The 9th Federal Circuit Court of Appeals recently issued a ruling that eliminates one of the legal benefits formerly available to non-citizens. On July 14, 2011 that court ruled that non-citizens can no longer use “rehabilitative relief” to cancel a conviction for minor offenses to avoid deportation. Rehabilitative relief includes withdrawing a guilty plea or setting aside a guilty plea to criminal charges. The ruling applies to charges for simple possession of certain drugs, possession of drug paraphernalia, or other minor drug offenses.
As a result, A FIRST CONVICTION FOR A MINOR DRUG OFFENSE (EXCEPT FOR POSSESSION OF LESS THAN ONE OUNCE OF MARIJUANA) WILL MAKE NON-CITIZENS INADMISSIBLE AND DEPORTABLE. Legally admitted permanent residents can be deported and undocumented immigrants will be denied legal status and then deported. Both categories will be mandatorily detained. This change in the law and elimination of rehabilitative relief will only affect non-citizens whose immigration cases are processed in the states within the jurisdiction of the 9th Circuit Court of Appeals. These states include Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
Immigration law experts are advising immigrants that are arrested to immediately determine if there is an “immigration hold” on them. An immigration hold is an order from federal immigration officials that requires jail personnel to deliver the arrested person to them after the criminal case is concluded. If there is an immigration hold, no money should be spent on posting bail in the criminal case. While bail removes jail holds in criminal cases and allows the accused to be free during the court proceedings, the accused WILL NOT BE ALLOWED TO BE FREE EVEN IF BAIL IS POSTED IF THERE IS AN IMMIGRATION HOLD.
Immigration attorneys have made several recommendations for noncitizens charged with minor offenses within the jurisdiction of the 9th Circuit. They have described how defense attorneys have sometimes been able to convince prosecutors to agree to postpone the court date for entering a plea (guilty or not guilty) long enough to complete an agreed upon penalty such as attending counseling, drug education classes, or performing community service. After that, the accused is allowed to plead guilty to a lesser, non deportable, offense. In some cases the charges are dismissed completely. Under this procedure, if there is no fine imposed or if the fine is unconditionally suspended, there is no “conviction” for immigration purposes.
In cases involving the use of marijuana or possessing marijuana paraphernalia, defense attorneys have arranged to have the accused immigrant plead guilty to possessing less than one ounce. The first conviction of possessing less than one ounce is not a deportable offense. And these attorneys report that they are sometimes able to persuade the prosecutor to agree to change the charge to a non deportable offense such as loitering, trespassing, disturbing the peace or driving under the influence of alcohol only. Convictions for these offenses do not require deportation.
While the elimination of rehabilitative relief for minor offenses removes an important legal remedy for immigrants, experienced criminal defense attorneys still have several options designed to avoid deportation.