An alien who entered the U.S. without inspection and later obtained lawful permanent resident (LPR) status through adjustment of status has “previously been admitted to the U.S. as an alien lawfully admitted for permanent residence” and must therefore satisfy the seven-year continuous-residence requirement of INA § 212(h) [8 USCA § 1182(h)] (2006) to be eligible for a waiver of inadmissibility, the Board of Immigration Appeals (BIA or Board) has concluded.
Matter of Koljenovic, 25 I. & N. Dec. 219 (B.I.A. Apr. 21, 2010).
The respondent, a native and citizen of Montenegro, originally entered the U.S. without inspection. He subsequently adjusted his status to that of an LPR in September 2001. In December 2004, the respondent was convicted of second-degree organized fraud under Fla. Stat. Ann. § 817.034(4)(a)(2). He was placed in removal proceedings when, in August 2006, he sought admission to the U.S. as a returning LPR. During removal proceedings, the respondent admitted that he was removable as a result of his conviction but sought a waiver under INA § 212(h). The immigration judge (IJ) denied the request, finding that the respondent lacked the requisite seven years of lawful continuous residence since he acquired his LPR status. The respondent appealed the IJ's decision, asserting that the seven-year requirement does not apply to him because he was not admitted as an LPR when he adjusted his status.
The Board, began by setting out the relevant statutory provision of INA § 212(h)(2) (2006), which states that no waiver may be granted: "in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if ... the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.
The Board further opined that it has “consistently construed an adjustment of status as an ‘admission.”’ It argued that holding otherwise would in fact mean that “aliens who entered without inspection and later adjusted their status would never have been ‘admitted’ for permanent residence and would therefore be ineligible for relief from removal that includes an ‘admission’ requirement” and such a finding would be inconsistent with the INA.
Applying these prior holdings to the present case, the Board stated that the respondent's only admission to the U.S. occurred in 2001 when he was granted his LPR status. Finding that being granted LPR status was not an admission would in fact lead to absurd results under the legislative scheme, the Board stated.
The Board cited to legislative history in support of its conclusion. The Board noted that the language at issue in this case was added to INA § 212(h) by § 348 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The Conference Report accompanying the IIRIRA states, “The managers intend that the provisions governing continuous residence set forth in INA section 240A as enacted by this legislation shall be applied as well for purposes of waivers under INA section 212(h).” The Board asserted that INA § 240A(a)(2) [8 USCA § 1229b(a)(2)] (2006) establishes a continuous residence requirement of seven years for cancellation of removal for LPRs and concluded that the Conference Report's reference to INA § 240A reflects “Congress' intent to create congruity in the residence requirements for these two forms of relief, both of which are available to lawful permanent residents.” Further, the Board held that not treating an alien's adjustment of status as an admission that invokes the seven-year residence requirement would frustrate the legislative purpose because an alien who obtained lawful permanent residence through adjustment of status but who has not resided continuously in the U.S. for seven years and who is removable for a criminal conviction would be ineligible for cancellation of removal under INA § 240A but would be eligible for a waiver under § 212(h).
The Board concluded the opinion by focusing on the fact that time in status has historically been a factor in determining eligibility for various forms of relief. It noted that the important factor in this case is not so much how the respondent achieved admission to the U.S. but, rather, how much time has elapsed since he was admitted. The Board suggested that holding that the seven-year continuous-residence requirement did not apply to individuals like the respondent who obtained LPR status while in the U.S. would in fact allow most LPRs to “forever avoid the effect of the aggravated felony bar” in INA § 212(h), a result that would most likely be contrary to congressional intent.
The Board found that the seven-year continuous-residence requirement of INA § 212(h) applies to the respondent because his adjustment of status constitutes an admission and is the only possible date of admission given that he entered without inspection. Because the respondent does not have the requisite seven years of continuous residence, the Board found that he was ineligible for a § 212(h) waiver and dismissed the appeal.
Summary of major provisions: This bill unconstitutionally allows the state of Arizona to regulate immigration by establishing a separate state offense for any person to violate provisions of the federal immigration law regarding registration and carrying registration documents. It gives local police officers authority to investigate, detain and arrest people for perceived immigration violations without the benefit of proper training, exacerbating the problem of racial profiling and raising concerns about the prolonged detention of citizens and legal residents.
(A) Prohibits cities, towns, and counties from having any policy in place limiting the investigation of violations of federal enforcement laws to less than the full extent permitted by federal law.
This appears to prohibit localities from having policies aimed at increasing trust within immigrant communities, such as not questioning victims and witnesses of crime about their immigration status. It also severely ties the hands of local governments by not permitting them to exercise their own judgment about the allocation of law enforcement resources because it requires police agencies to treat administrative violations of the immigration law on the same level as serious felonies. We are aware of no other law—except funding incentives—that attempt to dictate law enforcement priorities in this way.
(B) Requires police officers to make a reasonable attempt to determine the immigration status of a person whenever there is reasonable suspicion that the person is person is unlawfully present and verify that status with the federal government, except to the extent that it would hinder an ongoing investigation.
(C) Provides for the transfer of any noncitizen who is unlawfully present to federal custody upon discharge from prison or assessment of a fine after conviction of a state offense.
This law is unnecessary as to any person who is booked into a jail or serves time in prison because federal law already provides for a process by which individuals are checked against law enforcement databases and immigration “holds” or detainers can be placed on persons who are identified as non- U.S. citizens. A detainer ensures that the person will be transferred to federal custody instead of being released.
(D) Provides authority for state and local law enforcement to transport noncitizens in their custody suspected of being unlawfully present to federal authorities, even outside the jurisdiction of the local agency.
This law is unnecessary as to any person who the federal government has reason to believe is in the country illegally because federal law already provides for a process by which those persons can be transported to federal custody. Local agencies can also contract with federal authorities to be reimbursed the cost of detaining and transporting such persons. The only reason why this provision seems to have been included is to permit local law enforcement to transport undocumented immigrants to some point of transfer other than the local Immigration and Customs Enforcement (ICE) office— i.e., ICE is, for whatever reason, not interested in taking custody of the person.
(E) Gives police officers authority to conduct warrantless arrests of persons for whom the officer has probable cause to believe have committed any public offense that makes those persons deportable.
To the extent that provision attempts to create state arrest authority for administrative violations of federal immigration law, it is likely to be deemed invalid by the courts because states cannot create such arrest authority where it does not exist under federal law. As the Ninth Circuit held in a case from Arizona called Gonzales v. City of Peoria, while Arizona could authorize Peoria to enforce the criminal provisions of the immigration law, “we firmly emphasized that this authorization is limited to criminal violations.” The court took issue with the Peoria Police Department policy because it obscured the difference between civil administrative violations and criminal violations of the immigration law, and, as the court stressed, the lack of documentation or an admission of illegal presence “does not, without more, provide probable cause of [any] criminal violation” of the immigration law. Officers not trained in federal immigration law who attempt to exercise this arrest authority would be subject to legal liability for violations of the Fourth Amendment. In addition, an immigration judge could invalidate the arrest of immigrants by Arizona police officers pursuant to this provision because even federal immigration agents do not have the power to conduct warrantless arrests away from the border unless the agent can articulate specific reasons to believe the person was likely to escape before a warrant could be obtained. 8 U.S.C. § 1357(a)(2).
(F) Establishes that, except as provided in federal law, state and local government officials cannot be prohibited from maintaining information about the immigration status of individuals or communicating that information to any other governmental entity, including the federal government, in the course of 1) verifying eligibility for public benefits, 2) verifying claims of residence or domicile, 3) verifying the identity of any person detained, or 4) determining if the person is compliance with federal alien registration laws.
This provision is unnecessary with respect to any legitimate attempt to communicate with federal authorities for the purpose of enforcing the federal immigration laws. 8 U.S.C. § 1373(a) and (b) already provide that such communications and the maintenance of information about immigration status cannot be restricted. However, the bill seems to direct government officials to communicate and maintain such information even in contexts where doing so might constitute an unwarranted invasion of privacy and discourage lawful participation in public benefits programs and services intended for an entire community. In this respect, the provision is likely a nullity, as it would be in conflict with federal law.
(G) Creates a private right of action for any person to sue a city, town, or county for any violation of subsection (A) and establishes civil penalties for the city, town, or county.
This subjects local governments to unreasonable and potentially frivolous litigation by private citizens with an anti-immigrant agenda. Even if a municipality is vindicated in court, it will still have to incur the costs of defense.
(H) Directs that civil penalties assessed against cities, towns, or counties shall be applied towards a DPS Gang and Immigration Intelligence Team Enforcement Mission (GIITEM) Fund.
(I) Indemnifies police officers against costs and attorneys’ fees incurred in connection with any litigation brought by citizens and residents who were wrongfully detained, questioned, arrested, or transported, unless the officer was acting in bad faith.
(J) Declares that the above provisions shall be implemented in a manner consistent with federal immigration laws and civil rights protections.
It is unclear what this provision could mean in practice, since several of the provisions of the bill are facially inconsistent with federal statutes, regulations, and the constitutions of the United States and Arizona.
Would create a new section A.R.S. § 13-1509 that establishes a separate state offense for any person to violate provisions of the federal immigration law regarding registration and carrying registration documents (8 U.S.C. §§ 1304(e), 1306(a)). The first offense would be a class 1 misdemeanor, punishable by up to six months of jail time and an additional $500 fine, as well as jail costs, with the assessments to be applied towards the GIITEM Fund. The second offense would be a class 4 felony and an additional $1,000 fine and jail costs. Persons who have accepted voluntary removal or who had been deported in the past 5 years would be subject to a class 4 felony charge upon their first arrest under this Section. A person found in possession of drugs or weapons would face a class 3 felony charge upon their first arrest.
This provision is a back door attempt to create the state arrest authority for immigration violations described above, without any training or supervision by federal authorities. This attempt will likely be invalidated by the courts because it violates the Supremacy Clause of the U.S. Constitution. The Constitution grants the federal government exclusive power to regulate our borders and, with very few exceptions, states are not free to create their own laws regulating immigration.
Adds a provision to the state human smuggling statute at A.R.S. § 13-2319 clarifying that a police officer may stop any car if there is reasonable suspicion to believe the driver is committing a civil traffic violation and the human smuggling law.
