Cancellation of Removal Granted, Green Card SavedPublished: Oct 11, 2011 9:30 am By: Matthew L. Kolken
We just saved our client's Green Card after a trial before the Immigration Court at the Buffalo Federal Detention Facility in Batavia, New York.
Our client came to the United States approximately 15 years ago. Within five years of his arrival he was convicted of simple assault (Assault 3rd) in New York State. Historically, a simple assault conviction was not considered a crime involving moral turpitude, and as such when our client pled guilty he was not deportable.
Then in 2007 the law changed. The Board of Immigration Appeals ruled in Mater of Solon, 24 I&N Dec. 239 (BIA 2007) that subsection (1) of New York Penal law §120.00 (3rd degree assault), which requires specific intent and physical injury is a crime involving moral turpitude. Unfortunately, our client pled guilty to violating subsection (1) of NYPL §120.00.
As a result, our client became deportable for having been convicted of a crime involving moral turpitude within five years of his lawful entry. Immigration Court proceedings where instituted against him, and he was taken into custody.
We were then retained.
We successfully argued that although our client was deportable, he remained eligible to apply for cancellation of removal as a lawful permanent resident. To be eligible for cancellation of removal if you are a Green Card holder you must establish that you have held your Green Card for five years, and have been in the United States continuously for a total of seven years in any status. If you are convicted of an offense within that seven year period time is "stopped" even if you have actually been in the United States for longer than the seven year cumulative period.
We successfully argued that because our client's conviction was a petty offense the "stop-time" rule did not apply, and our client remained eligible for cancellation of removal. A conviction is considered a petty offense if the maximum penalty possible for the conviction does not exceed imprisonment for one year and, if convicted, you are not imprisoned for more than six months, regardless of what you are ultimately sentenced to.
After winning this argument we presented a strong cancellation application at trial, with proof that our client's entire family lives in the United States, including his 6 year old daughter who he has a loving and close relationship, that he has an extended history of employment, and that he has always paid his taxes. We also introduced evidence of his charitable work in the community, and brought eight witnesses to testify on his behalf.
After trial the Immigration Judge weighed our client's conviction against the overwhelming weight of favorable evidence, and granted cancellation of removal. The government did not appeal.
Our client was released from custody within hours of the Court's decision, and he is now back with his family in time to celebrate his daughter's 7th birthday.