We take a break from DACA to report some good news.

This morning, a hardworking man who’d been in the US, undocumented, since childhood, won special rule cancellation of removal under NACARA.

When his case originally went to trial, the previous lawyers were able to demonstrate all the requirements except one. Under NACARA, if one has a clean criminal record, they only need to show that their removal would result in extreme hardship. Moreover, the regulations presume hardship. However, if there is a criminal conviction involving moral turpitude (a “CIMT”) then the burden of proof goes up and the alien has to show exceptional and extremely unusual hardship.

Our client had an old petty larceny conviction from Virginia from the 1990’s. The records for such minor crimes are destroyed after 10 years. And therein lay the problem: petty larceny is considered a CIMT, but there is an exception if it can be shown that less than 6 months of jail time was ordered.

With the record of conviction gone, there was no proof of the length of the sentence. That meant there was no proof that the “petty offense” exception applied. That meant there was a CIMT. That meant the higher “exceptional and extremely unusual hardship” standad applied. And our guy could not show that level of hardship.

His application was denied and he was ordered removed. We filed an appeal with the Board, and obtained a letter from a criminal defense attorney in Virginia which opined that although possible, it is extremely unlikely for any jail sentence to be ordered for a first-time petty larceny conviction.

We argued that it is improper to require an alien to prove something, and also insist that only one form of proof (ie, the conviction record) is acceptable. If an alien has to prove something (like the petty offense exception’s applicability) then the judge should have considered any and all evidence.

The Board of Immigration Appeals agreed, rescinded the removal order, and sent the case back to the judge. We told the judge that all issues in this case had been resolved except one. That issue is now before you. If you believe the criminal defense attorney, then our guy has proven that the petty offense exception applies, and therefore standard cancellation of removal under NACARA applies, and hardship is presumed, and the application should be granted.

The judge agreed, terminating proceedings and granting our guy his green card. In doing so, he remarked it was the first time he had been given a direction by the Board to consider secondary evidence (like a criminal defense lawyer’s opinion) of a conviction.

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