Immigration/Criminal: Post Conviction Relief Overview

If you have an older conviction out there it’s not the end of the story. Post conviction relief can make a criminal conviction, even a bad conviction, look better.  There are a number of ways to accomplish getting relief.

If the cops ‘arrested’ you, but no criminal charges were filed; then you can request that the police list your being held as a detention and not an arrest.  Under California Penal Code Section 849.5. You can obtain this relief after the statute of limitations has run. For immigration or employment purposes a detention looks better than an arrest.

If a case was filed against you and it was ultimately dismissed, then you can obtain relief by having the case and police records sealed. Under Penal Code Section 851.91 ("A person who has suffered an arrest that did not result in a conviction may petition the court to have his or her arrest and related records sealed"). This means that the records are not accessible by anyone looking into your record.

If your case was ultimately dismissed you can also get a finding of factual innocence. Under Penal Code Section 851.8 ("In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest."). This is a much higher standard than just having your records sealed. You must prove that no reasonable juror could have felt you were guilty.  The burden is totally on the defendant in this kind of case.  If you are successful, then you can get your record sealed and destroyed. The best possible outcome.

If you have a juvenile case, then provided you have a clean adult record you can get the record sealed. Under Welfare and Institutions Code 871. This will result in having all your records sealed.

If you have a case where you were given deferred entry of judgment you can have the judgment changed to show that there was no plea of guilty. Usually, in deferred entry of judgment the defendant admits guilt then does some classes or just behaves for a period of time and the case is dismissed. The problem with this is that immigration counts the guilty plea and not the later dismissal. The record still shows a conviction. Under Penal Code Section 1203.43. That means that the court goes back and removes the guilty plea from your records and dismisses the complaint. A much better outcome as far as immigration is concerned.

If you were convicted of a felony that is a ‘wobbler’, that is it can be charged as a felony or a misdemeanor, then you can have your felony conviction reduced to a misdemeanor. Under Penal Code Section 17(b). This means that you can say that you were not convicted of a felony.  A misdemeanor always looks better that a felony. This also can aid in obtaining a job and restores several rights that you lose as a felon to you. It can restore your right to sit on a jury, right to own a gun etc.

If you have any conviction you should get it expunged under Penal Code 1203.4. You have to be off of probation and not have any other cases pending. This is of limited use in the immigration context, but it shows you are putting in an effort to move forward and leave your criminal past behind you. Expungement allows you to answer the question: Have you ever been convicted of a felony with the answer “No.” When it is asked by employers.

This is just a brief overview of the various ways to clean your record. If you are interested in cleaning up your record, please give me a call to discuss which remedies are available to you.

If you were not advised of the immigration consequences of the plea by your lawyer see my article here.

If you have a pending criminal case and are concerned about its effect on your immigration status, see my article here.


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