This law is unnecessary to the extent that police officers already have the authority to briefly detain the occupants of a car in order to investigate a traffic violation or possible criminal activity. Officers may not detain anyone for longer than it takes to issue a traffic citation or dispel their suspicions of criminal activity.
Would add a new section, A.R.S. § 13-2928, that makes it a class 1 misdemeanor to attempt to hire or pick up day laborers to work at a different location if the driver is impeding the normal flow of traffic. It also makes it a misdemeanor for a worker to get into a car if it is impeding traffic. Finally, this Section would criminalize the solicitation of work (by a gesture or nod) by undocumented immigrants in any public place.
In order to be subject to the first or second parts of this Section, the vehicle in question has to be obstructing traffic. This provision is adds no value insofar as there are already laws on the books that address traffic hazards. It is also likely to be found unconstitutional by the courts because the third part singles out the speech of immigrant day laborers for criminalization. The solicitation of work has been found by courts across the county to be protected speech under the First Amendment.
Would add a new section, A.R.S. § 13-2929, that makes unlawful for any person who is “in violation of a criminal offense” to transport, move, conceal, harbor, shield from detection, or attempt to do any of the above, any undocumented immigrant if the person knows or recklessly disregards the fact that the immigrant has entered or remained in the United States illegally. It also makes it a state crime to encourage or induce any immigrant to come, enter, or reside in the country illegally. A person who violates this law would be subject to a class 1 misdemeanor and a fine of at least $1,000, with additional penalties where the offense involves ten or more immigrants. Any means of transportation used in connection with the crime will be impounded.
This provision is unnecessary because the exact same actions (transporting, moving, concealing, harboring, and shielding undocumented immigrants) are already prohibited under federal law where the person commits those acts with the intent to further the immigrant’s violation of the law. 8 U.S.C. § 1324(a)(1)(a). Furthermore, Arizona peace officers have explicit authority to arrest anyone who violates the federal harboring law, 8 U.S.C. § 1324(c), and vehicles used to commit the offense may be seized. 8 U.S.C. § 1324(b). Courts have not permitted prosecutions under the federal statute where a person offers a ride or shelter to another person out of humanitarian concern rather than with the intent to further the violation, such as for a profit motive. There is also a specific provision in the federal statute exempting churches who provide room and board to members of their congregation serving as ministers or missionaries. To the extent that the state law is applied differently than the federal law, it could be invalidated as violating the Supremacy Clause of the U.S. Constitution. The state offense also adds a requirement that the person already be violating some other criminal law in order to be found guilty.
Amends Arizona’s state law on warrantless arrests, A.R.S. § 13-3883 to include the arrest of persons who have committed any public offense that makes them deportable.
Adds a new section to the state employer sanctions law, A.R.S. § 23-212, that establishes an affirmative defense to a violation of the law if they were entrapped by law enforcement. To assert the defense, an employer must prove—by a preponderance of the evidence—that the idea of committing the violation started with the undercover officer, the officer urged or induced the employer to commit the violation, and the employer was not predisposed to commit the violation.
Adds a new section to the state law on verification of employment eligibility, A.R.S. § 23-214, that requires employers to keep records of their verification of eligibility for the duration of the worker’s employment with the company or at least three years, whichever is longer.
Adds a new section to the state law governing impoundment of vehicles, A.R.S. § 28-3511, mandating the impoundment of any vehicle used to transport, move, conceal, harbor, or shield an undocumented immigrant.
Establishes the purposes and process for GIITEM Fund appropriations.
States that the remaining provisions of the bill are severable and will remain in effect even if certain portions are held to be invalid.
Bd. did not err in affirming IJ's order denying alien's request for cancellation of removal based on alien's allegation that he was battered spouse as contemplated under 8 USC section 1229b(b)(2)(A). Ct. rejected alien's contention that IJ failed to give him opportunity to establish that he was person of good moral character so as to potentially qualify for said cancellation since alien conceded that he was deportable under section 1227(a)(2)(A)(i) for having been convicted of crime of moral turpitude.
In Benaouicha v. Holder, 2010 WL 1292718 (7th Cir. 2010), the U.S. Court of Appeals for the Seventh Circuit denied a petition for review filed by a citizen of Algeria who sought to defend his removal proceeding by advancing a claim that he qualified for cancellation of removal as a “battered spouse” pursuant to INA § 240A(b)(2) [8 USCA § 1229b(b)(2)]. The court agreed with the determination by the BIA, which upheld the IJ's order of removal, that the petitioner was statutorily ineligible for cancellation because he had been convicted of a crime involving moral turpitude (CIMT) so that it was not necessary to consider the other requirement, to wit: good moral character.
In September 2000, the petitioner was admitted to the U.S. to attend an airline training academy, but he never enrolled in the school. In 2003, he was convicted of a federal offense under 18 USCA § 1001(a)(2) for falsely applying for a social security card and served a six-month sentence. Upon release from federal custody, DHS commenced removal proceedings against him, alleging removability under INA § 237(a)(1)(C) [8 USCA § 1227(a)(1)(C)] for failing to comply with the conditions of his nonimmigrant status and under INA § 237(a)(1)(A) [8 USCA § 1227(a)(1)(A)] for being inadmissible at the time of entry. DHS subsequently added an additional charge under INA § 237(a)(2)(A)(i) [8 USCA § 1227(a)(2)(A)(i)] for having a conviction for a CIMT committed within five years of admission and for which a sentence of one year or longer may be imposed. Before the IJ, the petitioner conceded that he was removable on all three charges; however, as relief from removal, he sought adjustment of status to lawful permanent resident based on his marriage to a U.S. citizen. In January 2005, while the removal proceedings were pending, he pled guilty to a battery offense under Ind. Code § 35-42-2-1, and received a one-year suspended sentence and one year of probation. The court noted that the victim of the battery was the petitioner's wife. In February 2006, the petitioner requested a continuance of his immigration court hearing because his marriage had dissolved and he had filed an I-360 petition for classification as a battered or abused spouse of a U.S. citizen. The IJ allowed for several continuances while the I-360 petition was under review, but the petition was ultimately denied by USCIS' Vermont Service Center. Despite a pending appeal to the BIA respecting the I-360, the IJ denied a further continuance, ruled that the petitioner was ineligible for cancellation of removal, and ordered him removed. After the BIA upheld this result, the petitioner appealed to the Circuit Court, arguing, inter alia, that the BIA erred by ordering his removal without allowing him to demonstrate that he was a person of good moral character, which is one of the requirements for the cancellation application that he had endeavored to pursue before the IJ.
The court indicated that it had jurisdiction over the legal claims presented by the petitioner pursuant to INA § 242(a)(2)(D) [8 USCA § 1252(a)(2)(D)], notwithstanding the jurisdictional bar pertaining to the granting of cancellation relief set forth at INA § 242(a)(2)(B)(i) [8 USCA § 1252(a)(2)(B)(i)]. It proceeded to paraphrase the five elements necessary for an applicant to qualify for a grant of cancellation relief under the “battered spouse” provision: (1) he or she has been subject to battery or extreme cruelty by a U.S. citizen spouse, (2) he or she has been physically present in the U.S. for not less than three years, (3) he or she has been a person of good moral character, (4) he or she is not deportable under §§ 237(a)(1)(G), (a)(2) or (a)(4) and has not been convicted of an aggravated felony, and (5) his removal would result in extreme hardship to him or her or his or her child or parent. The court emphasized that the petitioner conceded that he was deportable under INA § 237(a)(2)(A) for having been convicted of a CIMT, thus rendering him ineligible under the fourth prong, as outlined above. The court thus concluded that, even if he could have convinced the government that he satisfied the good-moral-character requirement, as was argued in his brief before the court, the petitioner still remained ineligible for cancellation.
The court also clarified that, to the extent that the petitioner was attempting to appeal USCIS' denial of his I-360 visa petition or was asking the court to remedy the apparent failure of the Vermont Service Center to tender his appeal to the BIA, the court could not address those matters for which it lacked jurisdiction. It pointed out that there was no final administrative decision regarding this “visa application” and that it had no effect on the separate removal order, which was reviewed under INA § 242.
U.S. Citizenship and Immigration Services (USCIS) has issued a reminder to Haitian nationals who are eligible for temporary protected status (TPS) to file a registration application for TPS by July 20, 2010. The Department of Homeland Security (DHS) Secretary Janet Napolitano announced an 18-month designation of TPS for Haiti commencing on January 21, 2010. [FN1] Haitian nationals (and aliens having no nationality who last habitually resided in Haiti) who have continuously resided in the U.S. since January 12, 2010, and who remain in continual physical presence in the U.S. since January 21, 2010, may apply for TPS within the 180-day registration period.
The announcement indicates that, as of April 9, 2010, USCIS had received approximately 44,500 TPS application packages, more than 10% of which were rejected for such things as not including the appropriate filing fee or, in the alternative, a fee waiver request, not completing the biographical information, and submitting unsigned forms and/or incorrect forms. USCIS thus cautions applicants to thoroughly review their application packets before submitting them.
This report presents information on the number and characteristics of foreign nationals who became American citizens during fiscal year 2009.
Data on Naturalizations Access data on persons who became American citizens in fiscal year 2009 by country of birth, state of residence, and other characteristics.
"We hold that the BIA erred in reviewing the finding of a probability of torture de novo; it was required to review the factual aspects of that inquiry for clear error, and it was entitled to review only the legal aspects of the inquiry de novo."
"Petitioner Vadim Kaplun, a citizen of the Ukraine, petitions for review of four decisions of the Board of Immigration Appeals resulting in a final order of removal that designated him removable for having committed an aggravated felony, denied him withholding of removal by virtue of having committed a particularly serious crime, and reviewed de novo and reversed the Immigration Judge’s finding of a clear probability of future torture if Kaplun were removed. He contends that the Government did not prove he committed an aggravated felony by clear and convincing evidence; as a non- violent, white collar offense, his offense was not a particularly serious crime; and the BIA applied an improper de novo standard of review to the IJ’s finding that Kaplun’s torture if removed would be probable. We conclude that the BIA was correct on the first two issues, but applied an incorrect standard of review on the third. Accordingly, we deny the petition for review on the first two claims, and grant it on the third claim.
