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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

FTC DOCKET NO. 9453

ADMINISTRATIVE LAW JUDGE: DANIA L. AYOUBI

IN THE MATTER OF:

ERIN THOMPSON

APPELLANT

THE AUTHORITY’S BOOK OF AUTHORITIES

August 10, 2026

Respectfully submitted,

STURGILL, TURNER, BARKER & MOLONEY,

PLLC

/s/ Bryan Beauman

BRYAN BEAUMAN

REBECCA PRICE

333 W. Vine Street, Suite 1500

Lexington, Kentucky 40507

Telephone: (859) 255-8581

bbeauman@sturgillturner.com

rprice@sturgillturner.com

HISA ENFORCEMENT COUNSEL

JANELLE WINSTON

CHRISTY HEATH

GENEVA N. GNAM

4801 Main Street, Suite 350

Kansas City, MO 64112

Telephone: (816) 291-1864

jwinston@hiwu.org

cheath@hiwu.org

ggnam@hiwu.org

HORSERACING INTEGRITY & WELFARE

UNIT, A DIVISION OF DRUG FREE SPORT,

LLC

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INDEX

TAB

DOCUMENT DESCRIPTION

FEI v. Aleksandr Kovshov, FEI Tribunal Decision dated 27 November

2012

Khaled Abdullaziz Al Eid & Abdullah Waleed Sharbatly v. FEI, CAS

2012/A/2807 & 2808

Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002)

Guier v. Teton County Hosp. Dist., 2011 WY 31, 248 P.3d 623 (Wyo.

2011)

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29 (1983)

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782 (9th

Cir. 2005)

HIWU v. Juan Cano, Corrected Final Decision, JAMS Case No.

1501001058, dated September 30, 2025

PG. #s

003-010

011-043

044-065

066-080

081-103

104-127

128-143

144-171

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TAB 1

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~EITM

Federat ion

Equestre

Internati onale

DECISION of the FEI TRIBUNAL

dated 27 November 2012

Human Anti-Doping Case No.: 2012/02

Athlete / NF: Aleksandr Kovshov / UKR

FEI ID: 10039044

Event: CDI-W Zhashkiv (Ul<R)

Sampling Date: In competition test, 25 February 2012

Prohibited Substance:

(Carboxy -THC)

11-nor-delta-9-tetrahydrocannabinol-9-carboxylicacid

COMPOSITION OF PANEL

Mr. Pierre Ketterer, Chair

Mr. Patrick A. Boelens, Panel Member

Ms. Randi Haukeb6, Panel Member

Ms. Erika O'Leary, FEI Tribunal Clerk

SUMMARY OF THE FACTS

2.1 Memorandum of case: By Legal Department

2.2 Summary information provided by the Athlete: The FEI Tribunal

took into consideration all evidence, submissions and documents

presented in the case file, as also made available by and to the Athlete.

2.3 Oral Hearing: None, by correspondence.

DESCRIPTION OF THE CASE FROM THE LEGAL VIEWPOINT

3.1 Articles of the Statutes / Regulations which are applicable or

have been infringed.

Statutes 23 rd edition, effective 15th November 2011 ("Statutes"), Arts. 36

and 39.

General Regulations, 23 rd edition, 1st January 2009, updates effective 1st

January 2012, Arts. 143 .1, 168.4 and 169 ("GRs").

Internal Regulations of the FEI Tribunal, 2nd edition, 1st January 2012

("I Rs").

HM King Hussei n I Bui lding, Chemin de la Joliette 8, 1006 Lausanne, Switzerland

President

t +41 21 310 47 47 I f +41 21 310 47 60 I e info@ fei.org I www.fei.org

HRH Princess Haya

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FEI Anti-Doping Rules for Human Athletes, pt January 2011, updates

effective 1st January 2012 ("ADRHA").

The World Anti-Doping Code 2009.

2012 World Anti Doping Agency Prohibited List ("the WADA Prohibited

List").

3.2 Athlete: Mr Aleksandr Kovshov

3.3 Justification for sanction:

GR Art. 143.1: "Medication Control and Anti-Doping provisions are stated

in the Anti-Doping Rules for Human Athletes (ADRHA), in conjunction with

The World Anti-Doping Code, and in the Equine Anti-Doping and

Medication Controlled Medication Regulations (EADCM Regulations)."

Art. 2.1.1 ADRHA: "It is each Athlete's personal duty to ensure that no

Prohibited Substance enters his or her body. Athletes are responsible for

any Prohibited Substance or its Metabolites or Markers found to be present

in their Samples. Accordingly, it is not necessary that intent, fault,

negligence or knowing Use on the Athlete's part be demonstrated in order

to establish an anti-doping violation under Article 2.1."

Art. 4.1 ADRHA: "These Anti-Doping Rules incorporate the Prohibited List

which is published and revised by WADA as described in Article 4.1 of the

Code. The FEI will make the current Prohibited List available to each

National Federation, and each National Federation shall ensure that the

current Prohibited List is available to all its members and constituents."

DECISION

4.1 Factual Background

1. Mr. Aleksandr Kovshov (the "Athlete") participated at the CDI-W in

Zhashkiv, UKR (the "Event") from 24 to 26 February 2012, in the

discipline of Dressage.

2. On 25 February 2012, the Athlete was selected for in-competition

testing. Analysis of the urine sample no.3042880 taken from the Athlete at

the Event was performed at the WADA accredited laboratory, Institut

Municipal d'Investigacio Medica in Barcelona, Spain. The analysis revealed

the presence of 11-nor-delta-9-tetrahydrocannabinol-9-carboxylicacid

(Carboxy-THC), which is a Prohibited Substance according to the WADA

Prohibited List in force at the time of the Sample collection ( certificate of

analysis dated 30 March 2012).

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3. Carboxy-THC is a metabolite of THC, which is listed in Class SB

"Cannabiniods" of Prohibited Substances. It is prohibited in-competition

and considered a "Specified Substance" under the WADA Prohibited List.

While the presence of Carboxy-THC in the Athlete's Sample constitutes an

Anti-Doping Rule Violation, because of the fact that Cannabinoids are

classified as "Specified Substances" on the Prohibited List, they are treated

differently from other Prohibited Substances.

4. No valid Therapeutic Use Exemption ("TUE") under Article 4.4 of the

ADRHA had been granted for this substance. Therefore, the positive

finding for Carboxy-THC gives rise to an Anti-Doping Rule Violation under

the ADRHA.

4.2 The Proceedings

5. The presence of the Prohibited Substance following the laboratory

analysis, the possible rule violation and the consequences implicated, were

officially notified to the Athlete by the FEI Legal Department on 25 May

2012, through the Ukrainian Equestrian Federation ("UKR-NF"). Together

with the Notification Letter, the FEI submitted a copy of the Doping Control

Form, on which the Athlete had declared the use of vitamin C and calcium

supplements.

4.3 The B-Sample Analysis

6. The Athlete was also informed in the Notification Letter of 25 May 2012

that he was entitled to (1) the performance of a B-Sample analysis and (2)

to attend or to be represented at the B-Sample analysis.

7. By letter dated 31 May 2012, the Athlete waived his right to have the B

Sample analysis performed.

4.4 The Further Proceedings

8. On 31 May 2012, the Athlete further provided his response to the

charges. The Athlete submitted that on the eve of the competition he had

attended a billiard club with friends. That they had ordered a hookah

containing a fruit mixture, and that his friends had persuaded him to try it.

He further submitted that he was not aware that the hookah contained any

Prohibited Substances and was therefore relaxed when informed at the

Event that he had been selected for doping control. That he was surprised

at the subsequent positive test result. That he had no intention to

enhance his sporting performance, that the case at hand was his first

violation in his career, and that he regretted the incident.

9. The FEI responded to the Athlete's submission on 29 August 2012. The

FEI argued that it had discharged its burden of establishing that the

Athlete had violated Article 2.1 of the ADRHA. It further submitted that a

Period of Ineligibility under Article 10.2 of the ADRHA of two (2) years

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should be imposed on the Athlete since the prerequisites of Article 10.4 of

the ADRHA were not fulfilled. Specifically, the FEI argued that while

Carboxy-THC is a Specified Substance, the Athlete had failed to establish,

by a balance of probability, how the Specified Substance entered his body,

since he had not indicated the precise date of the alleged consumption of

Carboxy-THC, and had adduced no evidence that the hookah with the fruit

mixture also contained the Prohibited Substance detected in his Sample.

With regard to the question of the intention to enhance his sport

performance, the FEI highlighted that the Athlete had not submitted, as

required under Article 10.4 of the ADRHA rules, any corroborating

evidence to prove the absence of intent to enhance his sport performance,

or mask the use of a performance enhancing substance. The FEI further

argued that no elimination or reduction of the Period of Ineligibility based

on exceptional circumstances under Article 10.5 of the ADRHA should be

granted, even if the Tribunal would consider that the Athlete had

established how the Carboxy-THC had entered his body. In this context

the FEI argued that the Athlete had been highly negligent to smoke the

hookah as he could not possibly have known what he ingested by smoking

the fruit mixture, and that apparently he did not question the content of

the hookah, in order to assure that it did not contain any Prohibited

Substances. The FEI further requested that in addition to the automatic

disqualification of results under Article 9 of the ADRHA, all the results

obtained by the Athlete in the Event should be disqualified, in accordance

with Article 10.1 of the ADRHA.

10. On 19 November 2012, the Athlete through the UKR-NF informed the

FEI that he had chosen not to submit a response to the FEI submission.

4.5 Jurisdiction

11. The Tribunal has jurisdiction over this matter pursuant to the Statutes,

GRs and the ADRHA.

4.6 The Decision

12. Under Article 3.1 of the ADRHA, it is the burden of the FEI to establish

that an Anti-Doping rule violation has occurred.

13. The Athlete has been charged with a violation of Article 2.1 of the

ADRHA, i.e. "the presence of a Prohibited Substance or its Metabolites or

Markers in an Athlete's Sample". Athletes subject to the ADRHA are strictly

responsible for any Prohibited Substances found in their Sample and it is

not necessary for the FEI to establish any intent, fault, negligence or even

knowledge on the part of the Athlete charged, in order to establish a

violation under Article 2.1 of the ADRHA. Therefore, to discharge its

burden, the FEI must establish, to the comfortable satisfaction of the

hearing panel, i.e. the Tribunal that the Prohibited Substance (or its

Metabolites or Makers) was present in the urine sample collected from the

Athlete on 25 February 2012.

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14. In support of its charge, the FEI relies on the Adverse Analytical

findings of the WADA accredited laboratory, Institut Municipal

d'Investigacio Medica, Barcelona, Spain. Article 3.2.1 of the ADRHA

provides that WADA accredited laboratories are presumed to have

complied with the International Standard for Laboratories and that it is for

the Athlete to prove otherwise. The Athlete has not sought to do so in the

case at hand, and therefore the presumption prevails. The Athlete had

further waived his right to the B-Sample analysis and therefore accepted

the accuracy of the Adverse Analytical findings made in regard of his A

Sample, in accordance with Article 7.1.4 of the ADRHA.

15. The Tribunal is satisfied that the laboratory report relating to the A

Sample reflects that the findings of the Institut Municipal d'Investigacio

Medica are accurate, and that the test results evidence the presence of

11-nor-delta-9-tetrahydrocannabinol-9-carboxylicacid (Carboxy-THC).

16. The presence of a Prohibited Substance or its Metabolites or Makers in

an Athlete's sample is not considered an Anti-Doping Rule Violation if it is

consistent with a TUE previously obtained by the Athlete. The Tribunal

acknowledges that the Athlete has not provided any applicable TUE for the

Prohibited Substance. In the absence of any TUE for the Prohibited

Substance found in the Athlete's Sample, all the elements of the Anti

Doping rule violation under Article 2.1 of the ADRHA have been met.

Accordingly, the Tribunal is comfortably satisfied that the Athlete has

committed an Anti-Doping rule violation under Article 2.1 of the ADRHA.

This is undisputed between the Parties.

17. The violation at question is the Athlete's first Anti-Doping rule

violation, and Article 2.1 of the ADRHA provides for a Period of Ineligibility

of two (2) years for a first time offender, unless the conditions for

eliminating, reducing or increasing that period, as set out in Articles 10.4,

10.5 and 10.6 of the ADRHA are met.

18. Carboxy-THC, a metabolite of THC, is classified as a Specified

Substance on the 2012 WADA Prohibited List. However, the Tribunal finds

that the Athlete has not established the prerequisites under Article 10.4 of

the ADRHA. Specifically, the Tribunal finds that on the balance of

probability, the Athlete has failed to establish how the Prohibited

Substance entered his body. A mere denial of wrongdoing and the

advancement of a speculative or innocent explanation are insufficient to

meet the Athlete's burden of showing how the Prohibited Substance

entered his body. Rather, the Athlete needs to adduce specific and

competent evidence that is sufficient to persuade the Tribunal that the

explanation advanced is more likely than not to be correct1. The Tribunal

IRB v. Keyter, CAS 2006/A/1067: "One hypothetical source of a positive test does not

prove to the level of satisfaction required that [his explanation of how the prohibited

substance came to be in his body] is factually or scientifically probable. Mere speculation

is not proof that it did actually occur... The Respondent has a stringent requirement to

offer persuasive evidence of how such contamination occurred... "

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finds that the Athlete has provided no evidence to support his speculation

that the hookah was contaminated with the Prohibited Substance and has

therefore failed the balance of probability test. The Tribunal therefore

holds that the Athlete has not established how the Prohibited Substance

entered his body. Moreover, even if the Athlete had established how the

Prohibited Substance had entered his body, the Tribunal finds that he has

not met the further prerequisites of Article 10.4 of the ADRHA. Specifically,

the Athlete has not produced any evidence - in addition to his word which establishes the absence of intent to enhance sport performance. In

conclusion, the Tribunal finds that the pre requisites of Article 10.4 of the

ADRHA are not fulfilled.

19. In the absence of any evidence and re-iterating the Tribunal's

assessment in paragraph 18, the Tribunal further determines that no

reduction or elimination under Article 10.5 of the ADRHA may be applied

since the Athlete has failed to establish how the Prohibited Substance

entered his body. Therefore the Tribunal does not need to assess the

Athlete's degree of fault or negligence for the rule violation. The Tribunal

therefore determines that no elimination or reduction under Articles 10.4

or 10.5 of the ADRHA is granted, and that the Period of Ineligibility of two

(2) years applies.

20. Under Article 10.9 of the ADRHA, in cases as the present, where a

hearing is waived, the period of Ineligibility shall commence on the date

Ineligibility is accepted or imposed. As the period of Ineligibility is imposed

by the present decision, it shall be effective as of the date of this decision.

4.7 Disqualification

21. For the reasons set forth above, the Tribunal is disqualifying the

Athlete from the Competition and all medals, points and prize money won

in that Competition must be forfeited, in accordance with Article 9 of the

ADRHA. The Tribunal is further disqualifying all other individual results

obtained by the Athlete at the Event, with any and all horses, in

accordance with Article 10.1 of the ADRHA.

4.8 Sanctions

22. As a consequence of the foregoing, the Tribunal decides to impose the

following sanctions on the Athlete, in accordance with Article 169 of the

GRs and Article 10 of the ADRHA:

1) The Athlete shall be suspended for a period of two (2) years to be

effective immediately and without further notification. Therefore the

Athlete shall be ineligible through 26 November 2014.

2) The Athlete is fined CHF 1,000.-.

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3) The Athlete shall contribute CHF 500.- towards the legal costs of the

legal procedure.

23. No Athlete who has been declared Ineligible may, during the Period of

Ineligibility, participate in any capacity in a Competition or activity (other

than authorised anti-doping education or rehabilitation programs) that is

authorised or organised by the FEI or any National Federation or be

present at an Event ( other than as a spectator) that is authorised or

organised by the FEI or any National Federation, or participate in any

capacity in Competitions authorised or organised by any international or

national-level Event organisation (Article 10.10.1 of the ADRHA). Under

Article 10.10.2 of the ADRHA, specific consequences are foreseen for a

violation of the Period of Ineligibility.

24. According to Article 168.4 of the GRs, the present Decision is effective

from the day of written notification to the persons or bodies concerned.

25. In accordance with Article 13 of the ADRHA, the Athlete and the FEI

may appeal against the decision by lodging an appeal with the Court of

Arbitration for Sport within thirty (30) days of receipt hereof.

