Thanks to the terrific work of ILRC (especially Kathy Brady and Angie Junck), Drug Policy Alliance, MALDEF, ACLU, NCLR, and many other organizations, AB 1352 was signed into law by Governor Brown on October 8th. As many of you know, I also worked on the formulation and drafting of this along with Kathy Brady.
This legislation, effective, Jan. 1, 2016, provides that anyone who was granted Deferred Entry of Judgment (DEJ) for minor drug offenses on or after Jan. 1, 1997 and who completed the program and had their charges dismissed under state law, will now be able to withdraw their plea based on the fact that noncitizen defendants were "misinformed" about the immigration consequences of the plea. It will add section 1203.42 to the California Penal Code.
Because of this bill there should be no more removals or denial of eligibility for relief or immigration benefits based on anyone who was granted DEJ and previously had their case dismissed--but a request needs to be filed with the court for withdrawal of plea.
This bill should also allow those who have been removed based on a DEJ to attempt to reopen their cases.
Prospectively it will also allow anyone who enters DEJ now and finishes their program and has their case dismissed to obtain withdrawal of their plea based on "misinformation" as well. This will allow those in removal proceedings who are in DEJ to request continuances or administrative closure.
If anyone is in removal proceedings and the IJ refuses to grant a continuance or grant admin closure, a P.C. 1018 motion to withdraw the plea can be filed to withdraw the plea based on "misinformation" even before DEJ is completed. The preferred course would be for any noncitizen to avoid DEJ and attempt to seek an immigration neutral disposition since a noncitizen can be subject to removal during the pendency of DEJ and before withdrawal of plea. The minimum duration of DEJ is 16 months and the maximum is 3 years.
We believe that withdrawal of plea based on new 1203.42 of the Penal Code should meet the In re Pickering standard for vacatur or withdrawal of plea so as to eliminate immigration consequences.
Unfortunately, Governor Brown vetoed AB 1351 which would have replaced DEJ with pretrial diversion where no guilty plea is required.
I will be adding motions for withdrawal of plea to my practice and will be filing these throughout the State of California. Anyone who needs assistance with individual cases or has questions, please contact me on or off-line.