Kaplun is a native of the Ukraine who was admitted to the United States in 1977 as a seven-year-old refugee. He later became a legal permanent resident. In 1997 and 1998 he was charged and convicted in two federal criminal proceedings based on his participation in fraudulent stock schemes.
For reasons desribed below, only the 1998 conviction is at issue here. Kaplun there pled guilty to an information1 alleging securities fraud with losses of nearly $900,000 under 15 U.S.C. §§ 77q, 77x, and 18 U.S.C. § 2. Per the pre-sentence investigation report (PSR), the total loss for the 1998 offense was described as “at least $700,000 and less than $1,000,000.” The $700,000 figure was used twice more in the PSR to calculate the specific offense level2 and to calculate the maximum fine. Defense counsel made no objection to the PSR. After the District Court adopted the PSR (save for two exceptions not relevant here) and granted a downward departure, the undisputed Guideline range was 51–63 months’ imprisonment. Kaplun was sentenced to 56 months’ imprisonment for the 1998 conviction, but a fine was waived because of his inability to pay.
The Government began removal proceedings against Kaplun in 2001 based on the 1997 and 1998 convictions. He denied removability and later submitted an application for asylum. The Government produced the judgment of conviction, the PSR, and the information to establish the 1998 conviction and its surrounding facts. No plea colloquy was produced, though Kaplun does not deny that he pled guilty to the single- count information.
In his application for asylum, Kaplun claimed that, as a Jewish refugee, he would be subjected to persecution and torture if he were removed to the Ukraine. In support of his claims, he procured an expert witness to give testimony on anti-Semitism in the Ukraine. This expert gave detailed testimony on the situation and voiced disagreement with various Government reports on the extent of anti-Semitism in that country. He also testified that Kaplun would be unable to gain citizenship, get a job, rent an apartment, or even buy a train ticket. It was his expert opinion that Kaplun would be living on the street, destitute, and would be targeted for extortion and torture.
In an April 2004 ruling, the IJ found Kaplun removable based on his prior convictions (though it was unclear which of the two convictions qualified), but granted withholding of removal and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”),3 crediting the testimony of Kaplun’s expert. Despite this, Kaplun appealed the part of the ruling that found him removable. The Government cross- appealed the part of the ruling granting withholding of removal.
On March 31, 2010, in a landmark decision called Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment requires criminal defense counsel to advise a noncitizen defendant regarding the immigration consequences of a guilty plea, and that absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.
(login required). This national practice advisory provides a summary and key points of the Padilla decision for criminal defense lawyers, a brief review of select defense lawyer professional standards cited by the court, an immigration consequences of crimes checklist, and a summary of resources available to criminal defense lawyers nationally.
(login required). This is a one page reference sheet that provides an overview of the immigration consequences of criminal convictions.
(login required). This checklist summarizes some defensive legal arguments and strategies that non-citizens and their legal representatives may pursue in removal proceedings involving crime-related charges.
- Quick reference guides and manuals on the immigration consequences of state offenses in over 18 states and for federal offenses at http://www.immigrationadvocates.org/link.cfm?14991 (login required). This section of the library contains 11 comprehensive charts, including Arizona, California, Florida, Illinois, Indiana, New Jersey, New York, Virginia, Washington, Wisconsin, and federal. It also includes six abbreviated charts that cover Connecticut, Florida, Vermont, New Mexico, North Carolina, Massachusetts, and Texas.
- "Practice Advisory: The Impact of Nijhawan v. Holder on the Application of the Categorical Approach to Aggravated Felony Determinations," by the Immigrant Defense Project and the National Immigration Project, at http://www.immigrationadvocates.org/link.cfm?14992 (login required). This practice advisory analyzes the Nijhawan's impact on the application of the categorical approach to aggravated felony determinations generally, and provides specific suggestions on how Nijhawan may be used affirmatively to overcome unfavorable case law in certain jurisdictions on certain aggravated felony issues, including the reach of the sexual abuse of a minor and drug trafficking grounds.
(login required). This practice advisory provides a summary of the opinion, practice tips for criminal and immigration counsel, highlights one issue to be considered under the categorical approach called the "missing element" rule, and explores the potential effect of the decision if courts apply Nijhawan to the grounds of inadmissibility and deportability.
- "Practice Advisory: Recent Developments in the Categorical Approach: Tips for Criminal Defense Lawyers Representing Immigrant Clients," by the Immigrant Defense Project, at http://www.immigrationadvocates.org/link.cfm?14994 (login required). This practice advisory discusses the basics of the "categorical approach" that immigration courts employ to determine whether a state or federal criminal offense falls within the criminal grounds of removal (deportation) and why it is important to criminal defense attorneys. It also provides background on recent developments in the "categorical approach" and provides practice tips to help criminal defenders represent immigrant clients to take advantage of the categorical approach where it applies and to avoid or mitigate negative immigration consequences under these new legal developments.
- "Practice Advisory: Defense Arguments Against Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)," by the Immigrant Legal Resource Center, at http://www.immigrationadvocates.org/link.cfm?14995 (login required). This advisory provides arguments to refute the BIA's decision that a respondent bears the burden of document production to establish that a conviction under a divisible statute is not a bar to relief and that any conviction of a crime involving moral turpitude is a bar to non-LPR cancellation.
- The Immigrant Legal Resource Center is hosting a crimes webinar series from April through June, which includes: Part I: Introduction to Immigration Consequences of Crimes on Thursday, April 15 from 10:00 - 11:30 a.m. PDT; Part II: Family Immigration for Clients with Criminal Histories on Tuesday, May 4 from 12:00 -1:30 p.m. PDT; and Part III: Applications for Relief in Removal Proceedings on Thursday, June 10 from 12 - 1:30 p.m. PDT. To register, visit http://www.ilrc.org and select "seminars."
- The Defending Immigrants Partnership will be presenting a national webinar, "The Duty of Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky," at the end of April for indigent criminal defenders. For updates visit http://www.defendingimmigrants.org.
The Defending Immigrants Partnership website is dedicated exclusively to providing resources to criminal defenders representing noncitizen defendants at www.defendingimmigrants.org.
The right of refugees and asylees to work in the U.S.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices within the Department of Justice (DOJ) has issued two flyers, one for employers and one for refugees and asylees, regarding the right of refugees and asylees to work in the U.S.
U.S. Citizenship and Immigration Services (USCIS) advises that the Haiti government has requested that the U.S. provide it with a final list of orphans being considered under the Special Humanitarian Parole Program for Haitian Orphans. As a result, USCIS has announced that it will stop accepting new requests for consideration under the special program as of April 14, 2010, and will resume regular processing of intercountry adoptions.
USCIS believes that the vast majority of adoption requests for orphans who meet the criteria of the special program have already been submitted under the program that Department of Homeland Security Secretary Janet Napolitano authorized after the January 2010 earthquake which devastated Haiti. Parole was authorized for two specific and limited groups of Haitian children: (1) those who either had full and final adoptions completed by their U.S. parents before the earthquake and who were legally confirmed as eligible for intercountry adoption by the government of Haiti and (2) those who were far enough along in the adoption process that both the U.S. and Haitian governments could verify the identity and eligibility of the children for adoption and the U.S. government could confirm the suitability of the adoptive parents.
Since January 18, USCIS has authorized parole for more than 1,000 orphans under the special program, and, as of April 5, approximately 340 cases were still being considered. After April 13, 2010, intercountry adoption cases involving Haitian orphans will again be processed through normal procedures. USCIS advises that the government of Haiti has already begun accepting new documents for adoption cases and the U.S. Embassy in Port-au-Prince has resumed regular processing. However, requests for humanitarian parole may be submitted through April 13. To initiate a case, send an e-mail to the HaitianAdoptions @dhs.gov mailbox, including in the subject line the last name of the prospective parent(s) and the name of the child(ren) to be adopted.
If the adoptive parents are in the process of gathering the evidence necessary to establish eligibility for parole, they may still submit a request to the e-mail box before the deadline with an explanation of the evidence that they are seeking to obtain but should provide, at a minimum, full names and dates of birth of the Haitian child(ren) and the prospective adoptive parent(s) and contact information for the prospective adoptive parent(s).
The Department of Homeland Security (DHS) had taken a number of steps in response to the crisis created by the January 12, 2010 earthquake in Haiti. Among them, DHS Secretary Janet Napolitano has announced an 18-month designation of temporary protected status (TPS) for Haiti. In addition, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro N. Mayorkas, on January 15, 2010, issued a memorandum to field leadership entitled "Initial Relief Efforts for Aliens Affected by the January 12, 2010 Haiti Earthquake." The memorandum provides interim field guidance for the various forms of relief that USCIS has committed to undertake as a result of the earthquake. The guidance applies to nationals and habitual residents of Haiti, some of whom may fall outside the scope of the TPS designation. Among the temporary relief discussed in the memorandum is humanitarian parole for adoptive children. Subsequent to the issuance of the memorandum, DHS Secretary Napolitano, in conjunction with the Department of State, issued a fact sheet and set of questions and answers addressing this humanitarian parole for orphans in more detail.
For decades, the immigration adjudication system has been under relentless attack from both the left and the right. The left has been concerned with the fairness of the proceedings, the accuracy and consistency of the outcomes, and the acceptability of both the procedures and the outcomes to the parties and to the public. The right has focused on the fiscal costs and elapsed times of these proceedings. This Article demonstrates that all of these criticisms have been well founded and that the roots of the problems are severe underfunding, reckless procedural shortcuts, the politicization of the process, and a handful of adjudicators personally ill suited to the task.