DECISION TO BE FOWARDED TO:

5.1 The person sanctioned: Yes

5.2 The President of the NF of the person sanctioned: Yes

5.3 The President of the Organising Committee of the event

through his NF: Yes

5.4 Any other: WADA

FOR THE PANEL

THE CHAIRMAN, Mr. Pierre Ketterer

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TAB 2

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CAS 2012/A/2807 Khaled Abdullaziz Al Eid v. Fédération Equestre Internationale

CAS 2012/A/2808 Abdullah Waleed Sharbatly v. Fédération Equestre Internationale

ARBITRAL AWARD

delivered by

THE COURT OF ARBITRATION FOR SPORT

sitting in the following composition:

Sole Arbitrator:

Mr Graeme Mew, Barrister in Toronto, Canada and London, United

Kingdom

in the arbitration between

KHALED ABDULLAZIZ AL EID & ABDULLAH WALEED SHARBATLY

Represented by Mr Jeremy Dickerson, Mr James Pheasant and Miss Georgina Shaw of Burges

Salmon, Bristol, United Kingdom

- Appellants and

FEDERATION EQUESTRE INTERNATIONALE, Lausanne, Switzerland

Represented by Mr Jonathan Taylor and Ms Anna-Marie Blakeley of Bird & Bird LLP in

London, United Kingdom and Ms Lisa Lazarus, FEI General Counsel

- Respondent -

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CAS 2012/A/2808 Sharbatly v. FEI - Page 2

INTRODUCTION

1.1

The two cases which form the subject of this appeal award engage consideration of the

Equine Controlled Medication Rules (“ECM Rules”) of the Fédération Equestre

Internationale (“FEI”)

1.2

At the outset is important to record that neither case involves anti-doping rule

violations. The ECM Rules exist ‘to ensure horse welfare and the highest levels of

professionalism’, by ensuring that medications (“Controlled Medication Substances”)

and methods (“Controlled Medication Methods”) that are commonly (and

appropriately) used to treat horses when they are not competing, are not used

inappropriately in relation to horses that are in competition.

1.3

While doping and inappropriate use of medication are certainly related, and in some

respects the way they are regulated is similar, the nature, scope and purposes of the

ECM Rules are very different from the nature, scope and purposes of the anti-doping

rules.

1.4

The Appellants are equestrian athletes. They were not accused of doping but, instead,

were charged because of the presence of the medications, Phenylbutazone and

Oxyphenbutazone (commonly known collectively, as “Bute”), in their competition

horses’ systems without the required pre-authorisation.

1.5

Phenylbutazone is a non-steroidal anti-inflammatory and pain-relieving drug that is

primarily used for musculoskeletal conditions; Oxyphenbutazone (a metabolite of

Phenylbutazone) is also a non-steroidal anti-inflammatory and pain-relieving drug.

Both substances are classified as Controlled Medication Substances in the Equine

Prohibited Substances List.

1.6

To put things in context, in the course of submissions, counsel for the Appellants

described Bute as “ibuprofen for horses”.

1.7

In many cases involving adverse analytical findings for controlled medication

substances, such as Bute, a “Person Responsible” (which would include an Athlete

who rides a Horse during an Event – see Appendix 1 – Definitions of the ECM Rules)

can elect to have his or her case processed under the “Administrative Procedure” set

out in Article 8.3 of the ECM Rules. Where this procedure applies, the following

sanctions would apply:

a. Disqualification of the Person Responsible and/or member of the

Support Personnel (where applicable) and the Horse from the whole

Event and forfeiture of all prizes and prize money won at the Event;

b. A Fine of CHF 1,500; and

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c. Costs of CHF 1,000. However, if a B Sample analysis is requested

and the administrative Sanction accepted after the B Sample Analysis,

the costs shall be increased to CHF 2,000.

1.8

The Appellants were, for reasons explained more fully below, unable to elect to have

the Administrative Procedure applied to their cases. Instead, the charges against the

Appellants were heard by the FEI Tribunal (oral hearing on 18 and 19 April 2012;

decision dated 23 May 2012).

1.9

The tribunal imposed a sanction of Ineligibility of eight months on each of the

Appellants.

1.10

Due to the impending 2012 Olympic Games in which, but for the sanction imposed by

the FEI Tribunal, both of the Appellants had hoped to participate as representatives of

the Kingdom of Saudi Arabia, the parties agreed to an expedited appeal from the

decisions of the FEI Tribunal.

1.11

This Panel’s decision was announced on 11 June 2012 with reasons to follow.

1.12

For the reasons set out below, this CAS Panel concludes that the FEI Tribunal

conflated the sanctioning principles set out in the Equine Anti-Doping Rules with those

applicable under the ECM Rules, with the result that an excessive sanction was applied

having regard to all of the circumstances of each case.

1.13

The sanction of 8 months Ineligibility imposed on each of the Appellants by the FEI

Tribunal should therefore be set aside and replaced with a sanction of 2 months

Ineligibility for each of the Appellants.

THE PARTIES

2.1

The Appellant Khaled Abdulaziz Al Eid (“Al Eid”) is a competitor in the equestrian

sport of jumping. He is a member of the Saudi Equestrian Team. He won a bronze

medal at the 2000 Olympic Games in Sydney, an individual gold medal in the 2006

Asian Games in Doha and an individual bronze medal in the 2010 Asian Games in

Guangzhou.

2.2

The Appellant Abdullah Waleed Sharbatly (“Sharbatly”) is also a competitor in the

equestrian sport of jumping. He is a member of the Saudi Equestrian Team. Sharbatly

won an individual silver medal at the 2010 World Equestrian Games in Kentucky.

2.3

The FEI is the international governing body for equestrian sport. Its responsibilities

include making and enforcing regulations that protect the integrity of the sport.

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2.4

Al Eid and Sharbatly are each subject to the disciplinary jurisdiction of the FEI.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

3.1

Below is a summary of the main relevant facts and allegations based on the parties’

written submissions, pleadings and evidence adduced at the hearing. Additional facts

and allegations may be set out, where relevant, in connection with the legal discussion

that follows. Although the Panel has considered all the facts, allegations, legal

arguments and evidence submitted by the parties in the present proceedings, it refers in

its Award only to the submissions and evidence it considers necessary to explain its

reasoning.

Al-Eid v FEI

3.2

Al Eid rode VANHOEVE in the CSI 3* Event in Riyadh, Saudi Arabia between 30

November 2011 and 3 December 2012 (the ‘Riyadh Event”). The horses competing in

the Riyadh Event, including VANHOEVE, were stabled at the International Riding

School, which was located next door to the showground for the Riyadh Event. Al Eid

was placed in two competitions on VANHOEVE at the Riyadh Event on 3 December

2011.

3.3

At 5:00 p.m. on 3 December 2011, a blood Sample was taken from VANHOEVE for

testing under the FEI Equine Anti-Doping and Controlled Medication Regulations

(“EADCMR”) and Veterinary Regulations. The EADCMR contains both the Equine

Anti-Doping Rules and the ECM Rules. The Sample was divided into an A Sample

and a B Sample in accordance with the EADCMR, and sent to the FEI approved Hong

Kong Jockey Club Racing Laboratory (the “Hong Kong Laboratory”) for analysis.

3.4

The Hong Kong Laboratory analyzed the A Sample of VANHOEVE’s blood and

found Phenylbutazone and Oxyphenbutazone to be present.

3.5

Both Phenylbutazone and Oxyphenbutazone are classified Controlled Medication

Substances under the Equine Prohibited Substances List.

3.6

By a letter dated 2 February 2012, the FEI charged Al Eid with a violation of Article

2.1 of the ECM Rules, pursuant to which “[t]he presence of a Controlled Medication

Substance or its Metabolites or Markers in a Horse’s sample” constitutes an ECM Rule

violation. Article 2.1.1. of the ECM Rules states that “[i]t is each Person Responsible’s

personal duty to ensure that no Controlled Medication Substance is present in the

Horse’s body. Persons Responsible are responsible for any Controlled Medication

Substance found to be present in their Horse’s Samples…”

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3.7

No request had been made for the use of Phenylbutazone and Oxyphenbutazone on the

Horse, and no Equine Therapeutic Use Exemption (“ETUE”) or medication form had

been presented for the substances at the Riyadh Event.

3.8

On 22 February 2012, the B Sample was analysed at the FEI-approved HFL Sport

Science Laboratory in England. The HFL Laboratory confirmed the analytical

findings made by the Hong Kong Laboratory with respect to the A Sample.

3.9

By letter of 24 February 2012, Al Eid accepted a period of voluntary Provisional

Suspension, effective as of 24 February 2012.

3.10

Al Eid does not challenge the results of the analysis of the Sample and accepts that the

substances are Controlled Medication Substances for the purposes of the ECM Rules.

3.11

Before the FEI Tribunal and this Panel, however, Al Eid contended that Bute was

found in VANHOEVE’S Sample as a result of “inadvertent ingestion of powdered

bute that was present at the [International Riding School] stables, and most probably in

VANHOEVE’s stable, because the stable and wall-mounted feed bucket had not been

cleared prior to VANHOEVE’s arrival and nor had the stable yard as a whole”.

3.12

Al Eid denies any deliberately knowing administration of Bute to VANHOEVE.

VANHOEVE’s medical records, corroborated by Dr. Philippe Benoit, the Saudi

Equestrian team veterinarian, confirm that VANHOEVE was not prescribed with Bute

(or any medication containing Bute) in the run up to the Riyadh Event.

3.13

The evidence of Al Eid and other individuals charged with the care of VANHOEVE

and his preparation for the Riyadh Event, is that care was taken to prevent

VANHOEVE from inadvertently coming into contact with prohibited substances prior

to the Riyadh Event.

3.14

Al Eid expressed the belief that VANHOEVE must have come into contact with Bute

while stabled at the International Riding School for the following reasons:

(a) Due to exceptional weather conditions including unprecedented rainfall

and flooding, Al Eid found that the stables at the International Riding

School had not been cleaned out before the horses competing at the Riyadh

Event, including VANHOEVE, had to be put into them. It was not

possible to properly clean VANHOEVE’s stable until after the vet check

had taken place;

(b) When VANHOEVE was put into his stable, he nosed around in the old

bedding and in the dirty wall-mounted feed bucket before the groom was

able to clean the stable;

International Riding School, confirmed that Bute, in its powdered form, is

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regularly used by him and the other vets at the International Riding

School, to treat the horses. They use Bute because it is cheap, reliable, and

easy to administer in powder form into the food of the horses;

(d) Dr. Mark Dunnett, an expert witness retained by Al Eid, confirmed in his

report that contamination of the stable environment in which VANHOEVE

was kept at the International Riding School would be a plausible

explanation for the levels of P and O detected in the blood sample taken at

the Riyadh Event.

3.15

Under the ECM Rules, in the cases of Controlled Medication Substances, Al Eid would

have been able to elect Administrative Procedure (also referred to as “Fast Track”),

provided that the pre-requisites of Article 8.3.1 of the ECM Rules had been fulfilled.

Al Eid would qualify for the Administrative Procedure if there had been no Controlled

Medication violation by him in the previous eight years. However, Al Eid committed

a first Controlled Medication rule violation in January 2005, and could therefore not be

considered a first time offender within the meaning of Article 8.3.1 (b) of the ECM

Rules. Notwithstanding that, the current violation is only considered a first violation

for sanctioning purposes under the ECM Rules, because to be considered a multiple

violation, triggering increased sanctions, the previous violation would have to have

occurred within four years of the current violation.

Sharbatly v FEI

3.16

Sharbatly rode LOBSTER in the CSI 3* Event held in Al Ain, UAE, from 9 – 11

February 2012 (the “Al Ain Event”). As a result of his and LOBSTER’S performance

in the Grand Prix Qualifier Competition on 10 February 2012 at the Al Ain Event, they

won that Competition.

3.17

Sharbatly further competed with LOBSTER on 9 February 2012 in the Two Phases

Competition, and on 11 February 2012 in the Al Ain Grand Prix.

3.18

At 10:05 p.m. on 10 February 2012, a blood Sample was taken from LOBSTER for

testing under the EADCMR and FEI Veterinary Regulations. The Sample was divided

into an A Sample and a B Sample in accordance with the EADCMR, and sent to the

HFL Laboratory for analysis.

3.19

The HFL Laboratory analysed the A Sample of LOBSTER’S blood and found

Phenylbutazone and Oxyphenbutazone to be present.

3.20

By letter dated 24 February 2012, the FEI charged Sharbatly with a violation of Article

2.1 of the ECM Rules (see paragraph 3.6 above for the pertinent provisions of that

rule).

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3.21

No request had been made for the use of Phenylbutazone and/or Oxyphenbutazone on

the Horse, and no ETUE or medication form had been presented for the substances at

the Al Ain Event.

3.22

By letter dated 28 February 2012, Sharbatly accepted a period of voluntary Provisional

Suspension, effective as of that date.

3.23

On 6 March 2012, the B Sample was analysed at the HFL Laboratory and was attended

by Neville Dunnett on Sharbatly’s behalf. The HFL Laboratory confirmed the

analytical findings that had been made by it with respect to the A Sample.

3.24

At the time of the hearing before this CAS Panel, Sharbatly had not competed since the

Al Ain Event.

3.25

Sharbatly does not challenge the results of the analysis of the Sample and accepts that

the substances are Controlled Medication Substances for the purposes of the ECM

Rules. Accordingly, Sharbatly accepts the Adverse Analytical Findings of the HFL

Laboratory, namely that Phenylbutazone and Oxyphenbutazone were present in the

blood Sample collected from LOBSTER at the Al Ain Event on 10 February 2012.

3.26

Sharbatly further accepts that, for the purposes of Article 10.4.1 of the ECM Rules, he

cannot establish how the substances entered into LOBSTER’S system.

3.27

Sharbatly nevertheless asserts that the substances were not, to his knowledge,

administered to LOBSTER in the lead up to the Al Ain Event. Following extensive

inquiries, the only possible explanation Sharbatly is able to offer for the presence of

the substances are contamination or sabotage (although he acknowledges that sabotage

is unlikely) and that both he and the Saudi Equestrian team exercised utmost caution in

relation to compliance with the EADCMR and ensuring that LOBSTER did not come

into contact with any Prohibited Substances. This evidence was corroborated by

witness statements from other personnel affiliated with the Saudi Equestrian team

including Dr. Philippe Benoit the team veterinarian. Dr. Benoit asserted that the only

possible explanation for the presence of the substances was contamination.

3.28

An expert report from Dr. Mark Dunnett concluded, on the basis of the evidence

presented to him, that “[c]ontamination of the stable environment with residues of

Phenylbutazone from the legitimate treatment of other horses prior to the event is a

plausible explanation for the presence of the levels of Phenylbutazone and

Oxyphenbutazone in the sample from Lobster”.

3.29

Dr. Dunnett noted that the estimated level of Phenylbutazone in the A Sample from

LOBSTER was only 12ng/ml (or 12%) above the FEI Reporting Level of 100ng/ml.

Dr. Dunnett added that “Given that the value reported is only an estimate which will

have an inherent uncertainty it is conceivable that the true value may be below the

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reporting level.” In any event, according to Dr. Dunnett, the estimated concentrations

of Phenylbutazone and Oxyphenbutazone in the A Sample was very low in comparison

with the levels more commonly encountered in positive post-competition and post-race

drug surveillance samples.

3.30

Other than the expert report of Dr. Dunnett, there was no evidence demonstrating that

the environment at the Al Ain Equestrian Club was contaminated.

3.31

Under the ECM Rules, in the case of Controlled Medication Substances, Sharbatly

would have been able to elect Administrative Procedure (also referred to as “Fast

Track”), provided that the pre-requisites of Article 8.3.1 of the ECM Rules had been

fulfilled. Sharbatly would have qualified for the Administrative Procedure if this had

been his first Controlled Medication Violation in eight years. However, Sharbatly

committed a first Controlled Medication Rule Violation in January 2006, and therefore

could not be considered a first time offender within the meaning of Article 8.3.1(b) of

the ECM Rules. Notwithstanding that, the current violation is only considered a first

violation for sanctioning purposes under the ECM Rules, because to be considered a

multiple violation, triggering increased sanctions, the second violation would have to

have occurred within four years of a first violation.

Sanctions Under the ECM Rules

3.32

The applicable sanctioning regime is set out in Article 10 of the ECM Rules.

3.33

Article 10.2 provides, in relevant part, as follows:

… the period of Ineligibility imposed for a violation of Article 2.1

(presence of a Controlled Medication Substance or its Metabolites or

Markers) … shall be:

First violation: Up to two (2) years of Ineligibility.

A Fine of up to CHF 15,000 and appropriate legal costs shall also be

imposed for any Controlled Medication violation.

However, the Person Responsible … shall have the opportunity in each

case, before a period of Ineligibility is imposed, to establish the basis

for eliminating, reducing, or increasing, this Sanction as provided in

Article 10.4.

