As to the defendant’s claim that she needs her attorney to facilitate her assertion of the <mask>, the court notes that anything said by the defendant in the course of her *837presentence interview is strictly confidential and cannot be used as evidence at some future date against her husband. The contents of the probation report are for the exclusive use of this court in sentencing the defendant and therefore there is no critical issue concerning the spousal privilege. Moreover, as stated by the assistant general counsel, the interviewing probation officer will, as a matter of course, inform the defendant that she may decline to answer any questions that she does not wish to talk about. Thus, the defendant may simply tell the probation officer that she does not wish to discuss her husband.


He claims that her testimony would have shown that she con- taminated the crime scene by helping to cut tape from Pedro’s face, ankles, and wrists. This claim is affirmatively refuted by the record. Paula Chadwick was not a witness at trial, and no testimonial state- ments from her were offered into evidence at the trial. U.S. Const. amend. VI provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” Because Paula Chadwick was not a witness against Betancourt, U.S. Const. amend. VI does not grant him the right to confront her. See Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (observing that “‘witnesses’ against the accused,” for Confrontation Clause purposes, are “those who ‘bear testimony’”). A hearing on this claim was not warranted. ( j) Ortiz’ Testimony on Domestic Assault Betancourt claims that appellate counsel was ineffective for failing to assign that trial counsel was ineffective when counsel did not object to the testimony of Betancourt’s wife, Ortiz. Such an objection would be based on the grounds of <mask> and relevance. Ortiz testified that she had two children with Betancourt, that she left Betancourt without telling him where she went, that she intended to hide from Betancourt, and that she had been hiding from Betancourt for 13 years. Betancourt claims that trial counsel performed defi- ciently by not informing Ortiz that, if she chose, she would not be compelled to testify against her husband. See Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980). Further, Betancourt claims that his trial counsel should have objected to Ortiz’ testimony based on relevance and forced a hearing pursuant to Neb. Rev. Stat. § 27-403 (Reissue 2016) to determine if her testimony was relevant and, even if relevant, whether its probative value was outweighed by its prejudice to Betancourt. Betancourt claims a § 27-403 hearing - 458 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BETANCOURT-GARCIA Cite as 310 Neb. 440


would have prevented him from being found guilty by the jury on an “emotional basis.” Brief for appellant at 42. With respect to <mask>, this claim is affirmatively refuted by the record. Betancourt’s trial counsel objected to Ortiz’ testimony on spousal privilege grounds and was over- ruled on the basis of Neb. Rev. Stat. § 27-505(3)(a) (Reissue 2016) (providing, in relevant part, that spousal privilege may not be claimed “[i]n any criminal case where the crime charged is a crime of violence . . .”) Trial counsel was not deficient and, similarly, appellate counsel was not deficient in not pursuing this argument. A hearing on this claim was not warranted. (k) Jury Instructions Betancourt next claims that appellate counsel was inef- fective for not raising trial counsel’s ineffectiveness for not objecting to jury instructions Nos. 2 (presumption of inno- cence), 4 (prior inconsistent statements), 8 (definition of intent), 13 (presence in Madison County), and 15 (elements of conspiracy). Reading the jury instructions together, and as a whole, the record affirmatively refutes Betancourt’s claims with respect to instructions Nos. 2, 4, 8, and 15; the instruc- tions are a correct statement of the law, not misleading, and adequately cover the issues supported by the pleadings and evidence. Instruction No. 13, regarding Betancourt’s physical presence in Madison County, was correct as to count I, kidnap- ping, and count II, use of a firearm to commit a felony, but was erroneous with respect to count III, conspiracy. However, this error is harmless. Jury instruction No. 2, regarding the presumption of inno- cence, read in relevant part as follows: “The defendant has pled not guilty to each of these crimes. He is presumed to be innocent. That means you must find him not guilty unless you decide that the State has proved him guilty beyond a reason- able doubt.” Contrary to Betancourt’s assertion, the court’s use of the word “unless” rather than the phrase “unless and until” in instruction No. 2 did not make the instruction defective. See, e.g., State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016). - 459 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BETANCOURT-GARCIA Cite as 310 Neb. 440


The circumstances that the defendant in this case asserts to be exceptional are several. First, the defendant claims that because she is a 20-year-old, non-English speaking woman with a third-grade education and little understanding of the legal system, she needs the assistance of counsel at her interview. Secondly, the defendant argues that she needs her counsel to be present because she is under a great deal of emotional strain and pain stemming from this incident. Thirdly, the defendant states that she needs the assistance of counsel in order to satisfactorily assert her <mask> with respect to any questions which may be asked regarding the charges as they relate to her husband (who was arrested at the same time as she and against whom charges are still pending). And finally, the defendant argues that the Assistant District Attorney’s consent to her attorney’s being present at the presentence interview provides an additional exceptional circumstance.


“One spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502 [b]; CPL 60.10)” (People v Fediuk, 66 NY2d 881, 883 [1985]). While a suicide note can be a communication made during marriage for the purpose of the privilege (see Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 73 [1982]), the <mask> falls “when the substance of a communication ... is revealed to third parties” (id. at 74; see People v Weeks, 15 AD3d 845, 846 [2005]; People v Beard, 197 AD2d 582, 583 [1993]; People v LaPlanche, 193 AD2d 1062, 1063 [1993]). Here, the substance of the communication between the defendant and his wife of his intention to commit suicide through taking large quantities of Xanax was revealed by the defendant to Officer Johnstone, his neighbor, and the nurse who happened upon the scene of the accident. In addition, the defendant left the notes on the kitchen counter and directly addressed his children, as well as his wife, in one of the notes. Thus, the Supreme Court properly determined that the notes were not protected by the marital privilege (see People v Thomas, 288 AD2d 405, 406 [2001]).


Indeed, while States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; <mask> in the law of evidence; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules. Valid marriage under state law is also a significant status for over a thousand provisions of federal law.51 *714Given this, an argument could be made that classifications based upon marriage always survive rational-basis review absent a concern that the classification significantly interferes with the right to marry.52 We need not reach that determination in this case because is unnecessary to do so. As discussed above, the statute is rationally related to a legitimate governmental interest in punishing bigamy or polygamy and sexual assault pursuant to bigamous or polygamous relationships. It is unnecessary to go further than that in our holding.


The Federal courts have held that statements of a spouse that would be privileged at trial can nonetheless be used to establish probable cause to obtain a search warrant or investigate a suspect based upon such communications (United States v Cleveland, 477d 310; United States v Harper, 450d 1032; United States v Winfree, 170 F Supp 659). In essence, the Federal courts held that the <mask> is applicable in the trial context only and has limited application outside that context (supra; see also, United States v Tsinnijinnie, 601d 1035 [third party permitted at trial to testify to out-of-court utterance of privileged communication of defendant spouse]; State v Burden, 120 Wash 2d 371, 841 P2d 758).


There is a conflict of authority whether arrears may be enforced pursuant to a <mask>. In de Jongh v. de Jongh (13 Misc 2d 882). and Langus v. Langus (16 Misc 2d 648), the courts ruled that section 49-b could not be used to collect arrears claiming it was not authorized or was not intended to be used for such purposes. Payment of arrears through use of the section was approved in “Doe” v. “Doe” (37 Misc 2d 788) and Nicoletti v. Nicoletti (N. Y. L. J., Nov. 5, 1973, p. 20, col. 5). No authority has been cited for any of these decisions other than the statute itself.


The plaintiff husband contends that CPLR 5241 is a <mask> method of enforcing monetary judgments only for child or spousal support and not for equitable distribution. More specifically, the plaintiff contends that CPLR 5241 allows an income execution where a default has occurred under an order of support. The term "order of support” is specifically defined as "any temporary or final order, judgment or decree in a matrimonial action or family court proceeding, or any foreign support order, judgment or decree, registered pursuant to section thirty-seven-a of the domestic relations law which directs the payment of alimony, maintenance, support or child support.” (CPLR 5241 [a] [1]; emphasis added.) The plaintiff further contends that equitable distribution, and any award thereof, is clearly not a form of support within the confines of the term "order of support”.


In Jane J. , when the parents of two boys divorced, the mother lived in Wisconsin with the boys (three and seven years old). The father was in the military, stationed in Hawaii. The parents' <mask>, deemed a final custody order, stated that, because the father was serving in the military, the mother was given primary physical custody. ( Jane J. , supra , 237 Cal.App.4th at p. 898, 188 Cal.Rptr.3d 432.) Three years later, the mother moved to California with the boys. The Wisconsin court approved the move. A year later, the father was transferred to Alabama, registered the Wisconsin 2009 custody order in California, and petitioned for an order modifying the Wisconsin custody order to increase his visitation or give him primary physical custody over the boys. ( Id . at pp. 898-899, 188 Cal.Rptr.3d 432.) The father accused the mother of blocking him from seeing the boys. The parties agreed to share the cost of an Evidence Code section 730 expert evaluator (730 expert evaluator) providing recommendations regarding the boys' best interests. The trial court, however, declined to appoint a 730 expert evaluator. ( Jane J., at p. 899, 188 Cal.Rptr.3d 432.)


Likewise, the " 'trial court's discretion to modify the spousal support order is constrained by the terms of the <mask>.' " ( Dietz , supra , 176 Cal.App.4th at p. 398, 97 Cal.Rptr.3d 616.) Marital settlement agreements incorporated into a dissolution judgment are interpreted under the same rules governing contract interpretation generally. ( In re Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1012, 151 Cal.Rptr.3d 553 ; In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439, 64 Cal.Rptr.2d 766.) " ' "The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs." ' " ( Hibbard , at p. 1013, 151 Cal.Rptr.3d 553.)


