Federal First Offender's Act (FFOA): Preventive Measures to Avoid Immigration Consequences of Criminal Convictions Through Deferred Entry of Judgment
Will a deferred entry of judgment plea in California help my immigration case?
California law allows for a deferred entry of judgment (DEJ) program that lets eligible defendants to be "diverted" out of the criminal court system and into a drug rehabilitation program. The theory behind the program is that nonviolent drug offenders would benefit much more from treatment and education than from jail and a criminal record. This also means that there is the opportunity to have criminal proceedings suspended while an attempt is made to complete a drug treatment program.
Generally speaking, the defendant enters a guilty plea to the charge or charges. If the court determines that the defendant is a good candidate for drug diversion, the judge will suspend the criminal proceedings. The suspension will typically last for a period of 18 months, although it may be as long as three years while the defendant participates in a drug rehabilitation program such as Legacy Healing.
Noncitizens who were convicted before July 14, 2011 will receive the benefit of these state rehabilitative laws and will have their conviction eliminated for the immigration purposes allowing some forms of relief. If you have any questions regarding whether this form of relief is available to you, please call or email our experienced immigration attorneys. [LINK TO CONTACT JCS]
How does the Federal First Offender's Act affect a conviction for immigration purposes?
A controlled substance conviction may subject a noncitizen to removal or deportation, denial of naturalization, and exclusion from admission. However, a federal controlled substance conviction that has been expunged under the Federal First Offender Act (FFOA) is not considered a conviction for immigration purposes. A state controlled substance conviction was previously treated similarly to federal convictions. Noncitizens who had their first simple drug possession convictions expunged under state rehabilitative statutes qualified for relief, and the immigration consequences of their first simple drug possession convictions were eliminated. Thus, the expungement of a state conviction would not be considered for immigration purposes.
However, this law changed on July 14, 2011. The Ninth Circuit held that “rehabilitative relief” would no longer eliminate a first conviction for a simple possession drug offense. Therefore, any state controlled substance convictions after July 14, 2011 are considered in immigration court. This means that a state conviction after that date that has been expunged still remains a conviction for immigration purposes. Noncitizens who were convicted before July 14, 2011 will still be treated under the prior laws and can receive the benefit of state rehabilitative laws. They can have their conviction eliminated for immigration purposes, allowing some forms of relief from removal, whereas noncitizens convicted after July 14, 2011 will not receive these benefits.
Eligibility for the FFOA
Only two offenses qualify for FFOA relief under current law:
- Simple possession of any controlled substance at all. This includes possession of controlled substances even if simple possession is considered an aggravated felony. This is because the FFOA applies to possession of all federally listed controlled substances without exception.
- Possession of drug paraphernalia.
Additionally, to qualify for relief under the FFOA:
- The conviction must have occurred on or before July 14, 2011. This means that the sentence must have been imposed on or before that date.
- The conviction must be for simple possession of any controlled substance, or possession of drug paraphernalia, or any other controlled substances conviction that is (a) less serious than simple possession, and (b) not penalized under federal controlled substances legislation.
- You must not have a prior conviction of violating a federal or state law relating to controlled substances and not have previously been accorded first offender treatment under any law. A prior state or federal controlled substances conviction will disqualify you from FFOA treatment.
- Rehabilitative relief is effective to eliminate the adverse immigration consequences of qualifying convictions only in removal proceedings or other immigration proceedings in the Ninth Circuit. Other areas of the United States will not follow this ruling regardless of the date of the conviction.
- The rehabilitative relief can be granted by any state courts or even foreign countries, but it must be generally similar to FFOA treatment.
- The rehabilitative relief for a qualifying conviction may be granted after July 14, 2011, however the conviction itself that must occur on or before that date for this relief.
- Probation cannot be violated.
This area of immigration law is particularly complicated. If you think you may qualify for FFOA relief, contact our Los Angeles immigration attorneys for help. [LINK TO CONTACT JCS]