Tooby's California Post-Conviction Relief for Immigrants

After vacating the conviction or sentence, the first step is to obtain multiple copies of the court order, since the immigration courts often require certified copies,[1] and state and federal criminal history agencies may as well.  This is best done on the spot.  When the court indicates it will rule in your favor, pull out the Order Vacating Conviction you have prepared, which is sufficient to force the DHS to ignore the conviction under the appropriate legal standards, show it to the prosecution, and ask the court to sign it in open court.  Take the signed original order to the clerk, in court, and ask him or her to provide you with three certified copies.  Give one to the client and keep one in your file for possible future need.  Send the third to the client’s immigration lawyer, so it can be presented to the DHS as proof that the conviction on which removal proceedings are based has been legally eliminated as a ground of removal.

If it is not possible to obtain them in court, attempt to persuade the clerk to trust you with the court file, so you can take it to the clerk’s office and obtain your certified copies.  Failing that, discover when the file will reach the clerk’s office, and visit it to obtain the certified copies in person if possible.  As a last resort, obtain them by mail after the file has reached the clerk’s office.

            If the case has been finally resolved during the same hearing in which the conviction or sentence was vacated, for an immigration-harmless disposition, it is important to obtain certified copies of the clerk’s minutes, probation order, and other documentation of the final resolution of the case, so immigration counsel can reassure the DHS that the final outcome does not trigger the adverse immigration consequences of the original disposition.  It is also wise to order a copy of the reporter’s transcript of the hearing as well, for the same reasons.

            Once the conviction has been vacated, the court is supposed to send certified copies of the new abstract of judgment and/or minute orders to the State of California Department of Corrections reflecting that the conviction has been vacated.  These documents can be sent to two different offices, depending on the location of the case/defendant: the main office in Sacramento, and Case Records South.  Often the court only sends the documents to Sacramento, and, if necessary, the CDC then forwards them to Case Records South.  The information is then added to a central database to which only those two offices can make changes.  Then the defendant's parole officer can view the information in the database, and will then input that information into the Interim Parolee Tracking System.  At that point, the process is completed.

            If this has not happened, the parole officer may not know how to handle a vacated conviction.  It is most urgent to make sure CDC Sacramento or Case Records South office gets certified copies of the court order vacating the conviction or sentence.  These offices only accept documents from the court itself, or (though less commonly) from the parole officer.  They will not accept the documents sent by the defendant’s attorney.  Once the CDC office receives the documents, and inputs the information into the central records database, the rest of the process is easy.

            In communicating with the CDC, it is important to include the CDC number (such as K-55555) and the defendant's date of birth.  Contact the defendant’s parole officer, and ask him or her to check to see whether the information that the conviction or sentence has been vacated is already in the central records database already.  If now, s/he can provide the address to which to send him/her the certified documents.  Contact the clerk of the court that issued the order vacating the conviction, and request the clerk to send certified copies of the order vacating the conviction and/or the amended abstract of judgment to CDC Sacramento or Case Records South.  If this does not work, counsel can send certified copies of the documents to the parole officer directly.  Contact the Sacramento Main Office of the Department of Corrections at (916) 445-7682 or (916) 558-1926, give them the CDC number, and check whether that office has received certified copies from the court or parole officer.  If the case is from Southern California, contact CDC Case Records South at (909) 484-3700 (supervisor: Marge Barnes).

[1] The DHS apparently believes we are capable of forging mere “file-stamped” copies, but incapable of forging “certified” copies of court orders.