Are there any other ways that I can clean up my record that might help me for immigration purposes?
Maybe! Some of California’s “record-cleaning” or “expungement” laws may help you reduce certain felonies to misdemeanors, and/or dismiss certain convictions – which in some cases can also help reduce your chances of being targeted for deportation and other negative immigration consequences. Below is a summary of California’s record-cleaning laws that may help people with their immigration status.
To get help pursuing one of these “record-cleaning” options, contact your local public defender’s office or call Root & Rebound’s free and confidential Reentry Legal Hotline any Friday at (510) 279-4662 for a referral to a free expungement legal clinic.
When lawyers refer to “expungements” in California (which don’t really exist here), they usually mean “dismissals,” which allow people to dismiss a felony or misdemeanor conviction after completing any time they were sentenced to jail, prison and/or probation. While dismissals can help with applying to some jobs and housing, they usually do not erase the conviction for immigration purposes. However, there is one important exception for certain first-time simple possession offenses that occurred before July 14, 2011, where a dismissal may help with immigration consequences.
The following newer laws help people reduce felonies to misdemeanors for all purposes, including for immigration purposes.
- Under Cal. Penal Code section 17(b)(3), the court can reduce felony “wobblers” – offenses that originally could have been charged as either felonies or misdemeanors – down to misdemeanors if you were not sentenced to state prison.
- Under California’s Proposition 47, you can petition the court to reduce a felony conviction for simple drug possession or a lower-level theft offense to a misdemeanor (called “reclassification” or “redesignation”).
- Under California’s Proposition 64, you may be able to change your record (called “reclassification”) if you have a conviction for a marijuana offense, which means you might be able to reduce or dismiss prior marijuana-related convictions.
A Warning about “Legalized Marijuana” under Prop. 64 in California:
Although California state law permits some use and cultivation of marijuana, federal law does NOT allow this – and remember, immigration is run by the federal government! So please read and share the warnings below!
- Don’t use marijuana until you are a U.S. citizen. Don’t work in a marijuana shop.If you have a real medical need and there is no good substitute for medical marijuana, get legal counsel.Never leave the house carrying marijuana, a medical marijuana card, paraphernalia (like a pipe), or accessories like marijuana T-shirts or stickers. Don’t have photos or text about you and marijuana on your phone, Facebook, or anywhere else.
Most importantly, never admit to any immigration or border official that you ever have used or possessed marijuana, unless you have expert legal advice that this is OK. If a federal official asks you about marijuana, say that you don’t want to talk to them and you want to speak to a lawyer. You have the right to remain silent. Stay strong – once you admit it, you can’t take it back. If you did admit this to a federal officer, get legal help quickly. See Appendix JJ on PG. 1087 for more information.
SPECIAL NOTE: Cal. Penal Code section 18.5(b) (effective January 1, 2017) is a recent state law that reduces the maximum possible sentence for any California misdemeanor from 365 to 364 days retroactively. This is important because under federal law, certain offenses can lead to deportation if they carry even a potential sentence of one year or more. This new law is retroactive, meaning it applies to old misdemeanors as well those current and future cases. However, if you were convicted of a misdemeanor before January 1, 2015, and were sentenced to a term of one year, you must proactively ask (“petition”) the criminal court that sentenced you to change your sentence under this law.
In addition, under Cal. Penal Code Section 1203.43, someone with a drug offense who received a “deferred entry of judgment” (DEJ) can get rid of the conviction for immigration purposes. You are considered to have a conviction for immigration purposes if you entered a plea of guilty even if the charges were later dismissed through a diversion program; so getting relief through Section 1203.43 gets rid of your guilty plea for immigration purposes as well. Upon completion of the court-ordered DEJ program, you must file papers with the court to ask the judge to withdraw the guilty plea and dismiss the charges once again under Section 1203.43.
If you have any questions, please see the list of additional resources and legal organizations listed below – many help people fight deportation. You can also call Root & Rebound’s free and confidential Reentry Legal Hotline any Friday at (510) 279-4662 for a referral.