**MEMORANDUM: IDRIS VALE — STATUTORY ELIGIBILITY FOR RESIDENT CANCELLATION** --- ## 1. Continuous residence: start date, stop date, and seven-year accrual **Continuous residence began on February 1, 2014,** the date Idris was lawfully admitted. **The November 15, 2020 charging notice did not stop residence.** Under Rule 3, a charging notice that omits the hearing date, time, or place is incomplete. The notice listed those items as “to be set.” That is exactly an omission. **Residence stopped on April 20, 2021,** when the government served the later written hearing specification supplying the complete hearing date, time, and place. Rule 3 is explicit: residence stops on service of that later specification, not on the earlier incomplete notice. **No earlier clock-stopping offense occurred.** As shown below, none of Idris’s three dispositions is a Rule 6 offense. Therefore Rule 2’s “earliest of” test points to April 20, 2021. **Seven years accrued.** February 1, 2014 + seven years = February 1, 2021. The stop date is April 20, 2021, which is after the seven-year mark. Even applying any common-law day-counting variation, Idris had completed seven years before the later specification was served. > **Conclusion:** Idris satisfies Rule 1(b). --- ## 2. The three prior dispositions ### A. 2018 false-reimbursement fraud: conviction, but not disqualifying and not stop-time The 2018 guilty plea and probation are a conviction for statutory purposes. But the fraud is listed under Rule 6(a) only if it caused **actual property loss greater than $10,000**. The actual property loss here is **$8,900** — the amount Idris obtained through the false reimbursement forms. The additional **$2,500 in audit expenses** does not count. Rule 7 excludes investigation costs, contractual fees, and restitution imposed for collateral expenses. Audit expenses are collateral expenses or investigation costs. The restitution order’s total of $11,400 is therefore irrelevant to the Rule 6 threshold. Because $8,900 is not “greater than $10,000,” the fraud offense is **not** a disqualifying offense and is **not** a clock-stopping offense. ### B. 2021 cannabis possession: a conviction, but statutorily excepted The cannabis disposition **is a conviction** under Rule 4. The court withheld adjudication after Idris’s guilty plea and imposed probation. That is precisely “adjudication withheld” plus probation. The later expungement does not erase the conviction because it was rehabilitative, not a vacatur for substantive invalidity. But the conviction does not make it a Rule 6 offense. Rule 6(b) excepts **one offense of simple possession of no more than 5 grams of cannabis**. Idris possessed 4 grams of cannabis, and he has no other controlled-substance offense. So the cannabis offense is **not** a disqualifying offense and **not** a clock-stopping offense. Rule 5 confirms that conduct outside Rule 6 does not stop time even if it produces a conviction. ### C. 2019 reckless-injury conviction: not a crime of violence The reckless-injury conviction is not a Rule 6 offense. Rule 8 says that an offense requiring only reckless injury is **not** a crime of violence. The statute required recklessness, not intentional or knowing force. The 14-month suspended sentence would count toward the one-year sentence threshold if the offense were a crime of violence, but it is not. Therefore the reckless-injury conviction is also neither disqualifying nor clock-stopping. --- ## 3. Good moral character This is the least mechanical issue, and the government will rely on Rule 9’s statement that a listed offense is not the only possible adverse conduct. The supplied record does contain actual adverse conduct: - an intentional fraud of $8,900; - a reckless-injury conviction; - a small cannabis possession. Rule 9 permits the decision-maker to consider those as adverse conduct even though they are not Rule 6 offenses. Idris’s counsel should not argue that they are irrelevant. But Rule 9 does **not** say that any non-listed offense automatically destroys good moral character. It says the decision-maker must **evaluate the actual record** and may not invent misconduct. The actual record also shows: - Idris paid the restitution; - he completed every sentence, including probation and community service; - he has maintained employment; - he has no other adverse conduct in the record. The statutory structure supports Idris here: the offenses are precisely the ones the legislature did **not** make automatic disqualifying or clock-stopping offenses. The fraud is below the statutory threshold; the reckless-injury offense is excluded by the statutory mental-state rule; the cannabis offense is the single small-possession exception. Those grading decisions may inform the good-moral-character judgment. On this record, Idris should be found to have maintained good moral character, or at least should be permitted to prove it at a merits hearing. The government’s strongest argument is textual: Rule 9 allows non-listed offenses to be adverse. The correct response is that “possible adverse conduct” is not an automatic bar, and the decision-maker must weigh the whole actual record, including rehabilitation, restitution, employment, and the absence of other misconduct. --- ## 4. Exceptional hardship Idris has satisfied the exceptional-hardship requirement. His citizen daughter is 10 years old and has a rare blood disorder. The treating specialist states that: - Idris administers home infusions four nights per week; - no other trained caregiver is currently available; - interruption would create a substantial hospitalization risk. The government does not dispute this evidence. Rule 10 expressly says medical dependency and unavailable care may qualify. This is not ordinary family separation; it is a demonstrated risk of serious medical harm to Idris’s citizen child. The hardship is to a qualifying relative, his citizen child, and the evidence is undisputed. > **Conclusion:** Idris