray tell, Court of Appeals: How can a substantial change in circumstances not involve the best interests of a child? Every order regarding custody or placement necessarily entails the best interests of the child and must be guided accordingly.
I really don’t believe that the appellate court intended to say otherwise, but its language is, at best, troubling.
There is a gray area where a parent wants to move prejudgment, but has not yet done so. Since courts cannot grant placement contingent on circumstances, including geography, the court has to make its decision based on the present circumstances. If matters change, triggering either the removal statute or the general modification statute, the court can modify placement. In any circumstances, however, the best interests of the children should not only be a consideration, but the paramount one.
In this instance, the Court of Appeals reached the correct conclusion, but it is unfortunate they created confusion along the way.