Last week, Governor Jerry Brown signed a new California law giving certain immigrants the right to withdraw a former plea of guilty or nolo contendere (no contest) for possession of a controlled substance. To do so, defendants must prove that they successfully completed a deferred entry of judgment program and had their charges dismissed on or after January 1, 1997. They must also show that they will suffer the loss of certain benefits, such as immigration relief, because of the original plea. The law becomes effective January 1, 2016.
This is great news for non-citizens, including lawful permanent residents, because they often face many adverse immigration consequences when found convicted of drug possession. While these consequences require a much deeper discussion beyond the scope of this article, they generally include deportation, mandatory detention, and ineligibility for immigration benefits, such as adjustment of status.
Even though California’s deferred entry of judgment program is designed to avoid a criminal conviction, eligible defendants must still plead guilty or nolo contendere to participate in the program. For immigration purposes, this plea nonetheless results in a criminal conviction because of how immigration law defines a conviction. Section 101(A) of the Immigration and Nationality Act provides:
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.
This means that California’s deferred entry of judgment program does not prevent a conviction for immigration purposes because the program requires a plea of guilty or nolo contendere, and participation in the program is easily interpreted as a form of punishment. However, thanks to this new law, which has been added to California’s Penal Code section 1203.43, an immigrant can go back to court to withdraw the harmful plea so that the deferred entry of judgment program will no longer reflect as a drug possession conviction for immigration purposes.
While this new law will help many immigrants, they must still enter a plea of guilty or nolo contendere in the first place to be eligible for a deferred entry of judgment. Notably, on the same day he signed Assembly Bill 1352, Governor Brown vetoed Assembly Bill 1351, which would have eliminated the plea requirement altogether. As a result, immigrants will continue to be deportable or inadmissible for drug possession in California until they finish the deferred entry of judgment program and return to criminal court to withdraw their pleas.
If you believe you might benefit from this new law, which becomes effective January 1, 2016, you should consult with an experienced immigration attorney for a detailed review of your case. Bean + Lloyd LLP will be available for such consultations. Keep in mind that you will also likely need to consult with a criminal attorney who can help you prepare and file your request for a plea withdrawal.
Written by Sara Silvia Taylor. Ms. Taylor is an associate attorney at Bean + Lloyd LLP, an immigration law office in Oakland, California emphasizing family-based immigration, citizenship, removal defense, and deferred action.
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