Does Expungement Clear Your Record for U.S. Immigration?

It’s one of the most dangerous myths in immigration law. You made a mistake, you completed your probation, and a criminal court judge in San Jose granted you a California expungement under Penal Code § 1203.4. Your attorney told you the conviction was dismissed, and you can now legally say you were never convicted on most job applications. So, you must be clear for your Green Card or citizenship application, right?

Wrong. For immigrants, believing a California expungement erases a criminal record can lead to devastating consequences, including detention and deportation. Federal immigration authorities play by a different set of rules, and they do not recognize most state-level expungements. Understanding this distinction is not just important; it’s critical to protecting your future in the United States.

What a California Expungement Actually Does

In California, an “expungement” is technically a dismissal because California doesn’t have a true expungement process that seals your record. When a judge at the Santa Clara County Superior Court or another court grants a dismissal under Penal Code § 1203.4, it provides significant relief. The court allows you to withdraw your original plea of “guilty” or “nolo contendere” (no contest) and enter a plea of “not guilty.” Then, the court dismisses the complaint against you.

This process effectively releases you from many of the penalties and disabilities arising from the conviction within the state. It’s a powerful tool for moving forward with your life, helping you secure employment and housing. But this relief stops at the state line and has almost no power when you enter the world of federal immigration law.

Federal Law vs. State Law: The Critical Conflict

The heart of the problem lies in the simple fact that immigration is federal. U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and the immigration courts do not have to follow California’s definition of a dismissed case. Instead, they use the federal definition of a “conviction” found in the Immigration and Nationality Act (INA).

Under INA § 101(a)(48)(A), you have a conviction for immigration purposes if:

1. You entered a guilty plea, a plea of no contest, or a judge found you guilty; AND
2. The judge ordered some form of punishment, penalty, or restraint on your liberty.

This “punishment or restraint” can be anything from jail time to a fine, probation, or community service. Because a California expungement only happens after you’ve already been sentenced and completed probation, you have already met the federal definition of a conviction. The subsequent state dismissal doesn’t go back in time to erase that fact. To the federal government, the conviction still exists.

So, Is an Expungement Useless for My Immigration Case?

Not entirely, but its value is severely limited and often misunderstood. An expungement does not prevent a conviction from being used against you to establish inadmissibility (barring you from getting a Green Card or visa) or deportability (making you subject to removal).

For example, if you have a conviction for a crime involving moral turpitude (CIMT), domestic violence, or an aggravated felony, getting it expunged will not stop ICE from trying to deport you. You must still disclose the expunged conviction on all immigration applications. Failing to do so can lead to a finding of misrepresentation, which creates a separate and permanent bar to immigration benefits.

Even so, an expungement can serve one narrow purpose. It can be a positive factor when an immigration judge is deciding whether to grant you a form of relief in their discretion. It shows that you took your sentence seriously, complied with the court’s orders, and have demonstrated rehabilitation. This might help in an application for cancellation of removal or certain waivers, but it will never be the main factor that wins your case. Relying on it as your primary defense is a losing strategy.

More Powerful Tools: Vacating a Conviction

If a California expungement is not the answer, what is? For many immigrants in San Jose and across California, the goal is not to dismiss the conviction but to vacate it. Vacating a conviction means the court has found a fundamental legal error in your original case and is throwing out the conviction as if it never happened. This is the kind of post-conviction relief that can actually eliminate a conviction for immigration purposes.

Two powerful California statutes allow us to fight to vacate convictions for our clients:

• Penal Code § 1473.7: This law allows a person to file a motion to vacate a conviction because of a prejudicial error that damaged their ability to meaningfully understand or defend against the adverse immigration consequences of a plea. Often, this means their original attorney failed to investigate or properly advise them about the specific immigration damage the plea would cause.
• Penal Code § 1016.5: This motion is based on a court’s failure to give the required warning at the time of the plea that the conviction could result in deportation, denial of naturalization, or exclusion from admission.

These motions attack the legal validity of the conviction itself. When a court grants a motion to vacate under these sections, it erases the conviction from your record for immigration purposes because the legal foundation for the conviction is gone. This is a far more powerful and effective strategy than a simple expungement.

Don’t Settle for an Easy Answer. Demand a Real Strategy.

The intersection of criminal and immigration law is a minefield. A simple misstep based on common myths can end your American dream. At The Law Offices of Daniel Shanfield Immigration Defense P.C., we thrive in this complex and challenging arena. We are aggressive, competitive advocates who refuse to quit on our clients. When other attorneys see a closed door because of a criminal record, we look for a way to break it down.

If you are facing immigration consequences from a California conviction, do not leave your future to chance. Let our relentless team build the demanding and creative defense you need. Call us today at (408) 359-4388 to schedule a consultation.