Post-Conviction Relief for Immigrants

            Even where an expungement is effective to eliminate the immigration effects of a conviction, the underlying conduct may still have some adverse immigration effects.  An expungement will not be effective at preventing adverse immigration consequences that do not depend on a conviction, but rather depend on the commission of an act (e.g., prostitution, drug trafficking, addiction, and abuse).[45]  The same is true for other immigration consequences that do not depend upon a conviction, but rather upon the making of an admission, or the existence of “reason to believe” that certain facts exist (e.g., that the immigrant committed a drug trafficking offense).

            An immigration judge, as a matter of discretion, may use an expunged conviction as a basis to find lack of Good Moral Character, and therefore to deny discretionary relief such as suspension of deportation, voluntary departure, or registry.  Applications for U.S. citizenship also require a showing of Good Moral Character.  It is likely useful, however, to obtain an expungement in any event, since the immigration court will probably regard the expungement as evidence of rehabilitation that will lessen the negative impact of the conduct or conviction on the discretionary decision-making process.

[45] See K. Brady, California Criminal Law And Immigration, Chapter 3 and § 6.2 (2000); Annot., Effect of Expungement of Conviction on § 241(a)(4)(II) of Immigration and Nationalization Act of 1952, Making Aliens Deportable for Crimes Involving Moral Turpitude or Drugs, 98 A.L.R. Fed. 750 (1990).