Under California law, certain convictions are eligible for expungement (dismissal), which provides relief within the state criminal justice system but does not automatically translate into federal relief from those convictions. Despite being dismissed under California law, convictions can still have immigration ramifications that are difficult to navigate on your own. Talking to a criminal defense attorney with experience in immigration will help you understand any potential pitfalls regarding your immigration status and your convictions and help you receive the best outcome possible.
How Expungement Works in California
Expungements in California take two forms: dismissal of a criminal record or sealing court files and state records.
Criminal Record Dismissal
As set forth under California Penal Code § 1203.4, if an individual was placed on probation and completes the terms of the probation or received an early discharge, they can petition the superior court system to dismiss the case. If the defendant meets the statutory requirements, the courts must grant this petition, but even if the requirements are not fully met, the courts retain discretion to expunge the conviction in the interest of justice. Discussing the details of your conviction and the steps towards completing probationary requirements you have taken with your attorney at the Law Offices of M. Gabriela Guraiib will give your case its best chance at relief. Depending on whether your conviction was a misdemeanor or felony, there are different waiting periods in which you may not have any further criminal charges brought against you in order to qualify for dismissal. Once you have been granted a criminal record dismissal in California, legally you are allowed to state you have never been convicted of that crime.
Sealing Court Files and State Records
If you were arrested and not convicted, you and your attorney can petition the courts to have your records sealed and purged from public record. Through California Penal Code § 851.91, whether the statute of limitations ran out before a conviction, the charges were dismissed, or the defendant was acquitted, a petition may be filed with the courts to have the records sealed from the public record. However, these records are still available to law enforcement, courts, state licensing boards, peace officer employers, and when applying for public office.
Arrests involving domestic violence, child and elder abuse, and a pattern of behavior through arrests and/or convictions within the last 3 years are not eligible for expungement through sealed records.
Who Qualifies for Expungement in California
There are several requirements in order to be eligible for expungement in California. The basic requirements are:
- You must have been arrested or convicted of a misdemeanor or felony in the state of California.
- You must have either completed probation or the length of the probationary period must have passed since sentencing.
- You are not currently being charged with any crime.
- You are not currently on probation.
- You are not currently serving a sentence for a crime.
- You were not convicted of sex crimes against children.
- For the conviction you are seeking expungement, you must not have served time in prison specifically; time served in county jail does not count.
Not all crimes and convictions are eligible for expungement. Eligible crimes include:
- Most misdemeanors
- Fraud or forgery
- Certain non-violent felonies, especially if they were reduced to a misdemeanor (wobbler convictions) under Penal Code § 17(b)
- DUI charges (provided they are misdemeanors)
- Certain drug possession charges
- Many theft charges
Instances that are not eligible for expungement include:
- Sex crimes against children
- Sexual offenses requiring registration
- Felonies committed against children
- Serious violent felonies including murder and rape
- Certain domestic violence crimes
- Cases in which the defendant served time in state prison
- If the individual is currently serving time or facing new criminal charges
Determining whether your individual circumstances make you eligible for expungement can be tricky, as there are many components to consider, so reaching out to an attorney at the Law Offices of M. Gabriela Guraiib will give your petition its best chance of success.
How Expungement Affects Immigration
A common misconception is that an expungement in California negates immigration consequences. Unfortunately, expungements are at the state level, while immigration concerns are federal and follow the federal definition of a conviction set forth by INA § 101(a)(48)(A).
Under this statute, “the term “conviction” means, with respect to an alien, 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.” The definition of punishment, penalty, or restraint on liberty includes everything from a fine, probation, jail time, prison incarceration, or community service.
As expungement in California only happens once a conviction has occurred and a punishment has been fulfilled, the federal definition has already been met, and consequences are in motion. While an expungement erases the state’s conviction, it does not extend to the federal level, leaving immigration impacts intact.
Immigration consequences such as deportation, denial of a green card or visa, or revocation of a non-immigrant visa can all still be enacted. Additionally, when completing immigration applications and documents, expunged convictions must be declared, despite no longer having state-level implications. Discussing any convictions and expungements with your attorney at the Law Offices of M. Gabriela Guraiib will allow greater preparation when dealing with immigration judges, and allows the expungement to be a positive factor in influencing the judge’s decision.
Alternatives to Expungement for Immigration
While an expungement is not generally an effective tool in eliminating immigration consequences of convictions or arrests, vacating a conviction can be. Depending on the circumstances of your situation, Penal Code § 1473.7 or Penal Code § 1016.5 can be used to argue that there was a fundamental legal error or lapse in constitutionality that requires the courts to throw out the conviction as if it never happened, which would eliminate immigration consequences.