proves exceptional hardship. --- ## 5. The government’s strongest textual arguments and correct responses ### A. “The November 2020 notice was served and should stop time.” **Government argument:** The notice stated the legal charge, and a hearing could be “set later”; the date/time/place were not “omitted” but merely deferred. **Correct response:** Rule 3 rejects that reading. A notice that leaves hearing date, time, or place to be set omits those items. If a later specification supplies them, residence stops on service of the later specification. The earlier notice is not a complete charging notice for stop-time purposes. ### B. “The cannabis deferred adjudication is a conviction, so it is a controlled-substance offense.” **Government argument:** Rule 4 makes deferred adjudication a conviction, and expungement does not erase it, so this must count against Idris. **Correct response:** Yes, it is a conviction. But Rule 6(b) is offense-based, not conviction-based. It excepts one offense of simple possession of no more than 5 grams of cannabis. Idris’s offense is 4 grams, and he has no other controlled-substance offense. The expungement question is irrelevant to the exception. ### C. “The $11,400 restitution order shows the fraud caused more than $10,000 in loss.” **Government argument:** The court ordered $11,400, so the loss was $11,400. **Correct response:** Rule 7 defines actual property loss as property obtained or withheld through the offense. The only property Idris obtained was $8,900. The $2,500 audit expense is a collateral expense/investigation cost and is expressly excluded. The restitution order does not control the statutory loss calculation. ### D. “The reckless-injury sentence was 14 months, and suspended time counts.” **Government argument:** Because Rule 8 counts suspended sentences, the one-year sentence threshold is met, making the reckless-injury offense a crime of violence. **Correct response:** Suspended time counts only if the offense is otherwise a crime of violence. Rule 8 separately says an offense requiring only reckless injury is not a crime of violence and that intentional or knowing force is required. The conviction was for reckless injury, so the sentence threshold is never reached. ### E. “The fraud and other non-listed offenses show bad moral character.” **Government argument:** Rule 9 says non-listed offenses can be adverse conduct, so Idris’s fraud alone defeats good moral character. **Correct response:** Non-listed offenses may be weighed, but they are not automatic bars. The decision-maker must evaluate the actual record, including full restitution, completed sentences, employment, and no other adverse conduct. The statutory decision to keep these offenses outside Rule 6 is relevant context. This is a holistic determination, not a per se rule. --- ## 6. Concrete evidence and motion posture Counsel should seek an early legal ruling on statutory eligibility, before or at the start of the merits hearing. ### Motion posture - File a motion asking the immigration judge to determine that Idris is **statutorily eligible** to apply for resident cancellation. - In that motion, ask the judge to rule that: - continuous residence stopped on April 20, 2021; - Idris accrued seven years on February 1, 2021; - the November 15, 2020 notice did not stop time; - none of the three convictions is a disqualifying or clock-stopping offense. - If the government moves to pretermit or summarily deny the application based on its stop-time/disqualification theories, file an opposition and cross-motion for a statutory-eligibility ruling. - If the judge agrees, proceed to the merits of the cancellation application, including good moral character, hardship, and discretionary equities. ### Evidence to introduce - **Admission records** showing lawful admission on February 1, 2014. - The **November 15, 2020 charging notice** showing “to be set” for date, time, and place. - The **April 20, 2021 hearing specification** showing complete date, time, and place. - The **2018 fraud judgment and restitution order**, plus a restitution ledger, showing the $8,900 property amount and the $2,500 audit expense separately. - The **2019 reckless-injury conviction**, including the statute or charging document showing that the offense required recklessness, not intentional or knowing force, and the suspended 14-month sentence. - The **2021 cannabis citation, plea, deferred adjudication, and probation order**, plus the expungement order, and a certified record search showing no other controlled-substance offense. - **Employment records, proof of restitution payment, proof of completed probation and community service, and character/rehabilitation evidence** for the good-moral-character determination. - The **daughter’s birth certificate** establishing that she is Idris’s citizen child. - The **treating specialist’s declaration and medical records** describing the daughter’s diagnosis, the four-nights-per-week infusion regimen, the absence of any other trained caregiver, and the substantial hospitalization risk if Idris’s care is interrupted. --- ## Overall conclusion Idris Vale is **statutorily eligible** to apply for resident cancellation. - He was lawfully admitted. - He accrued seven years before the complete notice stopped residence. - He has no disqualifying offense. - The cannabis disposition is a conviction but falls within the statutory exception. - The fraud loss is below the statutory threshold. - The reckless-injury offense is not a crime of violence. - The undisputed medical evidence establishes exceptional hardship to his citizen daughter. - Good moral character is supported on this record, and the government’s legal bars fail. The government’s three main arguments — the November 2020 notice, the cannabis stop-time theory, and the $11,400 restitution theory — do not survive the statutory text. Idris should be permitted to proceed on his application for resident cancellation.