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Raising A Glass Half-Full

Non-citizens who received case dismissals after completing drug diversion pursuant to entering a plea of guilty to a drug possession offense have a little more reason to celebrate. On October 8, 2015, California Governor Jerry Brown signed into law Assembly Bill (AB) 1352 (sponsored by Assemblymember Susan Talamantes Eggman), legislation which eliminates adverse immigration consequences for many by permitting them to withdraw their guilty plea.

The new law protects the expectations of persons who took deferred entry of judgment (DEJ) believing they could get drug treatment or drug education instead of doing jail time, thereby avoiding a criminal conviction and the harsh effects it would have on their immigration status. In essence, the new law will potentially benefit many who face deportation, are inadmissible for permanent residence, or seek to naturalize, only to be stopped dead in their tracks by an interpretive glitch in federal immigration law which conflates a plea for which no jail time was served with a disqualifying crime for immigration purposes.

At the same time, Governor Brown vetoed AB 1351, a related piece of legislation which would have allowed persons charged with minor drug crimes to avoid entering a plea altogether if they satisfactorily completed a pre-trial drug treatment or drug education program. The hope was that by sidestepping a plea, a noncitizen with pending drug charges for simple possession would never be handed a conviction that could serve as the basis for his or her being deported or being denied a green card or U.S. citizenship. AB 1351 certainly would have been a nice option for attorneys who, like myself, practice removal defense, to be able to recommend to their clients, and it is disappointing that Governor Brown did not sign the legislation into law.

My take on this mixed bag is that Governor Brown apparently believed that he was justified in approving a bill (AB 1352) which would correct a patent injustice in the way federal law treats state court convictions for simple drug possession offenses; but he was not willing to go so far as to authorize changing sentencing procedures (AB 1351) to give a perceived advantage to non-citizens who encounter the criminal justice system.
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