Over the years, commentators and commissions have offered thoughtful solutions, but consensus has proven elusive. This Article calls for redesigning the entire system. For the trial phase, this Article endorses previous proposals for converting the current immigration judges into administrative law judges, who enjoy greater job security, and moving them from the Department of Justice into a new, independent executive branch tribunal. For the appellate phase, this Article proposes radical surgery, replacing both administrative appeals and regional court of appeals review with a single round of appellate review by a new, Article III immigration court. The new court would be staffed by experienced Article III district and circuit judges serving two-year assignments. This new system would significantly depoliticize the hiring, judging, supervision, and control of immigration adjudicators. It would consolidate the two current, largely duplicative rounds of appellate review into one, in the process restoring the Article III jurisdiction that Congress stripped away in 1996. It would save tax dollars and speed the removal process, thus reducing not only prolonged detention, but also what some believe is a meaningful incentive to file frivolous appeals to delay removal. It would preserve both specialized expertise and a generalist perspective. And it is politically realistic, permitting all sides to meet the specific objectives they hold most dear while requiring each side to make only modest concessions.
This month, foreign nationals traveling to the United States will begin to see changes in airport security screening procedures, as the U.S. Transportation Safety Administration implements new screening policies that will focus less on a traveler's country of citizenship and more on intelligence data that flags security risks. In particular, foreign nationals from 14 countries of concern should no longer be automatically subject to heightened screening because of their nationality alone. The new policies were announced on April 2, 2010 by the Department of Homeland Security.
Airport security personnel will use security databases and watch lists in combination with intelligence about specific terrorism suspects, their physical descriptions and travel patterns to identify travelers for increased scrutiny. Foreign nationals whose traits and travel histories are similar to intelligence data could be selected for additional airport screening. The new procedures replace an emergency measure implemented in January that required automatic additional screening for citizens and nationals of Afghanistan, Algeria, Cuba, Iran, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia, Sudan, Syria and Yemen.
When traveling to the United States from abroad, foreign nationals should still expect strict screening and delays at airports, including close questioning, random searches, and other measures, and could still be subject to secondary screening if their information matches data from intelligence reports or watch lists. However, having a certain nationality or holding a passport from one of the 14 countries of concern should not, by itself, trigger additional screening.
Summary: Statistical Profiles of the Hispanic and Foreign-Born Populations in the U.S.


Emulex was the target of a tender offer by what was then Avago Technologies Ltd. (subsequently merged into and becoming BroadCom Corporation). Emulex issued a favorable Recommendation Statement,4 which plaintiffs—purporting to represent a class of Emulex shareholders—claimed omitted an analysis of comparable transactions that would have shown the premium offered by Avago was below the premia offered in those comparable deals.
Nothing in the Exchange Act explicitly creates a private right of action against alleged violators of § 14(e), but the existence of an implied private right of action thereunder has long been accepted.9 The courts have thus been faced with the oft-contentious task of dividing what elements Congress would have wanted included in a remedy Congress never contemplated.
In response, the Ninth Circuit made essentially two arguments. First, the Ninth Circuit relied on the Supreme Court’s decision in United States v. O’Hagan,19 which held “under § 14(e), the [SEC] may prohibit acts not themselves fraudulent under the common law or § 10(b), if the prohibition is ‘reasonably designed to prevent … acts and practices [that] are fraudulent.’”20 The difficulty with that argument is that O’Hagan simply upheld the SEC’s authority to adopt Rule 14e-3. The SEC has never defined the state of mind necessary to support a private cause of action under the rule. Even if the SEC attempted to, moreover, it would have to show that such a prophylactic measure “reasonably designed to prevent … acts and practices [that] are fraudulent,” which means they must be reasonably designed to prevent conduct motivated by an intent to deceive.
Given the surge in federal cases following Trulia, these policy concerns seem pertinent once again.
In re Trulia, Inc. Stockholder Litig., 129 A.3d 884 (Del. Ch. 2016).
See generally Ryan Lewis, What Happens in Delaware Need Not Stay in Delaware: How Trulia Can Strengthen Private Enforcement of the Federal Securities Laws, 2017 B.Y.U. L. Rev. 715, 740 (2017) (discussing the impact of Trulia on state versus federal filings).
It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer or request or invitation for tenders, or any solicitation of security holders in opposition to or in favor of any such offer, request, or invitation. The Commission shall, for the purposes of this subsection, by rules and regulations define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative.
15 U.S. Code § 78n(e).
Emulex filed a Schedule 14d-9 as per Rule 14d-9. 17 CFR § 240.14d-9.
Varjabedian v. Emulex Corp., 152 F. Supp. 3d 1226 (C.D. Cal. 2016), aff’d in part, rev’d in part and remanded, 888 F.3d 399 (9th Cir. 2018), cert. granted, 2019 WL 98542 (U.S. Jan. 4, 2019).
Varjabedian v. Emulex Corp., 888 F.3d 399, 406 (9th Cir. 2018), cert. granted, 2019 WL 98542 (U.S. Jan. 4, 2019).
The Supreme Court has defined scienter in the securities law context as “mental state embracing intent to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n.12 (1976). The Supreme Court has reserved the question of “whether, under some circumstances, scienter may also include reckless behavior.” Aaron v. Securities and Exch. Commn., 446 U.S. 680, 686 n.5 (1980). Every circuit court to have considered the question has determined that recklessness can satisfy the scienter requirement, although the circuits have disagreed as to degree of recklessness necessary. See Rubinstein v. Gonzalez, 241 F. Supp. 3d 841, 855 (N.D. Ill. 2017) (discussing status of scienter requirement under Exchange Act § 10(b)).
Varjabedian, 888 F.3d at 407. The Ninth Circuit agreed with the District Court that there is no implied private right of action under Rule 14d-9 and therefore dismissed plaintiffs’ claims purporting to sound thereunder. Id. at 409. That ruling is not before the Supreme Court.
See, e.g., Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 55 (1977) (Stevens, J., dissenting) (“No one seriously questions the premise that Congress implicitly created a private right of action when it enacted § 14(e) in 1968.”); Liberty Nat. Ins. Holding Co. v. Charter Co., CV82-H-233-S, 1982 WL 1304, at *5 (N.D. Ala. Apr. 27, 1982), aff’d, 734 F.2d 545 (11th Cir. 1984) (noting “the now well established principle that a private right of action does exist under Section 14(e)”).
Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 10, (1985).
Am. Carriers, Inc. v. Baytree Inv’rs, Inc., 685 F. Supp. 800, 808 (D. Kan. 1988) (“Since section 14(e) and rule 10b–5 are coextensive in their anti-fraud prohibitions, they are construed in pari materia by courts.”).
See, e.g., Smallwood v. Pearl Brewing Co., 489 F.2d 579, 605 (5th Cir. 1974) (holding that “the same elements must be proved to establish a violation of either [statute]”); Chris–Craft Indus. Inc., v. Piper Aircraft Corp., 480 F.2d 341, 362 (2d Cir. 1973) (holding that “we shall follow the principles developed under Rule 10b-5 regarding the elements of [Section 14(e)] violations”).
Aaron v. Securities and Exch. Commn., 446 U.S. 680 (1980).
See, e.g., Securities and Exch. Commn. v. Texas Intern. Co., 498 F. Supp. 1231, 1252 (N.D. Ill. 1980).
Schreiber, 472 U.S. at 10 n.10.
Varjabedian v. Emulex Corp., 888 F.3d 399, 404 (9th Cir. 2018), cert. granted, 18-459, 2019 WL 98542 (U.S. Jan. 4, 2019).
See Aaron v. SEC, 446 U.S. 680, 701 (1980) (discussing § 17(a)(2)).
Varjabedian v. Emulex Corp., 152 F. Supp. 3d 1226, 1233 (C.D. Cal. 2016) (emphasis in original), aff’d in part, rev’d in part and remanded, 888 F.3d 399 (9th Cir. 2018).
Pryor v. U.S. Steel Corp., 591 F. Supp. 942 (S.D.N.Y. 1984), aff’d in part, rev’d in part, 794 F.2d 52 (2d Cir. 1986).
Id. at 163-64 (citations omitted).


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“Do unto others as you would have them do unto you.” A form of the Golden Rule can be found in every major religion, and it is universally understood across disparate cultures and nationalities. The same cannot be said for Louisiana’s legal doctrine of the Golden Rule, which is frequently mischaracterized by the defendants we encounter in our personal injury practice. The issue typically arises when a defendant has violated a safety rule – such as a statute, a traffic regulation or an industry standard — and this violation led to an oilfield explosion, car crash, or other injury-causing incident. In these cases, we have seen defendants try to invoke the Golden Rule doctrine to ask the court to prohibit us from making arguments to the jury about the defendants’ rule violations.
For example, in one of our cases, the defendant’s employees violated safety rules when they incorrectly loaded a large piece of equipment onto the flatbed trailer of an eighteen-wheeler, which led to a horrific crash that amputated our client’s legs and caused him to suffer a traumatic brain injury. The defendant argued that the Golden Rule doctrine precluded us from talking to the jury about the safety rules that the defendant’s employees violated. But this is not a correct application of Louisiana’s Golden Rule jurisprudence.
In reality, Louisiana’s Golden Rule doctrine holds that a plaintiff cannot invoke the biblical Golden Rule and ask the jury to “substitute sympathy for judgment because the jury is asked to place itself in the position of a party and ‘do unto others'” the way the jury would themselves want to be treated. Louisiana courts have held that litigants cannot ask jurors to place themselves in the shoes of the litigant when determining the issue of damages (i.e., “award more damages to me because, if you were in my position, you’d want the jury to do this for you”).
However, this does not mean that jurors cannot place themselves in the position of the plaintiff when deciding who was at fault in causing a collision or other injury-causing incident. The Golden Rule cases explain that the jury is entitled to place itself in the shoes of the litigants when determining issues other than damages, such as the reasonableness of a party’s conduct, which is relevant to the issue of liability. See, e.g., Duerden v. PBR Offshore Marine Corp., 471 So. 2d 1111 (La. App. 3 Cir. 1985), writ denied, 476 So. 2d 355 (La. 1985); see also Tingle v. Am. Home Assur. Co., 2010 71 (La. App. 3 Cir. 6/2/10), 40 So. 3d 1169, 1175, writ denied, 2010 1580 (La. 10/29/10), 48 So. 3d 1095. To decide whether the plaintiff or defendant acted reasonably, the jurors are permitted to consider what they themselves would have done if faced with the same situation. Duerden, 471 So.2d at 1114.
