Penal Code § 1000, the former pre-plea drug diversion statute, was amended effective January 1, 1997, to require entry of a plea of guilty and to provide for deferred entry of judgment, with dismissal for successful completion.  In IIRAIRA, Congress specifically declared that deferred entry of judgment, such as that contained in the new diversion statute, does constitute a conviction for immigration purposes.[31]  The Board of Immigration Appeals specifically so held in 1998,[32] and this remains the rule in BIA[33] and Ninth Circuit decisions,[34] for all convictions except certain first-offense minor controlled substance convictions.    Prior to the BIA decision declaring that expungements under state rehabilitative statutes such as Penal Code § 1203.4 are no longer effective to eliminate convictions for immigration purposes, the INS was taking the position that deferred entry of judgment was effective to eliminate convictions of first-offense simple possession of drugs.[35]  In the Ninth Circuit, deferred entry of judgment (as well as expungements under Penal Code § 1203.4) continue to be effective in this context, since the decision holding that they were not effective has been overruled by the Ninth Circuit on the basis of the Equal Protection Clause, which Congress cannot overrule in IIRAIRA.[36]

 

            Diversion dismissals under prior law, however, continue to be non-convictions, since no guilty plea was ever entered.  The ex post facto provisions of the federal constitution require use of the former diversion statute for offenses committed prior to January 1, 1997.[37]  If a pre-1997 conviction is vacated, and the defendant would have been eligible for pre-plea diversion under prior law because the offense was committed prior to January 1, 1997, then counsel should obtain pre-plea diversion for the client at this point, since the client should not suffer because of the illegal conviction, and the ex post facto clause requires that this sentencing option be made available to him or her.

 

            Moreover, some diversion courts have continued to use the former diversion procedures (without a guilty plea) even after the turning of the year.  Even an unauthorized diversion -- with no guilty plea -- would not constitute a conviction for immigration purposes.  Just as immigration law will not allow the alien to collaterally attack a criminal conviction in immigration court, the DHS should not be allowed to collaterally attack a diversion dismissal -- which is, after all, the final order of a state court -- in immigration court.

 

            Finally, there are other diversion statutes, similar to former Penal Code § x1000, which continue as before to operate without guilty pleas, and cases dismissed as a result of such programs do not constitute convictions for immigration purposes.

[31] Congress recently redefined “conviction” for immigration purposes to mean “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where -- (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”  IIRAIRA § 322, amending INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(a).

[32] In Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998)(en banc), the Board held (1) IIRAIRA’s codification of a new definition of “conviction” at 8 U.S.C. § 1101(a)(48)(A) eliminated the third prong of the definition promulgated in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988), and (2) deferred adjudication under article 42.12, § 5 of the Texas Code of Criminal Procedure constitutes a conviction for immigration purposes.

[33]    Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), removal orders reversed sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (en banc).

[34]    Ramirez-Castro v. INS, 287 F.3d 1172 (9th Cir. April 24, 2002) (California state court expungement of misdemeanor firearms conviction after successful completion of probation does not eliminate the immigration consequences of that conviction).

[35] See Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994); In re Manrique, 21 I. & N. Dec. 58 (BIA 1995).

[36] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[37] A statute violates the ex post facto clause of the federal or state constitution if it either (a) punishes as a crime an act previously committed that was innocent when done, (b) increases the punishment for a crime after its commission, or (c) deprives an accused of any defense available under the law at the time the act was committed.  Collins v. Youngblood, 497 U.S. 37, 111 L.Ed.2d 30  (1990).

Ninth Circuit

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.