Sine 1997, California law has permitted a criminal court judge to offer deferred entry of judgment to qualifying defendants charged with a first, minor drug offense. The DEJ process was meant to help first time offenders avoid the debilitating consequences of a drug conviction. Thousands of immigrants accepted the deferred entry of judgment program only to find that, under immigration law, their cases were still considered convictions, and they were still subject to deportation and other serious consequences.
Under federal immigration law, a successfully completed DEJ remains an extremely damaging drug "conviction." It causes deportability and inadmissibility, and makes it impossible for the spouse or child of a US citizen to obtain lawful resident status.
Immigration law provides that a conviction occurs once there is a guilty plea or finding of guilt, coupled with a punishment including assignment to a drug program. Whether California later classifies it as a non-conviction is irrelevant under immigration law.
To eliminate a conviction for immigration purposes, the plea must be withdrawn for cause, based on some legal error in the proceedings - for example the defendant was improperly represented by counsel or was misinformed about the consequences of pleading guilty.
In Penal Code § 1203.43 the Legislature acknowledges that the DEJ statute misinformed defendants, including all non-citizens, about the consequences of pleading guilty, and for that reason deems the plea legally invalid. Withdrawal of the guilty plea is thus for cause, based on this legal defect.
Under Penal Code § 1203.43, the withdrawn guilty plea should satisfy federal immigration law and allow non-citizens to avoid severe immigration consequences stemming from their DEJ cases.
If you have pled guilty to a deferred entry of judgment case and wish to withdraw the plea, contact Nelson and Nuñez, PC.
Under federal immigration law, a successfully completed DEJ remains an extremely damaging drug "conviction." It causes deportability and inadmissibility, and makes it impossible for the spouse or child of a US citizen to obtain lawful resident status.
Immigration law provides that a conviction occurs once there is a guilty plea or finding of guilt, coupled with a punishment including assignment to a drug program. Whether California later classifies it as a non-conviction is irrelevant under immigration law.
To eliminate a conviction for immigration purposes, the plea must be withdrawn for cause, based on some legal error in the proceedings - for example the defendant was improperly represented by counsel or was misinformed about the consequences of pleading guilty.
In Penal Code § 1203.43 the Legislature acknowledges that the DEJ statute misinformed defendants, including all non-citizens, about the consequences of pleading guilty, and for that reason deems the plea legally invalid. Withdrawal of the guilty plea is thus for cause, based on this legal defect.
Under Penal Code § 1203.43, the withdrawn guilty plea should satisfy federal immigration law and allow non-citizens to avoid severe immigration consequences stemming from their DEJ cases.
If you have pled guilty to a deferred entry of judgment case and wish to withdraw the plea, contact Nelson and Nuñez, PC.
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