Likewise, violations of rules and regulations are “intuitively relevant” as evidence regarding the reasonableness of a defendant’s conduct. Manchack v. Willamette Indus., Inc., 621 So. 2d 649, 653 (La. App. 2 Cir. 1993), writ denied, 629 So. 2d 1170 (La. 1993). While “regulations are not in and of themselves definitive of civil liability, they may be guidelines for the court in determining standards of negligence by which civil liability is determined.” Parker v. S. Louisiana Contractors, Inc., 370 So. 2d 1310, 1313 (La. App. 1 Cir. 1979), writ denied, 374 So. 2d 662 (La. 1979) (citing Smolinski v. Taulli, 276 So.2d 286, 289 (La. 1973)). “Although the violation of [safety] regulations does not constitute negligence per se, they may be relevant in the establishment of the standard of care owed by a particular defendant to a particular plaintiff.” Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 157 (5th Cir. 1994) (analyzing and applying Louisiana law).
Thankfully, multiple courts in Louisiana have rejected defendants’ attempts to misuse the Golden Rule, and have declined to improperly restrict plaintiffs’ evidence and arguments on the question of liability. See, e.g., Baxter v. Anderson, 277 F. Supp. 3d 860, 865 (M.D. La. 2017). However, we can expect defendants to continue to misuse the Golden Rule doctrine until Louisiana’s district courts receive more guidance from the appellate courts in the form of reported decisions on this issue.
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Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law, Judge Carolyn S. Holifield, held a formal hearing in this case on March 31, 2000, by video teleconference at sites in West Palm Beach and Tallahassee, Florida.
The issues for determination are: (1) whether Respondent violated Section 112.313(6), Florida Statutes, in misusing his official position by threatening to discontinue the City's patronage of the Complainant's business because she displayed the campaign sign of one of Respondent's opponents in her business window; and (2) if so, what penalty should be imposed.
On September 2, 1999, the Florida Commission on Ethics (the "Commission") entered an Order Finding Probable Cause to believe that Respondent, Tom Ramiccio, while serving as the Mayor of the City of Lake Worth, violated Section 112.313(6), Florida Statutes. On or about January 13, 2000, the case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge to conduct a public hearing and prepare a recommended order.
Prior to the hearing, the parties submitted a Joint Prehearing Stipulation containing a number of stipulations of fact and law. The facts to which the parties stipulated required no proof at hearing.
At the hearing, the Advocate called three witnesses: Carol Dippel, Beverly Douglas, and Ella Riggs. The Advocate offered one exhibit, which was accepted into evidence. Respondent testified on his own behalf and called five witnesses: Bjon Javid, Barbara Massey, Wendy Newmeyer, H. Patrick Parrish, and Marianne Webber. Respondent offered four exhibits into evidence. Of those exhibits, Respondent's Exhibits 2 and 3 were received into evidence; Respondent's Exhibit 1 was rejected, and Respondent's Exhibit 4 was proffered. Upon consideration of Respondent's Exhibit 4, Section 90.610(1), Florida Statutes, and Respondent's Memorandum of Law relative thereto, that exhibit is also received into evidence and considered in this proceeding.
A Transcript of the proceeding was prepared and filed with the Division of Administrative Hearings on June 15, 2000. At the conclusion of the hearing, the time set for filing proposed recommended orders was 10 days after the Transcript was filed. The Advocate and Respondent filed Proposed Recommended Orders, which have been considered in preparation of this Recommended Order.
1. Tom Ramiccio (Respondent) was elected to the Lake Worth City Council. He was elected mayor in 1997.
2. On February 21, 1999, Respondent was involved in a campaign for re-election. The election was held in March and Respondent was re-elected.
3. As Mayor of the City of Lake Worth (City of Lake Worth or City), Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees.
4. Carol Dippel is a florist who owns a shop on Lake Avenue in downtown Lake Worth.
5. Once a year there is a "street painting festival" in the downtown area. The festival was in progress on February 21, 1999.
6. During the 1999 street painting festival, Respondent was campaigning for re-election. During the street festival, on February 21, 1999, Respondent went into Ms. Dippel's store, Lake Avenue Flowers and Balloons, because he noticed a campaign sign for his opponent in her store window. Respondent's opponent for that election was Pam Wynn.
7. Respondent was curious about why Ms. Dippel was supporting his opponent and inquired whether he had done anything to offend her. Ms. Dippel responded that she believed that Respondent had done a good job for the City, but that she was supporting Ms. Wynn because of Respondent's position on the neon lighting ordinance. Respondent told Ms. Dippel that even if Pam Wynn were elected, there would be no change in the neon ordinance. This was because four other city commissioners supported the neon ordinance.
8. Ms. Dippel had two neon calla lilies in her storefront and supported the rights of shop owners to use neon signs. Respondent, on the other hand, was strongly opposed to neon lights in the downtown area and had supported a recently-passed ordinance restricting the use of neon.
9. Respondent and Ms. Dippel then proceeded to have discussion that lasted about 10 to 15 minutes. They debated Respondent's vision of a historic downtown area and also discussed the artistic merits of neon and the role of the government in limiting the individual choice and rights of property owners.
10. The discussion between Respondent and Ms. Dippel was spirited but not angry. However, as Respondent turned to leave, he told Ms. Dippel that in the past he and the City of Lake Worth had done business with her but would no longer do so. Ms. Dippel felt that Respondent, by this statement, was trying to coerce or intimidate her into removing the Pam Wynn sign from the window of her shop.
11. Portions of the conversation between Respondent and Ms. Dippel were overheard by Beverly Douglas, an occasional employee of Ms. Dippel, who was working in the shop that day. Ms. Douglas heard Respondent tell Ms. Dippel that he, his wife, and the City of Lake Worth had been customers of Ms. Dippel but would no longer do business with her. Ms. Douglas believed that Respondent's conduct was intimidating and characterized his statements to Ms. Dippel as "giving her a hard time."
12. Ms. Douglas' testimony was credible and her account of Respondent's statement that he and the City of Lake Worth would discontinue doing business with Lake Avenue Flowers and Balloons corroborated that of Ms. Dippel.
13. The City of Lake Worth does not have a contract to purchase flowers from Ms. Dippel's store, nor does it have an account there. However, the City of Lake Worth has purchased flowers from Ms. Dippel's store in the past, although not on a regular basis.
14. An affidavit from the City Finance Director reflects that the City purchased flowers or other products or services from Ms. Dippel's store on three occasions since March of 1996. According to the City's financial records, the City made the following payments to Lake Avenue Flowers: $12.00 on or about March 26, 1996; $95.00 on or about September 22, 1997; and $100.00 on or about May 26, 1998.
15. Respondent was not been involved in any of the aforementioned purchases made by the City from Ms. Dippel's store. However, Respondent, the city manager, and both of their secretaries were authorized to purchase flowers on behalf of the City.
16. The street painting festival was co-chaired by Respondent's friend and supporter, Marion Webber, and funded in part through City grant money. In prior years, the festival had used Ms. Dippel's store to provide gifts to participants.
17. After the February 21, 1999, incident, Ms. Dippel received no more business from the City of Lake Worth or the festival.
18. Respondent admitted that Ms. Dippel's version of what happened on February 21, 1999, is accurate, with the exception of the threat, which he denies. However, the testimony of Ms. Dippel is credible and her version of events, relative to Respondent's statements, is accepted.
19. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
20. Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission on Ethics to conduct investigations and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees.
21. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Bolino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, it is the Commission, through its Advocate that is asserting the affirmative, namely, that Respondent violated Section 112.313(6), Florida Statutes. Therefore, the Commission has the burden of establishing by clear and convincing evidence the elements of Respondent's alleged violation. Latham v. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997), citing Department of Banking and Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996), and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). See also Section 120.57(1)(j), Florida Statutes.
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In Re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowik v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
23. It has been alleged that Respondent violated Section 112.313(6), Florida Statutes, in using his position by threatening to discontinue the City's patronage of the Complainant's business because she displayed the campaign sign of one of Respondent's opponents in her store window.
MISUSE OF PUBLIC POSITION. -- No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31.
"Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.
1. The Respondent must have been a public officer, employee of an agency, or local government attorney.
b. Performed his official duties.
3. The Respondent's actions must have been taken to secure a special privilege, benefit or exemption for himself or others.
4. The Respondent must have acted "corruptly," that is, with wrongful intent and for the purpose of benefiting himself or another person from some act or omission which is inconsistent with the proper performance of his public duties.
27. Respondent has stipulated that he was a "public officer" and, as such, subject to the requirements of Part III, Chapter 112, Florida Statutes. Therefore, the first element required to show a violation of Section 112.313(6), Florida Statutes, has been established.
28. In order to establish a violation of Section 112.313(6), Florida Statutes, it must next be shown that Respondent used or attempted to use his official position, or property or resources within his trust, or performed his official duties, to secure a special privilege, benefit, or exemption for himself or others.
29. The evidence established that Respondent used his position as mayor to imply that he could prevent Ms. Dippel from securing business from the City. The evidence also established that Respondent's goal was to intimidate Ms. Dippel into either supporting him or at least withdrawing her visible support for Ms. Wynn, Respondent's opponent. Therefore, the second and third elements necessary to establish a violation of Section 112.313(6), Florida Statutes have been proven.
30. It must next be established that Respondent acted corruptly, that is with wrongful intent and for the purpose of benefiting himself by by an act which was inconsistent with the proper performance of his public duties.
31. In the context in which the remark was made, the evidence clearly established that the Respondent intended the threatened discontinuance of the City's patronage to Ms. Dippel's store as punishment for her supporting Respondent's political opponent. The statement and conduct of Respondent was intentional and inconsistent with Respondent's performance of his public duties. Based on the foregoing, this element has been proven.
32. Each of the required elements set forth in paragraph 26 was established by clear and convincing evidence. Accordingly, the Commission, through its Advocate, has met its burden of proof in this case.
RECOMMENDED that a Final Order and Public Report be entered finding that Respondent, Tom Ramiccio, violated Section 112.313(6), Florida Statutes; imposing a civil penalty of $2,000; and issuing a public censure and reprimand.
DONE AND ENTERED this 2nd day of August, 2000, in Tallahassee, Leon County, Florida.

