How to Fight Removal Based on Criminal Convictions

The moment a San Jose police officer or a Santa Clara County sheriff’s deputy places handcuffs on a non-citizen, the clock starts ticking on their right to remain in the United States. For many in the South Bay, a single encounter near Santana Row or a traffic stop on Highway 101 leads to more than just a criminal court date. It triggers the start of a fight for their life in the San Francisco Immigration Court. If you or a loved one face the threat of being torn from your home, you need to know how to fight removal based on criminal convictions using every legal tool available in California.

Federal immigration authorities often view California convictions through a rigid lens. But the law provides specific paths to challenge these labels. We take an aggressive stance against the government’s efforts to deport our neighbors. Winning these cases requires a deep understanding of how California Penal Code sections interact with the Immigration and Nationality Act (INA).

The Categorical Approach and California Convictions

Not every crime leads to deportation. To remove someone, the government must prove the conviction fits into a specific federal category, such as an aggravated felony or a crime involving moral turpitude (CIMT). Under the categorical approach, judges look at the specific language of the California statute rather than the underlying facts of what happened.

Many California laws are broader than federal definitions. For example, if a state law punishes conduct that the federal law does not, the conviction might not count as a deportable offense. We scrutinize the exact wording of the California Penal Code to argue that a client’s record does not match the federal requirements for removal. This technical battle is often the first and strongest line of defense in a San Jose immigration case.

Post-Conviction Relief under California Law

One of the most effective ways to stop a removal proceeding is to attack the criminal conviction itself. California has passed progressive laws that allow non-citizens to challenge old convictions if they did not understand the immigration consequences at the time of their plea.

Individuals no longer in custody can file a motion to vacate a conviction or sentence. This is a vital tool for those facing removal because of a prejudicial error damaging their ability to understand or knowingly accept the immigration consequences of a plea. If a conviction is vacated based on a legal defect, it may no longer be considered for immigration purposes. 

Cancellation of Removal for Non-Permanent Residents

For those who do not have a green card but have lived in San Jose for a long time, Cancellation of Removal may be an option. This is often referred to as the 10-year law. To qualify, you must show you have been physically present in the U.S. for at least 10 years and have been a person of good moral character.

The hardest part of this defense is proving that your removal would cause exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident relative. This could be a spouse, parent, or child. A criminal conviction can sometimes block this relief by interrupting the good moral character requirement, but certain minor offenses or old records might not be a total bar. We fight to show the court that our clients are essential members of the San Jose community who deserve to stay with their families.

The 212(h) Waiver for Criminal Grounds

If a criminal conviction makes you inadmissible, you might still qualify for a 212(h) waiver. This waiver can forgive specific crimes, including crimes involving moral turpitude or a single offense of simple possession of 30 grams or less of marijuana, according to 8 U.S.C. § 1182(h).

To win a 212(h) waiver, you generally must show that your deportation would result in extreme hardship to a U.S. citizen or green card holder relative. In some cases, if the conviction happened more than 15 years ago, you may only need to show that you have been rehabilitated and your admission would not be contrary to national welfare or safety. We push the court to see the human side of the case, emphasizing years of tax payments, employment at local Silicon Valley tech firms, and deep community ties.

Challenging the Aggravated Felony Label

The government frequently tries to classify California convictions as aggravated felonies. This is a dangerous label because it bars most forms of relief and often leads to mandatory detention without bond at facilities like the Mesa Verde ICE Processing Center.

But many crimes that sound serious under California law do not meet the strict federal definition of an aggravated felony. For instance, certain theft or burglary charges can be challenged if the sentence imposed was less than one year. We analyze the sentencing documents and the specific sub-sections of the California code to argue against the aggravated felony designation. By successfully knocking down this classification, we reopen the door for our clients to apply for asylum, cancellation of removal, or voluntary departure.

Asylum and Withholding of Removal

Even with a criminal record, you may still be eligible for protection if you fear persecution in your home country. While a particularly serious crime can bar you from asylum, you might still qualify for Withholding of Removal or protection under the Convention Against Torture (CAT).

These defenses do not lead to a green card, but they stop the government from physically removing you from the U.S. To win, we must present evidence that it is more likely than not that you will face torture or life-threatening persecution if returned. We use detailed country condition reports and expert testimony to build a wall of evidence that the immigration judge cannot ignore.

Demand a Hard-Hitting Defense

When your future in the United States is on the line, there is no room for hesitation or half-measures. At The Law Offices of Daniel Shanfield Immigration Defense P.C., we provide the aggressive, competitive advocacy required to take on the federal government. We do not quit. We are demanding of ourselves and the system because we know what is at stake for your family. If you are ready to fight back against removal, call us today at 408-359-4388 to discuss your strategy.