By Parviz Malakouti-Fitzgerald, Esq.
California expungements can sometimes give the little edge needed in discretionary immigration applications
A California (“CA”) expungement (per PC § 1203.4) can be a powerful, if limited, tool for helping people pursue citizenship or residency.
For non-U.S. citizens, CA expunged convictions still exist or “count” for the purposes of U.S. immigration law. These expunged convictions must still be reported on immigration forms, and they are still considered by USCIS when evaluating an applicant’s immigration or citizenship application. In other words, the convictions still remain for the purposes of immigration.
But, as we’ll discuss below, in some limited situations, expunging these California convictions (per PC § 1203.4) can still help a person’s immigration situation.
For U.S. citizens, expunged convictions may be the difference between being eligible for second citizenship, whether by descent or investment…or not. For U.S. citizens, the expungements can also be the difference between being able to travel to Canada or not.
Note: This article does not discuss the potential immigration impacts of other, sometimes stronger California post-conviction relief such as vacatur under PC § 1203.43 or PC § 1474.7.
American Citizens Pursuing 2nd Citizenship
Americans can benefit from a California expungement just as much as immigrants.
For American applicants applying for a second citizenship, expunging a California conviction can go a long way in showing that the misdeed is in the applicant’s past. That’s because one of the requirements for expungement is to complete all sentencing requirements for the conviction.
This shows the foreign country’s adjudicating agency that the applicant has paid their debt to society, so to speak. Also, unlike in the U.S., some foreign countries consider an expunged California conviction to not “count” as a disqualifying conviction for naturalization in that country.
An expungement combined with a thoroughly written legal opinion letter explaining the applicant’s conviction and expungement can sometimes get an American over the finish line to dual citizenship.
Note: some California convictions may entirely disqualify an applicant for applying for second citizenship in a particular country, regardless of whether it’s been expunged. Each country has its own naturalization and immigration laws, and these scenarios are highly case dependent.
DACA Recipients Convicted of California DUI
For California DACA recipients, an expungement might be what keeps them protected from deportation and with authorization to work.
Here’s why: one of the eligibility conditions for an initial or renewal DACA application is that the applicant must not have been convicted of a significant misdemeanor. Unfortunately, crimes involving driving under the influence (“DUI”) are considered significant misdemeanors for the purposes of the DACA program. This means DACA recipients convicted of DUI in California are ineligible to renew their DACA…unless they get it expunged.
An expunged California DUI, at present, makes DACA recipients eligible to apply for DACA again. However, as discussed in the article below, the applicant still has to show they merit USCIS’s discretion - in other words, that they deserve to have DACA.
U.S. Naturalization Applicants
If you want the U.S. passport, you need U.S. citizenship and if you need U.S. citizenship, you need "good moral character"
Expunging a California conviction can help a U.S. naturalization applicant show they have “good moral character”, which is a requirement for U.S. naturalization.
There are some acts that unfortunately pose a permanent bar to good moral character, and some acts that act as a conditional bar to good moral character. Acts that are a conditional bar to good moral character generally cannot have been committed within five years before applying for naturalization (or three years if the applicant is married to a U.S. citizen). This period of time is called the applicable statutory period.
Expungement can sometimes help with showing an applicant has not triggered a conditional bar to good moral character. In these scenarios, the expungement can sometimes help by showing the actions the applicant took as part of their sentencing agreement to help the applicant prove that bad behavior from immediately before the start of the statutory period did not spill into the statutory period.
I-601A Unlawful Presence Waivers
For undocumented immigrants who have accrued “unlawful presence”, an expunged conviction can help with an I-601A waiver application.
That’s because one of the requirements for an unlawful presence waiver application is that the applicant must “merit the discretion of the Attorney General.” Having a conviction is a setback in proving “merit of discretion.” Expunging that conviction could be a small, but important, step towards showing USCIS the applicant deserves the waiver, and therefore the shot at a green card.
Consult With Malakouti Law
At Malakouti law, we have experience helping people get a California expungement so they can strengthen a second citizenship or residency application.
If you have a criminal record and you want to pursue second citizenship or residency, click here to book a consultation now.
Each immigration and citizenship case is particular and you should consult with a qualified, licensed immigration lawyer about your case before taking any steps. The Law Office of Parviz Malakouti does not guarantee the accuracy of information presented nor assume responsibility for actions taken in reliance of this information. The information in this page could become outdated. Attorney marketing.