Sometimes a court order can remove a conviction for federal immigration purposes, but the label “dismissed,” “expunged,” or “vacated” does not answer the question. Federal law defines a conviction separately from California law. Under the Board of Immigration Appeals’ decision in Matter of Marquez Conde, a conviction vacated because of a procedural or substantive defect in the original criminal case is treated differently from one set aside solely for rehabilitation or immigration hardship. The reason the court acted, and what happened to the charge afterward, need review. (8 U.S.C. § 1101(a)(48)(A); Matter of Marquez Conde)

A California dismissal and a defect-based vacatur do different work

Penal Code § 1203.4 allows eligible people, generally after probation, to withdraw a guilty or no-contest plea or set aside a guilty verdict and have the accusation dismissed. It provides important state-law relief, but the statute also preserves specific consequences of the conviction. A § 1203.4 order based on completion of probation does not, by its label alone, show that the original conviction was legally defective. Federal immigration authorities apply the federal definition and the reason for the state court’s action. (Penal Code § 1203.4; 8 U.S.C. § 1101(a)(48)(A); Matter of Marquez Conde)

California Penal Code § 1473.7(a)(1) addresses a different problem. A person no longer in criminal custody may move to vacate a conviction or sentence for prejudicial error that damaged the ability to meaningfully understand, defend against, or knowingly accept actual or potential adverse immigration consequences. If the court grants a motion based on an underlying defect, the BIA’s defect-versus-rehabilitation distinction can be significant. But counsel must read the actual motion and order; merely citing § 1473.7 or calling an order a “vacatur” is not a substitute for knowing the ground the court found. The statute also permits withdrawal of the plea after a qualifying vacatur, so counsel must check whether a new plea or judgment followed. (Penal Code § 1473.7(a), (f); Matter of Marquez Conde)

Which records establish what happened?

Put the original charging document, plea or verdict, sentence, relief motion, supporting declaration, hearing minutes, signed relief order, and every later disposition in date order. For each order, ask:

  • Did the court find a defect in the original proceeding, or did it grant relief because probation was completed, rehabilitation occurred, or hardship would follow?
  • Did the order vacate the conviction, change only the sentence, dismiss the case, or seal access to a record?
  • Was a new charge, plea, sentence, or judgment entered afterward?
  • Which federal immigration proceeding is considering the record, and what document has that agency requested?

Those questions keep a state record change separate from the federal legal effect. A state dismissal can still be valuable even if it does not eliminate a federal conviction; a defect-based vacatur can change the conviction analysis without itself deciding every immigration eligibility question. Have criminal and immigration counsel reconcile the complete sequence before relying on a relief order in an application or removal case. (8 U.S.C. § 1101(a)(48)(A); Matter of Marquez Conde)

The Law Offices of David S. Chesley’s post-conviction relief overview describes California relief more broadly. To discuss an existing order and the underlying criminal record, call (800) 755-5174.