Proposed CA Bill Could Protect Legal Immigrants from Drug-Related Deportation

In California, like every state, it is illegal to possess, distribute, and transport illegal substances that are listed on the Controlled Substances Schedule. These substances include heroin, marijuana, peyote, hash, cocaine, methamphetamine, “magic mushrooms,” and prescription drugs such as Oxycontin (aka “oxy”), Vicodin (Hydrocodone), and stimulants.

All drug possession crimes in California are classified as infractions, misdemeanors, “wobblers” (meaning they can be a misdemeanor or felony), or felonies.  There are 4 types of charges:

  • Simple possession;
  • Drug manufacturing;
  • Drug transportation (a felony); and
  • Drug possession with intent to sell (a felony).

Penalties range from simple fines, to imprisonment, or both.

A.B. 1351

For immigrants (both legal and illegal) that are on their way to becoming naturalized U.S. Citizens, a low-level drug crime (along with other crimes) can keep that from happening.  As of present, the federal Immigration and Nationality Act (INA) allows for the deportation of non-U.S. citizens if they have violated the Controlled Substances Act.  See INA § 237(a)(2)(B)(i); 8 USC 1227(a)(2)(B)(i).

In April, Assemblywoman Susan Eggman proposed Assembly Bill (A.B.) 1351, which would allow immigrants facing minor drug offenses to enter a drug diversion program in lieu of the standard criminal process.  If it becomes law, this would mean that defendants with no previous history or conviction of drug crimes would be allowed to enter a drug treatment program and undergo drug counseling before they enter a plea.  If they successfully finish the program, the charges are dismissed, leaving no criminal record to taint their immigration process.  If a defendant does not complete the program successfully, then normal criminal proceedings will follow.  This bill has obviously not been without controversy and critics.

Unless A.B. 1351 is passed, you will have to tread even more lightly navigating through the criminal process if you are not a U.S. citizen.  For example, possession of marijuana for personal use (Ca. Health and Safety Code 11357) only carries a maximum of 6 months in jail.  Many times defendants will plead down to that charge instead of pleading guilty to a charge of marijuana possession for the purpose of sale (Ca. Health and Safety Code 11359), which carries a 3-year prison sentence.  However, pleading guilty to either crime is a deportable offense.  This is why it is extremely important for all non-citizens facing criminal charges to hire an attorney who can strategize the best defenses for your own specific situation.

San Diego Drug Offenses Lawyer

If you are facing drug-related charges, or were arrested or are under investigation for such an offense, it is imperative to work with an attorney who fully understands the California criminal justice system and its implication for immigrant statuses.  The Law Offices of David M. Boertje handles all misdemeanor and felony criminal cases including charges of possession, intent to distribute, trafficking, marijuana DUI, and marijuana cultivation.  We have successfully represented many defendants, including those with criminal charges for any and all drug-related crimes, and will fight for your constitutional rights.  If you have been arrested and charged with a drug-related crime, contact attorney David Boertje today for a free consultation.