To modify spousal support, a trial court must first find " ' "a material change of circumstances since the last order." ' " ( Minkin , supra , 11 Cal.App.5th at p. 956, 218 Cal.Rptr.3d 407 ; Dietz , supra , 176 Cal.App.4th at p. 396, 97 Cal.Rptr.3d 616 ; see also In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480, 274 Cal.Rptr. 911 ( Smith ) ["Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order."].) In its changed-circumstances analysis, the court considers all factors affecting the supported spouse's needs and the supporting spouse's ability to pay. ( In re Marriage of West (2007) 152 Cal.App.4th 240, 246, 60 Cal.Rptr.3d 858.) An "increase in the supporting spouse's ability to pay" may constitute a change in circumstances. ( In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982, 48 Cal.Rptr.2d 864, citing In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1173, 208 Cal.Rptr. 345.) When support is governed by a <mask> or stipulated judgment, the trial court's changed-circumstances determination must " ' "give effect to the intent and reasonable expectations of the parties as expressed in the agreement." ' " ( Minkin , supra , 11 Cal.App.5th at p. 957, 218 Cal.Rptr.3d 407.)


Anne Catambay's husband was sued in Santa Clara County for embezzlement. That lawsuit resulted in a judgment against him for over one million dollars. A corporation--Longview International, Inc.--is the judgment creditor. Longview International recorded an abstract of judgment in San Mateo County, creating a judgment lien on real property owned by Catambay's husband in that county (a house in Redwood City). Two days later, Catambay's husband conveyed the Redwood City house to her as part of a <mask> in their then-pending dissolution proceeding.


"article 2. SPECIFIC BEQUESTS in accordance with a marital SETTLEMENT. "In accordance with our <mask>, I give, devise and bequeath to my former wife, Frances R. Rhoades, any right, title or interest I may have in the premises located at 26 Pointview Drive, in the Town of East Greenbush, County of Rensselaer and State of New York, including the contents thereof. In the event Frances R. *264Rhoades shall predecease me, then in that event, I devise said right, title and interest to the two children of said marriage, Ralph W. Rhoades and Pamela Ann Rhoades, or to the survivor thereof and also, all right, title and interest in the contents thereof, including family heirlooms, furnishings and furniture to the said children or to the survivor thereof, share and share alike.” Decedent’s former wife, Frances R. Rhoades, has appeared in this proceeding by her attorney and has joined with the executor of the decedent’s estate in denying that petitioner can exercise a right of election against the East Greenbush property.


On June 22, 2009, the parties entered into a <mask> (the Agreement) which resolved the disputed issues relating to the dissolution of their marriage. In pertinent part, Phillip agreed to pay maintenance to Mary in the amount of $3,000 per month for eleven years or until Mary's remarriage. The Agreement further provided, "There shall be no modification of this Agreement except by written agreement of the parties with respect to issues of property division, maintenance or payment of child expenses." The trial court found that the terms of the Agreement were not unconscionable and incorporated them into the decree entered on June 26, 2009.


The Hibbard court cited to other examples where intervening circumstances did not circumvent an agreement that spousal support would be *863non-modifiable, despite the outcome being "possibly unfair." A wife's receipt of monthly payments on a note for the sale of a residence did not justify reducing spousal support where the parties agreed the sale of the residence would not be considered a change in circumstances. ( In re Marriage of Rabkin (1986) 179 Cal.App.3d 1071, 1077-1081, 225 Cal.Rptr. 219.) A party cannot obtain modification of support based on the recipient's non-marital cohabitation with another person when the parties agreed support was not modifiable and would terminate only on the recipient's remarriage. ( In re Marriage of Sasson (1982) 129 Cal.App.3d 140, 146-147, 180 Cal.Rptr. 815.) The concurring opinion in Sasson noted, "as unjust, one-sided and warped as such a state of affairs may appear to be, Husband is unfortunately bound by his own <mask> since Wife's testimony that she has never remarried is uncontradicted." ( Id. at p. 150, 180 Cal.Rptr. 815.) The Hibbard court described the result as "patently unfair," yet confirmed the Sasson court made the correct decision in light of the parties' agreement. ( Hibbard , supra , 212 Cal.App.4th at p. 1015, 151 Cal.Rptr.3d 553.)


In July of 2015, during the children's summer break, Roger filed a verified petition for dissolution of marriage in the Warren Family Court. The petition cited Roger's and Heidi's separation since August of 2014, and stated that it was in the best interest of the children that Heidi and Roger be awarded joint custody, with Heidi designated as the primary residential parent. Heidi and Roger subsequently entered into a <mask> (the "MSA"). The MSA made arrangements for parenting time, child support, and division of property, among other things. It also stated: "The parties understand that, at this time, Kentucky is considered the 'home state' of the children for all custody and time-sharing issues. Likewise, the parties understand that Kentucky shall continue to have ongoing, exclusive jurisdiction of all custody and co-parenting issues, unless the Court of another state assumes jurisdiction." The parties now concede, however, that Kentucky did not actually qualify as the children's "home state" as that term is defined in the UCCJEA.3 Nevertheless, based on the *452MSA, the Warren Family Court assumed jurisdiction over the marriage dissolution and custody of the parties' children. On November 20, 2015, the Warren Family Court entered a decree of dissolution, incorporating, by reference, the MSA. The Warren Family Court found that the MSA was not unconscionable and that its provisions with respect to custody and time-sharing were in the children's best interest.


The parties agree that the issue of when interest begins to accrue on an amount included in a monetary judgment is a question of law that we review *1178de novo. (See Chodos v. Borman (2015) 239 Cal.App.4th 707, 712, 190 Cal.Rptr.3d 889 ( Chodos ).) We also independently interpret a <mask> incorporated into a dissolution judgment unless there is conflicting parol evidence affecting its meaning. ( In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1518, 18 Cal.Rptr.3d 377.) Here, there is no parol evidence to interpret. We therefore apply a de novo standard to our review of the trial court's order concerning the relevant date for computing interest on the Equalization Payment.


Although its ability to modify a spousal support order is constrained by *456the terms of the <mask> ( Dietz , supra , 176 Cal.App.4th at p. 398, 97 Cal.Rptr.3d 616 ), the trial court has significant discretion when weighing the various section 4320 factors. (See, e.g., Minkin , supra , 11 Cal.App.5th at p. 957, 218 Cal.Rptr.3d 407.) For the same reasons substantial evidence supported the court's changed-circumstances finding, particularly Wife's dramatic earnings increase, substantial evidence likewise supports the court's conclusion that some reduction of Wife's spousal support obligations was appropriate. However, by revising the parties' agreement to cap additional spousal support payment at "10% of Wife's income above $180,000.00 per year, up to $189,900" (i.e., the amount of Wife's earnings in 2012), the order fails to account for the parties' reasonable expectation that Wife's earnings would continue to increase. The order thus exceeds the constraints imposed by the terms of the marital settlement agreement. (See Dietz , supra , 176 Cal.App.4th at p. 398, 97 Cal.Rptr.3d 616 ; In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1476, 143 Cal.Rptr.3d 81.)


"The Family Code requires the parties to a dissolution proceeding to serve on each other a preliminary, sworn declaration, on forms prescribed by the Judicial Council, identifying all assets and liabilities. ( Fam. Code, § 2104, subds. (a) & (c).) Similarly, before the parties to a dissolution proceeding enter into an agreement for the resolution of property issues, or before any trial, each must serve on the other 'a final declaration of disclosure and a current income and expense declaration, executed under penalty of perjury on a form prescribed by the Judicial Council ....' ( Fam. Code, § 2105, subd. (a).) These mandatory statutory requirements cannot be waived, except in strict compliance with provisions of the statute. [Citation.]" ( In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 745-746, 43 Cal.Rptr.3d 181, fns. omitted; see In re Marriage of Fell (1997) 55 Cal.App.4th 1058, 1060, 1064-1066, 64 Cal.Rptr.2d 522 [affirming a judgment setting aside an original judgment of dissolution and <mask>, based upon an impermissible waiver of the mandatory exchange of disclosure declarations at the time of dissolution].) Section 2105, subdivision (d), which permits such waiver, still requires that "[b]oth parties have complied with Section 2104 and the preliminary declarations of disclosure have been completed and exchanged" ( § 2105, subd. (d)(1) ), and that "[t]he waiver is knowingly, intelligently, and voluntarily entered into by each of the parties." (Id ., subd. (d)(4).)


Robert J. Gigante, S. In this pending proceeding, petitioner, John Kelly, decedent’s son and administrator of his estate, moves for an order granting summary judgment pursuant to CPLR 3212 to confirm the decedent was divorced from the respondent, Donna Gagliano, and to further order the respondent to turn over all assets duly belonging to the estate of the decedent. The movant contends the assets to be returned to the estate include proceeds from the Federal Employees Group Death Benefit, Federal Employees Life Insurance Policy, a Federal Employees Thrift Savings Plan, hereinafter referred to as TSI] and certain personal items as set forth in the <mask>. The respondent offers a myriad of opposing arguments which will be discussed below.


Applying Cesnalis to the facts in this case, we conclude that husband and wife expressed their agreement to waive the *565section 4337 termination *1203provision by choosing not to check the applicable box on form SB-12035.7 By holding that no particular words are required to waive section 4337, Cesnalis impliedly acknowledges the use of Judicial Council forms, or local court forms, is sufficient to set forth the terms of the parties' <mask>. When using such forms, the parties check the boxes next to the applicable terms expressly stated; section 4337 does not suggest that any greater specificity is required. Thus, the trial court erred in finding otherwise.


The parties to this appeal are the first (respondent Amy Ju Wong) and second *468(appellant Elizabeth Wong) wives of Wallace Loy Tim Wong, who *1052died in 2010. A <mask> between Wallace and respondent was entered as a judgment in 1996. Respondent contends that the 1996 judgment requires appellant to remit to respondent a portion of the proceeds from the sale of trust assets that occurred after the death of Wallace.


The second claim, also filed May 7, 2008, is for the return of “parts of a Gypsy wagon” and “sculpture of the head of an Indian.” Lily testified at her deposition that these items were purchased by decedent’s mother, Jean McLaughlin, as a gift. Lily alleged these items belonged to her, but were being held by decedent at her request and for her benefit. Although she admitted neither items was mentioned in the property division in the <mask>, nor were they in her possession after the divorce (deposition of Fahime “Lily” McLaughlin, transcript at 189-232).