3.34

Article 10.4, relied upon by El Aid, provides for the elimination or reduction of a

period of Ineligibility based on “Exceptional Circumstances”:

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10.4.1 No Fault or Negligence

If the Person Responsible and/or member of the Support Personnel

(where applicable) establishes in an individual case that he or she bears

No Fault or Negligence for the ECM Rule violation, the otherwise

applicable period of Ineligibility and other Sanctions may be eliminated

in regard to such Person. When a Controlled Medication Substance or

its Metabolites or Markers is detected in a Horse’s Sample in violation

of Article 2.1 (presence of a Controlled Medication Substance), the

Person Responsible and/or member of the Support Personnel (where

applicable) must also establish how the Controlled Medication

Substance entered the Horse’s system in order to have the period of

Ineligibility and other Sanctions eliminated. In the event this Article is

applied and the period of Ineligibility otherwise applicable and other

Sanctions are eliminated, the ECM Rule violation shall not be

considered a violation for the limited purpose of determining the period

of Ineligibility for Multiple Violations under Article 10.6 below.

10.4.2 No Significant Fault or Negligence

If a Person Responsible and/or member of the Support Personnel

(where applicable) establishes in an individual case that he or she bears

No Significant Fault or Negligence, then the otherwise applicable

period of Ineligibility and other Sanctions may be reduced in regard to

such Person. When a Controlled Medication Substance or its

Metabolites or Markers is detected in a Horse's Sample in violation of

Article 2.1 (presence of a Controlled Medication Substance or its

Metabolites or Markers), the Person alleged to have committed the

ECM Rule violation must also establish how the Controlled Medication

Substance or its Metabolites or Markers entered the Horse’s system in

order to have the period of Ineligibility and other Sanctions reduced.

FEI Tribunal Decisions

3.35

Oral hearings concerning the infringements alleged by the FEI to have been committed

by the Appellants took place before the FEI Tribunal in Lausanne on 18 and 19 April

2012.

3.36

In separate decisions each released on 23 May 2012, the FEI Tribunal ruled, in respect

of each of the Appellants, that:

(e) The FEI had established an Adverse Analytical Finding for the presence of

Phenylbutazone and Oxyphenbutazone in the Samples taken from their

respective Horses during in-competition testing;

(f) Accordingly, an ECM Rule violation had been established;

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(g) While it was accepted that there had been no deliberate administration to

the Horses concerned of Phenylbutazone and/or Oxyphenbutazone, the

Appellants had not established on a balance of probabilities the source of

the Phenylbutazone and Oxyphenbutazone found in the Samples taken

from the Horses;

(h) The Appellants and the Horses were disqualified from the Riyadh and Al

Ain Events respectively, with all medals, points and prize money to be

forfeited in accordance with Article 9 of the ECM Rules and that all other

results obtained by the Appellants with the Horses at the Events would

also be disqualified;

(i) A period of suspension of eight months would be applied;

(j) A fine of CHF 1,000 would be paid;

(k) A contribution of CHF 3,000 towards the legal costs of the judicial

procedure and the cost of the B-sample analysis would be made.

3.37

In the case of Al Eid, the Athlete had taken the position that any otherwise applicable

sanction should be reduced or eliminated in accordance with Articles 10.4.1 or 10.4.2

of the ECM Rules on the basis that there was “No Fault or Negligence” or “No

Significant Fault or Negligence” on his part for the positive findings.

3.38

The FEI Tribunal rejected this position. Noting that in order to benefit from any

elimination or reduction of the applicable sanction under Article 10.4 of the ECM

Rules, an Athlete must first establish, on a balance of probabilities, how the Prohibited

Substance entered the Horse’s system, the FEI Tribunal concluded that El Aid had

failed to do so.

3.39

Each of the Athletes was given the full benefit of the voluntary Provisional

Suspensions which they had taken, with the result that Al Eid’s period of Ineligibility

was ordered to have commenced on 24 February 2012 (the date that he elected a

period of Voluntary Provisional Suspension) and to expire on 23 October 2012 at

midnight and that Sharbatly’s period of Ineligibility was ordered to have commenced

on 10 February 2012 (the date of Sample collection) and to expire on 9 October 2012

at midnight.

3.40

No issue is taken on appeal with the commencement dates selected by the FEI

Tribunal.

3.41

In determining the applicable sanctions, the FEI Tribunal took into consideration as

mitigating factors:

(a) the fact that a professional team structure was in place with procedures for

avoiding “anti-doing rule violations” [sic];

(b) that the Appellants’ team employed a professional veterinary team which

the Athletes had access to both during and outside business hours;

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Voluntary Provisional Suspensions.

3.42

The FEI Tribunal stated that it had taken into account that Al Eid’s 2005 ECM Rule

violation had also involved a Controlled Medication and that Sharbatly’s 2006

violation had been a Doping offence.

3.43

The FEI Tribunal declined to take into account (for the purpose of sanctioning):

(a) The low levels of Phenylbutazone and Oxyphenbutazone detected on the

basis that neither is a “Threshold Substance” as a result of which any

quantity of those substances is considered a positive and that in any event,

the screening levels of the substances had been exceeded;

(b) The upcoming London Olympic Games in which each of the Appellants

hoped to compete and the alleged effect of the Appellants’ suspensions on

the Saudi Arabian team.

PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

4.1

On 24 May 2012, in accordance with Article 12 of the ECM Rules and Articles R47

and R48 of the Code of Sports-related Arbitration (the “Code”) 2010 edition, the

Appellants each filed appeals from the decisions of the FEI Tribunal.

4.2

Pursuant to Article R52 of the Code, the CAS, with the agreement of the parties,

proceeded in an expedited manner.

4.3

On 29 May 2012, in accordance with Article R51 of the Code and the procedural

timetable agreed by the parties, the Appellants filed their appeal briefs.

4.4

On 4 June 2012, in accordance with Article R55 of the Code and the procedural

timetable agreed by the parties, the Respondent filed its answers.

THE CONSTITUTION OF THE PANEL AND THE HEARING

5.1

By letter dated 30 May 2012, the CAS informed the parties that the Panel to hear the

appeal had been constituted as follows: Mr Graeme Mew (Sole Arbitrator). The

parties did not raise any objection as to the constitution and composition of the Panel

then or at the hearing.

5.2

On 5 June 2012, Orders of Procedure were made in respect of each of the appeals.

5.3

The Orders of Procedure scheduled a hearing on 7 June 2012 in London, United

Kingdom.

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5.4

On 7 June 2012, a hearing was duly heard at the offices of Bird & Bird LLP in

London.

5.5

The following persons attended the hearing:

For the Appellants:

Mr Jeremy Dickerson, Mr James Pheasant and Miss Georgina

Shaw, counsel for the Appellants

Mr Khaled Abdulaziz Al Eid and Mr Abdullah Waleed

Sharbatly, the Appellants

For the Respondent: Mr Jonathan Taylor, Ms Anna-Marie Blakeley and Ms Lisa

Lazarus, counsel for the Respondent

5.6

The Panel was assisted at the hearing by Ms. Louise Reilly, Counsel to the CAS.

5.7

At the hearing, the Panel heard the detailed submissions of counsel as well as the

evidence of the following witnesses:

•

Sami Al Duhami, Team Director, Saudi Equestrian Team, who lives in

Riyadh, described the unusually adverse weather conditions which prevailed

immediately prior to the Riyadh Event. There was very heavy rain causing

schools to shut down for two days because of flooding. He verified

photographs taken by his secretary which purportedly showed conditions in the

stall used by VANHOEVE. He noted that the International Riding School was

one of the older riding schools. Its standards of upkeep are not as high as one

would find in Europe. 15 shows each year take place at the riding school,

however only one of them is an “International” show.

Rogier Van Iersel, Team Manager, Saudi Equestrian Team, who also

described the weather in Riyadh at the time of the Riyadh Event. A

combination of heavy rain and poor drainage led to flooding. The Riyadh

event itself had to be delayed, initially for one, and then two days. The horses

were put in the stables at the riding school. Dr Van Iersel also expressed the

view that facilities at the International Riding School in Riyadh were not as

good as those that would be found in Europe or the United States.

Mahros Abdelkarim, treating veterinarian at the Riyadh International Riding

School, who was present at the Riyadh Event. At the time of the Riyadh Event,

Dr Abdelkarim went to the riding school to treat some horses under his care.

Because of the heavy rain there was a lot of mess. There was also a lot of

movement between stables. Dr Abdelkarim said that Bute is used a lot in Saudi

Arabia. It is available over the counter. It is a common, inexpensive treatment.

Dr Abdelkarim estimates that 70% to 80% of the horses stabled at the

International Riding School would use Bute. It can be administered by either

veterinarians or by grooms. It can either be injected or be administered in

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•

powder form. At the International Riding School, the predominant application

is by using powder. There are approximately 170 boxes at the International

Riding School, approximately 140 of which are used by school horses and the

other 30 or so by horses which are boarded at the school. 60 to 70 of the horses

at the school are under the regular care of Dr Abdelkarim. He would also see

some of the other horses from time to time. Although Dr Abdelkarim does not

know which stall VANHOEVE was in, he does know the area. He could not

say which horses had been in the stall before VANHOEVE and, specifically

whether they were given Bute or not. He can say that there were horses in the

area who were receiving Bute.

Khaled Abdullaziz Al Eid, one of the Appellants, who, in addition to

confirming his witness statement, described the conditions at the International

Riding School when his horse arrived. The stable was not clean. Feed, buckets

and hay were all present in the stall. The shavings on the stall of the floor were

dirty. However, because fresh shavings could not be provided until the next

day, not all of the shavings were removed as it would have been inappropriate

to put the horse on bare concrete. Ordinarily Al Eid would have withdrawn

from competition under such circumstances. However, he felt it important that

he continue because it was an international show taking place in his country

and having regard to the interest and support of sponsors and the King. Al Eid

also spoke to his Olympic ambitions and the number of events that he had

missed as a result of accepting a voluntary temporary suspension.

Abdullah Waleed Sharbatly, one Appellant, described how before the Al Ain

event, his horse, Lobster was coughing. Sharbatly had the horse checked by

the event veterinarian. The reports he received referred to the medications used

by the horse. Sharbatly said that if Bute had been given to the horse, then it

would have been listed and an ETUE would have been requested. Ultimately,

Sharbatly had no concerns about whether the horse should compete. Sharbatly

said that he had been told at the time that he had Lobster checked by the event

veterinarian, that Lobster would be tested. Accordingly, if Sharbatly had had

any reason to believe that Lobster had Bute on board, he would not have

entered him.

THE PARTIES’ SUBMISSIONS

Appellant’s Submissions and Requests for Relief

6.1

In summary, the Appellants submit the following in support of their appeals:

Al Eid

6.2

Al Eid argues that he has established, on the requisite balance of probabilities, that the

explanation for the presences of the Controlled Medications in the Sample of

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VANHOEVE is the ingestion of residual traces of the Controlled Medications through

exposure to a contaminated stable environment at the Riyadh Event.

6.3

Having established the route of ingestion of the Bute found in VANHOEVE’s sample,

Al Eid bears No Fault or Negligence or, in the alternative, No Significant Fault or

Negligence for the Presence of Controlled Medications in VANHOEVE’s Sample.

6.4

The FEI Tibunal erred in finding that Al Eid had failed to establish, on a balance of

probabilities, how the Controlled Medications entered VANHOEVE’s system. Al Eid

highlighted the following evidentiary points in support of this submission:

(a) Bute was regularly used at the stables where the Riyadh Event took place.

(b) Photographs of the stables at the time of the Riyadh Event reflect the poor

state of cleanliness. The evidence of the witnesses was to similar effect.

exceptionally bad. This contributed to the lack of cleanliness and controls

in place to prevent the risk of contamination.

(d) The movements of the horse explain how it came into contact with

contaminated foraging and bedding.

(e) The risk of contamination in the stable environment posed by the use of

Bute and the plausibility of the explanation put forward by Al Eid.

6.5

Al Eid notes that in the FEI tribunal in the case of Tackeray (24 September 2009), the

Athlete’s groom provided a statement that she had either failed to wash the feed

buckets properly or gave the wrong feed to the wrong horse, but she could not be

absolutely certain. The Tribunal found that the evidence was sufficient to discharge

the standard of proof by reference to its cumulative effect:

“The Tribunal finds that the cumulative effect of all evidence in this

case is sufficient for the PR to establish under the balance of probability

that the first prerequisite of EADMCR Article 10.5.2 was met. The PR’s

groom testified that it is more likely than not that the feed buckets had

been mixed.”

The FEI Tribunal continued:

“There was sufficient evidence regarding the special circumstances that

caused the PR’s groom to feed the Horse and the mare after a hectic

journey and in a state of fatigue [the experts] all testified that it was

scientifically plausible…and an intentional application of the

Prohibited Substance would not have served any purpose…”

6.6

Al Eid points to the expert evidence of Dr Dunnett, who concluded that it was

scientifically plausible that residual contamination at the stables at the Riyadh event

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led to the levels of the Controlled Medications that were detected in the Sample and,

also, to the evidence from the Team Veterinarian, Dr. Philippe Benoit. Al Eid notes

that Dr. Dunnett’s evidence was not contested by any contrary views from another

expert.

6.7

Al Eid argues that the cumulative effect of the evidence demonstrates, on a balance of

probability, that the source of the positive finding was the contaminated environment

at the Riding School where the Horse was stabled prior to and during the Riyadh

Event.

6.8

When considering the totality of the circumstances of the case, Al Eid submits that the

following factors are relevant to a determination of his Fault or Negligence (or lack

thereof):

(a) The truly exceptional circumstances which resulted in the contamination

of the stables, including:

i. The unclean state of the stables at an FEI certified event; and

ii. The exceptional weather conditions at the Riyadh Event;

(b) The extremely low levels of the Controlled Medications in the Sample and

the fact that these could not have had any performance enhancing or

therapeutic effect on the Horse at the time of the Riyadh event;

(d) The steps taken by Mr Al Eid to try and avoid the possibility of his horse

ingesting any contaminated materials;

(e) The importance of the Riyadh Event such that Mr Al Eid had to compete at

it notwithstanding his concerns about the state of the facilities.

6.9

The evaluation of No Fault or Negligence or No Significant Fault or Negligence

should be guided by principles set out by the CAS in Squizzato v. FINA (CAS

2005/A/830) and Puerta v. ITF (CAS 2006/A/1025), which require examination of all

of the circumstances of the case, always having regard to the overarching doctrine of

proportionality.

Sharbatly

6.10

Sharbatly carried out extensive investigations to try and identify the explanation for the

presence of the Controlled Medications in the Sample. This included tests on the

supplements given to the horse and investigations conducted alongside the FEI

Integrity Unit into the use of Bute at the Al Ain Equestrian Club.

6.11

While these tests and investigations point strongly to the explanation being the

ingestion of the Controlled Medications through traces of residual contamination at the

Al Ain Event, Sharbatly accepts that in spite of his best efforts the evidence he has

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obtained in support of contamination being the explanation is not sufficient to

demonstrate, on the balance of probabilities, that that explanation is the correct one.

6.12

Sharbatly submits that the Panel should take into account:

(a) the steps taken by him to investigate the cause of the presence of the

Controlled Medications in LOBSTER’s Sample;

(b) the evidence obtained by him as to possible explanations for the presence

of the Controlled Medications in the Sample (in particular the expert

evidence of Dr Dunnett which that shows that the levels of the Controlled

Medications in the Sample are consistent with contamination); and

explanations (including deliberate administration of the Controlled

Medications)

6.13

Overall, Sharbatly contends that the circumstances of the case are such that it is wholly

disproportionate and unjust to impose a penalty on him greater than two months. In

addition to the matters referenced at above, these circumstances include:

(a) The nature of the substances in question being controlled medications

rather than doping substances;

(b) The level of the Controlled Medications detected in the Sample being

extremely low and incapable of having exerted any performance

enhancing or therapeutic effect;

(d) The impact any greater period of suspension would have on the Saudi

Equestrian Team;

(e) Sharbatly’s professionalism and commitment to the ECM Rules and their

objectives; and

(f) Sharbatly’s apology.

Both Appellants

6.14

Sharbatly and Al Eid (further and in the alternative) submit that the sanctions imposed

on them by the FEI tribunal were disproportionate, having regard to the particular

circumstances of their respective cases.

6.15

Article 10.2 of the ECM Rules provides for a wide discretion in assessing the

appropriate sanction as compared with the mandatory imposition of a two (2) year

period of ineligibility under the FEI Equine Anti-Doping Rules (the “EAD Rules”).

6.16

Proportionality has been consistently upheld as a general and fundamental legal

principle which requires that discretion as to sanction be exercised in such a manner

that the severity of the sanction imposed is just and in proportion to the seriousness of

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the offence (WADA v Stauber & Swiss Olympic Committee (CAS 2006/A/1133);

Squizzato v FINA (CAS 2005/A/830); Hipperdinger v ATP (CAS 2004/A/690).

6.17

The exercise of discretion as to the appropriate sanction is wide, but it must be

exercised in accordance with the principle of proportionality. In this regard, the

Appellants argue that the FEI Tribunal took an unduly restrictive approach to the

exercise of discretion and by doing so failed to take into account a number of relevant

considerations which would and should have yielded a different outcome.

