Tooby's California Post-Conviction Relief for Immigrants

This is the most fundamental of all the levels of record clearance, and eliminates all criminal as well as immigration consequences of the conviction.  Most forms of post-conviction relief will have this effect, including habeas corpus, coram nobis, a statutory motion to vacate the conviction for violation of Penal Code § 1016.5 (court’s failure to deliver mandatory advice at plea concerning possible immigration effects), a nonstatutory constitutional motion to vacate a conviction, a motion to withdraw a plea under Penal Code § 1018, and a direct appeal from the conviction.  A dismissal in the interests of justice, under Penal Code § 1385, will arguably have this effect.  See Chapter 6, infra.

            Note, however, that the archaic common-law writ of audita querela will not have this effect, since it does not have as an element the invalidity of the conviction involved.  Where a state court granted this writ, the Ninth Circuit held that the state court order vacating the conviction on audita querela was ineffective to eliminate the conviction for immigration purposes.[10]

[10] Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998)(since federal courts cannot grant federal audita querela in the immigration context, state audita querela writ vacating conviction does not eliminate state conviction for immigration purposes).  This decision should have minimal impact on the effectiveness of post-conviction relief in eliminating criminal convictions for immigration purposes for several reasons.  First, the decision is specifically limited to audita querela cases, as it is grounded on federal law that is limited to audita querela cases.  Well-settled federal law establishes that if a conviction is vacated as unlawful under habeas corpus or coram nobis, it is void and cannot be used to establish an noncitizen’s deportability or excludability.  United States v. ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963); Matter of Sirhan, 13 I & N 592 (BIA 1970).)  Since audita querela is extremely rare, Beltran’s effect should be minimal.