Tooby's California Post-Conviction Relief for Immigrants

California provides special relief to youthful offenders who wish to clear their records.  Because these forms of relief are viewed as state counterparts to the former Federal Youth Corrections Act,[244] they have been held by the INS to eliminate even drug convictions for immigration purposes.[245]  After the Federal Youth Corrections Act was repealed, the BIA first decided and then withdrew language stating that state counterpart statutes such as California’s should no longer eliminate a drug conviction for immigration purposes.[246]  Since these statutes likely will be considered “state rehabilitative statutes,” it is questionable whether the BIA will honor relief under these statutes as eliminating convictions for immigration purposes.[247]  On the other hand, since the argument in favor of the position that this relief is effective at eliminating adverse consequences depends on an Equal Protection analysis comparable to that of Garberding v. INS,[248] it is probable the Ninth Circuit may hold that relief under these California statutes eliminate even a drug conviction for immigration purposes in at least the cases in which expungements under Penal Code § 1203.4 are effective to do so.

            Note that this relief may not protect the youthful offender from inadmissibility or removal based on grounds that do not require a conviction, such as prostitution and drug trafficking, abuse and addiction.  Furthermore, this relief does not enable the offender thereafter to possess firearms, and the expunged conviction may still be used in court for some limited evidentiary purposes.[249]

            Under Welf. & Inst. Code § 1772, every person who is honorably discharged from parole by the Youthful Offender Parole Board (which supervises persons committed to the California Youth Authority) and who has not been housed in state prison during CYA commitment is entitled to an expungement and release from all penalties and disabilities from the conviction.  Similar relief is provided under the counterpart Welf. & Inst. § 1179 for persons discharged from CYA schools.  Relief under Welf. & Inst. Code § § 1772 or 1179 formerly eliminated the immigration consequences of convictions of crimes involving moral turpitude and narcotics offenses.[250]

            Under Penal Code § 1203.45, persons who were convicted of only one misdemeanor while under the age of 18, and who meet the eligibility requirements of P.C. § § 1203.4 or 1203.4a, may request that the record of arrest and conviction be sealed.  While § 1203.45 states that this relief will not apply to convictions of Health and Safety Code violations, this relief was in fact extended by case law to persons convicted of drug offenses.[251] 

Relief under Penal Code § 1203.45 and Welfare & Institutions Code § § x1179, 1772 so closely resembles relief under the Federal First Offender Act, 18 U.S.C. § 3607, that it is likely the same treatment will be accorded to it.  In other words, “expungements” under these three code sections will very likely be regarded by the DHS as eliminating convictions of first-offense simple possession of any controlled substance, as well as lesser misdemeanor offenses that are not specifically prohibited under federal law.[252] 

[244] Formerly 18 U.S.C. § § 5005‑5026.

[245] See Matter of Nagy, 12 I&N 623 (BIA 1968); Matter of Lima, 15 I&N 661 (BIA 1976) (narcotics); Matter of Andrade, 14 I&N 651 (BIA 1974).  Cf. Hernandez‑Valensuela v. Rosenberg, 304 F.2d 639 (9th Cir. 1962).

[246] The BIA at one point ruled that these state counterpart statutes would have no effect on narcotics convictions received after October 12, 1984, the date of repeal of the Federal Youth Corrections Act.  However, that opinion was modified to remove the time limitation.  Matter of Ozkok, Int. Dec. 3044 (BIA 1988).

[247] See Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999)(en banc).

[248] Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994).

[249] 1994 Stats., ch. 453.

[250] See Matter of Andrade, 14 I&N 651 (BIA 1974); Matter of Berker, 15 I&N 725 (BIA 1976), modifying Matter of Espinoza, 15 I & N. Dec 328 (BIA 1975) (narcotics); Matter of Ozkok, supra.  Matter of Roldan, 22 I.& N. Dec 512 (BIA 1999) (en banc), may have changed this result.

[251] People v. Ryser (1974) 40 Cal.App.3d 1, 114 Cal.Rptr. 668.

[252] Lujan-Armendariz v. INS, 222 F.3d 728  (9th Cir. 2000); Cardenas-Uriarte v. INS, 227 F.3d 1132  (9th Cir. 2000).