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In accordance with Art. 13 GDPR, we inform you about the legal basis of our data processing. Unless the legal basis in the data protection declaration is mentioned, the following applies: The legal basis for obtaining consent is Article 6 (1) lit. a and Art. 7 GDPR, the legal basis for the processing for the performance of our services and the performance of contractual measures as well as the response to inquiries is Art. 6 para. 1 lit. b DSGVO, the legal basis for processing in order to fulfill our legal obligations is Art. 6 (1) lit. c DSGVO, and the legal basis for processing in order to safeguard our legitimate interests is Article 6 (1) lit. f DSGVO. In the event that vital interests of the data subject or another natural person require the processing of personal data, Art. 6 para. 1 lit. d DSGVO as legal basis.
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According to legal regulations in Austria, the storage takes place in particular for 7 years according to § 132 paragraph 1 BAO (accounting documents, receipts / invoices, accounts, receipts, business papers, statement of income and expenses, etc.), for 22 years in connection with real estate and for 10 years in the case of documents relating to electronically supplied services, telecommunications, broadcasting and television services provided to non-entrepreneurs in EU Member States and for which the Mini-One-Stop-Shop (MOSS) is used.
Users can optionally create a user account, in particular by being able to view their orders. As part of the registration, the necessary mandatory information will be communicated to the users. The user accounts are not public and can not be indexed by search engines. If users have terminated their user account, their data will be deleted with regard to the user account, subject to their retention is for commercial or tax law reasons according to Art. 6 para. 1 lit. c DSGVO necessary. Information in the customer account remains until its deletion with subsequent archiving in the case of a legal obligation. It is the responsibility of the users to secure their data upon termination before the end of the contract.

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FindACase | Kader v. Sarepta Therapeutics, Inc.
SAREPTA THERAPEUTICS, INC.; CHRISTOPHER GARABEDIAN; EDWARD M. KAYE, M.D., Defendants, Appellees.
Kara M. Wolke, with whom Robert V. Prongay, Jonathan M. Rotter, Glancy Prongay & Murray LLP, Jason M. Leviton and Block & Leviton LLP were on brief, for appellants.
Christopher G. Green, with whom Mark D. Vaughn, Christopher C. Boots, Cassandra A. LaRussa and Ropes & Gray LLP were on brief, for appellees.
Plaintiff William Kader and Lead Plaintiffs Morad Ghodooshim, Roger Lam, and Laxmikant Chudasama (collectively, the "Plaintiffs") sought to represent a class of purchasers of securities that Sarepta Therapeutics, Inc. ("Sarepta") issued between April 21, 2014, and October 27, 2014 (the "Class Period"). The Plaintiffs brought securities fraud claims against Sarepta, Sarepta's Chief Executive Officer, Christopher Garabedian ("Garabedian"), and Sarepta's Chief Scientific Officer, Edward M. Kaye ("Kaye") (collectively, the "Defendants"). According to the Plaintiffs, the Defendants knowingly or recklessly misled investors about their target date for submitting an application to the United States Food and Drug Administration ("FDA") for approval of the drug eteplirsen. The district court dismissed the Plaintiffs' First Amended Complaint ("FAC") for failure to state a claim, and then denied them leave to file their Proposed Second Amended Complaint ("PSAC"). We hold that the district court did not err in dismissing the FAC or in denying Plaintiffs leave to file the PSAC.
Before we immerse ourselves in the details of this case, it is useful to give a brief overview of the process through which the FDA reviews and approves drugs. That process begins when the sponsor of a new drug submits a New Drug Application ("NDA") to the FDA. See 21 U.S.C. § 355(a)-(b); Corban v. Sarepta Therapeutics, Inc., 868 F.3d 31, 34 (1st Cir. 2017) (outlining the FDA's approval process). The FDA then makes the "threshold determination" as to whether the NDA is "sufficiently complete to permit a substantive review." 21 C.F.R. § 314.101(a)(1). "If so, the FDA accepts the application for filing" and then proceeds to "assess the merits of the application, deciding whether to approve the drug." Corban, 868 F.3d at 34 (citing 21 C.F.R. § 314.101(a)(1), (f)). "Approval generally requires the application's sponsor to demonstrate the drug's clinical benefit." Id. (citing 21 U.S.C. § 355(d)).
Sponsors of certain drugs may avail themselves of various FDA programs that expedite the review process. These programs aim to facilitate the availability of critical therapies for serious, unmet medical needs. For example, upon a sponsor's showing of adequate preclinical data, the FDA may grant a drug "Fast Track" status. See 21 U.S.C. § 356(b). Among other benefits, the sponsors of "Fast Tracked" drugs may interact more frequently with the FDA to discuss "the drug's development plan and ensure collection of appropriate data needed to support drug approval." U.S. Food & Drug Admin., Fast Track, https:// www.fda.gov/ForPatients/Approvals/Fast/ucm405399.htm (last updated Jan. 4, 2018).
Fast Tracked drugs may also be eligible for "Accelerated Approval." Id. The FDA approves drugs in the Accelerated Approval program upon meeting a "surrogate endpoint" or "clinical endpoint" that is "reasonably likely" to predict the drug's clinical benefit. 21 U.S.C. § 356(c). "For example, instead of having to wait to learn if a drug actually extends survival for cancer patients, the FDA may approve a drug based on evidence that the drug shrinks tumors, because tumor shrinkage is considered reasonably likely to predict a real clinical benefit." U.S. Food & Drug Admin., Accelerated Approval, https://www.fda.gov/ ForPatients/Approvals/Fast/ucm405447.htm (last updated Jan. 4, 2018). This is particularly useful in the case of drugs intended to treat diseases with longer courses, when measuring the drug's clinical benefit would otherwise require an extended period of time. In such cases, the drug's effect on the surrogate or clinical endpoint may be observable much sooner, allowing the FDA to determine the drug's efficacy at an earlier juncture.
Crucially, once the FDA has approved a drug, the drug's sponsor may begin to market it.
Except when we indicate otherwise, we draw the following facts from the FAC.
Duchenne Muscular Dystrophy ("DMD") is a rare genetic neuromuscular disorder that primarily affects boys and young men. As the result of inadequate production of the protein dystrophin, individuals with DMD suffer from progressive muscle loss causing severe disability and premature death. The average life expectancy for someone diagnosed with DMD is 27 years. During the Class Period, no approved disease-modifying therapies for DMD existed. Sarepta, however, was developing drug candidates to treat DMD, including eteplirsen, the drug around which this case revolves. See Corban, 868 F.3d at 34-37 (describing, in the context of a case involving a different class period, Sarepta's development of eteplirsen). During the Class Period, Sarepta's main competitor, Prosensa Therapeutics, Inc., was also developing and seeking approval of a drug candidate to treat DMD. The first company to obtain approval of its drug and succeed in bringing it to market would obtain the "first mover advantage." In pharmaceutical markets, the "first mover" gains a considerable advantage because doctors will quickly prescribe the first available drug of a new type, and are unlikely to switch to prescribing a different drug of the same type that subsequently becomes available.
The FDA granted eteplirsen Fast Track status in 2007. In 2011, Sarepta began conducting the clinical trials at the center of this case. Study 201, designed as a randomized, double-blind, placebo-controlled study involving 12 participants, sought to assess the effects of "eteplirsen administered intravenously in two different doses over 24 weeks for the treatment of ambulant boys with DMD." The study's participants all underwent muscle biopsies at the study's outset and conclusion to determine if the amount of dystrophin in their muscle tissue had changed over time -- a potential surrogate endpoint by which to assess eteplirsen's efficacy. Study 201's results showed that "treatment with eteplirsen met the primary efficacy endpoint in the study." Following these encouraging results, Sarepta began "Study 202, " in which the same participants received varying dosages of eteplirsen for an additional 24 weeks. All of the muscle biopsy dystrophin analysis for both of these studies took place at a single location -- Nationwide Children's Hospital in Columbus, Ohio -- with one doctor overseeing the entirety of the clinical review. Because this analysis requires staining muscle samples with a dye that makes dystrophin visible, and then viewing and analyzing those samples in slides, the Plaintiffs aver that it is "inherently subjective."
On April 21, 2014 -- the first day of the Class Period -- Sarepta issued a press release discussing the possibility of submitting an NDA for eteplirsen by the year's end. According to the press release, that goal was "based on a guidance letter from the [FDA] that proposed a strategy regarding the submission of an NDA for eteplirsen under a potential Accelerated Approval pathway." The press release quoted the FDA's guidance letter, which explained that "with additional data to support the efficacy and safety of eteplirsen for the treatment of DMD, an NDA should be fileable." The press release also explained that the FDA's letter "outlined examples of additional data and analysis that, if positive, will be important to enhance the acceptability of an NDA filing by addressing areas of ongoing concern in the existing dataset." In addition, the release noted that the FDA had "expressed concerns about methodological problems in the assessments of dystrophin and, 'remain[s] skeptical about the persuasiveness of the (dystrophin) data.'" According to the press release, the FDA had stated that, as a result, it was "uncertain whether the existing dystrophin biomarker data will be persuasive enough to serve as a surrogate endpoint that is reasonably likely to predict clinical benefit."
That same day, Sarepta held a conference call with investors and analysts to discuss its announcement. Per the guidance letter, Garabedian explained that with "additional data and analysis, " Sarepta would be able to "pursue an NDA filing that we will plan to submit by the end of this year, for a potential early approval of eteplirsen sometime in 2015." But, he cautioned, "the guidance letter described the FDA's reservations that the existing data set may not be sufficient to support an NDA filing, or be compelling enough for a favorable review." Garabedian further offered that "[w]e could submit our NDA now on the existing data set, but the FDA has highlighted questions and concerns, " for which reason "we are going to be in a much better position if we just wait for some of these additional pieces of data."
Following this announcement, Sarepta shares increased in value by 39.26% on unusually heavy trading volume, closing on April 21, 2014 at $33.98 per share. The following day, Sarepta announced that it planned to offer up to $100 million of its common stock in a public offering. Then, on April 29, it sold 2, 650, 000 shares of common stock in a public offering at a price of $38.00 per share, resulting in net proceeds of approximately $94.5 million.
