How To Avoid Deportation on a Drug Conviction for Non US Citizen

Avoid Deportation on a Drug Conviction


Let’s assume a non-U.S. citizen was convicted of a simple drug possession (i.e., not for sale), transportation for personal use or under the influence of a controlled substance charge, and this individual was a first time drug offender.  Well, more likely than not, this individual was able to avoid jail by taking advantage of a program called Deferred Entry of Judgement “DEJ”(authorized under California Penal Code section 1000).  In order to accept DEJ, the individual had to plead guilty or no contest to the drug offense.  Under California law, the individual was told that his or her conviction was dismissed upon successful completion of the DEJ program.

However, under federal law, the individual was convicted of a drug offense, regardless of whether it was later dismissed under the DEJ.  Under federal law, a non-U.S. citizen is deportable after being convicted of a controlled substance offense.  So, the individual who was told that his case was dismissed was actually deportable under federal law.  Unfair, right?

California Penal Code section 1203.43 was added to the Penal Code on January 1, 2016.  This section allows anybody who has been successfully completed his/her DEJ to have his or her nolo contendre or guilty plea withdrawn, a not guilty plea entered instead, and then the charge and complaint against him/her dismissed.  This relief provided in section 1203.43 helps non-citizens avoid deportation because now the non-citizen has never been convicted of a controlled substance offense.