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AN “EXPUNGED” CONVICTION MAY STILL BE A DEPORTABLE OFFENSE

 

Many people who have been convicted on a misdemeanor charge or certain felonies for which they were not sentenced to prison can, after certain conditions are met, apply to the court for what is commonly called an “expungement” of the conviction. This relief is available under several statutory schemes, the most common being Penal Code section 1203.4. Referring to this relief by the term “expungement” is a misnomer because the conviction is not entirely expunged. But since everyone calls it an expungement, I will use that term here also.

When a defendant who has completed probation, or is otherwise discharged from probation, he or she may apply to the court to set aside the verdict of guilty and order the conviction dismissed. I discuss how this process is accomplished here. If the court so orders, the defendant is relieved of the penalties and disabilities resulting from the conviction and no longer carries the many burdens of having a criminal conviction on his or her record. For example, the former defendant no longer has to report the conviction on a job application (with some exceptions) and will reflect favorably when applying for a professional license.

However, many people are surprised to learn that the record of the offense still appears on the person’s Department of Justice criminal history record, although it now shows as dismissed. Furthermore, the expunged conviction still imposes some burdens upon the former defendant. For example, the offense must be reported if the former defendant is applying for certain jobs or wants to enter a career, which require licensing or are public service jobs, and the expungement will not relieve the former defendant of any firearm possession restrictions that were part of the conviction.

Of concern to noncitizens is the liability of deportation even when a conviction has been expunged under California law. The federal government considers the dismissal of the conviction rehabilitative relief and not a dismissal of the conviction for immigration purposes. Noncitizens in this country who have a conviction dismissed under California’s “expungement” statutes—even those who are here legally— may still find themselves deported for the conviction if it is a deportable conviction. This is one of the most misunderstood consequences of an expungement and I often have clients come to me, concerned they may be deported for a conviction, asking that I assist them in petitioning the court for an expungement, believing that this will prevent any deportation consequences. It will not.

Many noncitizens, who are in the United States legally (for example, have a green card), are still subject to deportation if they have been convicted on a wide range of crimes. Some of these crimes are not what you or I would even consider serious. I have discussed this in greater depth in a previous blog post. Here I am going to focus on the federal government’s position on convictions that have been expunged under California law.

The federal government’s position is that for immigration purposes, a person is still convicted of a crime even if that conviction has been “expunged” under a state statute. In fact, this position was first established by the federal courts in a case concerning the California expungement statute Penal Code section 1203.4 in the case, Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir.2002), and has since been applied to similar expungement statutes in other states. The reasoning of the federal courts is that the expungement statutes are considered “rehabilitative” and only a limited expungement, even under state law (for example, even under California law, a section 1203.4 dismissal does not relieve the former defendant for firearms restrictions imposed by the conviction).

While there are some exceptions, if an offense is deportable, an expungement under state law will not change the status of the offense for immigration purposes. The California Legislature has recently addressed the immigration liabilities as they apply to certain dismissals of convictions. I will discuss those recent changes to California statute in my next post.

Orange County criminal defense attorney William Weinberg is available to consult with you regarding any criminal matter. You can reach him at his Irvine office at 949-474-8008 or email him at bill@williamweinberg.com.