Safe Havens

(A)  Nature of the Unlisted or Unidentified Drug Safe Haven.  This safe haven can be constructed in a variety of ways.  Some offenses, such as using a controlled substance, or being under the influence of a controlled substance,[7] may in fact be charged without identifying a particular controlled substance.  In that case, a plea as charged can simply be entered without creating a deportable conviction.

            Defense counsel can attempt to sanitize the record of conviction of the identity of the specific controlled substance, so no particular controlled substance is identified in the charge, plea or judgment.  In that case, the government cannot establish that the conviction involves a federally-listed controlled substance, and therefore cannot establish that any drug-related conviction ground of deportability exists.

If the charge does specify a federally listed controlled substance, the defendant may ask to plead guilty to an amended charge that fails to specify any particular controlled substance, but merely states that the unidentified substance is on the state controlled substances schedules.  In the alternative, even if the charge specifies a federally controlled substance, such as cocaine, the defendant can attempt to plead guilty to the statute as written (which does not specify which controlled substance on the state list is involved in the present case).  This scenario has the benefit of not involving the district attorney, who need only decide not to take the case to trial over the difference between the portion of the charge to which the defendant is willing to plead guilty and the larger or different portion actually charged.  The prosecution need not be consulted at all.  The court can simply accept the plea to a non-specified drug on its own. 

While this “cleaning” strategy works well to construct a conviction proof against a ground of deportation, it will not work where the noncitizen bears the burden of proof, as in some cases in which inadmissibility may be charged. 

In some cases, defense counsel may be able to plead the defendant guilty to commission of a state drug offense explicitly involving a substance not listed in the federal schedules.  Unless, and until, that substance is added to the federal schedules, the noncitizen will successfully avoid adverse immigration consequences regardless of which party bears the burden of proof.

[7] E.g., California Health & Safety Code § 11550.