Avoid Deportation: New Changes in Law and DA policy to Help Immigrants Clean Criminal Record
Drug cases often result in deportation for non-citizens because drug offenses are considered grounds for deportation under immigration law. This is true even for minor drug offenses, such as possession of a small amount of drugs for personal use. Los Angeles Criminal Defense Attorney can help you defend a drug case in Los Angeles or near counties so that you win your immigration case, and get a greencard or citizenship. Los Angeles Criminal Defense Attorney will try to negotiate a non-deportable offense if you are charged with any of drug cases in Los Angeles. This is so because, if a non-citizen is convicted of a drug offense, they may be arrested by ICE either immediately after serving their sentence or at the end of their sentence. This can be painful, especially for those who have lived in the country for many years, have strong ties to the community, and have built a life in the country. Deportation can mean being separated from family, and friends, and starting over in a new country can be difficult and challenging. In U.S., deportation creates a bar to re-entry the US for 10 years, however, for practical purposes, deportation is often permanent.
Effective January 1, 2023, a new law became effective in California. This new law, signed last by Governor Newsom, allows a plea to a drug-related offense that has no immigration consequences. This law was created to help immigrants charged with drug offenses avoid deportation. Los Angeles Criminal Defense Attorney believes that this new law significantly improves a non-citizen ability to negotiate a plea without immigration consequences. For example, now, all convictions for Health and Safety Code sections 11378 or 11351 can now be modified to this new charge.
Here is the text of this new law (Penal Code section 372.5)
(a) Notwithstanding Section 372, if a defendant is sentenced for a violation of Section 370 based on a disposition negotiated between the defendant and the prosecution, or pursuant to an indicated sentence of the court, a term of which includes the dismissal of one or more infraction charges that allege unlawfully cultivating, manufacturing, transporting, giving away, or selling a drug, or offering to transport, give away, or sell a drug, unlawful use of a drug, or unlawful possession or use of a drug or drug paraphernalia, public nuisance is an infraction punishable by a fine not to exceed two hundred fifty dollars ($250).
(b) Notwithstanding Section 372, if a defendant is sentenced for a violation of Section 370 based on a disposition negotiated between the defendant and the prosecution, a term of which includes the dismissal of one or more misdemeanor charges that allege unlawfully cultivating, manufacturing, transporting, giving away, or selling a drug, or offering to transport, give away, or sell a drug, unlawful use of a drug, or unlawful possession or use of a drug or drug paraphernalia, public nuisance is punishable by a fine of not exceeding one thousand dollars ($1,000), or imprisonment in a county jail for not more than one year, or by both that fine and imprisonment, or as an infraction punishable by a fine not to exceed two hundred fifty dollars ($250).
(c) Notwithstanding Section 372, if a defendant is sentenced for a violation of Section 370 based on a disposition negotiated between the defendant and the prosecution, a term of which includes the dismissal of one or more felony charges that allege cultivating, manufacturing, transporting, giving away, or selling a drug, or offering to transport, give away, or to sell a drug, or unlawful possession of a drug, public nuisance is punishable pursuant to subdivision (h) of Section 1170 for a period of 16 months, or two or three years, or by imprisonment in a county jail for not more than one year.
(d) For purposes of this section, “drug” is defined as under Section 11014 of the Health and Safety Code.
Here is why this law is helpful. Under PC 372.5(c) a person who sells, transports or does anything illegal involving drugs can now avoid a drug conviction because the drug, as defined in this law, is not a drug, as defined by federal immigration law.
The main problem with this alternative charge is that the prosecutor will have to agree to change the charge.
New Los Angeles DA Policy for Immigrants
Also, effective December 22, 2022, Los Angeles District Attorney’s Office modified its approach to defendants who are immigrants and are fighting their case or trying to receive post-conviction relief. This policy change is found in Los Angeles District Attorney Special Directive 22-07. Here is relevant language for motions to withdraw pleas under California Penal Code 1473.7:
V. Post-Conviction Relief
Section 1473.7, subdivision (a)(1) states that an individual who is no longer in criminal custody
may file a motion to vacate a conviction or sentence on the following ground:
The conviction or sentence is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.
In 2022, the language “immigration consequences of a conviction or sentence” replaced the prior
limiting language of “immigration consequences of a plea of guilty or nolo contendere.”
California Assembly Bill No. 1259 (2021-2022) clarified that Section 1473.7, subdivision (a)(1)
does not apply exclusively to pleas of guilty or no contest. “Assembly Bill 1259 makes clear
defendants whose convictions derive from a trial are eligible for relief under section 1473.7.”
People v. Singh, 81 Cal. App. 5th 147, 150 (2022). “The language ‘conviction or sentence’ has
no qualifiers, so the plain language indicates an intent to apply section 1473.7 to all defendants
whose ‘conviction or sentence’ is legally invalid, regardless of the source of the conviction.” Id.
at p. 152.
All Section 1473.7, subdivision (a)(1) motions shall be forwarded to the Head Deputy or Deputyin-Charge of the responsible office, unit or division for review and determination of the Office’s
In considering defense motions under section 1473.7, subdivision (a)(1), Head Deputies and
Deputies-in-Charge shall adhere to the following guidelines:
A. In cases where it is clear in the moving papers that the defendant was unable to
“meaningfully understand, defend against, or knowingly accept the actual or potential
adverse immigration consequences” of their plea, the prosecutor should respond
swiftly and concede the motion.
B. There shall a be a presumption of non-opposition on the following class of cases:
- All marijuana cases that have been dismissed as part of the mass
marijuana record clearance;
- Sentence modification motions to bring a sentence down from 365 to 364 days;
- “Post-plea” deferred entry of judgment cases, where the defendant successfully completed the program;
- Prop 36 cases where the defendant successfully completed the program; or
- Where the individual has served in the military and has been honorably discharged.
In consideration of all post-conviction motions to vacate due to immigration consequences,
deputies shall consider the following:
A. Stipulating to a motion to vacate in post-conviction proceedings if it is determined
that, had the consequences been raised affirmatively in the initial proceedings, a
different resolution would have been reached pursuant to this policy; or
B. Factors in mitigation, including but not limited to, the age of the conviction, whether
the individual was a juvenile when convicted, the facts of the specific case, the
severity of the underlying crime, family ties in the locality, work history, and
contributions to the community.
Defense counsel may make a written request that a Bureau Director review any failure to
concede or stipulate as well as any decision to object when inconsistent with this directive.
From a practical point of view, if you are facing deportation or otherwise have immigration problems because of a criminal conviction, you want to consult with a Los Angeles Criminal Defense Attorney. It has been the practice of a drug case defense attorney in Los Angeles to negotiate a charge that does not create immigration problems for their clients. However, often, Criminal Law Attorney Los Angeles has to fix mistakes made by defendants who did not know the immigration consequences. This can be done by filing a motion under Penal Code section 1473.7, 1016.5, or 1018. All of these motions require legal training so if you want to clean your criminal record in Los Angeles, please give our office a call and talk to a Post Conviction Attorney Los Angeles today. Our direct telephone number is 323-464-6424.