Tooby's California Post-Conviction Relief for Immigrants

Completing a pre-plea diversion program may be an appropriate way to resolve charges reinstated after judgment has been vacated.  After successful completion of diversion for specified offenses, the court will order the charges dismissed.  There is therefore no criminal conviction at all, at any time, and thus no conviction to be held against the immigrant for immigration purposes.

            Completing a pre-plea diversion program, and obtaining dismissal of the charges, does not constitute a “conviction” under immigration law as long as there has been no plea of guilty entered at any time.[22]  Criminal cases dismissed after successful completion of traditional diversion provisions such as drug diversion under Penal Code § 1000 [former version], and misdemeanor diversion under Penal Code § 1001, do not constitute convictions for immigration purposes.  

            The probation department supervises the person on diversion, and will often apply for termination of diversion and dismissal of charges on behalf of the client after the client has successfully completed diversion.[23]

            California has a variety of different diversion programs with different immigration consequences.

[22] Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).  This has not changed under IIRAIRA § x322, which amends INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), to create a statutory definition of conviction that is more encompassing than the definition set out by the BIA in Matter of Ozkok, supra.

[23] See generally C.E.B., California Criminal Law: Procedure and Practice § 9.1 (2008).