Lily McLaughlin testified that she knew both the arrowheads and the parts to the Gypsy wagon were in decedent’s possession. The arrowheads were sent to New York in 1993 to become part of a museum decedent intended to establish (deposition transcript at 230). She agreed with establishing the museum (deposition transcript at 189-232). These items may also have been part of the inventory of The Book Sail. In the <mask> it was noted that items were stored in New York. (Exhibit G to affidavit of Robert R. Jones dated Feb. 1, 2010.)


Michelle brought a civil action in Orange County Superior Court asserting fraud, fraudulent transfer, and breach of A.P. Express, LLC's operating agreement based on an allegation that Jeffery was attempting to reduce Michelle's "share of the former community estate" with "[t]he end result ... that Michelle ... received substantially less from the <mask>." Michelle asserted the two fraud claims against Jeffery, Shantal, and Hand Air Express, LLC. She asserted the breach of contract claim against Jeffery.


Decedent died domiciled in Endicott, New York on June 30, 2005. His will was admitted to probate by this court on August 29, 2007. John and Fahime “Lily” McLaughlin were divorced in California on November 18, 2002 and their <mask> was incorporated in the divorce decree. (Exhibits F, G to affidavit of Robert Jones, Esq. dated Feb. 1, 2010.) Lily McLaughlin is and was always domiciled in Villa Park, California. Exhibit A to the marital settlement agreement provides that John McLaughlin shall receive “[a]ll stock, fixtures, inventory, *302furnishings associated with the business known as ‘The Book Sail,’ located within the store premises, storage units and stored at the New York properties.” The Book Sail was a store operated by decedent dealing in movie memorabilia, artworks, books and collectibles.


Another part of the claim is for $10,990.07 that respondent paid on a credit card on June 17, 2003. (Exhibit C to Lily Me*304Laughlin affidavit dated Mar. 5, 2010.) In her deposition testimony, Lily was unable to say who made the charges on the credit card or what they were for. (Deposition transcript at 167-172.) Inasmuch as this debt was not listed as chargeable to decedent in the <mask> between the parties dated November 18, 2002 (exhibit A to affidavit of John M. Thomas dated July 14, 2008), it is unclear if this is even an obligation of decedent’s. Assuming it was his obligation, the liability accrued on June 17, 2003 or at the latest on June 30, 2005, when he died without making payment.


complex timeshare regarding the physical custody of each child. Under the timeshare, the oldest 3 children are in Aaron's custody approximately 90 percent of the time, while the younger 4 children are in Tracy's custody approximately 95 percent of the time. The agreement indicates that both parties will make efforts to have the minor children spend more time with the other parent. Although the timeshare does not meet the at-least-40- percent-physical-custody standard for joint physical custody, the parties agreed to joint physical custody of the children, regardless. In June 2019, after the parties resolved custody, they stipulated to a <mask> (MSA), which provides terms regarding alimony, income, and child support. Pursuant to the MSA, Aaron owes Tracy $1,138 per month per child, the presumptive maximum for child support at the time, for the four youngest children and $569 per month for one of the older children. The MSA further provides that the prevailing party in litigation concerning the terms and conditions of the MSA or a breach of the MSA is entitled to attorney fees and costs. Roughly eight months later, Aaron filed a "Motion to Confirm De Facto Physical Custody Arrangement of Children." In it, he requested that the court modify the custody order to reflect that he had primary physical custody of the three oldest children, while Tracy had primary physical custody of the four youngest children. He further requested the court to modify the child-support obligations because of the actual physical custody timeshare as well as an increase in Tracy's monthly income from $0 to $6,018.67. Tracy opposed, arguing that their global settlement did not warrant modification, as it reflected what the parties contemplated and stipulated to in court, such that there were no changed circumstances. As


Actually, the place of injury is New York since the chattels were lawfully located in New York, either pursuant to the transfer of The Book Sail inventory in exhibit A of the <mask> or by Lily’s admitted agreement that *308they were in New York to be used in establishing the museum. (Deposition transcript at 192-232.) The cause of action for recovery of the chattels only accrued on the filing of the claim on May 7, 2008 and the denial of the claim by the administrator c.t.a.


About four years later, on February 9, 2016, Michelle filed a civil lawsuit against Jeffery, Shantal, and Hand Air Express, LLC in the Orange County Superior Court. Michelle asserted causes of action for actual intent to defraud and constructive fraudulent transfer against all three defendants, and breach *434of A.P. Express, LLC's operating agreement against Jeffery. Michelle alleged, "In an effort to reduce the assets of the AP companies in anticipation of reaching a final divorce based on a <mask>, defendant Jeff Pont with the assistance of defendant Shantal Pont began transferring AP assets, money and customer accounts to Shantal Pont as the CEO for Hand Air Express, LLC."


In In re A.L. (2014) 224 Cal.App.4th 354, 168 Cal.Rptr.3d 589, the Court of Appeal struck down a blanket order applicable to the Los Angeles dependency courts concerning the admission *789of the public to juvenile court hearings because the order conflicted with the Welfare and Institutions Code and the California Rules of Court. ( Id. at pp. 363-368, 168 Cal.Rptr.3d 589.) Similarly, the Court of Appeal ruled that a local rule cannot override state law setting the date on which the time period for filing a peremptory challenge to a judge commences. ( Ghaffarpour v. Superior Court (2012) 202 Cal.App.4th 1463, 1469-1471, 136 Cal.Rptr.3d 544.) The Courts of Appeal have invalidated local rules that: established an expedited procedure for summary judgment that shortened the statutorily prescribed minimum notice period and altered the standards for production of evidence for summary judgment motions ( Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 652-655, 40 Cal.Rptr.3d 501 ); required a joint statement of disputed and undisputed facts in conjunction with summary judgment motions that conflicted with the statutory requirement of separate statements ( Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1158, 57 Cal.Rptr.2d 200 ( Kalivas )); dispensed with the Code of Civil Procedure's requirement that the moving party meet its initial burden of proof when moving for summary judgment and permitted trial courts to grant summary judgment based solely on the absence of opposition ( Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1084-1087, 94 Cal.Rptr.2d 575 ); imposed requirements on a <mask> beyond those required by the Evidence Code and the Code of Civil Procedure ( In re Marriage of Woolsey (2013) 220 Cal.App.4th 881, 894-900, 163 Cal.Rptr.3d 551 ); and required a party to file a particular form to support a request for attorney fees and costs that conflicted with the California Rules of Court ( In re Marriage of Sharples (2014) 223 Cal.App.4th 160, 167, 166 Cal.Rptr.3d 818 ). Local rules that conflict with state law are unenforceable: for instance, trial courts may not refuse to file complaints that *503comply with state requirements because they fail to comply with a local rule ( Carlson v. State of California Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1279-1282, 80 Cal.Rptr.2d 601 ), nor may they delay filing arbitration awards on the basis of a local court practice when that practice conflicts with state law requiring documents to be filed on the date they are received by the court clerk ( Mentzer v. Hardoin (1994) 28 Cal.App.4th 1365, 1367-1372, 34 Cal.Rptr.2d 214 ).


Finally, even if his maintenance was subject to modification for unconscionability, Phillip has failed to establish grounds sufficient to warrant such relief. In its contempt order, the family court found that Phillip's bankruptcy and subsequent diminishment in his income were "designed to avoid his responsibilities under the <mask>...." The court was not convinced that Phillip is unable to earn enough to pay his maintenance obligations, but that he deliberately rendered himself insolvent to escape those obligations. It is significant to note that Phillip does not challenge the sufficiency of the evidence supporting these findings. Thus, in any event, we must conclude that Phillip failed to state sufficient grounds to set aside the Agreement based upon unconscionability.


E.g. , Tex. Const. of 1869, art. III, § 25 ("The Legislature shall not authorize, by private or special law, the sale or conveyance of any real estate belonging to any person, or vacate or alter any road laid out by legal authority, or any street in any city of village, or in any recorded town plat, but shall provide for the same by general laws."); id. art. XII, § 13 ("General laws, regulating the adoption of children, <mask>, and the granting of divorces, shall be made; but no special law shall be enacting relating to particular or individual cases."); Tex. Const. of 1869, art. XII, § 40 (as amended, 1873) (providing that the Legislature "shall not pass local or special laws" in specified enumerated cases, and in "all other cases where a general law can be made applicable, no special law shall be enacted").


13 See INS v. Aguirre-Aguirre, 526 U.S. 415, 427–28 (1999) (guidance issued by the Office of the UN High Commissioner for Refugees regarding the interpretation of the <mask> Convention “may be a useful interpretative aid, but it is not binding on the Attorney General, the [Board of Immigration Appeals], or United States courts”); Observations of the United States of America on the Human Rights Committee’s Draft General Comment 35: Article 9, 2014 Digest of United States Practice in International Law ch. 6, § A(2)(b), at 179 (“The United States believes the views of the Committee should be carefully considered by the States Parties. Nevertheless, they are neither primary nor authoritative sources of law.”).


“ ‘ The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. * * * “ 6 [D]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” It is “ compounded of history, reason, the past course of decisions * * Joint Anti-Fascist <mask> Comm. v. McGrath, 341 U. S. 123, 162-163, 71 S. Ct. 624, 95 L. Ed. 817 (concurring opinion).’ Cafeteria and *572Restaurant Workers Union v. McElroy, supra, 367 U. S. at 895, 81 S. Ct. at 1748.


