H&S C 11377 H&S C 11350(a) uses the same analysis

Offense

Possess any of several controlled substances (CS) that are defined by California statute

Aggravated Felony (AF)

Possession is not an AF unless: (a) a prior possession offense was pled or proved for recidivist enhancement, or (b) it is possession of flunitrazepam

Crime Involving Moral Turpitude (CIMT)

Possession is not a CIMT (but sale or distribution is)

Other Removal Grounds

Conviction is a deportable and inadmissible CS offense, unless a non-federal substance defense applies. Formally admitting that one committed a CS offense, even without a conviction, makes one inadmissible (but not deportable).

See discussion at See Advice regarding alternative dispositions, such as a plea to a non-drug offense; PC § 1000 diversion (if the person is likely to successfully complete it; see Part B.2, below); and an alternative plea such as PC §§ 32 (with a sentence of 364 days or less) or 372.5, although those alternatives are safer for LPRs than for undocumented people.

Post-Conviction Relief: Minor drug offenses may be eligible for special PCR, including if the person completed the former DEJ (PC § 1000, 1979-2017) or current Prop 36, and Lujan-Armendariz relief for certain minor convictions from on or before July 14, 2011. See below

Advice and Comments

H&S C 11377. H&S C 11350(a) uses the same analysis

General Advice for all Controlled Substance Offenses. Also, see endnote¹for links to Practice Advisories that cover the below topics in more detail. In particular, see ILRC, How to Defend Immigrants Charged with Drug Offenses, Including New PC § 372.5 (Jan. 2023).

1. Try to avoid a CS conviction—especially a first one! See options. Depending on the individual, a single possession conviction involving a federally-defined substance can be fatal to current or hoped-for immigration status. The most minor conviction can destroy lives and families, including permanently depriving children of a parent. A drug trafficking conviction is fatal to almost all immigrants who cannot prove a likelihood that they will be tortured in the home country.

The best option is usually to bargain to drop the drug charge/s and instead plead to an immigration-neutral non-drug offense. Argue equities and try to plead to e.g., 32, 370/372.5 459, 136.1(b), trespass, 459, DUI, B&P C 4140, etc. Individual analysis is required, but often a plea to a property or even a violent offense is better than a CS offense.

There are good options after that, but their effectiveness differs depending on the individual defendant’s immigration needs, so be sure to discuss this with an expert. For example, an asylum applicant might do better with an 11350 than with a more serious but still immigration-neutral non-drug offense, while an LPR or person seeking other status could be the opposite. Common defense options are set out below, roughly in order of preference. Each is discussed in more detail in this section.

Plead to any immigration-neutral (or at least less bad) non-drug offense.
Take pre-trial diversion, PC 1000, if D is likely to complete it.
Plead to a specific non-federal substance, e.g., chorionic gonadotropin. Immigration advocates can argue that marijuana, heroin, and meth as defined under California law are not a federal CS, but defenders should not rely on this.
HR/DV defense: Might D be a victim of human trafficking or domestic violence, who is committing a drug (or any other) offense due to coercion? Coercion can mean under direct orders (e.g., to sell drugs) or coercion arising from the victimization, without orders (e.g., taking drugs as a response to despair). This could be a defense to a current charge; a vacatur for a prior conviction; and/or a possible path to legal status.
Plead to PC 372.5 (2023) or, with less than a year imposed, 32. These should not be convictions of a CS offense, an AF, or CIMT. However, ICE may pressure the person to admit the underlying conduct, which potentially could trigger inadmissibility and ineligibility for relief (but not deportability).
Weakened Defense for LPRs: Now weakened, an older defense was to create a record of conviction that does not name the CS, referring throughout to “a controlled substance” rather than, e.g., “cocaine.” Since the 2021 decision in Pereida, however, this only helps LPRs to contest deportability, and even that is not secure. Any of the above options are better, but if they are not available this one is worthwhile for LPRs.
Eliminate a prior drug conviction with PCR. Additional PCR exists for minor drug offenses.

2. Take pretrial diversion such as PC 1000 (1/1/18) if D can complete it. Because it has no guilty plea, this is not a conviction for immigration purposes. But if D is unlikely to complete the program, fight hard for a non-drug plea now rather than taking PC 1000, because in accepting PC 1000 the person must give up the right to jury trial if they should fail diversion and have to face the charges. PC 1000.1(a)(3). If D will be put in ICE custody, D will not be able to complete PC 1000—but at least will not have a guilty plea. See link to advisory in endnote above. Other forms of pretrial diversion, such as mental health diversion (PC 1001.36) and the new misdemeanor pretrial diversion (PC 1001.95), effective 1/1/2021, to the extent there is no guilty plea required.

