Tooby's California Post-Conviction Relief for Immigrants
- §10.1 I. Introduction
- §10.2 II. Immigration Effects of State Rehabilitative Relief
- §10.3 A. General Rule: State Rehabilitative Relief Does Not Eliminate the Immigration Consequences of a Conviction
- §10.4 B. Exception: Federal First Offender Act and its Analogues
- §10.5 1. Eligibility
- §10.6 a. Prior Conviction
- §10.7 b. Foreign Prior Convictions
- §10.8 c. Prior No-Conviction Diversion
- §10.9 d. Probation Violations
- §10.10 e. Prior Drug Conviction
- §10.11 f. Non-Probation Sentences
- §10.12 g. Simultaneous Multiple Qualifying Convictions
- §10.13 h. Disqualification from Effectiveness of Relief
- §10.14 i. Expungements In Process But Not Yet Granted
- §10.15 2. Expungement Statutes Need Not Be Identical to the FFOA
- §10.16 a. Qualifying Offenses
- §10.17 b. Procedure
- §10.18 c. Legal Effect
- §10.19 d. Travel Warning
- §10.20 C. Prospects for this Rule in Other Circuits
- §10.21 D. Even Where State Rehabilitative Relief is Effective to Eliminate a Conviction, the Underlying Conduct Can be Considered as a Negative Discretionary Factor
- §10.22 III. Protecting the Client Before Relief is Available
- §10.23 A. Immigration Court
- §10.24 1. Obtaining a Continuance
- §10.25 2. Seeking Appellate Review
- §10.26 B. Criminal Court
- §10.27 1. Avoiding a Final Conviction
- §10.28 2. Expediting Rehabilitative Relief
- §10.29 IV. Judicial Recommendations Against Deportation
- §10.30 A. Immigration Effects
- §10.31 1. Deportation Grounds Excused
- §10.32 2. Varieties of Immigration Effects
- §10.33 3. Foreign JRADs Ineffective
- §10.34 4. Continuing Validity of Pre-1990 JRADs
- §10.35 B. Procedure
- §10.36 1. Notice to Immigration Authorities
- §10.37 2. Timing of Effective JRAD
- §10.38 C. Ineffective Assistance of Counsel in Failing to Seek JRAD
- §10.39 1. Ground to Vacate Sentence
- §10.40 2. Remedy to Allow Timely JRAD
- §10.41 D. Retroactivity of Repeal of JRAD Authority
- §10.42 1. Effective Date of Repeal
- §10.43 2. Ex Post Facto Argument
- §10.44 E. Government May Not Attack Validity of JRAD in Immigration Court
- §10.45 V. Executive Pardon
- §10.46 A. Immigration Effects of a Pardon
- §10.47 1. Qualifying Deportation Grounds
- §10.48 2. Immigration Benefits
- §10.49 3. Nature of Effective Pardon
- §10.50 4. Foreign Pardons Ineffective
- §10.51 B. Experience in California
- §10.52 VI. Expungement Where Probation Was Imposed (Penal Code 1203.4)
- §10.53 A. Mandatory Expungement Upon Early Termination
- §10.54 B. Mandatory Expungement for Successful Completion
- §10.55 C. Discretionary Expungement in Other Cases
- §10.56 VII. Procedure
- §10.57 A. Dealing with the Probation Department
- §10.58 B. Dealing with the Court
- §10.59 VIII. Misdemeanors and Infractions
- §10.60 A. NonProbation Sentences in Misdemeanors
- §10.61 B. Dealing with Infractions
- §10.62 IX. Developing a Strategy to Expunge A Qualifying Conviction
- §10.63 X. Problem Circumstances
- §10.64 A. Motions to Shorten Probation in Order to Become Eligible for Expungement
- §10.65 B. Expungements After Client Has Picked Up New Charges
- §10.66 C. Where Criminal Records Have Been Purged
- §10.67 1. Expungement Should Be Possible Despite the Absence of the Court File
- §10.68 2. Absent the Court File, the Prosecution Cannot Demonstrate that the Plea Was Constitutional
- §10.69 3. Absent the Court File, the Prosecution Cannot Demonstrate that the Plea Was Obtained in Compliance with Penal Code 1016.5's Mandatory Requirements
- §10.70 XI. Other Forms of Rehabilitative Relief
- §10.71 A. Expungements Under Proposition 36 and Penal Code 1210.1(d)
- §10.72 B. Relief for Youthful Offenders: P.C. 1203.45 and Welf. & Inst. Code §1772 and 1179
- §10.73 C. Marijuana Arrest Record Destruction Under Health & Safety Code §11361.5(b)
- §10.74 1. Immigration Effect
- §10.75 2. Requirements
- §10.76 D. Executive Pardons
§ 10.66 C. Where Criminal Records Have Been Purged
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After a certain period of time, the court itself may purge or destroy its criminal records. There are several possible responses to this situation. First, proceed normally to attempt to obtain the expungement. Second, attack the plea (if it is a plea) as unconstitutional if grounds can be found. Third, attack the plea for lack of evidence of compliance with the mandatory warning of adverse immigration consequences required by Penal Code § 1016.5.
- 10.67 1. Expungement Should Be Possible Despite the Absence of the Court File
- 10.68 2. Absent the Court File, the Prosecution Cannot Demonstrate that the Plea Was Constitutional
- 10.69 3. Absent the Court File, the Prosecution Cannot Demonstrate that the Plea Was Obtained in Compliance with Penal Code 1016.5's Mandatory Requirements
