Post-Conviction Relief for Immigrants

An immigrant is disqualified from showing Good Moral Character[43] if s/he “during such period [the period for which GMC must be shown for the particular purpose] has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period.”[44]

            Note that this requires actual confinement for 180 days or more, as distinguished from the nominal “sentence imposed” or “ordered” by the court.  The difference is significant.  Because of good time, conduct credits, pre-sentence credit for time served, early release, and the like, a person for whom the sentence imposed is six months will rarely actually be confined for the full six months.  If the person is released one day early, for any reason, s/he would not have been actually confined for six months, and this disqualification would not apply.  It may be more difficult to determine the length of time actually served in confinement than it is to determine what sentence the court officially imposed.  It may be necessary to consult jail records, or other less conventional forms of proof, such as declarations of the defendant, family members, probation records, and the like.

            Several forms of post-conviction relief eliminate “actual custody” for this purpose.  Time served in custody for a conviction is no longer counted for this purpose after an executive pardon has been received.[45]  An expungement has been considered an equivalent to a pardon for this purpose.[46]  A judicial recommendation against deportation (JRAD) also eliminates custody time served as a sentence for that conviction for this purpose.[47]  If the conviction has been vacated, any time served in connection with that conviction will not be counted for this purpose.  See Chapter 4, supra, § § 7.51, 7.71, infra.

[43] “Good Moral Character” is required to be shown in order to obtain a number of different forms of immigration relief, such as naturalization, cancellation of removal for non-permanent residents, NACARA cancellation, voluntary departure at the conclusion of removal proceedings, and registry.  For persons in deportation proceedings commenced prior to April 1, 1997, Good Moral Character is required for the former version of voluntary departure and for suspension of deportation.  See California Criminal Law and Immigration, Chap. 7.

[44] INA § 101(f)(7), 8 U.S.C. § 1101(f)(7).

[45] Matter of H, 7 I. & N. Dec. 249 (BIA 1956). 

[46] See California Criminal Law and Immigration, § 5.5, p. 5-10 n.32.  But see Matter of Roldan, 22 I. & N. Dec. 486 (BIA 1999) (en banc), reversed sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). 

[47] See California Criminal Law and Immigration, § 5.5, p. 5-10 n.32.