The court may dismiss any or all charges and allegations contained in a charging paper, whether they are contained in a citation, complaint, information, or indictment.  The court may even dismiss the entire criminal action in its entirety.[370]  In addition, the court may dismiss any individual criminal charge alleging that the defendant has committed a criminal offense, whether or not it leaves other charges standing.[371] 

 

The general rule is that a conviction vacated on any ground of legal invalidity that was in existence at the time the conviction arose is effective to eliminate the conviction for immigration purposes.[372]  In Matter of Adamiak,[373] the Board of Immigration Appeals held that a conviction which had been vacated under Ohio post-conviction procedure,[374] on the ground that the trial court failed to advise the defendant of the possible immigration consequences of a guilty plea, as required by a state advisal statute, is no longer a valid conviction for immigration purposes.

 

            In that decision, the BIA clarified its previous decision in Matter of Pickering[375] as follows:

 

In our decisions addressing the effect of State court orders vacating convictions, we have distinguished between situations in which a conviction is vacated based on post-conviction events, such as rehabilitation, and those in which a conviction is vacated because of a defect in the underlying criminal proceedings. See Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003) (concluding that in light of the language and legislative purpose of the definition of a “conviction” at section 101(a)(48) of the Act, “there is a significant distinction between convictions vacated on the basis of a procedural or substantive defect in the underlying proceedings and those vacated because of post-conviction events, such as rehabilitation or immigration hardships”); see also Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000) (according full faith and credit to a New York court’s vacation of a conviction under a statute that was neither an expungement nor a rehabilitative statute).

 

The Ohio court’s order permitting withdrawal of the  respondent’s guilty  plea is based on a defect in the underlying proceedings, i.e., the failure of the court to advise the respondent of the possible immigration consequences of his guilty plea, as required by Ohio law. To remedy the defect in the original proceedings, the trial court ordered that the respondent be afforded a new trial on the underlying drug trafficking charge. Under these circumstances, we find that the Ohio court’s vacation of the respondent’s conviction should be recognized in immigration proceedings. In the absence of a statutory directive to the contrary, we are required by 28 U.S.C. § 1738 (2000) to give full faith and credit to this State court judgment.[376]

 

Therefore, orders vacating convictions on any ground of legal invalidity, even one relating to the immigration aspects of the case, will be effective in eliminating the conviction for immigration purposes.[377]  There is no reason this would not apply to orders dismissing convictions in the interests of justice pursuant to Penal Code § 1385, so long as a ground of legal invalidity is one of the grounds on which the order was based.

 

            Therefore, if a dismissal order in the interests of justice is granted even in part on a ground of legal invalidity, it is effective to eliminate the conviction for immigration purposes.  If it is granted solely for a reason arising later, after the conviction was already in existence, on the other hand, e.g., solely for rehabilitative reasons, or solely to avert adverse immigration consequences, than the dismissal order will not be effective to eliminate the immigration consequences of a conviction.[378]

[370] People v. Superior Court (1968) 69 Cal.2d 491, 505, 72 Cal.Rptr. 330, 446 P.2d 138 (approving the dismissal, in the interest of justice, of an indictment, i.e., all criminal charges and allegations against the defendant).

[371] Ibid.

[372] Nath v. Gonzales, 467 F.3d 1185 (9th Cir. Nov. 3, 2006) (government has burden of proof by clear and convincing evidence that order vacating conviction was ineffective to eliminate conviction for immigration purposes when respondent made motion to reopen removal proceedings after conviction had been vacated; because order was ambiguous as to whether it had been based on a ground of invalidity, government could not meet its burden of proof, and BIA abused its discretion in denying motion to reopen); Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (conviction vacated for any procedural or substantive defect has been eliminated for immigration purposes, and cannot trigger removal, whereas conviction vacated for equitable, rehabilitative, or immigration purposes unrelated to the merits of the conviction remains), following Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006).

[373] Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006).

[374] Ohio Revised Code §   2943.031.

[375] Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006).

[376] Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006).

[377] For more comprehensive discussion concerning what kind of order vacating a conviction is effective to eliminate its immigration consequences, see N. Tooby, Post-Conviction Relief For Immigrants Chap. 4 (2004); N. Tooby & J. Rollins, Safe Havens: How To Identify And Construct Non-Deportable Convictions § 4.28 (2005); N. Tooby, Post-Conviction Relief, Chap. 8 in K. Brady.

[378] Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006).

Other

CAL POST CON " DISMISSAL UNDER PENAL CODE 1385
The normal statute governing "interest of justice" dismissals is Penal Code 1385, which allows a court to dismiss a case in the interests of justice. This is technically not a vacatur, just a dismissal. If it comes after conviction based on a guilty or no contest plea or a verdict, this judicial action does not expressly vacate the plea or verdict on a ground of legal invalidity, so it would not eliminate the conviction for immigration purposes under Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), which the Ninth Circuit follows. It is dangerous. It could be presented as a vacatur, however, and the judge could sign an "order vacating conviction in the IOJ" under PC 1385, and then it would be an ambiguous order, which is unclear whether it was granted on grounds of legal invalidity, or on the basis of immigration consequences or rehabilitation. Chances are increased by calling it an order "vacating" the plea and keeping the record clear of any reference to immigration consequences or rehabilitation. Since it is unclear, the respondent would win if the Woodby deportation test is applied. See Nath v. Gonzales, 467 F.3d 1185 (9th Cir. Nov. 3, 2006) (government has burden of proof by clear and convincing evidence that order vacating conviction was ineffective to eliminate conviction for immigration purposes when respondent made motion to reopen removal proceedings after conviction had been vacated; because order was ambiguous as to whether it had been based on a ground of invalidity, government could not meet its burden of proof, and BIA abused its discretion in denying motion to reopen). If the removal order has been entered already, the question arises who has the burden of proof. If a motion to reopen is necessary, the First Circuit pointed out that the respondent has the burden of proof and so an ambiguous vacatur is insufficient to avoid deportation. But the Ninth Circuit's Nath decision was also in a motion to reopen context, and maintained the burden of proof on the government.