Respondent’s Submissions and Requests for Relief

6.18

In summary, Respondent submits the following in defence.

6.19

There is no material dispute about the basic facts. Rather, the parties disagree only

about the findings that may properly be made based on those facts.

6.20

In El Aid’s case, the parties disagree about whether facts establish that it is more

likely than not that the Bute got into the VANHOEVE’s system as a result of

inadvertent contamination due to unclean conditions at the stables at Riyadh Event.

6.21

Otherwise, the only dispute is as to whether the FEI Tribunal was entitled, in the

exercise of its sanctioning discretion under Article 10.2 of the ECM Rules, to impose a

period of ineligibility on the Appellant of eight months.

6.22

The FEI Tribunal is a knowledgeable and experienced tribunal. The procedure it

followed was full and fair, and it clearly made its decision carefully and in good faith.

Therefore the CAS Sole Arbitrator should proceed on the basis that the decision is

entitled to ‘respect’ and he should not ‘easily tinker’ with it (see Kendrick v. ITF (CAS

2011/A/2518) at para 10.7).

6.23

According to the principles that govern the exercise of the Tribunal’s sanctioning

powers under Article 10.2, and taking into account all of the relevant facts and

circumstances of this case, a four month sanction was warranted (the FEI made a

similar submission to the FEI Tribunal). Counsel for the FEI noted that a four month

sanction would be a “serious” sanction for a Bute violation.

6.24

A central and distinctive feature of equestrian sport is that it involves a partnership

between two types of athlete, one human and one equine. One of those partners is

unable to speak for itself, and therefore the FEI has assumed responsibility for

speaking on its behalf, by taking every necessary step to ensure that, in every aspect of

the sport, the welfare of the horse is paramount.

6.25

This responsibility is reflected in the ECM Rules, the purpose of which is not to

preserve the integrity of the sport (which is the objective of anti-doping rules) but

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rather ‘to ensure horse welfare and the highest levels of professionalism’ [EADCMR,

p.5], by ensuring that medications (Controlled Medication Substances) and methods

(Controlled Medication Methods) that are commonly (and appropriately) used to treat

horses when they are not competing, are not used inappropriately in relation to horses

that are in competition.

6.26

According to the FEI Medication Code (EADMCR p.29):

All treatments must be given in the best health and welfare interests of

the Horse. Therefore:

• Every treatment must be fully justifiable by the medical

condition of the Horse receiving the treatment.

• Horses that cannot compete as a result of injury or disease must

be given appropriate veterinary treatment. Persons Responsible

and their Support Personnel must obtain advice from their

treating Veterinarian or team Veterinarian prescribing a

treatment and the necessary duration of treatment.

• No Controlled Medication Substance shall be given to any

Horse during or close to an event unless the appropriate FEI

guidelines for medication authorization have been followed.

• A complete and accurate record of all treatments during or

close to an event should be maintained in the form of a

Medication Logbook.

6.27

The distinction between anti-doping and Controlled Medication rules has important

ramifications in the present cases, where the Appellants are not accused of doping but,

instead, are being held to account for the presence of a medication, Bute, in their

competition horses’ systems without the required pre-authorisation. In particular:

(a) It means that when it comes to assessing (for the purposes of sanction) the

fault of the Appellants and the harm that their actions have caused, the

assessment is to be made not by reference to the anti-doping imperatives

but rather by reference to the specific and distinct objectives of the ECM

Rules and the particular mischief that they are aimed at avoiding.

(b) While the ECM Rules borrow some concepts from the World Anti-Doping

Code (“WADC”), the primary imperative behind the WADC – the need to

harmonise doping and sanctions for doping across all countries and sports

– simply does not apply in the context of the ECM Rules. And that is

reflected in the fact that the rigid system of sanctioning adopted in the

WADC (fixed sanctions that cannot be departed from except in narrow

circumstances where specific mitigating provisions are triggered) is not

followed in the ECM Rules.

elimination of sanction in cases of ‘No Fault or Negligence’ and “No

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Significant Fault or Negligence”, if such a plea is not available on the facts

then (unlike the WADC) the ECM Rules do not mandate the application of

a fixed sanction, but, instead, still confer a broad discretion on the FEI

Tribunal to determine a sanction (including a ban in the range of 0-24

months) that is fair and proportionate in all the facts and circumstances of

the case, measured against the underlying objectives of the ECM Rules,

and the specific mischief it is designed to prevent.

6.28

With respect to Al Eid’s defence of exceptional circumstances, pursuant to Article

10.4, the FEI Tribunal correctly rejected El Aid’s plea.

6.29

El Aid has not satisfied the pre-condition to application of Article 10.4, i.e., he has not

discharged his burden of proving, on the balance of probabilities, how the Bute got

into VANHOEVE’s system. In the regard:

(a) It is not enough merely to deny intentional administration and to assert that

‘therefore’ the explanation must be inadvertent ingestion. Nor is it enough

to establish that inadvertent contamination is a possible explanation on the

facts and the science. Instead, the Appellant has to establish by adducing

specific, competent and persuasive evidence that establishes the factual

circumstances in which the Bute entered VANHOEVE’s system, that

inadvertent contamination is more likely than not to have occurred.

(b) El Aid’s evidence shows (at most) that, as a general proposition, Bute was

used therapeutically on horses stabled at the International Riding School

where the Riyadh Event was held; and that some old bedding and old feed

remnants were present in the stables when VANHOEVE arrived (although

the Appellant got his groom to clean out VANHOEVE’s stable and the

feed bucket, and put fresh shavings on top of the dirty shavings shortly

after arrival, i.e., four days before the sample was collected). There is no

evidence that Bute was used in the particular stable housing VANHOEVE,

or had been administered to any of the horses occupying that stable prior

to VANHOEVE, or indeed generally that Bute was used at the

International Riding School in a way that could have led to contamination

of the feed or the bedding in that stable. There is no evidence of any such

contamination before or after the Riyadh Event, and nor did either of the

other horses tested at the Riyadh Event test positive for Bute.

the stable when VANHOEVE arrived had been contaminated with Bute

residue, and if VANHOEVE had ingested some of those shavings or old

feed ‘within a few hours of sampling’, or if there had been ‘sustained

ingestion of phenylbutazone from the stall environment over the 3 to 4 day

period immediately prior to the event’, that could have caused the presence

of Bute and its metabolite at the very low levels found in VANHOEVE’s

sample, making it ‘a plausible explanation’ for the laboratory’s finding in

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this case. But that was speculation, not proof: ‘proof that [it] is

scientifically possible is not proof that it did actually occur.’ (see Camiro,

FEI Tribunal decision dated 22 December 2008 at para 72).

6.30

Even assuming that Al Eid had established it was more likely than not that the cause of

the finding was inadvertent contamination in the stables at the Riyadh Event, to sustain

his plea of No Fault or Negligence he would also have to show that he used ‘utmost

caution’ to avoid such inadvertent contamination, he cannot do so, because there were

a number of reasonable and practical steps that he could and should have taken to

avoid inadvertent contamination, such as requesting a clean stable, or keeping

VANHOEVE out of the stable until it had been thoroughly cleaned.

6.31

The starting point in the exercise of the Article 10.2 discretion is not a two year ban (as

it would be under the WADC, with fault presumed and the Person Responsible having

to justify any downward departure). Instead, under Article 10.2 of the ECM Rules

there is no presumption of fault, so the starting-point is zero, and the tribunal has to

decide to what extent (if at all) it should go up from there (to the maximum of 24

months) in all of the circumstances of the case.

6.32

The least serious sanction available should be considered first, and should only be

rejected in favour of a more serious sanction if it is considered that the lesser sanction

would be insufficient in the circumstances.

6.33

Furthermore, the discretion as to what length of ban (if any) to impose should be

exercised ‘in the round’, i.e., in conjunction with any other discretion as to sanction

conferred by the ECM Rules, ‘so as to arrive at a result that meets the justice of the

case overall’. Thus, the tribunal also has discretion under Article 10.2 as to whether to

impose a fine, and (if so) how much (up to CHF 15,000), whether to order the

Appellant to contribute to the costs of the proceedings, and (if so) in what amount, and

(under Article 10.1) whether to disqualify the other results obtained by the Appellant

in the event in question. All of these factors must be considered, individually and

collectively, in order to weigh up what is the least serious sanction necessary to

vindicate the objectives underlying the ECM Rules, in all of the circumstances of the

case at hand.

6.34

As a general principle the assessment of proportionality includes taking into account

the impact of the proposed sanction on the athlete concerned, eg missing the Olympic

Games. The commentary to the WADC (which specifically precludes consideration of

what events will be missed in determining the proper sanction for a doping offence)

does not apply directly in this case. Accordingly, if the conduct at issue was not so

culpable, and the mischief caused was slight, that that would have to be weighed

against the serious prejudice to the Appellants in missing the Olympic Games.

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6.35

Any alleged prejudice to the Saudi Equestrian team would not be a relevant factor in

the exercise of discretion under Article 10.2.

6.36

Other relevant considerations would include the FEI Tribunal’s findings that:

(a) Neither the Appellants nor anyone else on their team had knowingly

administered Bute to their respective Horses.

(b) A professional team structure was in place with clear procedures for

avoiding anti-doping rule violations. The Saudi Team employed a

professional veterinary staff whom the Athletes had access to both during

and outside of business hours

Appellants or any of their team, this is not a case where the horses were

given a treatment that their medical conditions did not justify, nor was they

given Bute in order to compete when they were not fit to do so, nor was

there a failure to follow the guidelines for obtaining medication preauthorisation. In other words, these cases do not involve the key mischiefs

that the ECM Rules are designed to prevent.

(d) The violations raise no issues as to the welfare of the horses.

(e) The estimated levels detected in the Samples were very low and that these

levels were consistent with a lack of performance-enhancing or therapeutic

effect.

(f) When given notice of their respective violations the Appellants showed a

responsible attitude and attempted to limit the adverse consequences for

the sport (a) by promptly admitting the violation; and (b) by voluntarily

suspending themselves from competition pending resolution.

JURISDICTION OF THE CAS AND ADMISSIBILITY

7.1

Article R47 of the Code provides as follows:

An appeal against the decision of a federation, association or sportsrelated body may be filed with the CAS insofar as the statutes or

regulations of the said body so provide or as the parties have concluded

a specific arbitration agreement and insofar as the Appellant has

exhausted the legal remedies available to him prior to the appeal, in

accordance with the statutes or regulations of the said sports-related

body.

7.2

CAS jurisdiction to hear this appeal is derived from ECM Rule 12.2.1 which provides

that in cases arising from participation in an International Event or in cases involving

FEI-registered Horses the decision may be appealed exclusively to CAS. An appeal

must be filed 30 days from the date of Receipt of the Hearing Panel decision by the

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appealing party. Furthermore, each party confirmed CAS jurisdiction by signing the

Order of Procedure.

7.3

The FEI Tribunal rendered its decisions on 23 May 2012. The Appellants filed their

appeals on 24 May 2012 and are therefore admissible

APPLICABLE LAW

8.1

Article R58 of the Code provides as follows:

The Panel shall decide the dispute according to the applicable

regulations and the rules of law chosen by the parties or, in the absence

of such a choice, according to the law of the country in which the

federation, association or sports-related body which has issued the

challenged decision is domiciled or according to the rules of law, the

application of which the Panel deems appropriate. In the latter case, the

Panel shall give reasons for its decision.

8.2

Pursuant to Article 36.3 of the Statutes of the FEI (23rd Edition, effective 6 May 2011),

all disputes shall be settled by Swiss law.

ISSUES

9.1

The standard of review on appeal and, in particular, whether there should be any

deference to the FEI Tribunal’s decisions.

9.2

In the case of El Aid, whether:

(a) He has established on a balance of probabilities how the Bute entered

VANHOEVE’s system; and, if so

(b) Whether he bears No Fault or Negligence or No Significant Fault or

Negligence therefor.

9.3

Whether a reasonable application of the discretion afforded under ECM Rule 10.2

merits a reduction or change in the sanctions imposed on the Appellants by the FEI

Tribunal.

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10.

MERITS OF THE APPEAL

The Scope of a Panel’s Powers in an Appeal Procedure

10.1

The source of the Panel’s powers under Article R57 of the CAS Code accords to the

Panel “full power to review the facts and the law.” The Panel “may issue a new

decision which replaces the decision challenged or annul the decision and refer the

case back to the previous instance.” The Panel can, as it did in this case, hear the key

witnesses and even receive testimony that was not provided to the FEI Tribunal.

10.2

While CAS decisions such as WADA v. Hardy & USADA (CAS 2009/A/1870) and

Wawrzyniak v. Hellenic Football Federation (CAS 2009/A/1918) are cited for the

proposition that the specialist tribunals of sport federations are entitled to considerable

deference and, in particular, that the measure of the sanction imposed by a disciplinary

body in the exercise of discretion given to it by the relevant rules should only be

reviewed when the sanction is “evidently and grossly disproportionate to the offence”,

such principles do not limit a CAS Panel from correcting what it believes to have been

an erroneous application of the rules or the imposition of a sanction which is

unreasonable in all of the circumstances. As the Panel in Kendrick v. ITF (CAS

2011/A/2518) said (at para. 10.6):

“Where, as is the case with Article R57 of the Code, rules or legislation

confer on an appellate body full power to review the facts and the law,

no deference to the tribunal below is required beyond the customary

caution appropriate where a tribunal had a particular advantage, such

as technical expertise or the opportunity to assess the credibility of

witnesses. This is not, of course to say that the independence, expertise

and quality of the first instance tribunal or the quality of its decision

will be irrelevant to the CAS Panel. The more cogent and well-reasoned

the decision itself, the less likely a CAS panel would be to overrule it;

nor will a CAS panel concern itself in its appellate capacity with the

periphery rather than the core of such a decision.”

10.3

The comments of the CAS Panel in Bucci v. FEI (CAS 2010/A/2283) at para. 13.46

are also apposite:

“The Panel would be prepared to accept that it would not easily

“tinker” with a well-reasoned sanction, ie to substitute a sanction of 17

or 19 months’ suspension for one of 18. It would naturally (as did the

Panel in question) pay respect to a fully reasoned and well-evidenced

decision of such a Tribunal in pursuit of a legitimate and explicit policy.

However, the fact that it might not lightly interfere with such a

Tribunal’s decision, would not mean that there is in principle any

inhibition on its power to do so.”

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10.4

The foregoing jurisprudence has, therefore, guided this Panel in the task at hand.

Whether Al Eid has Established the Existence of Exceptional Circumstances

10.5

Article 10.4 of the ECM Rules provides for the elimination or reduction of a period of

Ineligibility based on exceptional circumstances. The language of the Rule tracks, in

large measure, the corresponding rule in Article 10.5 of the WADC. A key difference

is that Article 10.4.2 (No Significant Fault or Negligence) does not limit the reduction

of the otherwise applicable sanction to 50% of that sanction (a requirement of WADC

Article 10.5.2). A key similarity, however, is that in order to engage the application of

Article 10.4 of the ECM Rules, the Person Responsible (in this case, Al Eid) must be

able to establish how the Controlled Medication Substance entered the Horse’s system

in order to have the period of Ineligibility and other Sanctions eliminated or reduced.

10.6

In the Panel’s view, Al Eid has not met this burden.

10.7

The evidence of Dr. Abdelkarim, the treating veterinarian at the Riyadh International

Riding School, provided an explanation for the fairly wide availability of Bute at the

facility. It was argued that this evidence, when taken with all of the other evidence

adduced by Al Eid, should have the cumulative effect of enabling Al Eid to meet his

burden. The problem with this approach is that it would enable someone in the

position of Al Eid to discharge his burden by putting forward a theory of inadvertent

contamination and requiring that the theory be accepted, by default, because of the

absence of any other explanation or evidence. As a CAS Panel observed in

International Wheelchair Basketball Federation v. UK Anti-Doping & Gibbs (CAS

2010/A/2230), which was an anti-doping case involving a Specified Substance, at

paragraph 11.5:

“An athlete cannot by asserting even with what purports to be

corroborative testimony to the same effect, that he did not intend to

enhance sport performance thereby alone establishing how the

substance entered his body. Seeking to eliminate by such an approach

all alternative hypotheses as to how the substance entered his body and

thus to proffer the conclusion that what remains must be the truth

reflects the reasoning attributed to the legendary fictional detective

Sherlock Holmes by Sir Arthur Conan Doyle in “The Sign of Four” but

his reasoning impermissible for a judicial officer or body.”

