The Immigration Reform Law Institute (IRLI) submitted an important friend-of-the-court brief to advise the Board of Immigration Appeals—the nation’s review board for federal immigration cases—that immigration judges can continue to deport aliens charged with state controlled substance offenses who do not obtain a full dismissal as “not guilty.” The brief was filed on behalf of the Federation for American Immigration Reform (FAIR).
Legislation promoting noncooperation and resistance to federal immigration enforcement is becoming more aggressive in states with high illegal alien populations, such as California. A particularly dangerous trend among state legislators in recent years has been to pass laws that allow alien drug and alcohol abusers, and even aliens who commit more serious offenses, to avoid criminal convictions that might make them subject to deportation under federal immigration law.
The California state legislature is a leading culprit, repeatedly amending and expanding its laws that allow courts to defer, vacate and dismiss convictions of aliens where drug or alcohol use was a factor. In statutes like Cal. Penal Code § 1203.43, the legislature has made its intent clear—to make it more difficult for federal authorities to deport these aliens on criminal grounds.
It is long established that when Congress defines terms—such as “conviction”—that are found in both state and federal law, the Supremacy Clause of the Constitution protects federal agencies such as the immigration courts from having to defer to conflicting state definitions.
Nevertheless, California Penal Code § 1203.43 allows aliens in California to change guilty pleas to not guilty if they participate in a pretrial diversion program, sometimes years after the original plea bargain, under the illegitimate rationale that California law “misinformed” aliens that it could shield them from federal immigration consequences—like deportation—of their state drug offenses.
The IRLI brief explains how these vagaries of state law do not matter. Under federal law, if an alien admits to committing certain drug-related crimes, and is punished, even by probation or having to go for counseling, that alien still must be deported from the country.
No More Coddling Criminal Aliens, July 30, 2018