quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 guilty plea plus an order to pay court costs is a conviction. 37 A judgment of guilt that has been entered by a general court-martial of the United States Armed Forces qualifies as a “conviction” for immigration purposes. 38 The one exception is for a first conviction of certain minor drug offenses, described in Part B, below. An acquittal; a deferred prosecution, verdict, or sentence; and dismissal under a pre-plea diversion scheme are not convictions. In addition, juvenile delinquency dispositions, cases on direct appeal, judgments vacated for cause, and arguably California infractions are not convictions. The rest of this section discusses these dispositions. B. Effect of Withdrawal of Plea under Rehabilitative Relief such as Deferred Entry of Judgment, Prop. 36, Expungements; First Minor Drug Offenses and Rehabilitative Relief 1. In General Withdrawal of Plea Pursuant to Rehabilitative Relief Has No Immigration Effect If there has been a plea or finding of guilt and the court has ordered any kind of penalty or restraint, including probation, immigration authorities will recognize the disposition as a conviction even if the state regards the conviction as eliminated by some kind of rehabilitative relief leading to withdrawal of judgment or charges. 39 See discussion in Part A. Example: Katrina is convicted of misdemeanor theft under P.C. § 484. She successfully completes probation and the plea is withdrawn under P.C. § 1203.4. For immigration purposes, the conviction still exists. 2. The Lujan-Armendariz Exception for First Conviction of Certain Minor Drug Offenses The one exception to the above rule is for a first conviction of certain minor drug offenses. The offenses are: simple possession of any controlled substance; an offense less serious than simple possession that does not have a federal analogue (e.g., possession of paraphernalia); and, arguably, giving away a small amount of marijuana. In that case “rehabilitative relief” such as withdrawal of plea under deferred entry of judgment or Prop. 36, or expungement under PC § 1203.4, will eliminate the conviction entirely for immigration purposes. Lujan-Armendariz v. INS, 222F.3d 728 (9 th Cir. 2000). 37 Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008). 38 Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA 2008). 39 Id. Immigrant Legal Resource Center N-31
California Quick Reference Chart and Notes February 2010 This Lujan benefit is not available if the court found that the person violated probation, even if he or she went on to successfully complete it. 40 It is not available if the person had a prior “pre-plea” diversion. 41 It applies only to eliminate a first controlled substance conviction. Example: Yali’s plea is withdrawn pursuant to a deferred entry of judgment for a first drug offense, possession of cocaine. In immigration proceedings arising within Ninth Circuit states, the disposition is not a conviction under Lujan-Armendariz. Some years later she is convicted again for possession of cocaine and the conviction is expunged under PC § 1203.4. She has already used up her Lujan-Armendariz benefit, so this becomes her “first” conviction for a controlled substance offense. She is deportable and inadmissible based on the conviction. NOTE: The Lujan benefit will only be recognized in immigration proceedings held in Ninth Circuit states. If the immigrant is arrested in, e.g., New York, the disposition will be treated as a conviction. FOR FURTHER DISCUSSION of Lujan-Armendariz benefits see § N.8 Controlled Substance Offenses, and Chapter 3, § 3.6, Defending Immigrants in the Ninth Circuit. C. Pre-Plea Dispositions If through any formal or informal procedure the defendant avoids pleading guilty before a judge, or being found guilty by a judge, there is no conviction for immigration purposes. A disposition under the pre-plea drug diversion under former PC § 1000 in effect in California before January 1, 1997 is not a conviction. (Note that even after the law changed in 1997, for some years many criminal court judges did not actually take a guilty plea; this disposition also is not a conviction.) A disposition in a drug court that does not require a plea is not a conviction. Note that a drug court disposition creates other immigration problems if the person must admit to being an abuser, which itself is a ground of inadmissibility or deportability. In some cases it may be better for immigration purposes to go through Prop. 36; this is an individual determination. The Ninth Circuit held that receipt of pre-plea diversion under the former Calif. PC § 1000 will count as the noncitizen’s one-time Lujan-Armendariz benefit, so that a subsequent DEJ or expungement will not be given effect in immigration proceedings. 42 D. Juvenile Delinquency Dispositions Most criminal grounds of removal require a conviction. Adjudication in juvenile delinquency proceedings does not constitute a conviction for almost any immigration purpose, 40 Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009. 41 De Jesus Melendez v. Gonzales, 503 F.3d 1019, 1026-27 (9th Cir. 2007). 42 De Jesus Melendez v. Gonzales, 503 F.3d 1019, 1026-27 (9th Cir. 2007). N-32 Immigrant Legal Resource Center
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