If a DHS Notice to Appear (Form I-862) alleges a California conviction that you believe never occurred, preserve the notice, obtain the court record for the exact case, and raise the factual error in immigration court before admitting allegations. The Notice to Appear separates factual allegations from legal charges. EOIR instructs respondents who believe an NTA contains an error to tell the immigration judge. A state-record correction alone does not automatically amend an active immigration-court case. (EOIR: Notice to Appear; EOIR Immigration Court Practice Manual, Master Calendar)
Compare the allegation with the source court record
Read the entire NTA and identify the allegation, statute, county, case number, and date DHS says the conviction occurred. Then request the disposition and related records from the California court where the case was filed. Compare the allegation with the plea or verdict, judgment, sentencing record, and any later order that changed or vacated the disposition. California court self-help guidance explains how to request copies from the filing court. (California court-record copies)
Keep the alleged fact separate from the legal charge of removability. A mistaken statement that a conviction exists presents a different issue from whether a real conviction fits a federal immigration category. The latter requires a separate legal analysis of the offense and immigration statute; this page addresses a disputed factual allegation.
Raise the issue at the proper hearing
At a master-calendar hearing, the immigration judge takes admissions or denials of factual allegations and charges and identifies disputed issues. EOIR’s manual describes how the respondent may examine and object to DHS’s supporting materials. Bring the complete NTA and reliable court records, and work with immigration counsel before entering a pleading. Follow the hearing notice and attend as directed; a factual error is not a reason to assume the case will be dismissed or to miss court. (EOIR Immigration Court Practice Manual, Master Calendar)
The burden rule depends on the person’s immigration posture. For a person admitted to the United States whom DHS charges as deportable, DHS must establish deportability by clear and convincing evidence. The statute states a different burden for an applicant for admission, so the clear-and-convincing rule should not be generalized to every immigration proceeding or application. The statute also recognizes multiple forms of conviction records; the issue is not necessarily resolved only by producing a certified judgment. (8 U.S.C. § 1229a(b)(4), (c)(2)–(3))
A California court or DOJ record correction may support the position, but it does not itself amend an NTA or decide the immigration case. Raise the discrepancy through the EOIR proceeding and coordinate criminal-record and immigration counsel. Do not treat a wrong allegation as automatic termination, or confuse it with a dispute about the immigration effect of an actual conviction.
The Law Offices of David S. Chesley handles criminal-defense matters that can affect immigration cases. Call (800) 755-5174 to discuss the California record; immigration counsel should address the removal proceeding.