Tooby's California Post-Conviction Relief for Immigrants

It is arguable that the Lujan decision applies not only where the defendant received probation, but also where the defendant received a non-probationary custody sentence, contrary to the suggestion of the BIA in Matter of Manrique.[30]  The Eleventh Circuit Court of Appeals has held otherwise, finding that defendant who receives a sentence of more than one year on probation or an actual custodial term would not qualify for treatment under the FFOA and therefore is not entitled to the immigration benefit of an expungement.[31]  This decision is not binding in California, and makes no sense at all.[32]  See § 10.15, infra.

[30] Matter of Manrique, Int. Dec. 3250 (BIA 1995). 

[31] Fernandez-Bernal v. Attorney General, 257 F.3d 1304 (11th Cir. 2001).

[32] The court in Fernandez-Bernal ruled that since the defendant received a probation term greater than one year in state court, the defendant would not have been eligible for FFOA treatment, since the maximum probation period under the FFOA was one year.  This ignores the fact that if the defendant had been eligible for FFOA treatment if prosecuted in federal court, then the defendant would have received the one-year FFOA term of probation.