Tooby's California Post-Conviction Relief for Immigrants

State rehabilitative relief is a form of record-clearance relief that may be obtained in criminal courts to eliminate criminal convictions for some purposes, especially nongovernmental employment application and immigration purposes.  While in recent years some legislatures and courts have reduced the areas in which such expungements are effective, in the Ninth Circuit they can still completely eliminate the adverse immigration effects of convictions of first-offense simple possession of drugs, as well as lesser-included drug offenses which are not federal offenses, such as possession of drug paraphernalia, being under the influence of drugs, and being in a place in which drugs are used.[1]

            Recent immigration legislation, including IIRAIRA, effective September 30, 1996, has not impaired the effectiveness of this relief in the minor drug cases listed above, although the BIA and the Ninth Circuit have now held expungements ineffective to eliminate convictions of any other categories of crime for immigration purposes.  The drug convictions mentioned above are the only crimes for which expungements are effective to eliminate convictions for immigration purposes, and only — so far — in the Ninth Circuit.  See § 10.4, 10.19, infra. Expungements no longer eliminate the immigration effects of convictions of crimes of moral turpitude, firearms convictions,[2] aggravated felonies, or domestic violence and child abuse convictions, or any other convictions.[3]

Finally, expungements show rehabilitation, and can therefore reduce to some extent the impact of all sorts of convictions when they are considered as negative factors in discretionary immigration weighing processes, such as adjustment of status or naturalization.  See § 10.21, infra.

[1] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Cardenas-Uriarte v. INS, 227 F3d 1132 (9th Cir.  2000).  For a checklist of offenses for which expungements are effective to eliminate immigration consequences, see § 10.16, infra.

[2] Ramirez-Castro v. INS, 287 F.3d 1172 (9th Cir. April 24, 2002) (California state court expungement of misdemeanor firearms conviction after successful completion of probation does not eliminate the immigration consequences of that conviction).  Accord, Matter of Luviano-Rodriguez, 23 I. & N. Dec. 718 (A.G. 2005) (noncitizen whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been "convicted" for immigration purposes); following Matter of Marroquin, 23 I. & N. Dec. 705 (A.G. 2005) (a noncitizen whose firearm conviction was expunged pursuant to California Penal Code § 1203.4 is still "convicted" for immigration purposes under INA § 101(a)(48)).

[3] Matter of Roldan, 22 I. & N. Dec. 486 (BIA 1999) (en banc), reversed on another point sub nom.  Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (en banc).