On January 1, 2016, an important law went into effect in California. AB 1352 eliminated the effect of a deferred entry of judgement disposition on a person’s immigration status or eligibility for an immigration benefit. The criminal codes of most states include some form of rehabilitative scheme for minor offenses that erases an offense from a person’s record under state law if he or she complies with certain requirements imposed by the court. Immigration law, however, has its own definition of a conviction, which often differs from state law. INA § 101(a)(48)(A) states that a disposition will be considered a conviction when there is a guilty plea, finding of guilt, or admission of sufficient facts to make a finding of guilt, and some form of punishment is imposed. Punishment for purposes of this definition includes any “restraint on liberty,” which can be as minimal as attending classes, performing community service or paying fines. As a result, many people who no longer have a conviction under state law continue to have a conviction under immigration law. This can lead not only to confusion but harsh consequences under immigration law of a conviction that no longer exists under state law.

California Penal Code §§ 1000, et seq. allow state judges to dispose of a defendant’s first charge for certain minor drug offenses through deferred entry of judgment (DEJ). In order to be eligible for DEJ, the defendant must plead guilty to the offense and must comply with the requirements imposed by the court, such as attending Narcotics Anonymous classes or performing community service. These requirements must be completed within a period of 18 – 36 months. If the defendant has completed all of the requirements within the prescribed time period, the charges are dismissed and the disposition is no longer a conviction under California law.

California Penal Code § 1000.4 states that if a person successfully completes a DEJ program, it shall not “be used in any way that could result in the denial of any employment, benefit, license,

or certificate.” As a result of efforts on the part of the advocacy community, the California state legislature was convinced that this statement constitutes misinformation for non-citizens because DEJ dispositions continue to be considered convictions under immigration law. Having such a conviction renders many non-citizens ineligible for immigration benefits and subject to enforcement measures. In 2015, the California state legislature passed AB 1352, which created California Penal Code § 1203.43. Section 1203.43 states that because of this misinformation, the original plea is deemed legally invalid. Declaring the original plea legally invalid paves the way for these dispositions to be vacated in a way that will be recognized under immigration law. In order for a conviction to be successfully vacated for immigration purposes, the vacatur must be based on procedural or substantive defects in the underlying criminal proceedings. See Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). Section 1203.43 allows individuals who were granted and successfully completed DEJ on or after January 1, 1997 (the date when DEJ was first created) to withdraw the guilty or no contest plea, enter a plea of not guilty, and have the charges dismissed.

This is a very positive development for non-citizens who received DEJ in California. If you encounter a DEJ disposition in your client’s record, encourage them to seek the advice of a criminal defense attorney about whether they can take advantage of this new provision. The legislature has not done away with DEJ, and non-citizens will be likely to continue to receive this disposition. Remember that California DEJ is still a conviction for immigration purposes. Even going forward, anyone with a DEJ disposition will have to go back and request to withdraw their plea after the DEJ period is over in order to eliminate its effect for immigration purposes.

The Immigrant Legal Resource Center has a helpful practice advisory on this topic, which can be found here.