Tooby's California Post-Conviction Relief for Immigrants

Grants of drug diversion made prior to January 1, 1997, do not constitute convictions for immigration purposes.  Grants of drug diversion after that date do not constitute convictions if no guilty plea was in fact entered, either because the court mistakenly used the old procedure, because the court was forced by ex post facto considerations to use the old procedure since the offense was committed prior to the turn of the year, or because the court was authorized to continue to grant pre-plea diversion as part of a drug court program.  It is therefore critical to check the court records in all cases in which drug diversion or deferred entry of judgment was granted on or after January 1, 1997, to determine whether a guilty plea was in fact entered.  If so, it is a conviction for immigration purposes, regardless whether the defendant has completed the program and the charges have been dismissed.  If there was no plea, there is no conviction for immigration purposes.

            For all forms of state rehabilitative relief in which a plea of guilty or no contest is entered, however, the disposition constitutes a conviction for immigration purposes, [27] regardless whether state law provides that no conviction exists. [28]  The only exception is for certain minor first-offense controlled substance convictions, which are expunged or dismissed under Penal Code § 1203.4 or 1203.4(a), Proposition 36 dismissal under Penal Code § 1210(d) for successful completion of treatment, or Deferred Entry of Judgment dismissal under Penal Code § 1000, under circumstances in which the defendant would have been eligible for Federal First Offender Treatment if s/he had been prosecuted in federal court.[29]

            A prior no-plea diversion dismissal will disqualify a defendant from receiving an effective Prop. 36, DEJ, or Penal Code § 1203.4 expungement of a later conviction.[30]

[27]    Congress redefined "conviction" for immigration purposes to mean "a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where -- (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed."  IIRIRA § 322, amending INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[28]    Ramirez-Castro v. INS, 287 F.3d 1172 (9th Cir. April 24, 2002) (California state court expungement of misdemeanor firearms conviction after successful completion of probation does not eliminate the immigration consequences of that conviction).

[29]    Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Cardenas-Uriarte v. INS, 227 F3d 1132 (9th Cir.  2000).  For a checklist of offenses for which expungements are effective to eliminate immigration consequences, see § 8.6, supra.

[30] Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. Sept. 19, 2007) (a noncitizen may not obtain a Lujan expungement for immigration purposes on a second offense where the noncitizen has already been given “pretrial diversion” treatment on a prior offense, even though “pre-trial diversion” does not require the noncitizen to enter a plea of guilty to a controlled substances offense).