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Long Beach, 1983 Conviction for H & S 11350 Vacated
Approximately forty years ago, in September, the Long Beach Police Department arrested our client on suspicion of violating Health & Safety Code § 11350(a), possession of a controlled substance. Our client was found with several small balloons containing heroin.
Three weeks later, in late September, 1983, our client entered a guilty plea to § 11350(a), which was a felony at the time (it is now a misdemeanor except under certain circumstances).
Before entering his guilty plea with adverse immigration consequences, he had no discussion with his public defender about any immigration-neutral alternative resolutions and was unaware that there were any adverse immigration consequences.
Our client’s public defender at the time became a judicial officer, a Commissioner, about five years later and has been so for about 35 years.
Moreover, according to the transcript from the plea, at the time our client entered his plea, he was not admonished that “if you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” No admonishment about immigration consequences was given.
Our client was born in Mexico and, with his parents, three brothers and five sisters, immigrated to the United States at age six or seven in 1971. At the time he entered his plea 12 years later, he was a not a U.S. citizen.
At the time he entered his guilty plea, he did not even know what deportation was, let alone that a conviction in one court could be used in another court (immigration court). Moreover, he was too intimidated by his public defender to ask him for his time to answer any questions he had. He therefore followed all of his advice, which was to enter a guilty plea to the § 11350(a) charge, trusting him that he knew what was best for him.
Forty years later, our client was 58 years old. He came to Greg Hill & Associates to ask about having his conviction in this case vacated under Penal Code §§ 1437.7(a)(1) and 1016.5(a) because he tried to apply for his citizenship and was told by his immigration attorney that he would be citizenship with this conviction on his record.
This was correct, as a conviction for a violation of Health and Safety Code § 11350(a), then a felony, was an aggravated felony for purposes of the federal Immigration and Nationality Act (INA) because punishment could have been more than one year in custody (Moncrieffe v. Holder (2013) 569 U.S. 184, 187-188; Sessions v. Dimaya (2018) 138 S. Ct. 1204, 1210-1211). One convicted of an aggravated felony is presumptively deportable. 8 U.S.C.S. §§ 1227(a)(2)(A)(iii), 1228(c).
Moreover, in our client’s conviction, the record of conviction included identification that the controlled substance at issue was heroin, which made the conviction a crime involving moral turpitude. Ruiz-Vidal v. Gonzales (9th Cir., 2007) 473 F.3d 1072 (holding that because 11377 has controlled substances not on the federal controlled substance list, an 11350 conviction is not a controlled substance offense for immigration purposes unless the record of conviction specifies a federally listed controlled substance); see also Esquivel-Garcia v. Holder (9th Cir. Jan 2010) 593 F.3d 1025 (same holding on Health & Safety Code § 11350).
With this conviction, our client faced deportation back to Mexico. This caused his constant fear of being detained and then deported at any time.
Had our client known of the adverse immigration consequences of such a conviction before agreeing to enter a guilty plea, he would not have voluntarily entered such a plea and would have instead told his public defender to continue negotiating for an immigration-neutral resolution such as to misdemeanor trespassing or even misdemeanor disturbing the peace or proceed to trial.
Instead, however, not knowing there were immigration consequences to him personally, our client entered his guilty plea.
Our office then prepared a motion to vacate the conviction under Penal Code §§ 1016.5(a) and 1473.7(a)(1). The motion contained all the information described above, as well as the transcript of the plea, which our client’s sister had.
Three weeks later, in late September, 1983, our client entered a guilty plea to § 11350(a), which was a felony at the time (it is now a misdemeanor except under certain circumstances).
Before entering his guilty plea with adverse immigration consequences, he had no discussion with his public defender about any immigration-neutral alternative resolutions and was unaware that there were any adverse immigration consequences.
Our client’s public defender at the time became a judicial officer, a Commissioner, about five years later and has been so for about 35 years.
Moreover, according to the transcript from the plea, at the time our client entered his plea, he was not admonished that “if you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” No admonishment about immigration consequences was given.
Our client was born in Mexico and, with his parents, three brothers and five sisters, immigrated to the United States at age six or seven in 1971. At the time he entered his plea 12 years later, he was a not a U.S. citizen.
At the time he entered his guilty plea, he did not even know what deportation was, let alone that a conviction in one court could be used in another court (immigration court). Moreover, he was too intimidated by his public defender to ask him for his time to answer any questions he had. He therefore followed all of his advice, which was to enter a guilty plea to the § 11350(a) charge, trusting him that he knew what was best for him.
Forty years later, our client was 58 years old. He came to Greg Hill & Associates to ask about having his conviction in this case vacated under Penal Code §§ 1437.7(a)(1) and 1016.5(a) because he tried to apply for his citizenship and was told by his immigration attorney that he would be citizenship with this conviction on his record.
This was correct, as a conviction for a violation of Health and Safety Code § 11350(a), then a felony, was an aggravated felony for purposes of the federal Immigration and Nationality Act (INA) because punishment could have been more than one year in custody (Moncrieffe v. Holder (2013) 569 U.S. 184, 187-188; Sessions v. Dimaya (2018) 138 S. Ct. 1204, 1210-1211). One convicted of an aggravated felony is presumptively deportable. 8 U.S.C.S. §§ 1227(a)(2)(A)(iii), 1228(c).
Moreover, in our client’s conviction, the record of conviction included identification that the controlled substance at issue was heroin, which made the conviction a crime involving moral turpitude. Ruiz-Vidal v. Gonzales (9th Cir., 2007) 473 F.3d 1072 (holding that because 11377 has controlled substances not on the federal controlled substance list, an 11350 conviction is not a controlled substance offense for immigration purposes unless the record of conviction specifies a federally listed controlled substance); see also Esquivel-Garcia v. Holder (9th Cir. Jan 2010) 593 F.3d 1025 (same holding on Health & Safety Code § 11350).
With this conviction, our client faced deportation back to Mexico. This caused his constant fear of being detained and then deported at any time.
Had our client known of the adverse immigration consequences of such a conviction before agreeing to enter a guilty plea, he would not have voluntarily entered such a plea and would have instead told his public defender to continue negotiating for an immigration-neutral resolution such as to misdemeanor trespassing or even misdemeanor disturbing the peace or proceed to trial.
Instead, however, not knowing there were immigration consequences to him personally, our client entered his guilty plea.
Our office then prepared a motion to vacate the conviction under Penal Code §§ 1016.5(a) and 1473.7(a)(1). The motion contained all the information described above, as well as the transcript of the plea, which our client’s sister had.
The judge in Long Beach granted the motion. The prosecution then announced they were unable to proceed, so Greg asked the judge to dismiss the case, which the judge did. This made our client very happy.
