Tooby's California Post-Conviction Relief for Immigrants

(A)

Rehabilitative Relief.  The Board of Immigration Appeals held that orders vacating or dismissing convictions under state rehabilitative statutes are no longer effective in eliminating a conviction for immigration purposes.[11]  The Ninth Circuit, however, reversed this decision, and held that “persons whose offenses would qualify for treatment under the First Offender Act[12] but who are convicted and have their convictions expunged under state laws may not be removed on account of those offenses.”[13]  This applies to noncitizens convicted of first-offense simple possession of any controlled substance, including felonies as well as misdemeanors.  The court therefore granted a petition for review in that case, and vacated the orders of deportation.[14]

Concluding that to hold otherwise would lead to an absurd result, the Ninth Circuit held that a misdemeanor state conviction of possession of drug paraphernalia, was less serious than felony simple possession of a controlled substance, and must therefore be included among the first offense simple possession drug convictions for which Federal First Offender Act treatment is available under 18 U.S.C. § x3607(a).  Therefore, a state expungement also eliminates this type of conviction for immigration purposes so long as the defendant meets the other requirements of the FFOA.[15]

            An expungement does not eliminate immigration consequences of a conviction except for first-offense simple-possession cases in which there has been no prior expungement.[16]

Discretionary expungement is sometimes available, but an expungement is not effective to eliminate the immigration effects of any conviction if the defendant violated any condition of probation.  This is true even if no formal charge of violating probation was charged or found true.  The reason is that a defendant who violated any probation condition is disqualified from FFOA treatment.  See § 10.12, infra. 

            (1)  Expungments under Penal Code § 1203.4(a) are available to persons with felonies or misdemeanors who (a) received probation, (b) completed probation successfully or were granted early termination, and (c) are not currently charged with or serving a sentence or on probation for any other offense.  Relief is mandatory for persons meeting these requirements.

            (2)  Expungement under Penal Code § 1203.4a(a) – not to be confused with the similar Penal Code § 1203.4(a) -- is available to persons convicted of misdemeanors (but not felonies) who did not receive probation.  Relief is available beginning one year after the date of conviction as long as the person is not then charged with or on probation or serving a sentence for another offense and has had no additional convictions within that one-year period.[17]  It is often worth a try even if the client does not meet the requirements for mandatory expungement, as the court may feel it has discretion to grant the relief requested.

            (3)  Expungement for youthful offenders.  Certain youthful offenders tried as adults and sentenced to the California Youth Authority may be eligible for dismissal of charges under Penal Code § 1203.45 or Welf.& Inst. Code § § 1772 or 1179.  These expungements have the same immigration effect as expungements under Penal Code § 1203.4.[18]

[11] Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999)(en banc), removal order reversed sub nom. Lujan-Armendariz v. INS, 222 F.3d 728  (9th Cir. 2000).

[12] 18 U.S.C. § 3607(a).

[13] Lujan-Armendariz v. INS, 222 F.3d 728  (9th Cir. 2000) (footnotes omitted).

[14] For further discussion, see Chapter 6(B)(3), and Chapter 10(B)(2), infra.

[15] Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

[16] See Chap. 10, infra; K. Brady, et al., Defending Immigrants in the Ninth Circuit (2008); (hereinafter referred to as "Brady“); N. Tooby, California Expungement Manual (2002); N. Tooby, Post-Conviction Relief for Immigrants, Chap. 8 (2004).

[17] People v. Chandlee (1979) 90 Cal.App.3d. Supp. 13, 153 Cal.Rptr. 188.

[18] See Chap. 10, infra; Brady, § 8.45.