quick reference chart and notes for determining immigration - ILRC

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Example: Yali’s plea is withdrawn pursuant to a deferred entry of judgment for a first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