Tooby's California Post-Conviction Relief for Immigrants

These expungement statutes do not apply to infractions.  Problem: Some offenses which may be treated as infractions, such as petty theft under $50, constitute crimes of moral turpitude.  Since infractions cannot be expunged under Penal Code § 1203.4, it is necessary to deal with them some other way in order to remove them for immigration purposes.  Answer: If the immigrant wishes to adjust status to that of a lawful permanent resident, an infraction will not be considered a misdemeanor.[214]  For other immigration purposes, however, it is possible that an infraction might be considered a misdemeanor, and therefore, e.g., a crime of moral turpitude.  There are two ways to attempt to eliminate infractions involving moral turpitude, since expungements cannot be lawfully[215] be obtained:

(1) It is possible to make a motion to vacate the infraction conviction under In re Resendiz[216] and People v. Soriano[217] and argue that it was ineffective assistance of counsel for the defense to consent to infraction treatment.  Instead, competent counsel would have recommended accepting the same penalty for a misdemeanor, which would then have been expungeable pursuant to Penal Code § 1203.4.

(2) The defense could make a motion to declare the infraction to be a misdemeanor, arguing that the defendant no longer consents to its treatment as an infraction, and pointing out the adverse immigration consequences of the unexpungeable infraction.

            In addition, any other avenue of post-conviction attack on a conviction may also be considered.

[214] 8 C.F.R. § 245a.1(o)(crime with maximum of five days or less is not considered a misdemeanor for purposes of adjustment of status under INA § 245, 8 U.S.C. § 1255.

[215] If a state court grants an order expunging an infraction conviction, it is unlikely the immigration trial attorney would be allowed collaterally to attack the validity of the state court order in immigration court.  See Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000)(referring to federal obligation to give full faith and credit to state court judgments).

[216] In re Resendiz (2001) 25 Cal.4th 230.

[217] People v. Soriano (1987) 194 Cal.App. 3d 1470, 240 Cal.Rptr. 328.