Counsel for the parties herein in their very excellent and thorough briefs have referred us to no case in the New York courts directly in point with the case at bar, and the court after a considerable search has found none. However, in the noteworthy case, Matter of Barter (30 Cal. 2d 549, 551-552) decided by the Supreme Court of the State of California in 1947, the court in construing a will which left the residue of the estate “ to the British Government to be administered & applied for the benefit of British <mask> children or similar purpose ”, in a well-reasoned opinion, held that a valid trust had been created by the will, that the British Government, being a foreign sovereign State was incapacitated from acting as trustee, and confirmed the designation of the Combined British Charitable Fund, a California corporation, as trustee. This case construing a will whose provisions are strikingly similar to the provisions of the will in the case at bar, while not controlling on the courts of New York State, is worthy of consideration of the court in the determination of the present case.


probative evidence on the record considered as a whole.’” Ade- femi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc). Credibility determinations constitute fact findings that are reviewed under this deferential standard. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004). An applicant may obtain asylum if he is a “<mask>.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286–87 (11th Cir. 2005). To qualify as a refugee, he must be unable or unwilling to return to his country of nationality “because of persecution or a well- founded fear of persecution on account of” a protected ground. 8 U.S.C. § 1101(a)(42). These grounds include, among other things, political opinion and membership in a particular social group. Id. The asylum applicant bears the burden of proving statutory “ref- ugee” status with specific and credible evidence. Forgue, 401 F.3d at 1286–87. An adverse credibility determination alone “may be suffi- cient” to support the denial of relief. Id. at 1287. The IJ, however, must still consider all the evidence of persecution the asylum ap- plicant produced. Id. If the applicant produces no evidence in ad- dition to his testimony, the IJ may rely solely on an adverse credi- bility determination to deny the asylum application; if there is ad- ditional testimony, the adverse credibility determination will not alone be sufficient. Id. “The IJ must offer specific, cogent reasons for an adverse credibility finding.” Id. (cleaned up). A credibility determination may not be overturned unless the record compels it. Id. And the applicant shoulders the burden of showing that an USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 6 of 11


Petitioner contends that her status is no longer that of an alien and thus no longer subject to the provisions of the said <mask> Relief Act; that she need not show “ compelling necessity ” for personal occupancy in a two-family house under section 55 of the State Rent and Eviction Regulations; that she has paid more than 20% of the purchase price or the assessed value of the premises, required by subdivision 4 of section 55 of such regulations, and finally, that she has made application in good faith to recover possession of the housing accommodation. The Administrator found that the petitioner and her relatives violated the Refugee Relief Act.


At this point, it will not be amiss to make the observation that in this present day and age of abnormal world-wide stress, it cannot be gainsaid that inter-country adoptions, when properly supervised by official authority, are deserving of laudatory commendation. That recognition of this view on the subject of adoptions was publicly given by high authority, is best attested by the passage in Congress of emergency legislation for the admittance of 100,000 immigrants a year for two years following the sending of a letter addressed to Congress by President Eisenhower on April 22, 1953, in which he had urged the enactment of such legislation to meet a then existing international emergency. This step taken by Congress resulted thereafter in the adoption of a statute which, in time, became popularly known as the ‘ ‘ <mask> Relief Act of 1953. ” (67 U. S. Stat. 400.) And, a vital part of this bill of enactment became known as the “ Orphan Program.” Then, in September, 1957, Congress passed an amendment to the Immigration and Nationality Act, recorded as Act September 11, 1957 (71 U. S. Stat. *831639; U. S. Code, tit. 8, § 1205). Its aim was the granting of a non-quota immigration status to alien children under 14 years of age adopted by United States citizens abroad or those immigrated to this country for adoption here. In this legislation, Congress declared, inter alia, that an ‘ ‘ eligible orphan ’ ’ was one who was lawfully adopted abroad by a United States citizen and his spouse.


Inasmuch as I am basing my decision entirely upon the question whether the evidence adduced before the Grand Jury was legally sufficient to Avarrant the direction for the filing of these informations pursuant to the applicable penal laws of this State, there is no need for a discussion of the point whether the supremacy clause of the United States Constitution, the “ Federal Orphan Program ’ ’ embodied in the ‘ ‘ <mask> Relief Act of 1953 ” (67 U. S. Stat. 400) and the amendments thereto, and any other statutes enacted thereafter, affect the validity of the New York State statutes in their regulation of the manner and the procedure by which children may be adopted.


See, e.g., CRS Immigration Report at 20–23; Cong. Research Serv., ED206779, Review of U.S. <mask> Resettlement Programs and Policies at 9, 12–14 (1980). And in 1990, INS implemented a “Family Fairness” program that authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359. See Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines for Voluntary Departure Under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) (“Family Fairness Memorandum”); see also CRS Immigration Report at 10. On at least five occasions since the late 1990s, INS and later DHS have also made discretionary relief available to certain classes of aliens through the use of deferred action: 1. Deferred Action for Battered Aliens Under the Violence Against Women Act. INS established a class-based deferred action program in 1997 for the benefit of self-petitioners under the Violence Against Women Act of 1994 (“VAWA”), Pub. L. No. 103-322, tit. IV, 108 Stat. 1796, 1902. VAWA authorized certain aliens who have been abused by U.S. citizen or LPR spouses or parents to self-petition for lawful immi- gration status, without having to rely on their abusive family members to petition on their behalf. Id. § 40701(a) (codified as amended at 8 U.S.C. § 1154(a)(1)(A)(iii)–(iv), (vii)). The INS program required immigration officers who approved a VAWA self-petition to assess, “on a case-by-case basis, whether to place the alien in deferred action status” while the alien waited for a visa to become available. Memorandum for Regional Directors et al., INS, from Paul W. Virtue, Acting Executive Associate Commissioner, INS, Re: Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues at 3 (May 6, 1997). INS noted that “[b]y their nature, VAWA cases generally possess factors that warrant consideration for deferred action.” Id. But because “[i]n an unusual case, there may be factors present that would militate against deferred action,” the agency instructed officers that requests for deferred action should still “receive individual scrutiny.” Id. In 2000, INS report- ed to Congress that, because of this program, no approved VAWA self- petitioner had been removed from the country. See Battered Women


Since the shortage in housing accommodations continues to constitute a serious public emergency, it seems presumptuous for the petitioner and her sponsors, in so short a period of petitioner’s residence, to attempt displacement of the tenant from the housing accommodation which they guaranteed would be safe from such an attempt. The requirements of the <mask> Relief Act against displacement of housing accommodations is a statutory condition for entry into this country. Its violation forms the basis of the Administrator’s apparent determination that petitioner makes this application in bad faith. To say that the Administrator may not consider such violation because the regulations are silent as to it, is to imply that he had no power to issue and enforce Bulletin No. 185 having reference to the Federal law. But this overlooks such power granted to him by section 4 of the State Residential Rent Law (L. 1946, ch. 274, *534as amd.). Moreover, the Administrator’s co-operation with the Federal Government as to the purpose of the rent control act is specifically mandated (State Residential Rent Law, § 7; Matter of Archer v. Abrams, 145 N. Y. S. 2d 230).


Before JILL PRYOR, BRASHER, and ANDERSON, Circuit Judges. PER CURIAM: Manjinder Kumar seeks review of the order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of the Immigra- tion Judge’s (“IJ”) denial of his application for cancellation of re- moval, pursuant to the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b). After careful review, we deny his petition. I. Kumar, a native and citizen of India, entered the United States in 2000 as a <mask>. In 2004, his status was adjusted to lawful permanent resident. In 2018, the Department of Homeland Secu- rity issued Kumar a Notice to Appear (“NTA”), charging him as removable under the INA. The NTA alleged that Kumar had been convicted in March 2018 of family violence battery, in violation of O.C.G.A. § 16-5-23.1, and was sentenced to 12 months’ imprison- ment. Based on this conviction, the NTA alleged that Kumar was removable under 8 U.S.C. § 1227(a)(2)(A)(iii), because he was con- victed of an aggravated felony; under 8 U.S.C. § 1227(a)(2)(E)(i), because he was convicted of a crime of domestic violence; and un- der 8 U.S.C. § 1227(a)(2)(E)(ii), because he violated a protective or- der under which he was enjoined. Kumar moved to terminate his removal proceedings, admit- ting that he had been convicted of violating Georgia law but argu- ing that his conviction did not render him removable. He argued USCA11 Case: 21-11619 Date Filed: 01/20/2022 Page: 3 of 9


He petitions for review of the BIA’s final decision. Relying for the most part on decisions from other circuits, he argues the BIA erred in ruling that he failed to demonstrate past persecution and a well-founded fear of future persecution, making him eligible for exercise of the Attorney General’s discretion under the Immigration and Nationality Act (INA) to grant asylum to a noncitizen who qualifies as a <mask>. See 8 U.S.C. § 1158(b)(1).


Fadiga v. Att’y Gen., 488 F.3d 142, 160 (3d Cir. 2007) (quoting United States v. Charleswell, 456 F.3d 347, 361 (2006)). Id. at 154. A.R. 6. Earlier, during the July 17, 2020 hearing, Kamara testified that the only documents that he provided to the U.S. Government as part of his <mask> packet were a high school ID and a paper from the embassy of the Republic of The Gambia saying that he is from Sierra Leone. A.R. 159–61. Neither of these documents are necessary to support his report of past harm, and he does not mention these documents in his briefs to either the BIA or this Court.


Our courts have long held that the right of a stockholder to a voice in the management of a corporation is a property right and vested interest entitled to protection under the Constitution (Page v American & British Mfg. Co., 129 App Div 346). These petitioners who are shareholders of MCU, and have held office therein, and developed a reputation in connection therewith, are constitutionally protected with the requirements of due process before any governmental action may be undertaken to cause an abridgment or deprivation of their right to seek continuation. Our Court of Appeals has determined that any person whose property rights are adversely to be affected by governmental action is entitled to the elementary due process, right of notice of such pending action and any charges to be leveled, and a hearing affording an opportunity to confront and refute such charges. This right has been implied by law, irrespective of whether a particular statute, or regulation so provides. (Matter of Hecht v Monaghan, 307 NY 461, 468; Bernard-Charles, Inc. v Cuomo, 58 AD2d 535.) This constitutional right to confrontation and due process has consistently been articulated by the United States Supreme Court and our State courts (Joint Anti-Fascist <mask> Committee v McGrath, 341 US 123, 137, 138; Board of Regents v *571Roth, 408 US 564; Matter of Chant v Department of State of State of N. Y., 60 AD2d 535, 536; Matter of Roy Anthony A., 59 AD2d 662).


