Tooby's California Post-Conviction Relief for Immigrants

By obtaining an executive pardon, persons convicted of felonies who are not eligible for expungement under the above sections may remove the immigration consequences of convictions of a crimes involving moral turpitude and aggravated felonies, as well as the effects of the resulting sentences and confinement. See § § 10.45 – 10.51, supra.  However, a pardon will not nullify a drug conviction for immigration purposes.  The same is true of pardons of domestic violence convictions, or other convictions not listed in the statute stating the effects of pardons as eliminating grounds of deportation.[258] 

            Recent BIA authority held that the new IIRAIRA definition of "conviction" eliminated relief under "state rehabilitative statutes.”[259]  There is some question whether the statutes allowing for state executive pardons would be considered a "state rehabilitative statute" under this authority, but the effectiveness of pardons is grounded on specific federal legislation, and so remains effective to eliminate the adverse immigration consequences specified in the statute. [260]

            Under Penal Code § § 4800 et seq., a pardon may be based either on innocence or rehabilitation.  Generally, a pardon based on rehabilitation will be obtained by securing a “certificate of rehabilitation” under Penal Code § 4852.  A person convicted of a felony and committed to state prison or other institution may petition for the certificate after having resided in California for a “rehabilitation period,” during which time the person has lived an upright, sober and law‑abiding life.  Under § 4852.03, the required rehabilitation period is calculated based on the maximum possible sentence for the crimes committed; a minimum three‑year period is required.  The period begins after completion of sentence or termination of parole or probation.

            After the rehabilitation period has been completed, a person may file for a hearing in superior court on the matter.  A certificate of rehabilitation is in fact a court‑issued recommendation that the governor grant a pardon, and constitutes an application for a pardon.[261]

            Misdemeanants may not petition for a certificate of rehabilitation,  and persons convicted twice of a felony must meet special requirements under Penal Code § 4852.  Other persons, such as sex offenders, are not eligible.[262] 

            Persons who are not eligible for a certificate of rehabilitation or who assert that they are innocent of the charges may apply for a pardon directly to the governor.  Under Penal Code § 4801, the Board of Prison and Paroles may recommend that the governor issue a pardon or commutation of sentence for individuals who are in state prison.  The governor grants or denies any pardon as a matter of discretion.

            Several forms of post-conviction relief eliminate “actual custody” for immigration purposes.  Time served in custody for a conviction is no longer counted for immigration purposes after an executive pardon has been received.[263]

[258] Matter of Suh, 23 I. & N. Dec. 626 (BIA 2003) (presidential or gubernatorial pardon waives only the grounds of removal specifically set forth in INA § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v) (2000); no implicit waivers may be read into statute; pardon of conviction of crime of domestic violence under INA § 237(a)(2)(E)(i), ineffective, as not specifically included in INA § 237(a)(2)(A)(v)).

[259] Matter of Thomas, 24 I. & N. Dec. 416, 419 (BIA Dec. 13, 2007) (second possession conviction can constitute aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2000), even if court expunged first state conviction pursuant to a State’s rehabilitative procedures); Matter of Luviano-Rodriguez, 23 I. & N. Dec. 718 (A.G. 2005) (noncitizen whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been "convicted" for immigration purposes); following Matter of Marroquin, 23 I. & N. Dec. 705 (A.G. 2005)); Matter of Marroquin-Garcia, 23 I. & N. Dec. 705 (A.G. 2005) (a noncitizen whose firearm conviction was expunged pursuant to California Penal Code § 1203.4 is still "convicted" for immigration purposes under INA § 101(a)(48)).

[260]    INA § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v).

[261] See generally 5 Erwin, Millman, Monroe, Sevilla, Taklow, California Criminal Defense Practice, chap. 105 (executive clemency).

[262] See Penal Code § 4852.01(d). Effective January 1, 1998, this provision states, “Th[e] chapter [beginning with section 4852.01 and establishing the certificate of rehabilitation procedure] shall not apply to . . . persons convicted of a violation of subdivision (c) of Section 286 [sodomy with a victim under age 14 or by force, fear, or retaliatory threat], Section 288 [lewd acts with a victim under age 14], subdivision (c) of Section 288a [oral copulation with a victim under age 14 or by force, fear, or retaliatory threat], Section 288.5 [continuous sexual abuse of a victim under age 14], or subdivision (j) of Section 289 [sexual penetration with a victim under age 14] . . . .”

[263] Matter of H, 7 I. & N. 249 (BIA 1956).