Deferred Entry of Judgment and P.c. § 1203.43

• Publication year: 2016
• Author: By Andres J. Ortiz, Esq.

DEFERRED ENTRY OF JUDGMENT AND P.C. § 1203.43

By Andres J. Ortiz, Esq.^*

With the passage of Assembly Bill 1352¹, California's new drug law, the State made great strides in affording noncitizen Defendants the crucial and long-promised ability to reap the benefits of deferred entry of judgment (DEJ). The Bill, which was made effective on January 1, 2016 and is now codified as P.C. § 1203.43, allows noncitizen Defendants with minor drug convictions to avoid devastating immigration consequences. The new law reflects the California Legislature's intent to not destroy the lives those who have successfully completed the rehabilitative requirements of the program through preventing the unintended consequences of DEJ. Indeed, as this article will explain, the current DEJ scheme has caused deleterious consequences for many noncitizen Defendants who had been promised relief. Fortunately, the Legislature made a specific finding to that effect.² The law permits Defendants who have completed deferred entry of judgment to withdraw their pleas, which were entered in reliance on the promise that if they completed the requirements their convictions would not have adverse immigration consequences. Although this benefit comes too late for some, its application can change the course of a noncitizen's current or future removal case, as well as, offer other noncitizens a chance to legalize status.

Background

As an initial point, an explanation of the evolution of the definition of "conviction" for immigration purposes is helpful when examining the effects of the new law on noncitizen Defendants. Prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the definition of "conviction" for immigration purposes was fluid.³ The Board of Immigration Appeals (BIA) and the Supreme Court wrestled with the meaning of "conviction" for over 50 years.⁴ However, among the many changes to immigration law brought about by the enactment of IIRIRA by Congress in 1996, the statutory amendment also adopted a new definition of "conviction" for immigration purposes.⁵ According to INA § 101(a)(48)(A), a conviction occurs once there is a guilty plea or finding a guilt, coupled with any punishment or restraint, including fines or assignment to drug programs.⁶ This new definition of "conviction" would later prove problematic for noncitizen Defendants with minor drug convictions, particularly after the BIA in In re Roldan-Santoyo held that once an alien is subject to a "conviction" as defined in INA § 101(a)(48)(A), the alien remains convicted for immigration purposes, even if subsequent State action purports to erase the original determination of guilt through a rehabilitative procedure.⁷ Thus, after Roldan-Santoyo, the only way to avoid a conviction for immigration purposes is: to enter into a pre-plea diversion program (see Matter of Grullon)⁸; an overturned conviction on appeal; or a conviction that is vacated for cause (see In re Adamiak).⁹

California's Deferred Entry of Judgment

In the following year after enacting IIRIRA, the California Legislature amended the State's Penal Code to include P.C. § 1000, which originally permitted criminal court judges to offer deferred entry of judgment (DEJ) to qualifying Defendants charged with a first, minor drug offense. Until 1997, California allowed first time drug offenders to enter into a pretrial diversion. Although the pretrial diversion was operationally identical to DEJ, there was an important distinction between the two programs. In the pretrial program, instead of requiring that the Defendant enter a guilty plea, the Defendant was offered a not guilty plea prior to being diverted. Under the new DEJ—and this is the critical point for immigration purposes—the Defendant would be required to enter a guilty plea prior entering a DEJ program. The Defendant is then given from 18 to 36 months to complete a drug program, which may include classes, attendance at support group meetings, or counseling. Under the DEJ statute, if the Defendant successfully completes the requirements, the law promises that the Defendant will have a "clean slate." The court dismisses the charges, and there will not a be a conviction "for any purpose." The benefits of the clean slate include the Defendant being legally entitled to deny that the arrest occurred. Under the statute, no denial of any license, certificate, employment, or benefit may flow from the incident.

However, because the Defendant is required under DEJ to plead guilty in order to reap the benefits of the program, the promise of the clean slate did not apply to noncitizen Defendants. "Immigration law will give effect to an order that eliminates a conviction due to a legal defect in the proceedings, but it will not give effect to 'rehabilitative relief' like P.C. § 1000.3 that dismisses charges because the Defendant completed program requirements."¹⁰ Despite successful completion of the DEJ, noncitizens were nevertheless left with an extremely damaging drug "conviction," which could result in severe immigration consequences, such as deportability and admissibility, and mandatory immigration detention without the...