Tuesday, January 19, 2016

New California Drug Law May Benefit Immigrants

For the past decade, California law has allowed some qualifying drug offenders to participate in a "diversion" program, also called "Deferred Entry of Judgement" ("DEJ"), or "PC 1000".  Upon successful completion of that program, participants were told by the courts that their cases would be dismissed and that they would be entitled to honestly state that the arrest and conviction never happened for all purposes.

Unfortunately for many immigrants, that last piece of advice was not entirely accurate.

In order to participate in the DEJ program, most courts require defendants to enter "guilty" pleas. After pleading "guilty", the defendant is ordered to attend and complete some form of counseling or self-help classes.  Once the defendant completes the mandatory classes, he returns to court and the case is dismissed and wiped off his criminal record.

The FBI, however, maintains a record of the arrest and subsequent court proceedings.  Under federal law, a person is deemed to be "convicted" of a crime if he pleads "guilty" and any form of punishment is imposed.  Regardless of what the defendant's state criminal record shows, participation in DEJ will constitute a "conviction" for federal immigration purposes.

Drug convictions are especially harmful in the immigration context.  Any drug conviction will likely result in deportation, exclusion from entry, denial of naturalization, and mandatory immigration detention without the opportunity to post bond.

In order to vacate a "guilty" plea for federal immigration purposes, the plea must be withdrawn "for cause". Previously, this had required criminal defendants to prove that they had received bad legal advice and that they had been harmed or prejudiced by their reliance on that bad advice.

Since California courts have effectively been dispensing bad legal advice for the past decade, our state legislature has finally decided to fix the problem that they created.  Their solution is PC 1203.43.  Under this new law, anyone who has successfully completed DEJ may withdraw his previous "guilty" plea "for cause".  The defendant need only show that state law had previously assured him that his "guilty" plea would be vacated upon successful completion of diversion, and that the state law had misled him regarding immigration consequences of the deal.

If you or a loved one has questions about drug charges, immigration, diversion or cleaning up a criminal record, call us for a free consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Orange County Drug Diversion