By Michael Mehr
In California, as in many other states, a defendant charged with a minor drug offense, is offered Deferred Entry of Judgment: plead guilty to the offense, complete a diversion program, and upon successful completion criminal charges are dismissed. The defendant is told the “arrest will be deemed never to have occurred” and that the plea can never be used to deny her any “benefit.” But the reality is far different: under federal immigration law, a plea of guilty paired with any form of restraint or punishment, including completion of a diversion program, is a “conviction” for immigration purposes. Instead of being given a second chance, the defendant, if she happens to be a non-citizen, is subject to deportation and denied the chance to remain or become a permanent resident.
Over a quarter of a million were deported from the United States for drug convictions from 2007 to 2012 with possession convictions the most common. Over 24,000 deported non-citizens had a marijuana possession conviction as their most serious conviction. These are life-altering consequences for people who, as Human Rights Watch reported earlier this week, often have “strong family and communities to the U.S.”
The Immigrant Legal Resource Center and Drug Policy Alliance with the support of the ACLU, MALDEF, and many other immigrant rights groups, joined forces to sponsor two bills in the California State Legislature to remedy this travesty of justice.
Keenly aware of immigration law’s severe stance toward criminal adjudications, advocates worked with California legislators to carefully tweak state criminal law to eliminate the double punishment that so often results when criminal law collides with immigration law. Assembly Bill (AB) 1351 amends California criminal law to change Deferred Entry of Judgment for minor drug offenses to Pre-Trial Diversion without a guilty plea. By not requiring entry of a guilty plea, AB 1351 allows the criminal process to run its course to the satisfaction of defendants, prosecutors, and judges, but without meeting the definition of “conviction” used for federal immigration law purposes. As a result, this “modest” change in the law, as one state assemblyman termed it, will prevent families from being torn apart.
Building on that innovative foundation, AB 1352 allows migrants to seek remedial relief from California courts by providing that any defendant who successfully completed Deferred Entry of Judgment can apply to the court to withdraw their plea on the basis of being misinformed about the immigration consequences and the court shall grant withdrawal of the plea and dismiss the case again. It is believed that this withdrawal of the plea will pass the standard set in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), that a withdrawal or vacatur is effective in immigration court if it is based on an underlying defect in the plea.
Both bills passed the California Assembly with wide margins and there is good reason to believe that the State Senate will also pass these bills and they will be signed by the Governor.
So while the U.S. Supreme Court has reigned in some drug deportations, the way forward is not necessarily with the dysfunctional Congress, but with state legislatures. Deferred Entry of Judgment laws offer a broken promise for noncitizens. A minor change in the law can fulfill the promise of giving non-citizens and citizens alike a second chance.
Taking the fight to the state legislatures requires as much tenacity as litigating in immigration or federal court, but holds out a huge promise in its potential for effecting a major change in the lives of non-citizen defendants and their families.
One thing is clear: don’t try it without organizational sponsors who have paid lobbyists who know how a bill can get legislative sponsors and support. Once you have such an organizational sponsor—in our case with the Drug Policy Alliance—the rest is no different than other organizational activity.
So I put this challenge out to advocates in other states: seize the time to take the fight to state legislatures. There is now a convergence of forces on the left and right which realize that the War on Drugs has been a failure, that drug abuse is best treated with treatment, not jail time or deportations, and that our criminal justice system jails too many and tears too many families apart.
Because changing Deferred Entry of Judgment to Pre-Trial Diversion without a guilty plea is such a modest fix and there is an increasing consensus to decriminalize drug laws, now is the time to take the fight to the states.
Michael K. Mehr practices immigration law and post-conviction relief in Santa Cruz, California, and is a frequent lecturer and author in crimimm. For more information see his website at www.mehrlaw.com
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