3. Plead to a specific non-federal controlled substance, e.g., chorionic gonadotropin. To be a deportable or inadmissible CS offense or CS aggravated felony, a state conviction must involve a substance listed in federal drug schedules. California laws include a few that are not listed there. For example, 11377-79 includes chorionic gonadotropin, which is not a federal substance, and khat, which probably is not.²

If the record specifically identifies one of these (e.g., “I sold chorionic gonadotropin”), it is not a conviction of a CS offense or drug trafficking AF for any immigration purpose, whether deportability or eligibility for relief. The defense has effect nationally. The problem is that it can be a difficult plea to negotiate—although California defenders have been able to plead guilty to 11377-79 offenses and state “chorionic gonadotropin” on the record, which is all that is required. Note that even with this defense, the person still might face some other penalties; see Part c, below.

There is a related but distinct defense: the “unspecified substance” defense, where the record is sanitized to not reveal what substance was involved (e.g., “I sold a controlled substance”). This defense was weakened considerably in 2021. See Part 6, below.

Here are key points about the specific CS defense.

a. Chorionic gonadotropin, H&S C 11377-79, is the safest non-federal CS in California. That substance is not on federal schedules as of this writing. Until the time it is placed on federal schedules, a conviction is not an immigration CS offense or CS AF.

b. Arguably California heroin is not a federally defined CS – but still not a safe plea. Because the California statutory drug schedule defines heroin more broadly than the federal statutory drug schedule does, there is a very strong argument that California heroin is not a federal CS under Ninth Circuit precedent.³

But there is no Ninth Circuit case yet, and getting one could take years. Therefore defense counsel cannot rely on heroin as a safe plea. But if a plea to 11350-52 cannot be avoided, do try to designate the substance as heroin or isoheroin. This will permit advocates defending the person in removal proceedings to make the argument.

c. Arguably California cannabis under Prop 64 is not a federally defined CS – but still not a safe plea. Defenders should conservatively assume that cannabis under California law, including post-Prop 64, is a federally defined CS. But advocates in removal proceedings can assert that Prop 64 changed the California definition of cannabis, so that a conviction from on or after November 9, 2016 (the effective date of Prop 64) is overbroad and indivisible compared to the federal marijuana definition, and thus is not a controlled substance offense for immigration purposes. See discussion at H&S C 11357(a)(2) (current), above and at ILRC, Immigrants and Marijuana (May 2021).

d. Recent district court decision finds that California methamphetamine is not a federally defined CS. In July 2023 a federal district court held that meth as defined under California law is not a federal CS. United States v. Verdugo, __ F. Supp. 3d __ (S.D. Cal. July 17, 2023). As Verdugo explains, this is based on the fact that California defines meth analogs more broadly than federal law does, so under the categorical approach, California meth is overbroad and indivisible. (Note that this is different from a previous argument that California meth is not a federal CS, based on meth “geometric isomers.” While that argument ultimately lost, this argument appears stronger. See discussion of the law and chemistry in Verdugo.)

Removal defense advocates should assert this defense now. For criminal defense counsel, if the client has a few possible defense options – for example, considering PC 372.5 versus a plea meth — it may not be clear which is the safest in every case because Verdugo could be overruled or some other change could happen. Get expert help on individual cases, and see forthcoming ILRC advisory on Verdugo and California meth. Meth also is a potential plea in charges of 11364, 11370.1, and 11550.

e. Other immigration penalties can occur even with this defense. This defense prevents a conviction of an offense relating to a federal CS. But other immigration consequences do not require a conviction of a CS, and they are a risk. These include:

Inadmissible as a drug trafficker. If ICE has the motivation and ability to find evidence that the person aided in trafficking (as opposed to giving away) a federally defined CS, the person can be found inadmissible without a qualifying conviction, because the government has “reason to believe” they ever participated in trafficking. INA 212(a)(2)(C). This is a factual questions and you can do little to prevent it, except (a) try to keep the ROC clean of information that would prove this ground, and (b) warn the client that they may be inadmissible and they must not travel outside the U.S. or submit any papers to DHS without getting an expert opinion. Of course, this is a much greater risk if the conviction itself was for a trafficking offense than for possession.
While there are some defenses, immigration authorities might pressure the person into admitting the “real” substance and thereby making themselves inadmissible and barred from some relief (but not deportable)
Sale, possession for sale, distribution of a CS, or offering to do this, is a CIMT,⁴ probably regardless of whether the substance appears on federal drug schedules. Assume that any 11351-52 or 11378-79 will be a CIMT. Arguably sharing or selling marijuana is not a CIMT, since that conduct is normalized as a multi-billion dollar industry where such conduct is legal in some form in the majority of states.

