Safe Havens

 

(F)  Disqualification from Effectiveness of Relief.  There are two circumstances in which the defendant is not eligible for FFOA treatment of a guilty finding of a qualifying offense:

 

(1)     The person cannot have “been convicted of violating a Federal or State law relating to controlled substances;” and

(2)     The person cannot have “previously been the subject of a disposition under this subsection . . . .” [215]

 

In other words, if the defendant has a prior state or federal drug conviction of any kind, s/he is disqualified from FFOA treatment of the current conviction for possession of a controlled substance.  NOTE: this includes prior state or federal convictions, but not foreign ones.  Second, if the person has previously received FFOA treatment, s/he is disqualified from receiving FFOA treatment for the current (second) offense.

 

            If the defendant has received some form of “first offender” treatment in state court that does not constitute a conviction, that would not disqualify him or her from FFOA treatment for a current offense for which s/he was “found guilty” as provided in the FFOA.  For example, many states have a form of pre-plea diversion in which criminal proceedings are suspended prior to entry of a plea, and the defendant is therefore never found guilty under any definition at all of that offense.  Since no plea was entered, there was never any “conviction” under immigration law.[216]  Moreover, the defendant had never previously “been convicted of violating a Federal or State law relating to controlled substances . . . .” [217] as required to disqualify him or her from receiving FFOA treatment for a new offense.

 

            For example, California law provides:  “At no time shall a defendant be required to make an admission of guilt as a prerequisite for placement in a pretrial diversion program.”[218]  Therefore, under the definition of conviction[219] diversion under this California statute does not constitute a conviction.[220]  A prior no-plea California diversion disposition therefore does not render a noncitizen disqualified from eligibility for FFOA treatment of a subsequent possession conviction.  A disposition of diversion that did not require a plea of guilty or no contest and does not constitute a conviction.[221]  In addition, this disposition does not constitute “a disposition under this subsection [8 U.S.C. § 3607(a)].”

 

            In addition, if a defendant had previously been convicted of a state drug offense, but had received state rehabilitative relief to eliminate that conviction under state law, that person technically would not be disqualified from receiving the benefits of the FFOA for a later federal possession conviction, since that person would not have “previously been the subject of a disposition under this subsection . . . .”[222]  The person would have received first-offender treatment not under the federal FFOA, but under an analogous state rehabilitative statute.  If this legislation is interpreted strictly in favor of the defendant, and all reasonable doubts are construed in favor of the defendant,[223] then this defendant could indeed, in strict compliance with the wording of the statute, receive FFOA treatment for this second conviction if the first time was under state, not federal, law.  On the other hand, the immigration authorities could argue with some plausibility that prior FFOA and prior state rehabilitative treatment should be treated as equivalent for this purpose, even though the statute does not so provide in so many words.  Therefore, it would not be wise to place too much confidence in this interpretation of the statute.

[215] 18 U.S.C. § § 3607(a)(1) & (2).

[216] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[217] 18 U.S.C. § 3607(a)(1).

[218] Cal. Penal Code § § 1001.3 et seq.

[219] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[220] See Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (Florida diversion, similar to California diversion, held not to be a conviction under Matter of Ozcok, 19 I. & N. Dec. 546 (BIA 1988)).

[221] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[222] 18 U.S.C. § 3607(a)(2) (emphasis supplied).

[223] The right against conviction except on proof beyond a reasonable doubt is protected by the due process clause of the Fourteenth Amendment of the United States Constitution against state interference.  Mullaney v. Wilbur, 421 U.S. 684 (1975); Cool v. United States, 409 U.S. 100, 104  (1972) (“The Constitution requires proof beyond a reasonable doubt.”); In re Winship, 397 U.S. 358 (1970).  If this principle is weakened, “the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”  Stack v. Boyle, 342 U.S. 1, 4  (1951).