Tooby's California Post-Conviction Relief for Immigrants

 

In the Ninth Circuit, expungements that are analogous to the FFOA are effective to eliminate all adverse immigration effects of convictions of the following offenses:

 

(1)  simple possession of any controlled substance[52]

(2)  possession of drug paraphernalia[53]

 

There is a strong argument that expungements also eliminate the immigration effects of additional convictions for:

 

(3)  being under the influence of drugs,[54]

(4)  being under drug influence in public,[55]

(5)  driving under the influence of drugs,[56]

(6)  visiting a place where drugs are used,[57] and

(7)  any other first conviction of a controlled substance offense that is (a) more minor in potential punishment than first-offense simple possession, and (b) not expressly forbidden under federal controlled-substances statutes.[58] 

 

This is because the same reasoning that led the Ninth Circuit to extend Lujan to cover possession of paraphernalia, also leads to the same conclusion for these other minor offenses.[59]

[52] This would include California Health & Safety Code § § 11350, 11377, 11357, and the like.  Lujan, supra.

[53] California Health & Safety Code § 11364; Cardenas, supra.

[54] California Health & Safety Code § 11550.

[55] California Penal Code § 647(f) (drugs).

[56] California Vehicle Code § 23152(a) (forbidding driving under the influence of alcohol, drugs, or the combined influence of alcohol and drugs).

[57] California Health & Safety Code § 11365.

[58] This may include such offenses as prescription violations, possession of a needle under the Business and Professions Code, and the like, so long as (a) the punishment is more minor than simple possession, which, under California Health & Safety Code § 11350, is punishable by a maximum of three years in state prison, and (b) is not forbidden under federal controlled substances law.  A list of the controlled substances offenses forbidden under federal law may be found at N. Tooby, Criminal Defense of Immigrants, Appendix D (2007).  See Cardenas, supra.

[59] See Cardenas, supra.