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CALIFORNIA & U.S. FEDERAL IMMIGRATION LAW … THE CATCH-22

07-03-2015


A noncitizen who pleads guilty to California illicit substance charges is likely to stoke a conflict between federal immigration laws and California criminal law as it relates to whether a guilty plea will implicate the possibility of a noncitizen being deported or simply subjected to a host of federal immigration law consequences. To say the least, this makes for a rather unpredictable situation.

Recently, drug-based offenses have been a powerful tool in the deportation of non-citizens, but a proposed California law is seeking to change that by offering relief to noncitizens charged with minor drug crimes.

California State Assemblywoman, Ms. Susan Eggman, proposes legislation with the following purpose:

“…to allow any person who has successfully completed a deferred entry of judgment (DEJ) treatment program to obtain dismissal of the plea upon which DEJ was granted, on the basis that the guilty or no-contest plea underlying DEJ may result in a denial of employment benefit, license or certificate, or have adverse immigration consequences, in conflict with the statement in the governing statute that the plea shall not result in “denial of any employment, benefit, license, or certificate.”

This would make it so that all persons charged with low level California drug crime to be allowed to choose drug treatment before entering a plea. In sum, this proposal considers the differences between California State and federal law. Under this proposal an offender charged with drug possession and other low-level narcotics crimes could opt for treatment “before” entering a plea. Subsequently, once they complete their courses they would not have to enter a guilty plea. A failure to complete the courses after opting for treatment, however, would unquestionably force the offender to face criminal proceedings.

In short, any offender who successfully completes treatment would be permitted to avoid entirely, having to enter a plea of guilty, thus allowing for noncitizens to avoid entirely the implications of immigration law. This option to choose treatment, however, would not be available for people with a history of drug sales or any violent or otherserious felony.

While many of us are aware that California Proposition 47 (2014), referred to by its supporters as the Safe Neighborhoods and Schools Act, contributed to the recent overall relaxation of California criminal drug laws (especially criminal drug offenses involving possession), immigration law consequences such as mandatory deportation, ineligibility for residency or the loss of political asylum are likely to follow and loom overhead from merely entering a guilty plea to these criminal drug offenses. Ms. Eggman, claims that such a change in the law would make it possible for immigrants to choose drug counseling without the attendant risk of deportation. The fate of her proposed legislation will be forthcoming!



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