10.8

While there is no suggestion of any improper behaviour on the part of Al Eid or

members of his team, that is not the issue. Explanations as to the possible cause of the

positive test, however plausible, will, as noted above, not be enough absent more than

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tangible evidence. This Panel therefore agrees with the FEI Tribunal which concluded

(at paragraph 47):

“…… The Tribunal is however not persuaded by the explanation

provided by Dr Dunnett that there was ingestion by contamination. The

Tribunal finds that in the first place, insufficient evidence was offered

by the PR regarding the alleged contamination. The Tribunal further

considers that the PR’s groom had cleaned the stable shortly after the

arrival, and thereby further reduced the risk of contamination.

Furthermore, the Tribunal holds that insufficient evidence has been

adduced to establish the causal link between the alleged contamination

and the positive test result. It is therefore the opinion of the Tribunal

that the PR has failed to prove that ingestion by means of exposure to a

contaminated stable environment was more likely than not to be the

source of the Phenylbutazone and Oxyphenbutazone...”

The Sanction under Article 10.2 of the ECM Rules

10.9

The Panel is in substantial agreement with the submissions made by counsel for the

FEI.

10.10 The starting point of this discussion is, once again, to emphasise a key difference

between Article 10.2 of the ECM Rules and its relative, Article 10.4 of the WADC

(Elimination or Reduction of the Period of Ineligibility for Specified Substances under

Specific Circumstances).

10.11 Whereas under the WADC, the task is to determine by how much the presumptive

sanction of 24 months should be reduced, having regard to the athlete’s degree of fault,

the reverse process is followed under Article 10.2 of the ECM Rules. Instead, a first

violation, in most circumstances, is dealt with through the Administrative Procedure,

which would almost inevitably result in no period of Ineligibility being imposed on the

Athlete at all.

10.12 Both of the appellants had previous infractions. However, those incidents were

sufficiently long ago that they are regarded as having been “spent” for sanctioning

purposes (i.e. the current charges were regarded as first offences) in the context of

whether the Appellants should be sanctioned for multiple ECM Rule violations. For

administrative purposes, however, the existence of the previous infractions remains

relevant because it precludes the Appellants from electing to be dealt with in

accordance with the Administrative Procedure.

10.13 A key element of the sanctioning regime provided by Article 10.2 of the ECM Rules is

there is no presumption of fault. This stands in direct contrast to WADC Article 10.4.

So the starting point is zero.

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10.14 In FIFA v. STJDF & CBF & Dodô (CAS 2007/A/1370) and NADA v. STJDF & CBF

& Dodô (CAS 2007/A/1376) it was noted that any exercise of sanctioning power is an

interference with the rights of athletes. It is therefore necessary to weigh the objectives

of the ECM Rules against the consequences of infringement, including the impact on

the offender. The correct approach is to start low and only move up the scale if it is

necessary to do so to meet the overriding objectives of the ECM Rules. “Fault” is not a

specified yardstick to be employed in undertaking this assessment (again, a

distinguishing feature between Article 10.2 and WADC Article 10.5).

10.15 Having regard to the two appeals before this Panel, the following factors are

supportive of the conclusion that the culpability of the Appellants is at the low end of

the scale:

(a) The FEI Tribunal’s finding of professionalism (the Saudi professional

team structure is at a very high end of the spectrum);

(b) The finding that there was no deliberate taking or administration of

medication;

ETUEs were routinely applied for;

(d) The lack of any evidence of harmful impact on the horses concerned;

(e) The lack of any welfare concerns relating to the horses;

(f) The lack of any reasonable explanation for the Athletes not to have sought

an ETUE had they wished to use Bute on their horses;

(g) The levels of Bute detected in the horses’ systems were consistent with a

lack of any possible enhancement of performance or therapeutic effect;

(h) The extensive investigation by the Athletes and their teams, their prompt

admission to the charges and their acceptance of voluntary suspensions.

10.16 Although the FEI Tribunal made reference to a number of “comparable” cases in

coming to a conclusion that eight month sanctions were appropriate, upon closer

examination these cases cannot be regarded as appropriate comparables. In these cases

horses had either been given a cocktail of medications and/or there were few

mitigating factors.

10.17 By way of example, in Cameo Renazar (FEI Tribunal, 21 November 2011), after

repeated attempts on the part of the FEI to obtain an explanation from the Person

Responsible, the Person Responsible stated that he had given his horse a paste

containing Bute prior to the Event in question, since the horse had shown signs of

colic. When a questionnaire, completed by the Person Responsible, was eventually

obtained, it indicated that prior to the competition in question, the horse had been

treated by different veterinarians, but that specific information concerning the horse’s

treatments was not available. The Person Responsible apparently attempted to resile

from him previous admission by suggesting that the Bute detected in the horse’s

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Sample must have been given to the horse by a veterinarian working at a particular

stable. The FEI Tribunal concluded (at paragraph 25):

“In the opinion of the Tribunal, however, the degree of fault or

negligence of the PR is difficult to access [sic] given the information

provided. The PR has shown very little knowledge of the rules of the

FEI, and shows even less signs of a determination to achieve regulatory

compliance in the future.”

10.18 While the foregoing comments were made in the context of an Article 10.4 analysis,

they would presumably have informed the Tribunal’s subsequent evaluation of fault

under Article 10.2. The result: a period of ineligibility of eight months.

10.19 In Tiburon (FEI Tribunal, 2 December 2011) a case involving the controlled

medications Bute and Flunixin, the horse had been medicated for colic a few days

before the event at which the horse was tested. The Person Responsible explained that

he did not know that this treatment would be detectible as long as six days after

administration. No ETUE had been applied for and there appears to have been noncompliance with the requirement to maintain an FEI medication log book, a record of

who had administered medications to the horse and a lack of steps being taken by the

Person Responsible to educate himself about the consequences of the treatment

received by the horse. Again, while all of these comments were made in relation to the

plea of exceptional circumstances, they no doubt informed that FEI Tribunal’s decision

to impose a term of ineligibility of eight months.

10.20 Simply comparing the facts and circumstances of the instant appeals from those

considered in the Cameo Renazar and Tiburon matters, it is readily apparent that the

Appellants’ infractions were far less serious than those described in the other cases.

10.21 More fundamentally, however, the reasons of the FEI Tribunal leave the impression

that the Tribunal approached the exercise of its discretion in the Appellants’ Controlled

Medication cases in much the same way as a tribunal would look at sanctioning in a

Specified Substance case under WADC Article 10.4.

10.22 Although the FEI Tribunal recites, in paragraphs 48 (Al Eid) and 55 (Sharbatly) of its

decisions that the presumptive starting point of two years provided for in EAD Rules

does not apply in cases of Controlled Medication substances, the FEI Tribunal goes on

to say that because the Appellants failed to prove how the Controlled Medications

entered their Horses’ systems, it was not possible for the Tribunal to assess the

appellants’ “Fault or Negligence” for the ECM Rule violation.

10.23 Having stated that it was unable to assess “Fault or Negligence”, the FEI Tribunal goes

on to say that it “is forced

- - - to take into account other, more objective factors in order to

determine the period of Ineligibility.” (emphasis added)

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10.24 It is worth repeating at this juncture that in exercising its discretion under Article 10.2,

the key consideration should be the legal principle of proportionality, i.e., the sanction

has to be commensurate with the seriousness of the offence, taking into account the

underlying objectives of the ECM Rules and the mischief they are aimed at preventing.

Or, in more formal terms, (i) the objectives being pursued must be sufficiently

important to justify taking away an offender’s right to pursue his or her profession, (ii)

the sanction imposed must be rationally connected to the pursuit of those objectives,

and (iii) it must go no further than is necessary to meet those objectives.

10.25 There is therefore a balancing exercise to be done. The Panel must assess (1) the

culpability of the offender; and (2) the harm caused or risked by his offence, measured

in each case by reference to the objectives of the rules in question and in particular the

mischief that they are aimed at preventing. Against that, the Panel should weigh the

impact of the sanction on the offender, and any mitigating factors.

10.26 Although the FEI Tribunal made reference to many of the factors which the parties on

these appeals submit were relevant and correct, the Panel is of the view the FEI

Tribunal erred by failing to take into account the effect of the eight month sanction (in

particular that it would exclude both Appellants from the Olympic Games). Consistent

with its general approach of considering these Controlled Medication cases in much

the same way as an anti-doping case, the FEI Tribunal found that the reasoning behind

the commentary in the WADC that the effect of the suspensions should not influence

the period of Ineligibility selected was persuasive in an Article 10.2 case. By doing so

the FEI Tribunal deprived itself of the opportunity to weigh the effect of a relevant

factor.

10.27 Further, the FEI Tribunal appears to have applied little if any weight to the fact that

under the Administrative Procedure, the Appellants’ offences would not have

generated any period of Ineligibility at all.

10.28 This Panel agrees with the FEI’s submission that in deciding what is a necessary and

proportionate sanction in these cases, it is fair to take account of the fact (which

reflects the nature and purpose of the ECM Rules) that if the Appellants’ previous

offences had taken place more than eight years prior to the current offences, they

would have been entitled to accept an administrative sanction for this present violation

of a fine, costs and no period of Ineligibility. Specifically, the question would be: what

makes this case different from an offence that would have attracted an administrative

sanction only, and what greater sanction does that difference justify?

10.29 The fact is that the Appellants have infringed the ECM Rules previously, albeit seven

years (in the case of Al Eid) and six years (in the case of Sharbatly). Having decided

that those infractions should be taken into account when considering the exercise of

discretion under Article 10.2, it would be reasonable to impose some period of

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Ineligibility, in addition to the fines and costs awards that were imposed by the FEI

Tribunal. The ECM Rules and, in particular, the principle of strict liability contained

in those Rules, need to be respected and vindicated. The sanction imposed must

therefore be meaningful and stand as a deterrent, particularly where, as here, the

Administrative Procedure would not apply.

10.30 That said, even the four month period of Ineligibility which was suggested by the FEI

would be a tough sanction, particularly having regard to the fines, costs, a period of

voluntary suspension served and disqualification of results.

10.31 While there is inevitably an element of arbitrariness in selecting an appropriate

sanction, the Panel has concluded that two months would be an appropriate period of

Ineligibility in all of the circumstances of this case.

CONCLUSION

10.32 This Panel would allow the appeals of Al Eid and Sharbatly to the extent that the eight

month period of Ineligibility imposed on each of them by the FEI Tribunal should be

reduced to two months. The starting date for the term of Ineligibility is 24 February

2012 in the case of Al Eid and 10 February 2012 in the case of Sharbatly.

10.33 The remainder of the FEI Tribunal’s decisions dated 23 May 2012 are continued.

11.

COSTS

11.1

Article R64.4 of the CAS Code provides:

“At the end of the proceedings, the CAS Court Office shall determine

the final amount of the cost of arbitration, which shall include the CAS

Court Office fee, the administrative costs of the CAS calculated in

accordance with the CAS scale, the costs and fees of the arbitrators

calculated in accordance with the CAS fee scale, a contribution towards

the expenses of the CAS, and the costs of witnesses, experts and

interpreters. The final account of the arbitration costs may either be

included in the award or communicated separately to the parties”.

11.2

Article R64.5 of the CAS Code provides:

“In the arbitral award, the Panel shall determine which party shall

bear the arbitration costs or in which proportion the parties shall share

them. As a general rule, the Panel has discretion to grant the prevailing

party a contribution towards its legal fees and other expenses incurred

in connection with the proceedings and, in particular, the costs of

witnesses and interpreters. When granting such contribution, the Panel

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shall take into account the outcome of the proceedings, as well as the

conduct and the financial resources of the parties”.

11.3

Having taken into consideration the outcome of the arbitration, and with the

concurrence of the parties, the Panel is of the view that there shall be no costs

associated with this award, save that the CAS Court Office fees of CHF 1,000 paid by

each of the Appellants shall be retained by the Court.

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DECISION

The Court of Arbitration for Sport rules that:

CAS 2012/A/2807 Al Eid v. FEI

1. The appeal filed by Khaled Abdullaziz Al Eid on 24 May 2012 against the decision of

the Fédération Equestre Internationale Tribunal (“FEI Tribunal”) dated 23 May 2012 is

partially upheld.

2. Paragraph 52(1) of the decision of the FEI Tribunal dated 23 May 2012 is set aside and

replaced with the following:

Khaled Abdullaziz Al Eid is sanctioned with a period of ineligibility of two

months, commencing on 24 February 2012.

3. The remainder of the FEI Tribunal’s decision dated 23 May 2012 is confirmed.

4. This award is pronounced without costs, except for the Court Office fee of CHF 1,000

paid by Khaled Abdullaziz Al Eid which shall be retained by the CAS.

5. Each party shall bear its own legal and other costs incurred in connection with these

arbitration proceedings.

6. All other or further claims are dismissed.

CAS 2012/A/2808 Sharbatly v. FEI

1. The appeal filed by Abdullah Waleed Sharbatly on 24 May 2012 against the decision

of the Fédération Equestre Internationale Tribunal (“FEI Tribunal”) dated 23 May

2012 is partially upheld.

2. Paragraph 61(1) of the decision of the FEI Tribunal dated 23 May 2012 is set aside and

replaced with the following:

Abdullah Waleed Sharbatly is sanctioned with a period of Ineligibility of two

months, commencing on 10 February 2012.

3. The remainder of the FEI Tribunal’s decision dated 23 May 2012 is confirmed.

4. This award is pronounced without costs, except for the Court Office fee of CHF 1,000

paid by Abdullah Waleed Sharbatly which shall be retained by the CAS.

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5. Each party shall bear its own legal and other costs incurred in connection with these

arbitration proceedings.

6. All other or further claims are dismissed.

Operative part of the award issued on 11 June 2012

Lausanne, 17 July 2012

THE COURT OF ARBITRATION FOR SPORT

Graeme Mew

Sole Arbitrator

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PUBLIC

TAB 3

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Caution

As of: August 5, 2026 1:42 PM Z

Agyeman v. INS

United States Court of Appeals for the Ninth Circuit

October 16, 2001, Argued and Submitted, Seattle, Washington ; July 23, 2002, Filed

No. 99-70396

Reporter

296 F.3d 871 *; 2002 U.S. App. LEXIS 14740 **; 2002 Cal. Daily Op. Service 6569; 2002 Daily Journal DAR 8261

EMMANUEL SENYO AGYEMAN, Petitioner, v.

IMMIGRATION & NATURALIZATION SERVICE,

Respondent.

Subsequent History: Habeas corpus proceeding at

Agyeman v. INS Asst. Dist. Dir. Coachman, 2003 U.S.

App. LEXIS 12806 (9th Cir. Ariz., June 23, 2003)

Prior History: [**1] On Petition for Review of an Order

of the Board of Immigration Appeals. INS No. A29-765590.

Disposition: Petition granted. Board's decision vacated

and remanded with instructions.

Core Terms

alien, deport, marriage, spouse, interview, levy,

immigrate, hardship, attend, pro se, application for

adjustment, detain, deportation proceedings, fair

hearing, travel, visa, bipolar disorder, good cause,

eligibility, immigration judge, suspension, due process,

application for relief, majority opinion, filing fee, notice,

novo, telephone, pauperis, elicit

because the denial of his request for adjustment of

status was predicated on his inability to procure his

wife's attendance at his deportation hearing to testify on

his behalf due to her frequent hospitalization for bipolar

disorder and her residence thousands of miles from the

site of the proceedings. The court held that the

immigration judge (IJ) erred in denying the immigrant's

requests because the IJ and the Board of Immigration

Appeals failed to acknowledge the role that the

immigrant's wife's illness played in her inability to attend

an original bona fide interview, and the immigrant's

hearing, and that the immigrant was prejudiced by this

failure. The court found that the IJ failed its duty to

apprise the immigrant that other types of evidence could

be submitted to demonstrated the validity of his

marriage. The court further held that the immigrant was

not required to pay filing fees under 28 U.S.C.S. §

1915(b), as the fees did not apply to Immigration and

Naturalization detainees.

Outcome

The Board of Immigration Appeals' decision was

vacated and remanded.

LexisNexis® Headnotes

Case Summary

Procedural Posture

Petitioner immigrant petitioned for review of an order of

the Board of Immigration Appeals, denying his request

for suspension of deportation pursuant to 8 U.S.C.S. §

1254(a)(1), and adjustment of status pursuant to 8

U.S.C.S. § 1255.

Overview

The immigrant claimed that he was denied a full and fair

hearing because he was not given adequate instructions

as to how to proceed with his applications for relief

Immigration Law > Judicial Proceedings > Judicial

Review > Scope of Review

HN1 A petition for review of an order of the Board of

Immigration Appeals is governed by the transitional

rules of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996.

Immigration Law > Constitutional Foundations > General

Overview

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Immigration Law > Judicial Proceedings > Judicial

Review > Scope of Review

HN2 The United States Court of Appeals for the Ninth

Circuit has jurisdiction to hear a petitioner's due process

claims pursuant to 8 U.S.C.S. § 1105a(a), as amended

by section 309(c)(4) of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996.

