Tooby's California Post-Conviction Relief for Immigrants

Sentencing counsel must also consider the need to obtain post‑conviction relief to eliminate immigration consequences.

In the case of a first offense simple possession offense, the Ninth Circuit has held that an expungement pursuant to Penal Code § 1203.4 will be effective to eliminate its immigration effects.[234]  For such a conviction, counsel could have requested that the trial court place the client on felony probation for a period of time, and then, after successful completion of probation, expunged the conviction pursuant to Penal Code § 1203.4.

            As in People v. Barocio,[235] for convictions occurring before November 29, 1990, counsel could have requested that the trial court grant a judicial recommendation against deportation (JRAD) to prevent immigration consequences of a conviction of a crime involving moral turpitude, pursuant to former INA § 241(b)(2), 8 USC § 1251(b)(2).

            Counsel could have requested a judgment imposing a sentence of one year or less, making a conviction of an alternative felony‑misdemeanor (“wobbler”) into a misdemeanor by operation of law under Penal Code § 17(b)(1).  This would prevent the felony from barring eligibility for amnesty, Family Unity or TPS.[236] 

            Counsel could have requested that the client be placed on felony probation for a period of time, and then that the offense be reduced to a misdemeanor upon the successful completion of probation pursuant to Penal Code § 17(b)(3).  This would also avoid a felony which could disqualify the client from legalization under the “one felony, three misdemeanor” rule.

            Counsel could have requested that the charges be dismissed in the interests of justice under Penal Code § 1385, even after verdict or after plea of guilty. [237]  It is likely, but not certain, that this would eliminate a conviction for immigration purposes.[238]

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

[235] People v. Barocio (1989) 216 Cal.App.3d 99.

[236] See K. Brady, Chapter 11.

[237]  See People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 503, 72 Cal.Rptr. 330, 337; In re Krieger (1969) 272 Cal.App.2d 886, 77 Cal.Rptr. 822.  For a listing of proper grounds for dismissal pursuant to Penal Code § 1385, see C.E.B., California Criminal Law:  Procedure and Practice § § 26.9‑26.36.

[238]  But see Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998)(state court order granting audita querela to vacate state conviction would not be honored by INS, since federal courts would not grant audita querela in those circumstances, and no indication the conviction was legally invalid for any reason).