Tooby's California Post-Conviction Relief for Immigrants

If the records are destroyed and the DHS has no admissible evidence of the convictions, the DHS may be unable to prove that the defendant suffered the conviction.[253]  If the DHS can prove the conviction occurred, however, it will be held against the defendant.[254]  It is not clear whether this statute would be considered a “state rehabilitative statute.”  If so, then relief under it would not be effective to remove adverse immigration consequences.[255]  On the other hand, it would be possible to argue in immigration court that this is not a rehabilitative statute; rather, it is a statute that recognizes the extremely minor nature of the offense, and the policy judgment that no adverse consequences should flow from it.  Some offenses covered, e.g., simple possession for personal use of 30 grams or less of marijuana, either have no adverse immigration consequences, or a waiver is available. 

[253] For example, see Matter of Perez, No. 18‑364‑484 (Simonet, IJ Dec. 12, 1989), digested in Interpreter Releases, January 12, 1990, p. 67 (INS could not prove conviction where records sealed under Florida statute).

[254] Matter of Moeller, 16 I & N. Dec.  65 (1976).  However, one advocate suggests that if the DHS must prove the convictions in order to establish deportability, counsel should return to criminal court, have the records destroyed and obtain official evidence that there is no record of such conviction.  This and similar results on rap sheets arguably could be used to impeach DHS evidence of the conviction.

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