[W]e're not telling you you can't submit an NDA tomorrow on the existing data set . . . . But we're telling you that we've raised enough concerns on the existing data set that you would bolster your case for an NDA filing and potentially a favorable review if you allow us to do a more detailed review of your dystrophin methodology [and if you supplement the data set].
In short, Sarepta expressly disclosed that the FDA wanted to do a more detailed review of the study's methodology, and get more data, and that Sarepta's chances of success for an NDA filing would be affected by whether it allowed the FDA to do so. Additionally, during the same month, the FDA also visited Nationwide Children's Hospital -- where Study 201/202 took place -- to review the clinical trial site and protocols in place there.


Steven Leyden Cochrane › C.V.
MFA Studio Arts, University of Windsor, ON.
*Shining Tapestry, Venue TBA (confirmed) Winnipeg, MB.
The Virtual Feminist Bookstore, Femlab, University of Alberta, Edmonton, AB. With Roewan Crowe.
*Walled Garden, TRUCK, Calgary, AB.
*Screen wall, RAW: Gallery of Architecture + Design, Winnipeg, MB.
La Tristesse est le cinquième état de la matière, La Maison des artistes , Winnipeg, MB.
Saves Nine, Portage & District Arts Centre, Portage La Prairie, MB.
Ruins, Yellowknife Artist Run Community Centre (off-site exhibition), Yellowknife, NT.
MY MONUMENT, Gallery 1C03, University of Winnipeg. With cam bush, Roewan Crowe, and Paul Robles.
The Cover Up, One Night Stand, Winnipeg, MB. With Irene Bindi. Programmed by Collin Zipp.
Saves Nine, Aceartinc., Winnipeg, MB.
*Walled Garden, Negative Space, Winnipeg, MB.
Exile off Main Street, Lewyc Institute of Contemporary Art, Winnipeg, MB.
*Screen Wall Blocks (Window), Window, Winnipeg, MB.
So Many Letdowns before We Get Up, Platform Centre , Winnipeg, MB.
*Grotto, Atomic Centre, Winnipeg, MB.
To whom It May Concern: Annual Faculty Exhibition, LeBel Gallery, University of Windsor, ON.
Open Studios, Plug In ICA, Winnipeg, MB.
Broken City Lab: A Consultancy, 406 Pelissier, Windsor, ON.
Without, Art Gallery of Windsor, ON.
*Melisma, LeBel Gallery, Windsor, ON.
Don’t Front, 487 Ouellette Ave, Windsor, ON.
South of Detroit, LeBel Gallery, Windsor, ON.
TAPAS: An Arts Sampler, TECO Theater, Tampa Bay Performing Arts Center, Tampa, FL.
Reconstruction, William and Nancy Oliver Gallery, Tampa, FL.
Pink Flamingos, Gallery 501, Tampa, FL.
Erica Mendritzki. “Steven Leyden Cochrane“. Border Crossings. 32:4 December 2013: 89–90.
Saves Nine. Exhibition catalogue. Manitoba Craft Council.
Haven’t We Been Here Before?. Exhibition catalogue. Platform Centre .
J.J. Kegan McFadden. “Notes on Systems, with Winnipeg in Mind”. CV2. Winter 2013: 57–60. Print.
Mary Reid. “Haven’t we been here before?”. C Magazine. Winter 2011: 54–55. Print.
Sandee Moore. “‘It’s my party, I’ll work backwards if I want to’”. Uptown Magazine Magazine. 30 06 2011.
Tri-weekly art reviews for Akimblog.
10/06/2015: HEAT at Actual Contemporary.
09/08/2015: Collin Zipp at Martha Street Studio.
08/11/2015: Nicolas Sassoon at al at Plug In ICA.
07/21/2015: Erika Dueck at the School of Art Gallery.
06/30/2015: Mammo’wiiang to make change at the Art Gallery of Southwestern Manitoba.
06/09/2015: Scott Benesiinaabandan at Platform Centre.
05/19/2015: Emily Hermant at Aceartinc.
04/21/2015: Cut-Up at Platform Centre.
03/31/2015: Peter Tittenberger at Gallery 1C03.
03/17/2015: Jacinthe Loranger / Marijana Mandusic.
03/03/2015: Wanda Koop / Nic Adamson.
02/17/2015: Yesterday Was Once Tomorrow (or, A Brick Is a Tool) at Plug In ICA.
01/20/2015: Kristiina Lahde at Martha Street Studio.
12/02/2014: Mark Neufeld at Gallery 1C03.
11/11/2014: Brandon Vickerd at Aceartinc.
10/21/2014: Andrea Carlson at Plug In ICA.
09/30/2014: Candid at Platform Centre.
09/09/2014: Caroline Monnet at Gurevich Fine Art.
07/90/2014: Micah Lexier at Winnipeg Art Gallery.
Weekly art reviews for the Winnipeg Free Press.
10/09/2015: Alex Poruchnyk at Cinematheque.
10/01/2015: Erica Eyres at Lisa Kehler Art and Projects.
09/23/2015: Dany Reede at Graffiti Gallery.
09/17/2015: Benj Funk at La Maison des artistes.
09/10/2015: Mélanie Rocan at Actual Contemporary.
09/03/2015: Craig Love at Library.
08/20/2015: Olympus at Winnipeg Art Gallery.
08/13/2015: Play, Precarity and Survival at Aceartinc.
08/06/2015: Sylvia Matas at Lisa Kehler Art and Projects.
06/25/2015: Gilles Hébert at Actual Contemporary.
06/18/2015: Skeena Reece at Urban Shaman.
06/11/2015: Paul Butler at Lisa Kehler Art and Projects.
05/28/2015: Hannah Doucet at C Space.
05/21/2015: Libby Hague at Martha Street Studio.
04/23/2015: Allison Norlen at Actual Contemporary.
04/09/2015: Roger Beebe at Cinematheque.
04/02/2015: Lisa Stinner-Kun at Martha Street Studio.
03/26/2015: KC Adams / Rodney Graham.
03/19/2015: Tools at Gurevich Fine Art.
03/05/2015: Peter Tittenberger at Gallery 1C03.
02/26/2015: Dry Media at The Edge Gallery.
02/12/2015: Fiona Annis at Aceartinc.
05/05/2015: Irene Bindi and Aston Coles at Platform Centre.
01/22/2015: Evin Collis at La Maison des artistes.
01/15/2015: Cliff Eyland at Actual Contemporary.
12/11/2014: MAWA Foundation Membership Program showcase at Aceartinc.
11/27/2014: Andrea Robbins and Max Becher at School of Art Gallery.
11/20/2014: Sobey Art Award at Winnipeg Art Gallery.
11/13/2014: Natasha Gusta at C Space.
11/06/2014: Ruth Cuthand at Plug In ICA.
10/30/2014: Nathalie Daoust at La Maison des artistes.
10/23/2014: Diana Thorneycroft and Michael Boss at Gurevich Fine Art.
10/16/2014: Kristin Nelson at Raw Gallery.
10/09/2014: Yvette Cenerini and Willow Rector.
10/02/2014: Dalí up Close at Winnipeg Art Gallery.
09/25/2014: Krisjanis Kaktins-Gorsline, Robert Taite, and Ufuk Gueray.
09/18/2014: Memory Keepers at Urban Shaman.
09/11/2014: Tracy Peters and Lateral Symmetry.
09/04/2014: They Made a Day Be a Day Here at School of Art Gallery.
08/28/2014: Professional Native Indian Artistc Inc. at Winnipeg Art Gallery.
08/14/2014: Jessica Evans and Patrick Klassen at C Space.
08/07/2014: memory awareness expectation at Platform Centre.
07/31/2014: Actual Artists at Actual Gallery.
07/24/2014: Curated student show at Aceartinc.
07/17/2014: Deirdre Logue at Plug In ICA.
07/10/2014: All In at Martha Street Studio.
07/03/2014: FREE (or best offer) at Library.
06/26/2014: Dayna Danger at Urban Shaman.
06/19/2014: Joe Sinness at Aceartinc.
06/12/2014: Paul Mpagi Sepuya at Platform Centre.
06/05/2014: Connery and Matyiku at Raw Gallery.
05/22/2014: Véronique LaPerriere M. at La Maison des artistes.
05/15/2014: Lynne Cohen at Winnipeg Art Gallery.
05/08/2014: Jeanette Johns at Aceartinc.
05/01/2014: Raymond Boisjoly at Platform Centre.
04/17/2014: Julie Lequin at La Maison des artistes.
04/03/2014: Sensing the Future at Plug In ICA.
03/27/2014: Walking with Our Sisters at Urban Shaman.
03/13/2014: Tim Schouten at Gurevich Fine Art.
03/04/2014: Robert Taite at Aceartinc.
02/27/2014: Ragnar Kjartansson at Winnipeg Art Gallery.
02/20/2014: Upshot at Platform Centre.
02/06/2014: Matthieu Sabourin at Aceartinc.
01/23/2014: Eli Bornstein at School of Art Gallery.
01/16/2014: Philippe Hamelin at Platform Centre.
01/09/2014: Toxicity at Plug In ICA.
01/02/2014: Looking Up at Winnipeg Art Gallery.
12/19/2013: Jacqueline Hébert at La Maison des artistes.
12/12/2013: Christian Worthington at Gurevich Fine Art.
12/05/2013: Sherry Walchuk at ARCH 2 Gallery.
11/28/2013: Ian August at Gallery 1C03.
11/14/2013: Bruce Kirton at Martha Street Studio.
11/07/2013: David Spriggs at Raw Gallery.
10/31/2013: MAWA Foundation Mentorship Program Showcase at Aceartinc.
10/24/2013: Michel Boulanger at La Maison des artistes.
10/17/2013: Mélanie Rocan at Plug In ICA.
10/10/2013: Second House First at Raw Gallery.
10/03/2013: Intimacies at Martha Street Studio.
09/26/2013: All of a sudden at Platform Centre.
09/19/2013: Tracy Peters, offsite project.
09/12/2013: Dong-Kyoon Nam at Aceartinc.
09/05/2013: Hole in the Wall Gallery.
08/29/2013: Lyndal Osborne at School of Art Gallery.
08/22/2013: Roy Ascott at Plug In ICA.
08/15/2013: Building Toys at Raw Gallery.
