Tooby's California Post-Conviction Relief for Immigrants

 

Initially, counsel must verify that the defendant did not violate probation (regardless of whether a violation was formally charged in court) in the case to be expunged.  This is because recent law holds an expungement even of an otherwise qualifying conviction will be disregarded in immigration court, if the defendant violated probation, because the defendant would have been disqualified from receiving an effective federal expungement under the FFOA.  See § 10.9, supra. 

 

            A chronology of the relevant criminal and immigration events is usually very valuable.  See § 5.5, supra. 

 

            Counsel should then screen the conviction sought to be expunged to determine whether it qualifies for (a) a mandatory expungement, because of compliance with the conditions of probation during the entire period of probation, or (b) a mandatory expungement, because of early termination of probation, or (c) a discretionary expungement where the defendant violated probation.  Note that discretionary expungements will not be effective to eliminate the immigration consequences of an expungement under Lujan.  See § 10.9, supra.

 

            It is important, in selecting the conviction to be expunged, among several candidates, to determine whether there is any other way to eliminate each conviction.  For example, it may be possible to eliminate a conviction by:

 

            (a)  Expungement under some form of state rehabilitative relief, such as an expungement for successful completion of probation,[218] an expungement for completing a one-year period free of arrest,[219] an expungement following successful completion of Deferred entry of Judgment,[220] or a dismissal following successful completion of a Proposition 36 drug program.[221] This type of rehabilitative relief is effective only for the first offense.

 

            (b)  Vacating the conviction on a ground of legal invalidity, which is effective to eliminate a conviction for immigration purposes.

 

            (c)  A waiver of deportability in immigration court, such as cancellation of removal for Lawful Permanent Residents or under former INA § 212(c).

 

            These forms of relief may be used in combination.  For example, an expungement of some kind is effective only for the first conviction.  If the client has two qualifying convictions, and the first is vacated on a ground of legal invalidity, counsel can argue the second conviction becomes the first, and an expungement would then be effective to eliminate its immigration consequences.

 

            Perhaps the client would qualify for cancellation of removal, to avoid deportation on the basis of a third controlled substances conviction.

 

            Several questions must be answered: 

 

(1) Is the offense one for which expungement will be effective in eliminating the immigration consequences?

 

(2) Did any probation violations occur during the period of probation?

 

(3) Was probation thereafter terminated early?

 

(4) Is the client now free of probation, not now serving a sentence, and not now under any pending charges, so that s/he is eligible to obtain an expungement?

 

(5) Is it necessary to shorten one or more probations in order to render the client eligible to obtain an expungement?           

[218] Penal Code § 1203.4(a)

[219] Penal Code § 1203.4a(a)

[220] Penal Code § 1000

[221] Penal Code § 1210