Criminal Law

Crim. Law Journal Summer 2016, Vol. 16, Issue 3


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.


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

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