Removal Proceedings Terminated; Client Retains Permanent Resident Status
William, who was born in Guyana, came to the USA, with his mother, as a permanent resident when he was 14 years old. That was in 2004. Within a few years, William began to have problems both at home and at school in New York City. During a 2008 visit to a friend in Georgia, William was arrested and charged with stealing. He pleaded guilty to a theft offense.
Back in New York City, William’s difficulties continued. He was convicted of Grand Larceny in the fourth degree, in January of 2009, and sentenced to two years of probation supervision. Because William “forgot” to keep an appointment with his probation officer, he was resentenced to eight months of incarceration. After he had been in jail for six months, ICE Officers picked him up and shipped him off to a detention center in Texas. That was when his mother came to see me.
After I had reviewed the papers that William’s mother had brought with her, I put William’s mother in contact with a top notch criminal defense attorney in Georgia. William’s mother retained this attorney, who, in a matter of weeks, was able to file a motion to vacate William’s conviction. The attorney argued that there had been a procedural error during the course of William’s criminal court proceedings a year earlier. With that conviction vacated, William was able to get a bond from an Immigration Judge in Texas. I then asked the judge in Texas to change venue to New York City. That motion was granted.
The DHS charged William with removability under INA § 237(a)(2)(A)(i), as an alien who, within five years of his admission to the USA, has been convicted of a crime involving turpitude (a “CIMT”). At the first hearing in New York City, I denied the charge. It took the DHS several hearings to produce a complete record of William’s 2009 New York City conviction. When it did, I stated that William’s conviction is not necessarily a CIMT. The judge asked me to submit a brief in 30 days. I did, arguing that, according to the BIA and the Second Circuit, there is a presumption that a larceny offense is categorically a CIMT only if it contains as an element the intent to deprive the victim permanently of what was stolen from him or her. The record of conviction simply did not indicate William’s intention at the time that he took the victim’s property. The DHS attorney did not file a brief in response to mine.
When we returned to Court, the judge terminated proceedings. The DHS attorney preserved the DHS’ appeal rights, but the DHS did not appeal. William and his mother were delighted with the outcome of the case.
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