. According to the memorandum, submitted by the Attorney-General, New York is only one of 21 States offering general assistance in addition to the AFDC programs, and only five States offer general assistance in an amount greater than the State of New York. It should be noted that an exemption to the durational residency requirement was extended to "any person entitled to federally funded <mask> cash assistance under Title IV of the Immigration Nationality Act.” (Social Services Law § 158 [f].)


The August 12, 2016 last minute information from DCFS indicated that the social worker is "very good at using his *752[social worker's] cellphone to translate English to Burmese." Father did not have a cellphone, but the social worker had recently reminded father to call the random drug testing number by communicating with a friend of father's. Father had tested negative on one date, but had three " 'No Shows,' " which DCFS attributed to failures to communicate.3 Other than this limited success with drug testing, DCFS reported that it had been "unable to locate any treatment options for father that are given in the Burmese language." *621The adjudication hearing was continued for another month in an effort to provide notice to mother, who was still living in the <mask> camp. Father's counsel represented to the court that father had difficulties understanding when he was to randomly test. He requested that father's alcohol testing be changed from random-which required phoning in and listening for direction-to on-demand-which was at the social worker's direction. The trial court agreed, and made that its order.


Applying the above standards, the procedures set forth in CPL 100.40 (2) for determining the sufficiency of simplified in-formations do not operate to deprive defendants of their due process rights. The statute incorporates the "guarantee” of a supporting deposition upon demand (see, People v Zagorsky, 73 Misc 2d 420; People v De Feo, 77 Misc 2d 523), a procedure which provides the defendant with fair notice of the conduct upon which the People seek prosecution (Mathews v Eldridge, 424 US 319; Joint Anti-Facist <mask> Comm. v McGrath, 341 US 123; see also, Greene v Lindsey, 456 US 444). Although, as defendant notes, the requirements for facial sufficiency of a simplified information are less than those for facial sufficiency of an information, those requirements are sufficient to insure that the defendant is adequately informed of the specific conduct to be prosecuted (People v Keindl, 68 NY2d 410, 416; People v Morris, 61 NY2d 290, 293; People v Iannone, 45 NY2d 589, 594; People v Bogdanoff, 254 NY 16, 23). Therefore, the mere fact that CPL 100.40 incorporates different standards for the facial sufficiency of informations and simplified informations does not, without more, violate defendant’s right to due process.


Finally, and most persuasive, is the report of a Senate Committee on the Judiciary of April 20, 1950 (Senate Report No. 1515, 81st Cong., 2d Sess.). In discussing whether to give consuls authority to require a bond to be posted, the committee stated that the usual sponsor’s affidavits are moral obligations only and are not enforeible as contracts. There are many similar declarations of policy and interpretation with regard to later special statutes on immigration, notably the displaced persons and <mask> relief laws. These are not deemed of value on this application because the acts in question were emergency measures designed in the particular circumstances affected, to relieve against the rigors of the immigration laws. *406An interpretation by the executive departments of the duties of sponsorship under these laws is of no value in determining the duty under the law of 1924. The report of the Senate Committee above referred to speaks in connection with the law of 1924. Hence it shows what was reported to the Senate and presumably what they understood that law to mean. If the consuls had no authority to require a contractual promise, it was because the Congress had given them none and the understanding of Congress must be the controlling interpretation.


Mercantile Nat. Bank v. Langdeau (371 U. S. 555) is decisive. There, the issue was whether a Federal statute (U. S. Code, *449tit. 12, § 94), rather than a Texas statute, determined in which State court a national bank may be sued (p. 558) and the court concluded “ that national banks may be sued only in those state courts in the county where the banks are located ” (p. 561) and that the Federal ‘ ‘ statute must be given a mandatory reading ’ ’ (p. 562). (See, also, Rev. Stat., § 5198 [1878], U. S. Code, tit. 12, § 94; Charlotte Nat. Bank v. Morgan, 132 U. S. 141, 145; Buffum v. Chase Nat. Bank of City of N. Y., 192 F. 2d 58, 60, cert. den. 342 U. S. 944; Leonardi v. Chase Nat. Bank of City of N. Y., 81 F. 2d 19, 22, cert. den. 298 U. S. 677; International <mask> Organization v. Bank of America, 86 F. Supp. 884; Rabinowitz v. Kaiser-Frazer Corp., 198 Misc. 312; Crofoot v. Giannini, 196 Misc. 213; Raiola v. Los Angeles First Nat. Trust & Sav. Bank, 133 Misc. 630.) Motion granted.


Sometime in 2005, Mother left the children in the care of her mother in El Salvador and unlawfully entered the United States. She settled in Saline County, Missouri. Ten years later, in April 2015, Son unlawfully entered the country to reunify with Mother. Son was apprehended by immigration officials and placed in the custody of the Department of Health and Human Services' Office of <mask> Resettlement. In May 2015, Son was released into Mother's custody pending disposition of his immigration case.


Petitioner complains of a determination by the Rent Administrator which denies her application for a certificate of eviction of a tenant occupying the upper four-room apartment of a two-family house in which petitioner owns a half interest. Petitioner entered the country in October, 1955, when she became bound by the provisions of the <mask> Relief Act of 1953 (U. S. Code, tit. 50, Appendix, § 1971e), which provides for assurance by the alien and her sponsors that she will be housed in “ housing ” accommodations “ without displacing some other person from such housing.” Thus legally restricted as to her housing needs, petitioner came to live with the sponsoring-relatives in the five-room lower apartment of the subject premises owned by the latter, without any then apparent threat to the tenant. In February, 1957, a year and a half after' her *533arrival, petitioner purchased her one-half interest from such sponsoring relatives. On the strength of that transaction petitioner and the relatives who vouched for her accommodations seek to oust the tenant of the upper apartment for occupancy by the petitioner and her brother.


As a general rule, Social Services Law § 122 does not link eligibility to PRUCOL status, but provides that eligibility depends on whether the alien is a “qualified alien” under the PRWORA and whether the qualified alien entered the United States on or after August 22, 1996. The PRWORA defines a “qualified alien” in substance as follows: (1) an alien who is lawfully admitted for permanent residence under the Immigration and Nationality Act (8 USC § 1101 et seq.); (2) an alien who is granted asylum under section 208 of such Act (8 USC § 1158); (3) a <mask> who is admitted to the United States under section 207 of such Act (8 USC § 1157); (4) an alien who is paroled into the United States under section 212 (d) (5) of such Act for a period of at least one year (8 USC § 1182 [d] [5]); (5) an alien whose deportation is being withheld under section 243 (h) of such Act (8 USC § 1253 [h]); (6) an alien who is granted conditional entry pursuant to section 203 (a) (7) (8 USC § 1153 [a] [7]) of such Act as in effect prior to April 1, 1980; (7) an alien who is a Cuban and Haitian entrant; or (8) certain aliens who have been battered or subjected to extreme cruelty. (8 USC § 1641 [b], [c].) Social Services Law § 122 incorporates the definition of qualified alien by reference (Social Services Law § 122 [1] [b] [i]).


Judicial review of any determination made under [§ 1225(b)(1)] is available in habeas corpus proceedings, but shall be limited to determinations of— (A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under [§ 1225(b)(1)], and (C) whether the petitioner can prove . . . that the petitioner is [a lawful permanent resident], has been admitted as a <mask> . . . , or has been granted asylum . . . .


*752Although determining whether a particular individual is actively "involved [in the gang] and the level of involvement is not a simple matter," here the determination was made unilaterally by the SCDA, or, more accurately, by a single gang investigator within the SCDA, without providing notice and an opportunity to be heard to the affected individual. ( Rackauckas , supra , 734 F.3d at p. 1046 ; Valdez , supra , 58 Cal.App.4th at pp. 506-507, 68 Cal.Rptr.2d 135.) As the SCDA alone made the determination that an individual could properly be subjected to the injunction's wide-ranging restrictions, the determination was rendered opaque and unreviewable at precisely the same time that the threshold for prosecution of that person was drastically lowered by virtue of approval of the injunction itself. (See Englebrecht , supra , 88 Cal.App.4th at pp. 1255-1256, 106 Cal.Rptr.2d 738 [noting that because a gang injunction restricts lawful, commonplace activity, it is an extraordinary remedy]; also see Am.-Arab Anti-Discrimination Comm. v. Reno (9th Cir. 1995) 70 F.3d 1045, 1069 (quoting Joint Anti-Fascist <mask> Comm. v. McGrath (1951) 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (Frankfurter, J. concurring)) [" 'fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights' "].)


Implicit in the theory of parole is the presumption that the parolee is entitled to retain his liberty as long as he substantially adheres to the conditions upon which his parole is predicated. Whether the requirements of due process apply to parole revocations depends on the extent to which the individual will "suffer grievous loss” (Joint Anti-Fascist <mask> Comm. v Megrath, 341 US 123, 168 [1951]). In Morrissey (supra), the court found that "the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss’ on the parolee” (supra, at p 482). Thus, the parolee’s right to liberty is rendered within the protection of the 14th Amendment.


Debre Keranio Medhanialem Ethiopian Orthodox Tewahedo Church (“Ethiopian Church”) owns property on Welch Road in Nashville, Tennessee. Four buildings sit on the Welch Road property: a building used as a sanctuary; a fellowship hall; a residence for visiting priests and deacons; and a structure used for storage and, on occasion, for <mask> housing. The sanctuary building and fellowship hall were located next to each other, while the other buildings were off to either side.


Pending determination of his illegal stay in Canada, the defendant seeks <mask> status in that country. He has not personally appeared in this court on this application. He has chosen to remain in Canada during these proceedings to assist his ailing wife, to avoid arrest by New York authorities should he cross the border, and to avoid the difficulty he would experience should he try to re-enter Canada. However, he assures us that if this court rules against him he will réturn to New York and serve out his sentence.