Non-Immigration Benefits of Expungement
While an expungement has very few benefits for immigration, receiving one on a conviction can be life-changing. Legally, you will be able to state that you were never convicted of those crimes, and California bars employers from considering expunged records when considering applicants.
Employment Benefits of an Expungement
Aside from employers not being able to discriminate against applicants with expunged records, an expungement has several other employment benefits.
On applications for jobs, you are legally allowed to state “no” when asked if you have been convicted of that crime (provided that your only convictions have been expunged). For most background checks, especially those done by private sector employers (not necessarily true for government employers), expunged convictions will not appear. This can allow you to pursue avenues of employment that might have been denied to you previously.
Having a conviction expunged helps clear your record and enables you to obtain or renew a professional license such as a nursing license, real estate license, contractor’s license, or other board-issued license. These licenses typically require a clear criminal record, and obtaining an expungement allows you to continue employment in your chosen field and not let years of schooling and effort go to waste.
Housing Benefits of an Expungement
When completing an application for housing, landlords and corporate rental companies typically run background checks. If your conviction is expunged, just like with a job application, you are legally allowed to answer “no” on whether you have been convicted of a crime, and if the background check returns information on your charge, it will show as dismissed rather than your initial conviction.
An expungement provides you with greater protections against housing discrimination by striking your criminal conviction, and gives you a stronger application in competitive markets versus those that might still have convictions on their records.
Educational Benefits of an Expungement
Many universities, colleges, and trade schools ask questions regarding a criminal history on their applications. The expungement protects you from being discounted due to a prior conviction and improves your eligibility for financial aid, scholarships, and grants that may be available to help you afford further education. Additionally, it protects you from bias during the application process and any interviews, as you do not have to disclose the expunged conviction.
Automatic Expungements and Eligibility
In 2019, California Assembly Bill (AB) 1076 was signed, setting up an automatic system to expunge certain convictions.
Under this bill, for all misdemeanor and non-violent felony convictions, provided the defendant meets the terms of their probation without any probation violations, is not currently involved in any criminal proceedings, is not currently in probation or parole, and is not a registered sex offender, will be reviewed on a monthly basis and automatically granted relief without the defendant having to file a petition, fill out paperwork, or file a motion.
This bill significantly reduces the financial barriers to having convictions expunged, as fees to have convictions expunged can be substantial depending on the individual circumstances regarding the charges.
An additional provision this bill adds for defendants is that recipients of this automatic relief may not have their criminal history released by the superior court system to any private individual or enterprise.
California’s Clean Slate Act of 2023 builds on AB 1076 and reinforces the principles of the automatic expungement program. It, however, does not eliminate immigration concerns, so discussion with a criminal defense attorney experienced in immigration complexities at the Law Offices of M. Gabriela Guraiib is crucial to give your case the best chance of success.
As per California Penal Code § 1203.4, once the automatic expungement is completed, the Department of Justice will change the final disposition of cases to “dismissed,” and alter the plea to state “not guilty,” as the conviction no longer exists legally.
If you are unsure if you qualify for automatic expungement, a discussion with your attorney at the Law Offices of M. Gabriela Guraiib is recommended, as mistakenly believing you are eligible or have received an automatic expungement when you haven’t can be detrimental to your employment, housing, and educational prospects.
Before declaring on applications or forms that you have not been convicted of a crime, utilize the state’s “Criminal Records Request” online form to request your own criminal record to verify whether your conviction received automatic relief. Taking this extra step before completing applications can save you further trouble should your assumption not prove true. If you have not received relief and you believe you should qualify, contacting an experienced attorney should be your next step, as there could be aspects of your conviction preventing an automatic expungement that the Law Offices of M. Gabriela Guraiib can help you overcome.
Not all convictions that are eligible for an expungement are similarly eligible for automatic expungement. If your conviction was for a felony, especially a violent one such as domestic abuse, assault, or battery, you would not necessarily be eligible for an automatic expungement and would need to discuss with an attorney well versed in expungements at the Law Offices of M. Gabriela Guraiib the appropriate steps to get your conviction expunged and your record cleared.
Professional Expungement Help From a Redwood City Attorney
An expungement is an excellent tool for dismissing convictions and moving past a criminal history. Utilizing California’s Clean Slate Act provides a vehicle to reset your record and open new avenues for your life. Applying for an expungement or knowing if you qualify for an automatic one can be more difficult to navigate, especially with employment, housing, or immigration consequences at risk. The attorneys at the Law Offices of M. Gabriela Guraiib know how stressful these situations can be, so reach out today to get experts on your side while working towards expunging your convictions.
