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K. Expungements/Vacations under Immigration Law
Under RCW 9.94A.640 (felony expungement) and RCW 9.96.060 (misdemeanor expungement), a person who has pled guilty to certain felony or misdemeanor offenses can withdraw the guilty plea, as long as probation was imposed and probation was either successfully completed or the judge as a matter of discretion permitted the expungement. This procedure is referred to as a vacation of the conviction and result in a person’s record being cleared with the Washington State Patrol and other databases.[1]
“Rehabilitative relief” such as expungements/vacations will not eliminate a conviction for immigration purposes, [2] except under the Lujan-Armendariz rule: expungement will eliminate a first conviction for (a) simple possession, (b) a less serious drug offense that does not have a federal analogue, such as possession of paraphernalia, or (c) giving away a small amount of marijuana. See below, Chapter Six: Drug Offenses.
Thus, for example, withdrawal of plea under RCW 9.94A.640 of a felony heroin possession conviction will eliminate the conviction for immigration purposes as long as that was the first drug conviction of the person’s life.[3]
[1] Note that pursuant to State v. Noel, 101 Wn. App. 623 (2000), Title 3 courts of limited jurisdiction do not have the power to vacate convictions through the deferred sentencing scheme procedures. The opinion goes on to say that it is a “vacation” that clears the persons WSP record. This case was issued prior to the 1991 amendments by the Washington Legislature establishing a misdemeanor expungement/vacation process under RCW 9.96.060. Presumably, in order to have the record cleared, in addition to a successfully completed deferral a person will need to avail themselves of RCW 9.96.060.
[2] See Murillo-Espinoza v. INS, supra n. 53, partially upholding Matter of Roldan, supra n. 53. Until the BIA ruled in 1999, that the 1996 enactment of the statutory definition of a conviction made statutes such as RCW 9.94A.640 and RCW 9.96.060 ineffective, Washington expungements were—for nearly forty years— held to eliminate, variously, conviction for crimes involving moral turpitude, firearms convictions, and first offense drug possession offenses. See, e.g., Matter of G-, 9 I. & N. 159 (BIA 1960, AG 1961); Matter of Luviano, 21 I. & N. Dec. 235 (BIA 1996).
[3] The person still must admit the arrest to immigration authorities and it can be used as a negative factor in a discretionary decision, unless the person was under the age of 21 when the offense was committed. See Paredes-Urrestarazu v. INS, 36 F.3d 801, 812-813 (9th Cir. 1994).
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