The facts warrant that determination, although, in my view, subdivision 1 rather than subdivision 4 of section 55 of the regulations seems additionally applicable. When petitioner purchased her half interest she was in the country for a year and a half. She may, in a sense, have ceased to be an alien and to have acquired many rights and privileges enjoyed by aliens of long residence and by citizens as well; but she remained bound by the <mask> Relief Act which forbade her and her sponsors to displace the tenant. This was her concrete undertaking. Nowhere in the applicable statute is there any intimation that following any specific period of residence shall the refugee be relieved of that obligation. To contend that the obligation ceased any time after the giving of the assurances and the entry by the alien is quite absurd.


The trust company had further stated in a report filed in tMs proceeding in respect of the source and status of the *942securities and moneys on deposit, that as a consequence of the influx of so-called “ <mask> claims,” following the German occupation of European countries, it adopted a new method of entries upon its books. It said that the practice was adopted merely as a precautionary measure against overlooking the adverse claim pending a legal or other determination as to its validity. In accordance with that method, when a claim was asserted as to the securities here involved, the trust company placed them in a subaccount designated “ DeTwentsche Bank, The Hague, Claimant: Emanuel Kahn.”


in the LDP, his corroborative evidence was not reliable, and his de- meanor was unsure and nervous, and therefore, he was only par- tially credible. 8 U.S.C. § 1158(b)(1)(B)(iii); Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc) (stating we view the evidence in the light most favorable to the agency’s decision and draw all reasonable inferences in favor of that decision); Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009) (explaining under the substantial evidence test, a decision “can be reversed only if the evidence ‘compels’ a reasonable fact finder to find oth- erwise” (quotation marks omitted)). B. Persecution The Attorney General may grant asylum to an alien who meets the definition of a “<mask>.” 8 U.S.C. § 1158(b)(1)(A). A refugee is defined as— any person who is outside any country of such per- son’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail him- self or herself of the protection of, that country be- cause of persecution or a well-founded fear of perse- cution on account of race, religion, nationality, mem- bership in a particular social group, or political opin- ion.


In mitigation, the respondent asks the Court to consider the following circumstances: his relatively young age; his cooperation with the Grievance Committee; his sincere remorse; the fact that he has learned from his mistake and presents no risk of engaging in misconduct in the future; the fact that he overcame his personal and family circumstances as a <mask> from Ukraine; and his excellent reputation as an honest and ethical attorney.


Any person, including an alien, should be allowed to change his name in good faith as he desires, provided such change would not violate any statutory provision or overriding public policy. No public policy will be served by requiring this petitioner to wait until six months after she becomes a citizen *1008before she may apply for a name change. Most refugees enter our land with some measure of confidence that the future will somehow be "a better one” in this great country. To be fettered by an unwanted, even hated, surname would most substantially interfere with the ability of this <mask> to experience the legitimate blessings of freedom. Particular is this true where no statutory proscription exists to deny petitioner what appears to be a lifelong desire.


A. The Standard of Review. The INA defines <mask> as a noncitizen who is unable or unwilling to return to his home country “because of persecution or a well- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “Persecution is the infliction or threat of death, torture, or injury to one’s person or freedom on account of a statutory ground such as religion.” Rife v. Ashcroft, 374 F.3d 606, 612 (8th Cir. 2004) (quotation omitted). At the outset, He argues that we review the BIA’s persecution determinations de novo because they are questions of law. Though there are circuit court decisions supporting this contention, it is contrary to controlling Supreme Court precedents.


On June 20, 2016, DCFS completed its report for the upcoming jurisdiction/disposition hearing. The report contained further evidence of father's drinking history, including uncle's statement that father had been abusing alcohol since he was a teenager. It also included an allegation by another relative that father's drinking in the <mask> camp led to an act of domestic violence in which father kicked then-pregnant mother so hard she nearly died and the baby was born early.


UNSC, which determined in Resolution 1973 that the “situation” in Libya “constitute[d] a threat to international peace and security.” S.C. Res. 1973. As this Office has previously observed, “[t]he President is entitled to rely on” such UNSC findings “in making his determination that the interests of the United States justify providing the military assistance that [the UNSC resolu- tion] calls for.” Military Forces in Somalia, 16 Op. O.L.C. at 12. 4 Qadhafi’s actions not only endangered regional stability by increasing <mask> flows and creating a humanitarian crisis, but, if unchecked, also could have encouraged the repression of other democratic uprisings that were part of a larger movement in the Middle East, thereby further un- dermining United States foreign policy goals in the region. Against the background of widespread popular unrest in the region, events in Libya formed “just one more chapter in the change that is unfolding across the Middle East and North Africa.” March 18, 2011 Remarks. Qadhafi’s campaign of violence against his own country’s citizens thus might have set an example for others in the region, causing “[t]he democratic im- pulses that are dawning across the region [to] be eclipsed by the darkest form of dictatorship, as repressive leaders concluded that violence is the best strategy to cling to power.” March 28, 2011 Address. At a minimum, a massacre in Libya could have imperiled transitions to democratic government underway in neighboring Egypt and Tunisia by driving “thousands of additional refugees across Libya’s borders.” Id. Based on these factors, we believe the President could reasonably find a significant national security interest in preventing Libyan instability from spreading elsewhere in this critical region. The second important national interest implicated here, which rein- forces the first, is the longstanding U.S. commitment to maintaining the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security. Since at least the Korean War, the United States government has recognized that “‘[t]he continued existence of the United Nations as an effective interna-


While seven years is usually adopted as the basis for a presumption of death yet it is not absolutely necessary that such a period should elapse. In reviewing the evidence, I find circumstances which tend to show an earlier death. There is no reasonable ground to believe the former husband of the prosecutrix was alive at the time of the Connecticut marriage. There was no reason for concealing his indentity and no information had been received from him. Furthermore, it is common knowledge that in the years 1905, 1906 and 1907, there took place in Odessa, Eussia, a series of riotous outbreaks; estates of landowners were set afire, attacks and murders of police officials and representatives of the authorities occurred. In the matter of the application for the extradition of Jan Janoff Pouren, a political <mask>, TJ. S. Commissioner Hitchcock delivered an opinion on March 30, 1909, wherein he stated that the counsel for the demanding government (Eussia) admitted that a state of revolution existed in the Eiga district. It also appeared in that case that political disturbances in other sections of the Eussian domain were of frequent occurrence and that the conflicts with the soldiers and police in which many were killed were numerous, covering about that period of time. The papers in the Pouren case, supra, show that a state of so-called rebellion existed all over the land. - These circumstances coupled with others would tend to prove that there is substantial support for the claim that the former husband of Josepha Eaczkowski was killed as she was informed.


“ * * * Warning! Members of subversive organizations may lose their United States citizenship. “ During this coming fall, such vitally needed legislation as the Mundt-Nixon Bill or other propositions directed against elements unfriendly to the government of the United States will go into effect. According to these, all persons who are members of subversive organizations are subject to loss of their American citizenship. According to these laws, such elements will be expatriated, considered as enemies of the State, and ‘ shall be treated as such \ *840“ We believe ourselves to be dealing in a proper manner when, without making assertions of any nature ourselves, we warn our readers against maintaining any sort of contact with the two so called Austrian organizations to be listed below. We mean the Austrian organization and the newspaper which formed a merger in January 1948 and which work together with the youth group: Austro American Council and Austro American Tribune. Whether these two as well as the Youth Group Fellowship Club are to be considered as communist or subversive, we leave to our readers to decide. Let them judge whether an organization and a paper, each having at least two members of the Board of Directors who have been put behind bars in connection with the Oerhardt Eisler case, are to be considered American or Anti-American. “ Those people who have their doubts as to the loyalty of these two groups will do well to remain aloof from them, to demand that their names be taken off the registers, should they already have been entered there, and keep the copy as well as the postal receipt of mailing in a safe place; ‘ ‘ Harmless, loyal minded Austro-Americans are at the present time being requested under the guise of innocent pretexts, such as cultural gatherings or collection of restitution claims, to join the ranks of the Austro American Council and Austro American Tribune. “ For example: We have before us the following circular letter: ‘ New York, June 1948. Mr. * * * New York, N. Y. We have the honor to inform you that as a result of our efforts to secure the aid of a larger organization in pursuing Austrian restitution claims we have succeeded in winning the support of the Austro American Council. After thorough conferences in which Regierungsrat Dr. Herman Oppenheim, Dr. Victor Menschel and Jacob Herzig, secretary of the Austro American Council, took part, it was decided to begin the action under the aegis of the Austro American Council. We invite you to join the Council without delay and to get all of your acquaintances, interested, to join as well. Enclosed please find an application for membership which we ask you to fill out. Please send it with check or money order ($1.00) to Austro American Council, 13 West 106th Street, New York 25, NY. Very truly yours, Simon Jacob Wugen M. Hoffmann Fred Reiss (signed) F. Reiss. ’ ‘‘ For our readers ’ further information and so that they may judge for themselves we advise: *841“ Regierungsrat Herman Oppenheim is, according to the list before us, sponsor of the Austro American Council. Before that he was the vice President of Mr. Ferdinand Czernin who is known to favor the cession of the Kaerntner regions to Yugoslavia. “ Dr. Victor Menschel is Vice President and Jacob Herzig is Secretary of the Austro American Council. “ Dr. Franz Goldner, a former lawyer in Wiener Neustadt, is legal advisor to these groups. “ Furthermore we present the following for our readers to judge: In the July 1,1948 issue of the Austro American Tribune we read as follows regarding the commencement of the prison terms of its founder and first president and of other functionaries of the merged association. “ ‘ Among the ten board members of the joint Anti-Fascist <mask> Committee who were sentenced along with Howard ' Fast are Dr. Jacob Auslander, founder and first president of the Austro American Tribune, and Professor Lyman Bradley, member of our paper’s Board. The management of the Austro American Tribune is proud of its connection with these courageous men.’ “ Let it be understood. We do not intend to make converts. To the contrary. He who feels himself drawn in any way to these organizations should remain there. We are for clear differentiation. The purpose of these lines is exclusively to keep our readers, who are all loyal citizens, out of embarrassing situations * * When complainant helped organize the council he acted on the recommendation of a Count Czernin whom he had known abroad. He knew few of the other organizers. He also became a member of the board of directors of the council, knowing little of the background or the political beliefs of his fellow officers. He freely admits having made no investigation or inquiry concerning them. Indeed, though he remained an officer of the council for four years, he neither met or now knows the main body of the officers of the council. He attended no more than three meetings, of any kind, during all those years. He did not inquire into the actual use of the funds of the council. While declining to state whether he “ sponsored ” the council, he does not deny his connection therewith until a few weeks prior to the date of the publication complained of. There were persons prominent in public life who were his fellow officers, but he did not get to meet or to know them. Believing the purposes of the council to be those of culture for its members, *842assistance to Austrians abroad and pursuit of Austrian restitution claims, he never made any investigation of its actual purpose, activity or political work.


