Tooby's California Post-Conviction Relief for Immigrants

 

(A)

General Rule.  The general rule is that state rehabilitative relief, such as expungements under Penal Code § 1203.4(a), is ineffective to eliminate convictions for purposes of avoiding federal immigration consequences.[4]  The Ninth Circuit is an exception, but the exception is limited to convictions of first-offense simple possession of a controlled substance, and other minor drug offenses that are not violations of federal law.  See § 10.16, infra.  Outside this limited area, even the Ninth Circuit holds that state rehabilitative relief is ineffective to eliminate immigration consequences of a conviction.[5]  The BIA holds that state rehabilitative relief is completely ineffective to eliminate immigration consequences, even in drug cases that would qualify for FFOA treatment, and follows the Ninth Circuit rule in the Ninth Circuit only under compulsion.[6]

[4]  Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir. 2000); Saleh v. Gonzales, 495 F.3d 17 (2d Cir. July 17, 2007) ("the BIA has reasonably concluded that an alien remains convicted of a removable offense for federal immigration purposes when a state vacates the predicate a conviction pursuant to a rehabilitative statute."); Pinho v. Gonzales, 432 F.3d 193, 195 (3d Cir. 2005); Pickering v. Gonzales, 465 F.3d 263, 266 (6th Cir. 2006), vacating Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003); Sanusi v. Gonzales, 474 F.3d 341, 342-43 (6th Cir. 2007) (“We deny the petitions for review on the ground that the state court's vacation of Sanusi's conviction was ineffective for immigration purposes because it was done solely for the purpose of ameliorating the immigration consequences to petitioner.”) (citing Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993); Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 2005); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir. 2005); Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Resendiz-Alcaraz v. Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004).

[5] Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002) (“[f]or immigration purposes, a person continues to stand convicted of an offense notwithstanding a later expungement under a state's rehabilitative statute.”).

[6] See Matter of Thomas, 24 I. & N. Dec. 416, 419 (BIA Dec. 13, 2007) (second possession conviction can constitute aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2000), even if court expunged first state conviction pursuant to a State’s rehabilitative procedures), citing United States v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007); United States v. Miller, 434 F.3d 820, 824 (6th Cir. 2006); United States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003); United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir. 1993).