Completing a pre-plea diversion program may be an appropriate way to resolve charges reinstated after judgment has been vacated.  After successful completion of diversion for specified offenses, the court will order the charges dismissed.  There is therefore no criminal conviction at all, at any time, and thus no conviction to be held against the immigrant for immigration purposes.

 

            Completing a pre-plea diversion program, and obtaining dismissal of the charges, does not constitute a “conviction” under immigration law as long as there has been no plea of guilty entered at any time.[22]  Criminal cases dismissed after successful completion of traditional diversion provisions such as drug diversion under Penal Code § 1000 [former version], and misdemeanor diversion under Penal Code § 1001, do not constitute convictions for immigration purposes.  

 

            The probation department supervises the person on diversion, and will often apply for termination of diversion and dismissal of charges on behalf of the client after the client has successfully completed diversion.[23]

 

            California has a variety of different diversion programs with different immigration consequences.

[22] Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).  This has not changed under IIRAIRA § x322, which amends INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), to create a statutory definition of conviction that is more encompassing than the definition set out by the BIA in Matter of Ozkok, supra.

[23] See generally C.E.B., California Criminal Law: Procedure and Practice § 9.1 (2008).

Ninth Circuit

CONVICTION " LEGALLY COGNIZABLE SENTENCE OR FINAL JUDGMENT REQUIRED TO CONSTITUTE CONVICTION FOR DRUG SENTENCE PURPOSES
United States v. Suarez, 682 F.3d 1214 (9th Cir. Jun. 22, 2012) (where a plea never ripens into either a final judgment or a legally cognizable sentence, there is no final prior conviction for purposes of 21 U.S.C. 841(b)(1)(A), which increases punishment for recidivism; deferred action under California Penal Code 1000.1, et seq., is not a "final" conviction for this purpose).

CONVICTION " DEFERRED ENTRY OF JUDGMENT " ARGUABLY NOT A CONVICTION
Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010) supports an argument that a California DEJ (deferred entry of judgment) disposition is not a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), because there is no penalty or restraint, as long as either no fee or a fee that was suspended without condition (suspended "non -incarceratory fine") is imposed. There are questions as to what is the role of probation in DEJ and in INA 101(a)(48)(A). Thanks to Alisa Kaufman and Mario Acosta.

Other

CONVICTION " NON-CONVICTION DISPOSITION " NO-PLEA DIVERSION
Practice Advisory. State no-plea diversion programs in which a defendants confession is not placed in the court file do not constitute convictions for immigration purposes under the statutory definition of conviction. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). The admission of facts referred to in this statute must mean an admission to the court, rather than to the prosecutor. It is possible, however, for an ICE attorney to ask the prosecutor for a copy and try to use it in removal proceedings to establish a conviction. An immigration judge could rule " wrongly " that when respondent agreed that the agreement admitting guilt could come into the court later, without objection, the noncitizen was admitting to the sufficiency of the facts in relation to a judicial proceeding sufficient to establish a conviction under the statute. In Maricopa County, Arizona, the drug diversion program does have the defendant sign a written confession, but that paper stays with TASC personnel (a private company), not the judge or the prosecutor. If the defendant completes the program, the TASC file is closed and only the certificate of completion is transmitted to the prosecutor. If the defendant fails the program, only then is the written confession transferred to the prosecutor, who then can use the written confession to re-start the prosecution. This system should be sufficient to avoid a conviction for immigration purposes. Thanks to Margarita Silva and Jonathan Moore.

CAL POST CON " BUREAU OF PRISONS " DETAINERS " DRUG PROGRAMS
Any client who has a detainer that will prohibit completion of the community-based component of the RDAP is ineligible for Bureau of Prisons drug programs under BP PS 5331.02 (3/16/09). See http://www.bop.gov/policy/progstat/5331_002.pdf There are other disqualifiers based on type of prior or current offense, immigration hold, etc. See BOP PS 5331.02 (3/16/09). See Allan Elliss & Michael Hendersons 2009 Champion article about RDAPs 3/09 criteria.

POST CON RELIEF " STATE REHABILITATIVE RELIEF " CONTROLLED SUBSTANCES " SINGLE OFFENSE EXCEPTION
A noncitizen who has pre-trial diversion (no plea entered) for a drug charge does not have a conviction for immigration purposes. (INA 101(a)(43)(a), 8 U.S.C. 1101(a)(43)(a).) If that person later pleads guilty to simple possession of 30 grams or less of marijuana, the noncitizen comes within the exception to deportability under INA 237(a)(2)(B), 8 U.S.C. 1227(a)(2)(B) for having a single offense. The "single offense" language creates an exception to the "has been convicted" language in this statute. Since pre-trial diversion is not a conviction, the guilty to plea to marijuana possession would still seem to come within the language of the single-offense exception. (The Ninth Circuit in de Jesus Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. 2007), held that a noncitizen with a prior grant of pre-trial diversion is not eligible for treatment under Federal First Offender Act, 18 U.S.C. 3607(a), analogue, which makes the plea in the second case a conviction for immigration purposes. In de Jesus Melendez, however, the Federal First Offender Act itself bars eligibility for one who had previously been treated under 18 U.S.C. 3607, and this statute itself has a pretrial diversion provision. The fact that a pre-trial non-conviction diversion bars effective expungement does not mean that it would be considered a first "offense" under the first-offense exception for 30 grams or less of marijuana. Any ambiguity in the statute must be interpreted in favor of the noncitizen in deportation proceedings. Thanks to Dan Kesselbrenner.