Civil Procedure > Appeals > Standards of Review > De

Novo Review

Immigration Law > Constitutional Foundations > General

Overview

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Process

Immigration Law > ... > Administrative Proceedings > Rights

of Respondent > General Overview

Immigration Law > ... > Administrative Proceedings > Rights

of Respondent > Right to Confrontation

HN6 The Fifth Amendment guarantees individuals who

are subject to deportation due process in Immigration

and Naturalization Service proceedings. An alien who

faces deportation is entitled to a full and fair hearing of

his claims and a reasonable opportunity to present

evidence on his behalf. In addition, aliens in deportation

proceedings are entitled by statute and regulation to

certain procedural protections.

Immigration Law > Judicial Proceedings > Judicial

Review > Scope of Review

HN3 The appellate court reviews claims of due process

violations in deportation proceedings de novo.

Civil Procedure > Appeals > Standards of Review > General

Overview

Civil Procedure > Appeals > Standards of Review > De

Novo Review

Immigration Law > Judicial Proceedings > Judicial

Review > Scope of Review

HN4 The appellate court reviews de novo legal

interpretations of the Immigration and Nationality Act's

requirements. Because the standard of review is de

novo, the appellate court conducts an independent

examination of the entire record.

Civil Procedure > Appeals > Standards of Review > De

Novo Review

Immigration Law > Judicial Proceedings > Judicial

Review > Scope of Review

HN5 When the Board of Immigration Appeals (BIA)

reviews the immigration judge's (IJ) decision de novo,

the appellate coutr's review is limited to the BIA's

decision, except to the extent that the BIA adopted the

IJ's opinion.

Constitutional Law > ... > Fundamental Rights > Procedural

Due Process > Scope of Protection

Immigration Law > Constitutional Foundations > Due

Immigration Law > Deportation & Removal > Administrative

Proceedings > Hearing Procedures

Immigration Law > ... > Administrative Proceedings > Rights

of Respondent > General Overview

HN7 An alien must be afforded a reasonable opportunity

to present evidence on his behalf. 8 U.S.C.S. §

1229a(b)(4); 8 C.F.R. § 240.10(4) (2001).

Constitutional Law > ... > Fundamental Rights > Procedural

Due Process > General Overview

Immigration Law > Constitutional Foundations > General

Overview

Immigration Law > ... > Administrative Proceedings > Rights

of Respondent > General Overview

HN8 If an alien is prejudiced by a denial of any of the

applicable procedural protections, he is denied his

constitutional guarantee of due process.

Civil Procedure > Parties > Pro Se Litigants > General

Overview

Immigration Law > Deportation & Removal > Administrative

Proceedings > Authority of Immigration Judges

Immigration Law > ... > Administrative Proceedings > Rights

of Respondent > General Overview

HN9 One of the components of a full and fair hearing is

that the immigration judge (IJ) must adequately explain

the hearing procedures to the alien, including what he

must prove to establish his basis for relief. In addition,

when the alien appears pro se, it is the IJ's duty to fully

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develop the record. Because aliens appearing pro se

often lack the legal knowledge to navigate their way

successfully through the morass of immigration law, and

because their failure to do so successfully might result

in their expulsion from this country, it is critical that the

IJ scrupulously and conscientiously probe into, inquire

of, and explore for all the relevant facts.

Civil Procedure > Appeals > Appellate

Jurisdiction > General Overview

Immigration Law > Judicial Proceedings > Judicial

Review > Exhaustion of Remedies

Immigration Law > Judicial Proceedings > Judicial

Review > Scope of Review

HN10 While the appellate court retains jurisdiction to

review due process challenges to immigration decisions,

it may not entertain due process claims based on

correctable procedural errors unless the alien raised

them below. The exhaustion requirement applies to

claims that an alien was denied a full and fair hearing.

Civil Procedure > Parties > Pro Se Litigants > General

Overview

HN11 Where a petitioner raises his claims pro se, the

appellate court construes them liberally.

Civil Procedure > ... > Jurisdiction > Subject Matter

Jurisdiction > General Overview

Civil Procedure > ... > Subject Matter

Jurisdiction > Jurisdiction Over Actions > General Overview

Immigration Law > Adjustment of Status > General

Overview

Immigration Law > Adjustment of Status > Eligibility for

Adjustment of Status

Immigration Law > Deportation & Removal > Administrative

Proceedings > Jurisdiction

HN12 Section 245 of the Immigration and Nationality

Act, codified at 8 U.S.C.S. § 1255, is the proper

statutory framework for adjudicating an application for

adjustment of status filed by an alien in deportation

proceedings. 8 C.F.R. §§ 240.1(a)(1)(ii), 240.11(a)(1)

(2001). The immigration judge has exclusive jurisdiction

to decide the adjustment of status application. 8 C.F.R.

§ 245.2(a)(1) (2001). However, only the Immigration and

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Naturalization Service may adjudicate the underlying I130 visa petition. 8 C.F.R. § 204.1(e) (2001).

Family Law > Marriage > Validity > General Overview

Immigration Law > Adjustment of Status > General

Overview

Immigration Law > Adjustment of Status > Eligibility for

Adjustment of Status

HN13 Under Section 245 of the Immigration and

Nationality Act, codified at 8 U.S.C.S. § 1255, an alien

may be eligible for adjustment of status if, among other

prerequisites, an immigrant visa is immediately

available. 8 U.S.C.S. § 1255(a). One of the ways by

which an alien may become eligible to receive an

immigrant visa is through marriage to a United States

citizen. 8 U.S.C.S. § 1151(b). An approved I-130 filed

by the spouse satisfies the requirement that a visa is

immediately available. Once approved, the I-130

remains valid for the legal duration of the marriage. 8

C.F.R. § 204.2(h)(1) (2001).

Immigration Law > Adjustment of Status > General

Overview

Immigration Law > Adjustment of Status > Eligibility for

Adjustment of Status

HN14 Approval of an I-130 petition does not

automatically entitle the alien to adjustment of status as

an immediate relative of a United States citizen. While

an I-130 establishes eligibility for status, the Attorney

General, or in the context of deportation proceedings,

the immigration judge, must still decide to accord the

status.

Family Law > Marriage > Proof of Marriage > General

Overview

Immigration Law > Types of Immigrants > Family

Sponsored Immigrants

HN15 For a marriage to confer immigration benefits, it

must satisfy three criteria. First, it must be legally valid.

Second, the couple must have married out of a bona

fide desire to establish a life together, not to evade

immigration laws. Third, the marriage must not be

against public policy.

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Immigration Law > Adjustment of Status > General

Overview

Immigration Law > Adjustment of Status > Eligibility for

Adjustment of Status

HN16 An approved I-130 provides prima facie evidence

that the alien is eligible for adjustment as an immediate

relative of a United States citizen. While the I-130 may

suffice in many cases, in cases when the spouse has

never testified as to the bona fides of the marriage, the

approved petition might not standing alone prove by a

preponderance of the evidence that the marriage was

bona fide and not entered into to evade immigration

laws.

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216 to remove the conditionality of his legal residency.

8 C.F.R. § 240.11(a)(1) (2001). These requirements

include a joint petition and interview with his spouse. 8

U.S.C.S. § 1186a. However, if the spouse refuses to

participate in this process, the alien may file the petition

alone and request a hardship waiver of the joint filing

requirement. 8 C.F.R. §§ 216.4(a)(1), 216.5 (2001).

Civil Procedure > ... > Jurisdiction > Subject Matter

Jurisdiction > General Overview

Civil Procedure > ... > Subject Matter

Jurisdiction > Jurisdiction Over Actions > General Overview

Immigration Law > Adjustment of Status > General

Overview

Civil Procedure > Discovery &

Disclosure > Discovery > Subpoenas

Immigration Law > Adjustment of Status > General

Overview

Immigration Law > Deportation & Removal > Administrative

Proceedings > Hearing Procedures

HN17 As part of the investigative process for adjustment

of status, the alien must attend an interview with an

immigration officer. 8 C.F.R. § 245.6 (2001). While the

regulations do not explicitly require the spouse to

appear or testify on the alien's behalf, as a practical

matter, the Immigration and Naturalization Service often

requests the attendance of both the alien and the

spouse at the initial adjustment interview. Its authority to

do so is found in its general regulatory power to request

the appearance of an applicant, petitioner, sponsor, or

beneficiary.

8 C.F.R. § 103.2(b)(9) (2001). This

authority to request an appearance does not generally

extend to the immigration judge in deportation

proceedings; however, he may issue subpoenas for the

attendance of witnesses and presentation of evidence.

8 U.S.C.S. § 1229a(b)(1).

HN19 While both the alien and the spouse must

ordinarily appear for an interview at a local Immigration

and Naturalization Service (INS) office, this requirement

may be waived for good cause.

8 U.S.C.S. §§

1186a(c)(1)(B), (c)(2)(A)(ii), (d)(3); 8 C.F.R. §

216.4(b)(3) (2001). Whether or not the alien fulfills these

additional requirements is left to the exclusive

jurisdiction of the INS District Director.

Family Law > Marriage > Validity > Fraudulent Marriages

Immigration Law > Adjustment of Status > General

Overview

Immigration Law > Types of Immigrants > Family

Sponsored Immigrants

HN20 Under the Immigration Marriage Fraud

Amendments, Pub. L. No. 99-639, 100 Stat. 3537

(1986), an alien whose status is adjusted to legal

permanent resident on the basis of a marriage that is

less than two years old must serve a two-year

"conditional" residency period to ensure that the

marriage is bona fide and not entered into to evade

immigration laws. 8 U.S.C.S. § 1186a(g)(1).

Immigration Law > Adjustment of Status > General

Overview

HN18 If the alien's marriage is less than two years old,

adjustment of status is granted on a conditional basis

pursuant to section 216 of the Immigration and

Nationality Act (section 216), codified at 8 U.S.C.S. §

1186a. 8 U.S.C.S. § 1186a(g)(1). The conditional status

remains in effect for a two-year period, after which the

alien must satisfy additional requirements under section

Immigration Law > Adjustment of Status > General

Overview

HN21 Under the statutory and regulatory scheme

governing Immigration and Naturalization Service (INS)

interviews, a good cause waiver may apply. For

example, if the INS requests an appearance by an

applicant or petitioner, the interview may be

rescheduled upon a showing of good cause. 8 C.F.R. §

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103.2(b)(9) (2001). In addition, the regulations

pertaining to section 216 of the Immigration and

Nationality Act's, codified at 8 U.S.C.S. § 1186a, joint

interview requirement provide for good cause waivers in

cases in which the alien and/or the spouse cannot

attend the INS interview preceding the removal of the

conditional status of their legal residency based on the

marriage. 8 U.S.C.S. § 1186a(c)(2)(ii); 8 C.F.R. §

216.4(b)(3) (2001). A documented serious illness may

constitute good cause for a spouse's absence at the

interview.

Immigration Law > Adjustment of Status > General

Overview

HN22 8 C.F.R. § 103.2(b)(9) only provides that good

cause will permit the requested individual to reschedule

the interview. It does not specifically address a

circumstance in which the person is simply unable to

attend the interview due to serious illness or otherwise.

However, the provision does not exclude such a

possibility because to do so would raise serious due

process concerns.

Contracts Law > Types of Contracts > Lease

Agreements > General Overview

Family Law > Marriage > Validity > General Overview

Immigration Law > Types of Immigrants > Family

Sponsored Immigrants

Insurance Law > ... > Coverage > Compulsory

Coverage > Rental Vehicles

Insurance Law > ... > Motor Vehicle Insurance > Vehicle

Ownership > Leases & Rental Vehicles

HN23 For immigration purposes, evidence of a

marriage's bona fides may include: jointly-filed tax

returns; shared bank accounts or credit cards; insurance

policies covering both spouses; property leases or

mortgages in both names; documents reflecting joint

ownership of a car or other property; medical records

showing the other spouse as the person to contact;

telephone bills showing frequent communication

between the spouses; and testimony or other evidence

regarding the couple's courtship, wedding ceremony,

honeymoon, correspondences, and shared experiences.

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Immigration Law > Types of Immigrants > Family

Sponsored Immigrants

HN24 An immigrant's marriage to a citizen must be

found bone fide for purposes of adjustment of status if it

was not sham or fraudulent from its inception. The key

issue is: did the petitioner and his wife intend to

establish a life together at the time of their marriage?

Evidence that the parties separated after their wedding

is relevant to ascertaining whether they intended to

establish a life together when they exchanged marriage

vows. But evidence of separation, standing alone,

cannot support a finding that a marriage was not bona

fide when it was entered.

Civil Procedure > Parties > Pro Se Litigants > General

Overview

Immigration Law > Asylum, Refugees & Related

Relief > General Overview

Immigration Law > Deportation & Removal > Administrative

Proceedings > Authority of Immigration Judges

Immigration Law > ... > Administrative Proceedings > Rights

of Respondent > General Overview

Immigration Law > Deportation & Removal > Relief From

Deportation & Removal > General Overview

HN25 It is important for the immigration judge (IJ) to

explain to an alien what evidence will demonstrate their

eligibility for relief from deportation. Moreover, it is

critical when the alien appears pro se that the IJ develop

the record by eliciting all relevant facts. The IJ must be

responsive to the particular circumstances of the case,

including what types of evidence the alien can and

cannot reasonably be expected to produce in support of

his applications for relief from deportation. Sensitivity to

what evidence the alien can reasonably be expected to

produce is especially critical when the alien is in the

Immigration and Naturalization Service's custody. In

such cases, the alien may have limited access to

relevant documents and will, therefore, depend even

more heavily on the IJ for assistance in identifying

appropriate sources of evidence to support his claim.

Civil Procedure > Parties > Pro Se Litigants > General

Overview

Immigration Law > Deportation & Removal > Administrative

Proceedings > Authority of Immigration Judges

Immigration Law > Adjustment of Status > General

Overview

Immigration Law > ... > Administrative Proceedings > Rights

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of Respondent > General Overview

HN26 The immigration judge has an obligation to assist

a pro se applicant in determining what evidence is

relevant and by what means he can prove his claims.

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Civil Rights Law > ... > Prisoner Rights > Prison Litigation

Reform Act > General Overview

Civil Rights Law > ... > Prisoner Rights > Prison Litigation

Reform Act > Filing Fees

Immigration Law > ... > Administrative Proceedings > Rights

of Respondent > General Overview

Civil Procedure > Parties > Pro Se Litigants > General

Overview

Immigration Law > Deportation & Removal > Administrative

Proceedings > Authority of Immigration Judges

Immigration Law > ... > Administrative Proceedings > Rights

of Respondent > General Overview

HN27 The immigration judge (IJ) has a duty to fully

develop the record when an alien proceeds pro se by

probing into relevant facts and by providing appropriate

guidance as to how the alien may prove his application

for relief. A pro se alien is deprived of a full and fair

hearing when the IJ misinforms him about the forms of

evidence that are permissible to prove his eligibility for

relief.

HN30 The filing fee provisions of the Prison Litigation

Reform Act, Pub. L. No. 104-134, 110 Stat. 1321

(1996), do not apply to an alien detainee who proceeds

in forma pauperis to petition for review from a Board of

Immigration Appeals decision, so long as he does not

also face criminal charges.

Civil Procedure > ... > Pleadings > In Forma

Pauperis > General Overview

Civil Procedure > ... > In Forma

Pauperis > Prisoners > General Overview

Civil Procedure > ... > In Forma

Pauperis > Prisoners > Petitions

Civil Procedure > Appeals > In Forma Pauperis

Immigration Law > Deportation & Removal > Relief From

Deportation & Removal > General Overview

HN28 To merit relief, an alien must also show prejudice.

Prejudice is shown if the violation potentially affects the

outcome of the proceedings. Prejudice may be shown

where the immigration judge's inadequate explanation of

the hearing procedures and failure to elicit pertinent

facts prevented the alien from presenting evidence

relevant to his claim.

Immigration Law > ... > Administrative Proceedings > Rights

of Respondent > General Overview

Immigration Law > Deportation & Removal > Relief From

Deportation & Removal > General Overview

HN29 A court may infer prejudice in the absence of any

specific allegation as to what evidence an alien would

have presented had the immigration judge adequately

explained what he needed to prove to demonstrate his

eligibility for relief and had he been provided the

opportunity to present that evidence.

Civil Procedure > Appeals > In Forma Pauperis

Civil Rights Law > ... > Prisoner Rights > Prison Litigation

Reform Act > General Overview

Civil Rights Law > ... > Prisoner Rights > Prison Litigation

Reform Act > Filing Fees

HN31 Unlike other indigent litigants, prisoners

proceeding in forma pauperis must pay the full amount

of the filing fees in civil actions and appeals pursuant to

the Prison Litigation Reform Act (PLRA), Pub. L. No.

104-134, 110 Stat. 1321 (1996).

28 U.S.C.S. §

1915(b)(1). If the prisoner lacks the means to pay the

fee at the time of filing, the PLRA provides for

assessment and subsequent collection of the fees as

funds become available to him. 28 U.S.C.S. § 1915(b).