08/08/2013: Andrée-Anne Dupuis Bourret at La Maison des artistes.
08/01/2013: Jeff Kahm / David Garneau at Urban Shaman.
07/25/2013: Jackie Traverse at Neechi Niche.
07/18/2013: Small Mediums at Large at Tara Davis Boutique Studio.
07/11/2013: JNZNBRK at Raw Gallery.
07/04/2013: Suzie Smith at Aceartinc.
06/27/2013: Dominique Pétrin at Martha Street Studio.
06/13/2013: Lisa Myers at Urban Shaman.
06/06/2013: Michéle Provost at La Maison des artistes.
05/30/2013: A Total Spectacle at ATOMIC Centre.
05/23/2013: Perfect Imperfections at School of Art Gallery.
05/16/2013: 100 Masters at Winnipeg Art Gallery.
05/02/2013: Hélène Brunet Neumann at Centre culturel franco-manitobain.
04/25/2013: Ravi Shukla at Zsa Zsa West.
04/18/2013: Tom Lovatt at Gurevich Fine Art.
04/11/2013: (da bao)(takeout) at Plug In ICA.
04/04/2013: Bev Pike at School of Art Gallery.
03/28/2013: Garry Neill Kennedy at Platform Centre.
03/21/2013: Katia Gosselin and Eric Lesage at La Maison des artistes.
03/14/2013: Another Atlas at RAW: Gallery.
03/07/2013: Chantal Mierau at Aceartinc.
02/28/2013: Peter Morin at Urban Shaman.
02/21/2013: Bonnie Marin at School of Art Gallery.
02/14/2013: Frank Shebageget at Gallery 1C03.
02/07/2013: Chloé Desjardins at La Maison des artistes.
01/31/2013: Sylvia Matas at One Night Stand.
01/24/2013: Pinhole Artists Collective at Platform Centre.
01/17/2013: Escutcheon Athletic at Aceartinc.
To Market, to market: Ufuk Gueray. Exhibition text commissioned by Aceartinc.
Familiar tremors: Shawn Reynar. Exhibition text commissioned by Martha Street Studio.
Which side are you on?. Canadian Dimension. November/December 2012. 46:6. pp 34–36.
Art Burn. Weekly review column for Uptown Magazine.
Walla Walla Bing Bang: Michael Dudeck’s Amygdala. FUSE Magazine. April 2011. 34:2. pp 40–41.
Materialist Cinema: Workers Leaving the Factory. FUSE Magazine. September 2009. 32:4. pp 14–16.
Drawing: Studio 1, University of Manitoba.
Drawing: Studio 2, University of Manitoba.
Figure Study 1, University of Manitoba.
Visual Language, University of Manitoba.
Open Studio 1, University of Manitoba.
Senior Studio 1/2, University of Manitoba.
Studio Practice and Ideas/Image, University of Windsor.
Critical Issues, University of Windsor.


text:
Encroachment – not the football kind, the tree kind. Encroachment governs the rights of adjoining property owners when the trees on one of the properties encroaches on the property of the other. Overhanging branches, invasive root systems, falling debris … those kinds of problems.
Monday, we explored one of the two different approaches to encroachment under American law, the “Massachusetts Rule” that landowners are limited to self-help – but not lawsuits – to stop encroaching trees and roots. Yesterday, we looked at the other end of these 50 United States, and the “Hawaii Rule,” a holding that a landowner could sue for damages and injunctive relief when a neighbor’s tree was causing actual harm or was an imminent danger to his or her property.
Between the two competing rules, Virginia found herself firmly straddling the line. The fair Commonwealth may be for lovers, but it was also for temporizers. The landmark Old Dominion case on the issue, Smith v. Holt, hailed from the 1930s, holding that the Massachusetts Rule applied unless the tree in question was (1) causing actual harm or was an imminent danger; and (2) “noxious.” This holding brings to mind the maxim “a camel looks like a horse designed by a committee.” Frankly, Smith v. Holt had “committee’ written all over it. It seemed to hold that the Massachusetts Rule applied except where it didn’t. And what did “noxious” have to do with anything?
The Virginia Supreme Court finally addressed the confusing situation several years ago in Fancher v. Fagella. There the Court found itself hoisted on its own “noxious” petard. Everyone could agree that poison ivy was noxious, and most people could agree kudzu was noxious. But how about a cute little shade tree? Shade trees are definitely not in the same league with poisonous or entangling pests, but yet, a cute little shade tree can come out of the ground harder and do more damage than poison ivy or kudzu ever could.
Take the tree in Fancher. It was a sweet gum, a favored landscaping tree as well as a valuable hardwood. But for poor Mr. Fancher, it was Hydra covered in bark. Only halfway grown, Fagella’s sweet gum’s roots were already knocking over a retaining wall, kicking up patio stones, breaking up a house foundation and growing into sewers and even the house electrical system. Fancher sued for an injunction, but the trial court felt obligated to follow Smith v. Holt. There was just no way that a sweet gum tree could be noxious, the local court held, and thus, it would not help the frustrated Mr. Fancher. But the Virginia Supreme Court, wisely seeing that the “noxious” standard was of no help in these cases, abandoned the hybrid rule of Smith v. Holt, an unwieldy compromise that had already become known as the “Virginia Rule.” The Court – noting that the “Massachusetts Rule” was a relic of a more rural, bucolic age – decided that the “Hawaii Rule” was the better fit for modern, crowded, helter-skelter suburban life. It sent the case back to the trial court, instructing the judge that the court should consider whether an injunction should issue.
This decision fits neatly into what we have been considering for the past week on negligence and nuisance. Here, the tree had become a nuisance, possibly because Fagella had not cared for the tree before it began damaging the neighbor’s property. All the tree had ever done is what trees do – it grew. And grew and grew. It was healthy, perhaps amazingly so, but Fagella was ordered to shoulder the cost of damages caused not because it was dangerous, or dead, or anything other than an inconvenience.
Like the decision or hate it, you could see this coming. From an age in which trees grew and lived and died, and effects of the life cycle were not chargeable against the landowner, we may be arriving at a point where trees aren’t much more than big, woody pets, with their owners responsible for whatever the tree may naturally do.
Fancher v. Fagella, 650 S.E.2d 519, 274 Va. 549 (2007). Fancher and Fagella were the owners of adjoining townhouses in Fairfax County, Virginia (a largely urban or suburban county west of Washington, D.C., and part of the Washington metropolitan area). Fagella’s property is higher in elevation than Fancher’s, and a masonry retaining wall runs along the property line to support the grade separation. Fancher has a sunken patio behind his home, covered by masonry pavers.
Fagella had a sweet gum tree located a few feet from the retaining wall, about 60 feet high with a 2-foot diameter trunk at its base. Sweet gums are native to the area, and grow to 120 to 140 feet in height at maturity, with a trunk diameter of 4 to 6 feet. The tree was deciduous, dropping spiky gumballs and having a heavy pollen load. It also has an invasive root system and a high demand for water.
In the case of Fagella’s tree, the root system had displaced the retaining wall between the properties, displaced the pavers on Fancher’s patio, caused blockage of his sewer and water pipes and had begun to buckle the foundation of his house. The tree’s overhanging branches grew onto his roof, depositing leaves and other debris in his rain gutters. Fancher attempted self-help, trying to repair the damage to the retaining wall and the rear foundation himself, and cutting back the overhanging branches, but he was ineffective in the face of continuing expansion of the root system and branches. Fancher’s arborist believed the sweet gum tree was only at mid-maturity, that it would continue to grow, and that “[n]o amount of concrete would hold the root system back.” The arborist labeled the tree “noxious” because of its location, and said that the only way to stop the continuing damage being done by the root system was to remove the tree entirely.
Fancher sued for an injunction compelling Fagella to remove the tree and its invading root system entirely, and asked for damages to cover the cost of restoring the property to its former condition. Fagella moved to strike the prayer for injunctive relief. The trial court, relying on Virginia law set down in Smith v. Holt, denied injunctive relief. Fancher appealed.
Held: The Supreme Court abandoned the “Virginia Rule,” adopting instead the “Hawaii Rule” that while trees and plants are ordinarily not nuisances, they can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. Then, injunctive relief and damages will lie. The Court traced the history of the encroachment rule from the “Massachussetts Rule” — which holds that a landowner’s right to protect his property from the encroaching boughs and roots of a neighbor’s tree is limited to self-help, i.e., cutting off the branches and roots at the point they invade his property — through the modern “Hawaii Rule.” The Court noted that Virginia had tried to strike a compromise between the two positions with the “Virginia Rule” set out in Smith v. Holt, which held that the intrusion of roots and branches from a neighbor’s plantings which were “not noxious in [their] nature” and had caused no “sensible injury” were not actionable at law, the plaintiff being limited to his right of self-help.
The Court found the “Massachusetts Rule” rather unsuited to modern urban and suburban life, although it may still work well in many rural conditions. It admitted that the “Virginia Rule” was justly criticized because the classification of a plant as “noxious” depends upon the viewpoint of the beholder. Just about everyone would agree that poison ivy is noxious. Many would agree that kudzu is, too, because of its tendency toward rampant growth, smothering other vegetation. But few would declare healthy shade trees to be noxious, although they may cause more damage and be more expensive to remove, than the poison ivy or kudzu. The Court decided that continued reliance on the distinction between plants that are noxious, and those that are not, imposed an unworkable and futile standard for determining the rights of neighboring landowners.
The Court warned that not every case of nuisance or continuing trespass may be enjoined, but it could be considered here. The decision whether to grant an injunction, the Court held, always rests in the sound discretion of the chancellor and depends on the relative benefit an injunction would confer upon the plaintiff in contrast to the injury it would impose on the defendant. In weighing the equities in a case of this kind, the chancellor must necessarily first consider whether the conditions existing on the adjoining lands are such that it is reasonable to impose a duty on the owner of a tree to protect a neighbor’s land from damage caused by its intruding branches and roots. In the absence of such a duty, the traditional right of self-help is an adequate remedy. It would be clearly unreasonable to impose such a duty upon the owner of historically forested or agricultural land, but entirely appropriate to do so in the case of parties, like those in the present case, who dwell on adjoining residential lots.

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