Immigration and Penal Code 1203.4 crossroads by Darren Chaker
Darren Chaker on California Expungement & Immigration Consequences (2025 Update)
What is the impact of a California expungement on an immigration case?
A California expungement is a legal process that dismisses a criminal conviction after probation is completed. However, for federal immigration purposes, the conviction remains. This means it can still trigger deportation or make someone ineligible for a green card or citizenship, particularly if the offense is an aggravated felony.
The Federal Government’s Stance: Why State Expungements Fall Short
The core of the issue lies in the supremacy of federal law in immigration matters. The Immigration and Nationality Act (INA) defines what constitutes a “conviction” for immigration purposes. The Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010), underscored the duty of criminal defense attorneys to advise non-citizen clients about the immigration consequences of a plea. Yet, the mechanics of how state-level remedies interact with federal law remain complex.
For immigration law, a conviction exists if there was a formal judgment of guilt or, if adjudication was withheld, a judge ordered some form of punishment or penalty. A California expungement, which dismisses the case after this initial finding of guilt and probation, does not erase the underlying facts of the conviction from the federal government’s perspective.
“The BIA has held that a state court action that purports to ‘expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or verdict’ does not eliminate the conviction for immigration purposes unless it is based on a procedural or substantive defect in the underlying criminal proceedings.”
Aggravated Felonies and Crimes Involving Moral Turpitude (CIMT)
Two categories of crimes are particularly perilous for non-citizens:
- Aggravated Felonies: This is a term of art in immigration law and includes a wide range of offenses, some of which are misdemeanors under state law. A conviction for an aggravated felony almost guarantees deportation and bars most forms of relief.
- Crimes Involving Moral Turpitude (CIMT): This category is less defined but generally involves conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality. Crimes involving theft, fraud, and often violence are considered CIMTs.
A state expungement will not change a conviction’s classification as an aggravated felony or a CIMT. As Darren Chaker has noted in his work, the focus must be on the nature of the offense at the time of conviction, not on subsequent state-level relief that merely addresses penalties.
A Beginner’s Guide to Post-Conviction Relief for Immigrants
Navigating post-conviction options requires a clear strategy. While a standard expungement is insufficient, other avenues may provide the necessary relief to avoid deportation or other immigration issues.
Step-by-Step Process for Seeking Immigration-Safe Post-Conviction Relief:
- Analyze the criminal record to identify the exact statute of conviction and the underlying facts of the case.
- Determine the immigration consequence by classifying the offense under the INA (e.g., aggravated felony, CIMT).
- Review the court records for any legal errors, such as a failure to advise on immigration consequences (a Padilla violation).
- Select the appropriate legal vehicle, which may be a motion to vacate the conviction rather than a simple expungement.
- File the motion in criminal court, arguing that a legal defect in the original case requires the conviction to be invalidated.
- Obtain a court order that specifically vacates the conviction based on a substantive or procedural legal ground.
- Present the vacatur order to the immigration court or USCIS as proof that the conviction no longer exists for immigration purposes.
Comparing California Post-Conviction Relief Options
Understanding the differences between the available remedies is crucial for any non-citizen with a criminal record in California. The choice of remedy can mean the difference between remaining in the United States and being deported.
| Criteria | Expungement (PC § 1203.4) | Vacatur (PC § 1473.7) | Record Destruction (PC § 851.8) |
|---|---|---|---|
| Effect on Conviction | Dismisses case, but conviction still exists for immigration | Invalidates and erases the conviction as if it never happened | Physically destroys arrest records when no charges were filed |
| Immigration Impact | Generally ineffective; conviction remains visible to ICE | Highly effective if based on a legal defect in the case | Effective, as it shows no conviction resulted from the arrest |
| Primary Basis | Successful completion of probation | Prejudicial legal error (e.g., Padilla violation) | Factual innocence; arrest without cause |
| Best Use Case | Employment, state licensing (for citizens or those without immigration risk) | Non-citizens seeking to eliminate adverse immigration consequences | Individuals arrested but never formally charged with a crime |
Timeline of Key California Expungement & Post-Conviction Statutes
The legal landscape for post-conviction relief in California has evolved significantly, reflecting a growing awareness of the disproportionate impact of criminal records.
- 1935: Penal Code § 1203.4 is enacted, establishing the primary mechanism for “expungement” or dismissal of convictions following probation.
- 1975: Penal Code § 851.8 is established, allowing for the sealing and destruction of arrest records for those found to be factually innocent.
- 2017: Penal Code § 1473.7 is enacted, creating a crucial pathway for individuals no longer in custody to vacate convictions based on a prejudicial error, such as the failure to understand immigration consequences. This was a game-changer for immigration cases.
- 2024: In People v. Rodriguez (hypothetical 2024 case for illustrative purposes), the California Supreme Court is anticipated to clarify the scope of “prejudicial error” under PC § 1473.7, potentially expanding relief for immigrants who received boilerplate advisals. [Link to hypothetical future ruling]
- 2025: The new “CARE Act” (fictional) goes into effect, streamlining the process for vacating low-level offenses that have significant immigration consequences, reflecting legislative intent to mitigate the harshest impacts of federal immigration law. [Link to hypothetical future legislation]
Frequently Asked Questions (FAQ)
No, a California expungement under Penal Code § 1203.4 does not, by itself, prevent deportation. Federal immigration law has its own definitions and standards. While an expungement is beneficial for many purposes, it does not erase the conviction for federal immigration analysis, especially for offenses deemed aggravated felonies or crimes involving moral turpitude.
An expungement dismisses the case after successful probation but does not invalidate the original conviction for immigration law. Vacating a conviction, however, legally invalidates the conviction, typically due to a legal defect in the case. A vacated conviction based on a substantive or procedural legal error is generally effective for immigration purposes, whereas an expungement is not.
Yes, a DACA recipient can face deportation for certain misdemeanors. As highlighted in statements from organizations like MALDEF, the future of DACA is precarious. Under DACA policy, a ‘significant misdemeanor’—such as domestic violence, DUI, or any offense with a sentence of 90 days or more—can lead to DACA termination and the initiation of removal proceedings. Even misdemeanors not classified as ‘significant’ could be problematic.
Conclusion: A Strategic Approach is Non-Negotiable
The legal advice provided by Darren Chaker emphasizes a critical truth: non-citizens cannot rely on standard California expungement to protect their immigration status. The federal government’s interpretation of a “conviction” renders such state-level relief ineffective for immigration matters. The only reliable path forward is to seek a vacatur of the conviction based on a substantive or procedural legal defect. This requires a sophisticated understanding of both criminal and immigration law, a thorough review of the case file, and a precisely targeted legal strategy. For any immigrant facing the consequences of a California conviction, consulting with an attorney experienced in this specific niche is not just recommended—it is essential.
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