Civil Rights Law > ... > Prisoner Rights > Prison Litigation

Reform Act > General Overview

Criminal Law & Procedure > ... > Sentencing

Alternatives > Probation > Conditions

Criminal Law & Procedure > Sentencing > Deportation &

Removal

Criminal Law & Procedure > Postconviction

Proceedings > Parole

HN32 As defined in the Prison Litigation Reform Act

(PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996), a

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"prisoner" is any person incarcerated or detained in any

facility who is accused of, convicted of, sentenced for, or

adjudicated delinquent for, violations of criminal law or

the terms and conditions of parole, probation, pretrial

release, or diversionary program.

28 U.S.C.S. §

1915(h). The statutory term "prisoner" is limited to an

individual who is currently detained as a result of

accusation, conviction, or sentence for a criminal

offense. Thus, the term "prisoner" does not encompass

a civil detainee for purposes of the PLRA.

Immigration Law > Deportation & Removal > Administrative

Proceedings > Jurisdiction

HN33 Deportation proceedings are civil, rather than

criminal, in nature. The order of deportation is not a

punishment for crime. Deportation, however severe its

consequences, is consistently classified as a civil rather

than a criminal procedure.

Civil Procedure > Appeals > In Forma Pauperis

Civil Rights Law > ... > Prisoner Rights > Prison Litigation

Reform Act > General Overview

Civil Rights Law > ... > Prisoner Rights > Prison Litigation

Reform Act > Filing Fees

Immigration Law > ... > Administrative Proceedings > Rights

of Respondent > General Overview

HN34 An alien detained by the Immigration and

Naturalization Service pending deportation is not a

"prisoner" within the meaning of the Prison Litigation

Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat.

1321 (1996). Thus, the filing fee requirements of the

PLRA do not apply to an alien detainee proceeding in

forma pauperis to petition for review of a Board of

Immigration Appeals decision.

Counsel: Christopher B. Durbin (argued), Kristen Kay

Mitchell (argued), Eric Schnapper, Amy Edwards,

Seattle, Washington (University of Washington School

of Law (Students of Pro Bono Program)); Leonard J.

Feldman, Heller, Ehrman, White & McAuliffe, Seattle,

Washington; Daniel M. Kowalski, Ryan, Swanson &

Cleveland, Seattle, Washington, for the petitionerappellant.

John S. Hogan (argued) and John M. McAdams, Jr.,

U.S. Department of Justice, Washington, D.C., for the

respondent-appellee.

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Judges: Before: Warren J. Ferguson, Andrew J.

Kleinfeld, and Ronald M. Gould, Circuit Judges. Opinion

by Judge Ferguson; Dissent by Judge Kleinfeld.

Opinion by: Warren J. Ferguson

Opinion

[*875] FERGUSON, Circuit Judge:

Emmanuel Senyo Agyeman ("Agyeman"), a native and

citizen of Ghana, petitions for review of the Board of

Immigration Appeals' ("BIA") decision, affirming the

Immigration Judge's ("IJ") denial of his request for

suspension of deportation pursuant to Section 244(a)(1)

of the Immigration and Naturalization Act ("INA"), 8

U.S.C. § 1254(a)(1) (repealed 1996) ("Section 244"),

and adjustment of [**2] status pursuant to Section 245

of the INA, 8 U.S.C. § 1255 ("Section 245"). Agyeman

claims that he was denied a full and fair hearing

because he was not given adequate instructions as to

how to proceed with his applications for relief.

Specifically, he alleges, among other errors, that the

denial of adjustment of status was predicated on his

inability to procure his wife's attendance at the

deportation hearing to testify on his behalf. Given that

his wife suffers from bipolar disorder and resides

thousands of miles from the site of the proceedings, we

agree. Accordingly, we grant the petition and now

remand for a new hearing. In addition, we hold that the

filing fees provisions of the Prison Litigation Reform Act

("PLRA") do not apply to INS detainees.

I. BACKGROUND

Agyeman entered the United States on a B-1 visitor visa

in 1988. In 1991, he married a United States citizen,

Barbara Levy ("Levy"), and the couple established a

home together in Elizabeth, New Jersey. Levy

subsequently filed an Form I-130 immediate relative

visa petition, which was approved in 1992. However,

Agyeman's application for adjustment of status was

denied because the couple [**3] failed to attend the

scheduled interview and submit Agyeman's medical

examination. As reflected in the record, Levy was

unable to attend the interview because she was

hospitalized for bipolar disorder at the time.

In 1993, Agyeman relocated to Carson City, Nevada, for

business purposes, and resided there until being

detained by the INS for overstaying his visa in early

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1997. INS officials transported Agyeman to a detention

facility in Eloy, Arizona, where he remained during the

course of the proceedings.

On July 28, 1997, the IJ found Agyeman deportable

under Section 241(a)(1)(B) of the INA, 8 U.S.C. §

1231(a)(1)(B), and denied his request for suspension of

deportation under Section 244. Reviewing Agyeman's

application for adjustment of status based on his

marriage to a United States citizen pursuant to Section

216 of the INA, 8 U.S.C. § 1186a ("Section 216"), the IJ

instructed Agyeman that his wife's testimony was

mandatory to determine the bona fides of their marriage.

Upon questioning about his wife, Agyeman informed the

IJ that Levy suffered from bipolar disorder and had been

hospitalized for two or three months at a time. The

IJ [**4] asked whether Levy was still hospitalized, to

which Agyeman responded: "I don't know." At the close

of the hearing, the [*876] IJ stated that "you need to

contact and have available at the next hearing, your

spouse. She must be physically present at that hearing,

otherwise, I can't grant your application for adjustment

of status." (emphasis added). The IJ granted a

continuance for Agyeman to procure her attendance. On

November 5, the IJ denied Agyeman's application for

adjustment of status because Levy did not appear and

testify on his behalf and because his medical

examination was not on file. The IJ granted his

application for voluntary departure to Ghana pursuant to

Section 244(e) of the INA, 8 U.S.C. § 1254(e).

On appeal, the BIA affirmed in all respects. It denied

Agyeman's application for an adjustment of status

pursuant to Section 245 on the basis that he had failed

to establish the validity of his marriage to Levy, affirming

the IJ's rationale that she failed to testify at the

deportation hearing. 1 It also refused to grant the

application on discretionary grounds. As to the denial of

suspension for deportation, the BIA affirmed on the

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basis that Agyeman [**5] had failed to demonstrate an

"extreme hardship" to himself or to his wife.

This timely petition for review followed. We granted

Agyeman's request for leave to proceed in forma

pauperis and instructed the parties to brief the issue

whether the PLRA filing fee [**6] provisions apply to

INS detainees.

II. JURISDICTION

HN1 This petition is governed by the transitional rules of

the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 ("IIRIRA"). Kalaw v. INS, 133

F.3d 1147, 1150 (9th Cir. 1997). HN2 We have

jurisdiction to hear Agyeman's due process claims

pursuant to 8 U.S.C. § 1105a(a), as amended by IIRIRA

section 309(c)(4). Antonio-Cruz v. INS, 147 F.3d 1129,

1130 (9th Cir. 1998).

III. STANDARD OF REVIEW

HN3 We review claims of due process violations in

deportation proceedings de novo. Sanchez-Cruz v. INS,

255 F.3d 775, 779 (9th Cir. 2001). HN4 We also review

de novo legal interpretations of the INA's requirements.

Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001)

(en banc). Because our standard of review is de novo,

we conduct an independent examination of the entire

record. Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir.

2000). HN5 When the BIA reviews the IJ's decision de

novo, our review is limited to the BIA's decision, except

to the extent that the BIA adopted the IJ's opinion.

Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.

2000) [**7] (citing Ghaly v. INS, 58 F.3d 1425, 1430

(9th Cir. 1995)).

IV. DISCUSSION

1 In its opinion, the BIA stated that the IJ denied Agyeman's

A. Due Process Rights in Deportation Proceedings

application for adjustment of status pursuant to Section 245.

However, the IJ explicitly analyzed the application under

Section 216, presumably because the petition upon which

Agyeman's application relied was filed prior to the second

anniversary of his marriage and, thus, subject to the additional

requirements of the statute. As explained below, these

statutes are not mutually exclusive; the applicable regulations

provide that an application for adjustment of status filed in

deportation proceedings under Section 245 and based on a

marriage, which is less than two years old, results in

conditional residency pursuant to Section 216. 8 C.F.R. §

240.11(a)(1) (2001).

HN6 The Fifth Amendment guarantees individuals who

are subject to deportation due process in INS

proceedings. Jacinto v. INS, 208 F.3d 725, 727 (9th Cir.

2000) (citing Campos-Sanchez v. INS, [*877] 164 F.3d

448, 450 (9th Cir. 1999)). "An alien who faces

deportation is entitled to a full and fair hearing of his

claims and a reasonable opportunity to present

evidence on his behalf." Colmenar v. INS, 210 F.3d 967,

971 (9th Cir. 2000). In addition, aliens in deportation

proceedings are entitled by statute and regulation to

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certain procedural protections. Barraza Rivera v. INS,

913 F.2d 1443, 1447 (9th Cir. 1990); Baires v. INS, 856

F.2d 89, 91 (9th Cir. 1988). For example, HN7 an alien

must be afforded a reasonable opportunity to present

evidence on his behalf. INA § 240(b)(4), 8 U.S.C. §

1229a(b)(4); 8 C.F.R. § 240.10(a)(4) (2001); see also

INA § 240(b)(1); 8 U.S.C. § 1229a(b)(1) (providing [**8]

that the immigration judge must receive evidence); 8

C.F.R. § 240.10(c) (2001) (same). HN8 If an alien is

prejudiced by a denial of any of the applicable

procedural protections, he is denied his constitutional

guarantee of due process. Campos-Sanchez, 164 F.3d

at 450.

HN9 One of the components of a full and fair hearing is

that the IJ must adequately explain the hearing

procedures to the alien, including what he must prove to

establish his basis for relief. Jacinto, 208 F.3d at 728. In

addition, when the alien appears pro se, it is the IJ's

duty to "fully develop the record." Id. at 733-34 .

Because aliens appearing pro se often lack the legal

knowledge to navigate their way successfully through

the morass of immigration law, and because their failure

to do so successfully might result in their expulsion from

this country, it is critical that the IJ "scrupulously and

conscientiously probe into, inquire of, and explore for all

the relevant facts." Id. at 733 (quoting Key v. Heckler,

754 F.2d 1545, 1551 (9th Cir. 1985)).

B. Full and Fair Hearing

Agyeman claims that he was denied [**9] a full and fair

hearing because, among other errors, the IJ failed to

provide an adequate explanation of the procedures and

thereby denied him a full and fair hearing. At his

deportation hearing, the IJ ruled that Levy's testimony

was the only means by which Agyeman could

successfully prosecute his application for adjustment of

status, despite the fact that she suffered from a bipolar

disorder and lived thousands of miles away. On appeal,

the BIA affirmed the IJ's denial of Agyeman's

applications for relief on the basis that Agyeman had

failed to establish his marriage to a United States

citizen. Under the circumstances, we find that Agyeman

did not receive an adequate explanation as to what he

had to prove to support his application for adjustment of

status and was thereby denied a full and fair hearing.

1. Exhaustion of Administrative Remedies

As a threshold matter, we find that Agyeman's due

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process claim was properly exhausted below. HN10

While we retain jurisdiction to review due process

challenges to immigration decisions, Antonio-Cruz, 147

F.3d at 1130, we may not entertain due process claims

based on correctable procedural errors unless the alien

raised [**10] them below. Sanchez-Cruz, 255 F.3d at

780; Cortez-Acosta v. INS, 234 F.3d 476, 480 (9th Cir.

2000). The exhaustion requirement applies to claims

that an alien was denied a "full and fair hearing."

Sanchez-Cruz, 255 F.3d at 780.

Albeit inartfully, Agyeman raised pro se his due process

claims in his notice of appeal to the BIA. Although he did

not use the specific phrase 'due process violation,' he

did protest the requirement that his wife testify at the

hearing, explaining that she was in poor health and

advised by her doctor not to make the trip. He also

[*878] requested that she be permitted to appear "at a

convenient location for the required interview."

HN11 Because Agyeman raised his claims pro se, we

construe them liberally. Estelle v. Gamble, 429 U.S. 97,

106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1975). Under this

scrutiny, Agyeman satisfies the exhaustion requirement

for his due process claim that he was denied a full and

fair hearing, due to the IJ's insistence that his wife

appear and testify at the hearing. Further, because the

BIA conducted a de novo review of the IJ's decision, "it

had a full opportunity to resolve [the] [**11] controversy

or correct its own errors before judicial intervention."

Ladha v. INS, 215 F.3d 889, 903 (9th Cir. 2000). Thus,

even to the extent that Agyeman's pro se appeal did not

contain the exact legalese, the BIA had adequate

opportunity to correct any errors occurring in the

proceedings below. Accordingly, we hold that

Agyeman's due process claim was properly exhausted

before the BIA.

2. Requirement of Spouse's Testimony

At the deportation hearing, the IJ instructed Agyeman

that his wife must appear and testify on his behalf,

granting a continuance for him to produce her as a

witness. When she did not appear, the IJ denied the

application for adjustment of status, reasoning that his

spouse was "unable or unwilling to appear and testify in

his behalf." Matter of Agyeman, No. A-29-765-590, slip

op. at 3 (IJ Nov. 5, 1997). The BIA affirmed the IJ's

denial of Agyeman's application, observing that

Agyeman "was on notice of the need for his wife to

testify," but failed to produce her or any other witnesses

at the deportation hearing. Matter of Agyeman, No. A29-

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765-590-Eloy, slip op. at 2 (BIA Mar. 16, 1999).

Therefore, the BIA ruled, Agyeman "failed to [**12]

establish his marriage to a United States citizen for

purposes of adjustment of status." Id.

At the outset, we note that Levy's attendance and

testimony at the deportation hearing was not a statutory

prerequisite for adjustment of status. On the face of the

statute and accompanying regulations, Agyeman was

only required to provide sufficient evidence of his bona

fide marriage to a United States citizen. Yet, this was

never explained to him. He was simply told that she

must be there or his application would be denied. For a

full understanding of what was legally required, we turn

to a discussion of the statutory and regulatory

framework governing the adjudication of adjustment of

status applications based on marriage to a United

States citizen.

a. Statutory and Regulatory Framework

HN12 Section 245 is the proper statutory framework for

adjudicating an application for adjustment of status filed

by an alien in deportation proceedings. 8 C.F.R. §§

240.1(a)(1)(ii), 240.11(a)(1) (2001). The IJ has exclusive

jurisdiction to decide the adjustment of status

application. 8 C.F.R. § 245.2(a)(1) (2001). However,

only the INS may adjudicate [**13] the underlying

I-130 visa petition. 8 C.F.R. § 204.1(e) (2001); Dielmann

v. INS, 34 F.3d 851, 854 (9th Cir. 1994).

HN13 Under Section 245, an alien may be eligible for

adjustment of status if, among other prerequisites, an

immigrant visa is immediately available. INA § 245(a); 8

U.S.C. § 1255(a). One of the ways by which an alien

may become eligible to receive an immigrant visa is

through marriage to a United States citizen. INA §

201(b), 8 U.S.C. § 1151(b). An approved I-130 filed by

the spouse satisfies the requirement that a visa is

immediately available. INS v. Miranda, 459 U.S. 14, 15,

74 L. Ed. 2d 12, [*879] 103 S. Ct. 281 (1982). Once

approved, the I-130 remains valid for the legal duration

of the marriage. 8 C.F.R. § 204.2(h)(1) (2001).

However, HN14 approval of the I-130 petition does not

automatically entitle the alien to adjustment of status as

an immediate relative of a United States citizen. INS v.

Chadha, 462 U.S. 919, 937, 77 L. Ed. 2d 317, 103 S.

Ct. 2764 (1983) (citing Menezes v. INS, 601 F.2d 1028

(9th Cir. 1979)). While [**14] an I-130 establishes

eligibility for status, the Attorney General - or in the

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context of deportation proceedings, the IJ - must still

decide to accord the status. 2 Amarante v. Rosenberg,

326 F.2d 58, 62 (9th Cir. 1964).

[**15] HN17 As part of the investigative process for

adjustment of status, the alien must attend an interview

with an immigration officer. 8 C.F.R. § 245.6 (2001).