The plaintiff here, however, is not shown to have any connection with the Soviet government, nor to have acquired his policy from, through or under that regime. He has on the contrary been the owner and holder in his own right of both the policies sued on for many years and is in fact a <mask> from Russia residing at present in France. Besides the contracts or policies provide that Russian policyholders were to share in the general assets of the company, not merely in the profits on Russian business. They are participants in the company’s earnings throughout the world. The insured is pledged as a fund for payment of his policy, not only the property of the company in Russia but “ all other property belonging to the company.”


True, parole is a privilege not a right. It is equally true that parole revocation proceedings place a parolee’s liberty at stake. *654As such, a minimal amount of due process is owed to a parolee, and courts must ensure that such rights are not discarded (Joint Anti-Fascist <mask> Comm., 341 US at 200-201). Indeed, procedural protections of due process are warranted if an individual would be “condemned to suffer grievous loss of any kind” (Joint Anti-Fascist Refugee Comm. at 168). Revocation of parole exposes a parolee to a return to prison. By all accounts, that certainly constitutes a “grievous loss” particularly where the potential maximum sentence is life imprisonment.


arguments the government, after failing to take any position before the IJ or to provide any notice to Osmani, raised for the ﬁrst time on appeal and denied Osmani’s motion to remand for additional factﬁnding on the conditions in Kosovo. We ﬁnd the BIA legally erred by considering arguments the government did not present to the IJ, put Osmani on no- tice of, or develop any record evidence to support. In denying Osmani’s motion to remand, the BIA also abused its discre- tion by engaging in impermissible factﬁnding. Accordingly, we grant Osmani’s petition for review and remand to the BIA. I. Background Petitioner Ilir Osmani, a native of the former Yugoslavia, fled the Kosovo War and was admitted to the United States as a <mask> on June 25, 1999. Osmani was convicted for posses- sion of illegal narcotics in 2019. On December 23, 2019, shortly after his release from jail on the narcotics conviction, DHS de- tained Osmani and placed him into removal proceedings. The government sought to remove Osmani to Kosovo based on a prior conviction for aggravated felony theft, see 8 U.S.C. § 1227(a)(2)(A)(iii), commission of two or more crimes involv- ing moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii), and his narcotics conviction, see 8 U.S.C. § 1227(a)(2)(B)(i). The Immigration and Nationality Act (“INA”) permits ref- ugees to petition for legal permanent resident status. 8 U.S.C. § 1159. Osmani applied to adjust his status to legal permanent resident under 8 U.S.C. § 1159(a) on April 1, 2020. Aliens con- victed of certain crimes, such as those involving moral turpi- tude or for violating narcotics laws, are ineligible for visas or admission into the United States. 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), (II). Osmani’s prior convictions No. 20-3318 3


In Joint Anti-Fascist <mask> Committee v. McGrath (supra) three organizations included in a list of groups designated as communist by the Attorney General under the above Executive Order brought actions for injunctive and declaratory relief to have their names deleted from these lists upon various constitutional grounds. The majority of the court reversed the lower court’s dismissal of the complaint, expressing several different views. Clark, J., took no part in the case. Burton, J., with Douglas, J., concurring, held that on the facts alleged in the complaint the Attorney General’s action was patently arbitrary.


It seems clear that Congress, in enacting the Gwinn Amendment, had in mind excluding persons who advocate the overthrow of our Government by force and by violence, from enjoying the bounties granted by the low-rent housing acts. Actually, Congress did not do this. What Congress did was to exclude all persons who are members of organizations designated as subversive by the Attorney General, based upon the latter’s ex parte findings of subversiveness. No notice or opportunity to be heard is provided for in Executive Order 9835 to the organizations listed to disprove these findings. That fact was admitted by the pleadings in Joint Anti-Fascist <mask> Committee v. McGrath (104 F. Supp. 567). There the court said (p. 572): “With respect to the admitted fact that there was no adequate notice or hearing, the cases are now in precisely the same posture that they were when considered by the Supreme Court.”


Nancy J. Kelly, with whom John Willshire Carrera, Harvey Kaplan, and Harvard Immigration & <mask> Clinic were on brief, for petitioner. M. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, with whom Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Melissa Neiman-Kelting, Assistant Director, Office of Immigration Litigation, were on brief, for respondent. Mark C. Fleming, Arjun K. Jaikumar, Cristina Salcedo, and Wilmer Cutler Pickering Hale and Dorr LLP on brief for Harvard


It is indeed deplorable that the attorney for the petitioner thought it necessary to urge in this court that an officer of the landlord is a German <mask> and that any finding in favor of the landlord would encourage emigrants to take the law in their own hands. Definitely no such danger exists in a democracy where principles of law and justice apply impartially to all.


“ A citizen may sign an assurance on his own behalf; on behalf of a church, welfare agency, or other bona fide group of citizens; or on behalf of a noncitizen. ’ ’ Although the date of publication of this pamphlet is some seven years later than that of the execution of the affidavit in suit, nevertheless the questions and answers hereinabove quoted illustrate and indicate the long established view, which was never different. Nor do the statutes and regulations presently in effect differ so substantially from those which were operative at the time these defendants executed their affidavit that a different interpretation or result would be indicated or warranted. Indeed, the Displaced Persons Act of June 25, 1948 (U. S. Code, tit. 50, ch. 647; 62 U. S. Stat. 1009) and the <mask> Relief Act of August 7,1953 (U. S. Code, tit. 50, ch. 67 U. S. Stat. 400), are more specific than earlier statutes in force when the affidavit in hand was made in requiring “ assurances ” that aliens applying for admission into the country will not become public charges. Yet even under these later statutes the view of administrative officials, which, as already indicated, they have freely conveyed to the public, has uniformly been that such “ assurances ” do not impose a legal obligation.


For jurisdictional purposes, a national bank is a “ citizen ” of the State in which it is established or located and in that district alone can it be sued (U. S. Code, tit. 12, § 94; Michigan Nat. Bank v. Robertson, 372 U. S. 591; Cope v. Anderson, 331 U. S. 461, 467; First Nat. Bank of Charlotte v. Morgan, 132 U. S. 141; Buffum v. Chase Nat. Bank of City of N. Y., 192 F. 2d 58, 60; Leonardi v. Chase Nat. Bank of City of N. Y., 81 F. 2d 19, cert. den. 298 U. S. 677; International <mask> Organization v. Bank of America, 86 F. Supp. 884; Chaffee v. Glens Falls Nat. Bank & Trust Co., 204 Misc. 181, affd. 283 App. Div. 694; Rabinowitz v. Kaiser-Frazer Corp., 198 Misc. 312; Crofoot v. Giannini, 196 Misc. 213; Raiola v. Los Angeles First Nat. Trust & Sav. Bank, 133 Misc. 630). A national bank is established, within the meaning of the Federal statute in question, only in the place where its principal office and place of business is as specified in its organization certificate, a suit against such a bank being maintainable only in the place of its establishment, i.e., its location, if there be no waiver or consent (Buffum v. Chase Nat. Bank of City of N. Y., supra). The resulting consolidated national bank not being established in New York and there being no waiver or consent it cannot be sued here.


While seven years is usually adopted as the basis for a presumption of death, yet it is not absolutely necessary that such a period should elapse. In reviewing the evidence I find circumstances which tend to show an earlier death. There is no reasonable ground to believe the former husband of the proscutrix was .alive at the time of -the Connecticut marriage. There was no reason for concealing his identity and no information had been received from him. Furthermore, it is common knowledge that in the years 1905, 1906 and 1907 there took place in Odessa, Russia, a series of riotous outbreaks; estates of landowners were set afire, attacks and murder of police officials and representatives of the authorities occurred. In the matter of the application for the extradition of Jan Janoff Pouren, a political <mask>, United States Commissioner Hitchcock delivered an opinion on March 30, 1909, wherein he stated that the counsel for the demanding government (Russia) admitted that a state of revolution existed in the Rigi district. It also appeared in that case that political *542disturbances in other sections of the Russian domain were of frequent occurrence and that the conflicts with the soldiers and police in which many were killed were numerous, covering about that period of time. The papers in the Pouren case (supra) show that a state of so-called rebellion existed all over the land. These circumstances coupled with others would tend to prove that there is substantial support for the claim that the former husband of Josepha Raczkewski was killed as she was informed.


Although it is the People’s position that the materials do not contain Rosario or Brady material, even a cursory inspection shows otherwise. Critical to the issues in this case is the credibility of the victim. The defendant is charged with three separate incidents of forcible rape in which his wife is the alleged victim. There is no physical or testimonial evidence linking the defendant to those crimes other than her testimony. There are most unusual circumstances surrounding these allegations. The defendant is a Cuban <mask> who spoke little, if any, English at the time he met and subsequently married his wife and at the time these allegations arose. His wife is English speaking and it is clear from the testimony that the defendant was almost exclusively reliant on her ability to assist him in day-to-day activities in the Rochester community, as well as working towards obtaining resident alien status through United States Immigration. At the core of these allegations is the victim’s assertion that the defendant convinced the victim to undergo a civil wedding ceremony in advance of their planned religious ceremony in order to avoid immigration complications. It was between the time of the civil ceremony and the planned religious ceremony that the alleged rapes took place. The victim claimed that the agreement for the civil ceremony was grounded in an agreement between the two that no sexual intercourse take place until the religious ceremony occurred. Hence, the status of the immigration claims, the credibility of the victim, their status as a married couple in the community and their admitted consensual sexual relations before and during the time of the alleged forcible rapes was very relevant in this case.


