quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
Example 2: Sam receives a second California felony conviction for simple possession of
heroin. The prior possession conviction is not pleaded or proved at the second prosecution.
Aggravated felony? A simple possession conviction (other than flunitrazepam or more than 5
grams of cocaine base) is not an aggravated felony unless a prior drug conviction was pleaded
and proved, according to the U.S. Supreme Court and the BIA. Thus Sam’s plea is not an
aggravated felony.
Deportable? This conviction, like his first one, makes Sam inadmissible and deportable.
Rehabilitative relief? Because it is the second conviction, it will not be eliminated by
“rehabilitative relief.”
Example 3: Esteban participated in a pre-plea diversion program in California in 1995,
where he did not admit any guilt but did accept counseling, after which the charges were
dropped.
Aggravated felony? No. Because there was no plea or finding of guilt, this is not a conviction at
all for immigration purposes. Deportable? This is not a conviction, and so would not be a
deportable drug conviction. Rehabilitative relief? No relief is required, because this is not a
conviction. However, see next question for its effect on Esteban’s ability to eliminate the
immigration consequences of a future conviction by “rehabilitative relief.”
Example 4: Esteban pleads guilty to simple possession of methamphetamine.
Aggravated felony? While there is no case on point, it should not be so held. A simple
possession conviction where there are no prior controlled substance convictions is not an
aggravated felony, unless it involves flunitrazepam or more than 5 grams of crack cocaine.
Because the prior pre-plea diversion was not a conviction, this conviction should not be an
aggravated felony. Deportable? Yes, he is deportable based on a conviction relating to a
controlled substance. Rehabilitative relief? No. While normally rehabilitative relief
withdrawing a plea would eliminate a first conviction under Lujan-Armendariz, the Ninth Circuit
has held that receipt of a prior pre-plea diversion bars this benefit – even though the pre-plea
diversion was not a conviction. Therefore an expungement, DEJ or other treatment withdrawing
this plea will not be given immigration effect.
Example 5: Lani is convicted of simple possession of more than 5 grams of crack
cocaine in state court, her first-ever drug conviction.
Aggravated felony? This will be held an aggravated felony. A first conviction for possession of
flunitrazepam or more than 5 grams of crack cocaine is an aggravated felony. Deportable? It
would make her deportable and inadmissible for a drug conviction. Rehabilitative relief? If it
was a very first conviction of simple possession, Lani can eliminate it for immigration purposes
by “rehabilitative relief.”
Immigrant Legal Resource Center N-77