While the regulations do not explicitly require the

spouse to appear or testify on the alien's behalf, as a

practical matter, the INS often requests the attendance

of both the alien and the spouse at the initial adjustment

interview. See SARAH IGNATIUS, IMMIGRATION LAW

AND THE FAMILY § 8.04[5] at 8-60 (2001). Its authority

to do so is found in its general regulatory power to

2 Agyeman argues that, because he had an approved I-130 on

file and his marriage was consummated prior to being placed

in deportation proceedings, he was not required to prove his

bona fide marriage to a United States citizen. HN15 For a

marriage to confer immigration benefits, it must satisfy three

criteria. First, it must be legally valid. Adams v. Howerton, 673

F.2d 1036, 1038-39 (9th Cir. 1982). Second, the couple must

have married out of a bona fide desire to establish a life

together, not to evade immigration laws. Lutwak v. United

States, 344 U.S. 604, 611, 97 L. Ed. 593, 73 S. Ct. 481

(1953); Bark v. INS, 511 F.2d 1200, 1202 (9th Cir. 1975).

Third, the marriage must not be against public policy. Matter of

H --, 9 I. & N. Dec. 640, 641 (BIA 1962).

HN16 The approved I-130 provides prima facie evidence that

the alien is eligible for adjustment as an immediate relative of

a United States citizen. Amarante v. Rosenberg, 326 F.2d 58,

62 (9th Cir. 1964). However, we reject Agyeman's argument

that no other evidence of the marriage is ever necessary. His

reliance on Varela v. INS, 204 F.3d 1237 (9th Cir. 2000), is

misplaced. In Varela, we remanded to the BIA to review the

merits of a motion to reopen, noting that the alien had made a

prima facie showing of eligibility for adjustment of status

because he had submitted the application and all necessary

supporting documentation. 204 F.3d at 1240 n. 6. We noted

further that he was not required to demonstrate the bona fides

of his marriage by clear and convincing evidence because his

marriage preceded the deportation hearings. Id.

Varela concerned whether the alien had made a prima facie

showing to warrant the BIA's granting of a motion to reopen

when deportation had proceeded in absentia. Id. at 1239-40 .

Here, Agyeman had the responsibility to prove his eligibility for

adjustment of status by the preponderance of the evidence.

While the I-130 may suffice in many cases, in cases such as

this when the spouse has never testified as to the bona fides

of the marriage, the approved petition might not standing

alone prove by a preponderance of the evidence that the

marriage was bona fide and not entered into to evade

immigration laws.

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request the appearance of an applicant, petitioner,

sponsor, or beneficiary. 8 C.F.R. § 103.2(b)(9) (2001).

This authority to request an appearance does not

generally extend to the IJ in deportation proceedings;

however, he may "issue subpoenas for the attendance

of witnesses and presentation of evidence." INA §

240(b)(1), 8 U.S.C. § 1229a(b)(1).

HN18 If the alien's marriage is less than two years old,

adjustment of status is granted on a conditional basis

pursuant to Section 216. 3 INA § 216(g)(1), 8 U.S.C. §

1186a(g)(1). [*880] The conditional status remains in

effect [**16] for a two-year period, after which the alien

must satisfy additional requirements under Section 216

to remove the conditionality of his legal residency. 8

C.F.R. § 240.11(a)(1) (2001). These requirements

include a joint petition and interview with his spouse.

INA § 216, 8 U.S.C. § 1186a. However, if the spouse

refuses to participate in this process, the alien may file

the petition alone and request a hardship waiver of the

joint filing requirement. 8 C.F.R. §§ 216.4(a)(1), 216.5

(2001). HN19 In addition, while both the alien and the

spouse must ordinarily appear for an interview at a local

INS office, this requirement may be waived for good

cause. INA §§ 216(c)(1)(B), (c)(2)(A)(ii), (d)(3), 8 U.S.C.

§§ 1186a(c)(1)(B), (c)(2)(A)(ii), (d)(3); 8 C.F.R. §

216.4(b)(3) (2001). Whether or not the alien fulfills these

additional requirements is left to the exclusive

jurisdiction of the INS District Director. Id.

[**17] In this case, Levy filed an I-130 visa petition on

Agyeman's behalf, and the INS approved it in 1992.

Agyeman filed an application for adjustment of status,

and the INS requested an interview with both spouses.

However, Levy could not attend the interview because

she was hospitalized for bipolar disorder at the time.

Consequently, the INS denied Agyeman's application for

adjustment of status for lack of prosecution.

In the deportation proceedings, the IJ analyzed

Agyeman's application for adjustment of status under

Section 216, even though his marriage was more than

3 In 1986, Congress enacted the Immigration Marriage Fraud

Amendments ("IMFA") to deter marriage fraud in immigration

petitions. Pub. L. No. 99-639, 100 Stat. 3537 (1986) (codified

in scattered sections of Title 8 of the U.S. Code). HN20 Under

the IMFA, an alien whose status is adjusted to legal

permanent resident on the basis of a marriage that is less than

two years old must serve a two-year "conditional" residency

period to ensure that the marriage is bona fide and not entered

into to evade immigration laws. INA § 216(g)(1), 8 U.S.C. §

1186a(g)(1).

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two years old, presumably because the petition upon

which he relied was filed within two years of his

marriage to Levy. One of the requirements that the IJ

specified for the application was that Agyeman's wife

must appear and testify at the hearing. It is unclear

under what authority the IJ undertook this request. We

decline to interpret the IJ's request as an attempt to

enact a statutory requirement that the spouse must

attend and testify at the deportation hearing in every

case in which an application for adjustment relies on a

marriage to a United States citizen. We also decline to

interpret this as an improper attempt [**18] to either

readjudicate Levy's original petition or to enforce

Section 216's joint interview requirement. 4

Nevertheless, the IJ's demand was fundamentally unfair

under the circumstances. The IJ and the BIA, on appeal,

should have acknowledged the role that Levy's illness

played in her inability to attend the original interview,

and this hearing as well.

[**19] b. Good Cause Waiver

HN21 Under the statutory and regulatory scheme

governing INS interviews, a good cause waiver may

apply. For example, if the INS requests an appearance

by an applicant or petitioner, the interview may [*881]

be rescheduled upon a showing of good cause. 5 8

C.F.R. § 103.2(b)(9) (2001). In addition, the regulations

pertaining to Section 216' s joint interview requirement

provide for good cause waivers in cases in which the

alien and/or the spouse cannot attend the INS interview

preceding the removal of the conditional status of their

4 However, there is some evidence in the record that suggests

the IJ did intend to adjudicate the relative petition. For

example, he stated that:

Q: When we conduct this adjustment of status application … I

will set it up for a hearing date on which I want your, your wife

must appear and testify and indicate that she still wants to

support you or to petition for you as a relative of hers. Okay. It

is her petition, not really yours, okay. So, she … must be

present for me to ask questions of and the Government can

cross examine, too, as the validity of the marriage and her

willingness to basically support your application for residency

here.

5 We observe that HN22

8 C.F.R. § 103.2(b)(9) only provides

that good cause will permit the requested individual to

reschedule the interview. It does not specifically address a

circumstance in which the person is simply unable to attend

the interview due to serious illness or otherwise. However, we

do not interpret the provision to exclude such a possibility

because to do so would raise serious due process concerns.

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legal residency based on the marriage. INA §

216(c)(2)(A)(ii), 8 U.S.C. § 1186a(c)(2)(A)(ii); 8 C.F.R. §

216.4(b)(3) (2001). A documented serious illness may

constitute good cause for a spouse's absence at the

interview. See generally IGNATIUS, supra, at §

5.08[3][c] (advising that "good cause" to waive the

spouse's attendance at an INS interview prior to

removal of the conditional basis of residency must be

"legitimate and well documented, such as extreme

illness ….").

[**20] In this case, the IJ or the BIA, on appeal, should

have recognized that good cause excused Levy's

absence at the original INS interview, and at the

deportation hearing, as well. Levy suffers from bipolar

disorder, which is a "chronic condition that has

potentially devastating effects on many aspects of the

patient's life and that carries with it a high risk of

suicide." AM. PSYCHIATRIC ASS'N, PRACTICE

GUIDELINES

FOR

THE

TREATMENT

PSYCHIATRIC DISORDERS 531 (2000); William

Coryell, M. D., et al., The Enduring Psychosocial

Consequences of Mania and Depression, 150 AM. J.

PSYCHIATRY 720-27 (1993) (explaining that bipolar

disorder diminishes one's ability to function on nearly all

levels and persists despite medication and treatment).

Bipolar disorder is a severe psychiatric illness marked

by episodes of mania and depression, impairment of

functioning - both cognitive and behavioral, and is

frequently complicated by psychotic symptoms (e.g.,

delusions, hallucinations, and disorganized thinking).

Paul E. Keck, Jr., et al., Bipolar Disorder, 85 THE

MEDICAL CLINICS OF NORTH AMERICA 645 (2001).

Persons suffering from bipolar disorder "are prone to

rapid mood fluctuations" [**21] and thus pose a

particular risk of suicide or other harmful behavior. AM.

PSYCHIATRIC ASS'N, supra, at 530.

As explained to the IJ at the July 28th hearing, Levy had

been hospitalized for periods of two to three months at a

time, due to her mental illness. Upon the IJ's

questioning, Agyeman did not know whether she was

hospitalized at the time. 6 [**22] However, given Levy's

6 Contrary to the dissent's assertion, we do not imply that Levy

was, in fact, in the hospital at that time. Rather, we observe

that it is unclear from the record whether she was hospitalized

at any relevant point during the proceedings. The seriousness

of her illness, as well as her prior history of hospitalization,

raises due process concerns because the success of

Agyeman's applications for relief hinged on the presence of a

person whose attendance may have been physically

impossible or medically inadvisable.

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history of serious mental illness, it would be

understandable if she was unable to travel to Arizona to

testify at the deportation hearing. Indeed, one of the

most critical aspects of treating bipolar disorder is

establishing and maintaining a stable routine to avoid

recurrence of manic and depressive episodes.

CLINICIAN'S GUIDE TO MENTAL ILLNESS 111

(Dennis C. Daley, ed., 2001). Agyeman attempted to

explain the difficulty of having Levy attend, specifically

mentioning concerns about placing undue pressure

[*882] on her and the fact that his detention prevented

him from traveling to New Jersey to accompany her on

her trip. 7

Notwithstanding these indicators, the IJ instructed

Agyeman to arrange for Levy's appearance. Agyeman

complied and asked Levy to travel to Eloy, Arizona, in

order to testify at the November 5th hearing. However,

she did not appear, and Agyeman was unable to

confirm that she had arrived in Phoenix, where she was

to stay with his friend. Thus, contrary to the dissent's

assertion, it is unclear from the record whether Levy did,

in fact, travel from her home in New Jersey to appear at

the deportation hearing. 8 The lack of clarity in the

7 This reaction is entirely consistent with how a family member

of a person suffering from bipolar disorder might respond

when faced with the decision whether to place that person in a

stressful situation. Family members, who are experienced with

the illness and its effects, likely understand that placing stress

on a loved one suffering from bipolar disorder is likely to cause

the onset of manic symptoms. See AM. PSYCHIATRIC

ASS'N, supra at 543 (explaining that psycho-social stressors

precipitates mania in persons suffering from bipolar disorder).

8 Indeed,

the dissent picks and chooses from the record to

support its statement that "Agyeman's wife was in fact in

Arizona, not New Jersey, at the time of the hearing," Dis. Op.

at 10371. In so doing, it cites certain statements by Agyeman

out of the context from other statements demonstrating his

lack of knowledge as to her whereabouts at the time of the

hearing. In fact, in response to the IJ's questioning, Agyeman

stated:

A: She should have arrived here last week. She would

(indiscernible) staying with my friend. I've given a …

She must be in Phoenix since last week. That's why Q: So, why isn't she in my Courtroom today to help you in your

case?

A: The past seven days I've been in special housing. I've not

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record [**23]

regarding whether Levy actually

attempted to attend the hearing is further demonstrated

by Agyeman's explanation of her absence in his notice

of appeal to the BIA, wherein he stated that she was

unable to be there because of her "poor health and

[because] her doctor has recommended against making

the trip." Thus, the record is not established as to

whether Levy was in Arizona at the time of the hearing.

[**24] For our purposes, it is sufficient that, despite the

IJ's awareness of Levy's serious illness and possible

hospitalization, he still required Agyeman to procure her

attendance and interpreted her subsequent absence as

dispositive in his determination that Agyeman's marriage

to Levy was not bona fide. Moreover, although

Agyeman argued on appeal to the BIA that his wife was

ill and had been unable to make the trip across country

to testify, the BIA simply acknowledged that the situation

was "regrettable" and affirmed the IJ's denial. Matter of

Agyeman, slip op. at 2.

3. Inadequate Explanation of Procedures

As the bona fides of Agyeman's marriage were in

question, the IJ had a duty to apprise Agyeman of

reasonable means of proving them. Jacinto, 208 F.3d at

728. Although Levy's testimony would clearly be the

most persuasive form of evidence, other types of

evidence could very well have demonstrated the validity

of Agyeman's marriage. HN23 Evidence of the

marriage's bona fides may include: jointly-filed tax

returns; shared bank accounts or credit cards; insurance

policies covering both spouses; property leases or

mortgages in both names; documents reflecting

joint [**25] ownership of a car or other property;

medical records showing the other spouse as the

person to contact; telephone bills [*883] showing

frequent communication between the spouses; and

testimony or other evidence regarding the couple's

courtship,

wedding

ceremony,

honeymoon,

correspondences, and shared experiences. Matter of

Soriano, 19 I. & N. Dec. 764, 766 (BIA 1988); see also 8

C.F.R. § 216.4(a)(5) (2001) (listing similar types of

evidence as proof that marriage was not entered into to

evade immigration laws of the United States). Yet, the IJ

failed to suggest these sources of evidence, which

would have supported his application for adjustment of

status.

been allowed telephone, visiting hours. I tried to (emphasis added).

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To the extent that Levy's testimony was essential to

Agyeman's adjustment application, the IJ should have

explained to Agyeman that she could participate

telephonically. Beltran-Tirado v. INS, 213 F.3d 1179,

1185-86 (9th Cir. 2000). Otherwise, because Levy

resided in New Jersey - thousands of miles from the

deportation proceedings - she could have appeared at

the INS office nearest to her residence and submitted to

a deposition. 8 C.F.R. § 3.35(a) (2001); [**26] see also

8 C.F.R. § 287.4(a)(2)(ii)(D) (2001) (providing that

witness who is more than 100 miles from place of

proceeding may be subpoenaed to appear at the

nearest INS office and respond to oral or written

interrogatories). However, the IJ did not explore these

options, and the BIA similarly failed to suggest these

alternatives on appeal. 9

[**27] Moreover, the IJ represented to Agyeman that

he was ineligible for adjustment of status if his wife was

no longer in love with him. 10 However, our case law

has long held to the contrary. Thus, the IJ failed to

explain that Agyeman could submit evidence showing

that he entered into the marriage in good faith, even if it

was the case that they were no longer in love. On

remand, HN24 Agyeman's marriage to Levy must be

found bone fide for purposes of adjustment of status if it

was "not sham or fraudulent from its inception."

Dabaghian v. Civiletti, 607 F.2d 868, 869 (9th Cir.

1979). The key issue is: "Did the petitioner and his wife

intend to establish a life together at the time of their

marriage?" Bark, 511 F.2d at 1202. As we held in Bark,

"evidence that the parties separated after their wedding

is relevant to ascertaining whether they intended to

9 The dissent would place the burden on Agyeman to request

these alternatives. However, it is the IJ's duty to outline

Agyeman's procedural rights for him, as a pro se alien in

deportation proceedings. Jacinto, 208 F.3d at 734. Moreover,

Agyeman might have perceived that such a request would be

futile, due to the IJ's repeated insistence that his wife appear

in person. Indeed, the administrative record is replete with

examples of the IJ's unequivocal statements that Levy was

required to attend the hearing in Eloy, Arizona. For example,

the IJ stated: "You need to contact and have available at the

next hearing, your spouse. She must be physically present at

that hearing, otherwise, I can't grant your application for

adjustment of status." (emphasis added).

10 For example, the IJ stated: "Well, I know this, if I was in jail

and I got a hold of my wife and I said, honey, I'm in jail, I need

you to show up in Timbuktu, Arizona, to let me stay here, if

she loved me, she would come for me. If she didn't like me

anymore, then your adjustment of status is gone anyway, Mr.

Agyeman. That's all I'm telling you …."

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establish a life together when they exchanged marriage

vows. But evidence of separation, standing alone,

cannot support a finding that a marriage was not bona

fide when it was entered." Id.; see also Matter of McKee,

17 I. & N. Dec. 332, 333 (BIA 1980) (distinguishing

between nonviable and [**28] sham marriages).

We have previously emphasized HN25 the importance

of explaining to an alien what evidence will demonstrate

their eligibility for relief from deportation. Jacinto, 208

F.3d at 728. Moreover, it is critical [*884] when the

alien appears pro se that the IJ develop the record by

eliciting all relevant facts. Id. at 734. The IJ must be

responsive to the particular circumstances of the case,

including what types of evidence the alien can and

cannot reasonably be expected to produce in support of

his applicatio

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