Before KANNE, WOOD, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. In 2019, the Department of Human Services (“DHS”) sought to remove Ilir Osmani, a <mask> of the Kosovo War, based on his criminal convictions and crimes of moral turpitude. An Immigration Judge (“IJ”) granted Os- mani’s petition for an adjusted status under 8 U.S.C. § 1159(a) and for waiver under 8 U.S.C. § 1159(c). The Board of Immi- gration Appeals (“BIA”) reversed the IJ’s ruling based on new 2 No. 20-3318


“Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ id., at 503 (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’), and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed,’ Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). Second, we have required in substantive-due-process cases a ‘careful description’ of the asserted fundamental liberty interest. [Reno v Flores, 507 US 292, 302 (1993); Collins v Harker Hgts., 503 US 115, 125 (1992); Cruzan v Director, Mo. Dept. of Health, 497 US 261, 277-278 (1990).] Our Nation’s history, legal traditions, and practices thus provide the crucial ‘guideposts for responsible decisionmaking,’ Collins, supra, at 125, that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment ‘forbids the government to infringe . . . “fundamental” liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’ 507 U.S., at 302 .... “[T]he development of this Court’s substantive-due-process jurisprudence, described briefly above, . . . has been a process whereby the outlines of the ‘liberty’ specially protected by the Fourteenth Amendment — never fully clarified, to be sure, and perhaps not capable of being fully clarified — have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in due-process judicial review. In addition, by establishing a threshold requirement — that a challenged state action implicate a fundamental right— before requiring more than a reasonable relation to *780a legitimate state interest to justify the action, it avoids the need for complex balancing of competing interests in every case.” (Washington v Glucksberg, 521 US 702, 720-722 [1997] [Rehnquist, Ch. J.].) To satisfy the first prong of showing that he has identified a fundamental right, defendant invokes the United States Supreme Court’s decision in Paul v Davis (424 US 693 [1976]), which held that a public defamatory injury, or harm to reputational interests, if it is properly combined with some specific, demonstrable harm to a person’s “more tangible interests such as employment,” can constitute a liberty interest worthy of substantive due process protection. (Id., 424 US at 701.) As part of its explanation of its reasoning, the Davis court quoted Justice Douglas’s concurring opinion in Joint Anti-Fascist <mask> Comm. v McGrath (341 US 123 [1951]): “This is not an instance of name calling by public officials. This is a determination of status — a proceeding to ascertain whether the organization is or is not ‘subversive.’ This determination has consequences that are serious to the condemned organizations. Those consequences flow in part, of course, from public opinion. But they also flow from actions of regulatory agencies that are moving in the wake of the Attorney General’s determination to penalize or police these organizations.” (Id., 341 US at 175.)


President’s determination that “[i]f the war in the former Yugoslavia resumes, ‘there is a very real risk that it could spread beyond Bosnia, and involve Europe’s new democracies as well as our NATO allies.’” Pro- posed Bosnia Deployment, 19 Op. O.L.C. at 333. In addition, in another important precedent, President Clinton justified extensive airstrikes in the Federal Republic of Yugoslavia (“FRY”) in 1999—military action later ratified by Congress but initially conducted without specific authorization, see Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327 (2000)—based on concerns about the threat to regional security created by that government’s repressive treatment of the ethnic Albanian population in Kosovo. “The FRY government’s violence,” President Clinton ex- plained, “creates a conflict with no natural boundaries, pushing refugees across borders and potentially drawing in neighboring countries. The Kosovo region is a tinderbox that could ignite a wider European war with dangerous consequences to the United States.” Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia ( Serbia and Montenegro), 35 Weekly Comp. Pres. Doc. 527, 527 (Mar. 26, 1999). As his statements make clear, President Obama determined in this case that the Libyan government’s actions posed similar risks to regional peace and security. Much as violence in Bosnia and Kosovo in the 1990s risked creating large <mask> movements, destabilizing neighboring countries, and inviting wider conflict, here the Libyan government’s “illegitimate use of force . . . [was] forcing many [civilians] to flee to neighboring countries, thereby desta- bilizing the peace and security of the region.” March 21, 2011 Report to Congress. “Left unaddressed,” the President noted in his report to Congress, “the growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States.” Id. Without outside intervention, Libya’s civilian population faced a “humanitarian catastrophe,” id.; as the President put it on another occasion, “innocent people” in Libya were “being brutalized” and Qadhafi “threaten[ed] a bloodbath that could destabilize an entire region.” Press Re- lease, Office of the Press Secretary, The White House, Weekly Address: President Obama Says the Mission in Libya is Succeeding (Mar. 26, 2011), http://www.whitehouse.gov/the-press-office/2011/03/26/weekly-address- president-obama-says-mission-libya-succeeding (last visited ca. Apr. 2011). The risk of regional destabilization in this case was also recognized by the


“ If however, at the time of the settlement and distribution of my estate, all three of the foregoing conditions exist, but my sister be. a resident in or citizen of or <mask> in a country not at war with America and there be no prohibitive restrictions *26against the transmission of funds to her, then I expressly order and direct that said payment shall be made to her.


‘1 If however, at the time of the settlement and distribution of my estate, all three of the foregoing conditions exist, but my sister be a resident in or citizen of or <mask> in a country not at war with America and there be no prohibitive restrictions against the transmission of funds to her, then I expressly order and direct that said payment shall be made to her.


The question is solely one of effectuating the charitable purposes of this testator and the duty of the court is to accomplish this purpose by a liberal construction of the testator’s will (Matter of Potter, 307 N. Y. 504). The testator’s plan was to employ his residuary estate for the assistance of education, aged persons generally, aged Jews, <mask> Jews, aged colored persons and the blind. He bequeathed half of his residuary estate for educational purposes and distributed the balance equally among the *48groups of needy persons whom he identified. If at all possible, this carefully conceived plan should be carried into effect subject only to the discretion granted to the executors to deviate, to the extent permitted by this will, in the event the fulfillment of the testator’s intent should not prove practical. The court does not consider the will as designating either a home or an institution devoted exclusively to the care of aged colored persons and it is apparent that the intent of the testator will be complied with by payment to an organization which includes the care of such persons in its services, particularly since the functioning of charities is subject to control by State authorities and application of the fund can be supervised. The conclusion of this court is that either of the two mentioned organizations now aiding aged colored persons is qualified to receive the bequest and, from the facts presented, there appears to be no practical reason for declining to distribute to one of them. The objection based upon the fact that the foundation was not in legal existence at the date of the testator’s death is met by section 12 of the Personal Property Law, as amended by chapter 715 of the Laws of 1953, which applies to this will. It is within the authority of the executors to choose the recipient of the legacy and to exercise the discretion given to them to determine whether distribution shall be practical.


*474Defendant proved a deed from plaintiff to defendant June 2, 1873, of 150 acres of lot 161, <mask> tract, with sucb covenant; a deed from plaintiff to defendant, September 9, 1873, of 266 acres, more or less, of the same lot, with same covenant; a quitclaim from plaintiff to defendant, November 21, 1874, of all of the lot except fifty-two acres. Defendant proved a comptroller’s •deed, October 2, 1880, to George W. Palmer and another, of the whole of lot 161, made by virtue of a sale in October, 1877, for unpaid taxes prior to 1871, the lot being therein described as containing 420 acres. The defendant testified that in November, 1880, he was in possession of the whole lot, except fifty acres, which he did not own; that, after receiving the notice (the statutory notice to redeem, which had been served November 9, 1880), he redeemed by paying, January 21, 1881, the sum of $362.12, paying the tax •on the whole lot and redeeming the whole lot.


WL 2120292, at *7 (three of four interagency agreements were too vague in their descriptions to establish the rights and duties of the Department of Defense and GovWorks—e.g., “equipment through the Pentagon IT Store”); Status of Purchase Order as Obligation, B-196109, 1979 WL 11928, at *1 (Comp. Gen. Oct. 23, 1979) (order lacking a description of the products to be provided, but which relied on “requisitions” to be sent under separate cover, was not “firm and complete”); Director, Interna- tional Operations Division, B-155708-O.M. (Comp. Gen. Apr. 26, 1965), http://redbook.gao.gov/4/fl0016226.php (last visited ca. Mar. 2012) (loan agreement between United States and Brazil was not sufficiently “definite or specific” in providing that the funds would be used to finance programs in certain areas “as may, from time to time, be agreed upon in writing by A.I.D. and the Government”); To the Honorable Secretary of State, B-147196, 1965 WL 2883, at *2–4 (Comp. Gen. Apr. 5, 1965) (contracts were not specific as to services to be rendered when they provided for funds for <mask> assistance “as determined by the supervising officer”). As we have noted, the fact that a particular regulatory step had to be taken after the agencies signed Part B of the interagency agreement com- plicates our assessment of the agreement’s specificity and definiteness. We have not found definitive analysis on this point by the Comptroller General. For purposes of discussion, we accept the VA’s and GSA’s view that review and concurrence by OMB and OPM in the VA’s planned private-private competition was a necessary regulatory step to be com- pleted in the process before GSA was free to use the funds in conducting the acquisition. This step appears to have been the responsibility of the VA, the requesting agency. See IA § A.6, Requesting Agency Roles and Responsibilities, #4 (requesting agency must “comply fully with applica- ble procurement regulations and policies in all matters related to this IA”). Nevertheless, we do not perceive the requirement that the VA pursue this consultation-concurrence step as negating either the certainty or definite- ness of the obligation the VA undertook with GSA. In at least one in- stance, the Comptroller General concluded that a contract with an express regulatory contingency was nonetheless sufficiently definite to create a valid obligation. See Lawrence W. Rosine Co., 55 Comp. Gen. 1351, 1354–55 (1976) (award to a business on the condition that the contract would be terminated at no cost if the Small Business Administration found that it was not a small business was sufficiently definite to create a