4. Might D be a victim of human trafficking or domestic violence? Does evidence suggest that D may be a victim of human trafficking or domestic violence and is committing the drug offense under coercion? Coercion can mean under direct orders (e.g., to produce or sell drugs) or coercion arising from the victimization, without orders (taking drugs in response to despair). This could be a defense to a drug charge; a vacatur for a prior conviction; and/or a possible path to legal status. For example, San Francisco PDs have won at trial on behalf of Hondurans charged with drug sale but who were trafficked and coerced. See discussion of options at ILRC, New Options for Survivors of Trafficking and Domestic Violence (Nov. 2022) and at Advice to H&S C 11358, above.

5. Plead to new PC 372.5 or (with less than a year imposed) PC 32. See further discussion at Advice to PC 372.5. This should not be a conviction of a CS offense, an AF, or CIMT. However, ICE may try to pressure the person to admit the underlying conduct, which could trigger inadmissibility and ineligibility for relief (but not deportability).

What it does. PC 372.5 became an option in 2023. It operates similarly to a “wet reckless” but for drug charges, giving D the option to accept the criminal penalties for the charge but avoid some immigration or other civil (e.g., housing, employment) penalties. A defendant charged with drug offense/s can ask for charge/s to be dismissed and to plead instead to being a public nuisance (PC 370) at the same offense level. Under PC 372.5(a)-(c), for this purpose 370 is punishable as an infraction, a misdo/wobblette, or a 16-2-3 wobbler. It provides that a condition of the plea was that “drug” charges (not limited to CS) were dismissed. Similar to wet reckless, the DA cannot affirmatively charge 372.5, but if defense requests it the DA will decide whether to agree.

D is convicted of being a public nuisance, PC 370. Under the categorical approach, 370 is not a CS offense, CIMT, or other removable conviction. But the plea protects some immigrants more than others; see below.

Compare to PC 32. Felony or misd PC 32 has long been used as an informal substitute immigration plea for a drug charge, to avoid a CS conviction. PC 372.5 has similar effect, except (1) 372.5 can take a year or more without being an AF, while PC 32 cannot and (2) for better and worse, PC 372.5 directly refers to a dismissed drug charge. The upside is that some DA’s have refused to take a PC 32 plea on the grounds it is an inappropriate legal fiction, whereas 372.5 is a sanctioned alternative to a drug charge. The downside is that because immigration authorities may focus on pressuring the person to admit the underlying drug charge that PC 372.5 states was dismissed.

Which clients this best helps. It is best for LPRs trying to avoid becoming deportable, because a CS conviction is required for deportability and this is not one. It can help LPRs in other contexts (including, although this is not recommended, travel outside the U.S.) where they do not have the burden to prove they are admissible. But an LPR who applies for adjustment as a defense to removal would be in a similar state as undocumented clients, as described below. See endnote⁵ and get expert advice if a situation is not clear.

This is less good for applicants for relief, which includes all undocumented people, deportable LPRs, etc. They may need to prove that they are admissible or merit a positive discretionary ruling. Immigration authorities may pressure them to admit they committed the original drug charge, which might make them inadmissible or be a negative discretionary factor. They might threaten to deny the application if the persons refuses to speak. See further discussion at Advice to PC 372.5. Immigration advocates may be able to work around this.

6. For LPRs: Keep the record clear of any specific controlled substance.

This long-time defense was significantly weakened in 2021 and a plea to PC 372.5 (or, with a year or less, PC 32) is much safer. But if defenses 1-5, above, are not available, this may help LPRs avoid deportability charge and is worth seeking. It will not help immigrants who must apply for relief.

Defense: Defender bargains to remove any mention of a specific federal CS, e.g., “morphine” from D’s record of conviction and substitute “a controlled substance.” Because H&S C 11350-52, 11377-79 contain some substances not in the federal schedules (see #3, above), the vague record fails to prove that the offense involved a federal CS. In a plea context, the documents that must be sanitized are referred to as the “record of conviction” or Shepard documents; they are the charge pled to; the plea colloquy transcript and/or written plea agreement; the judgment; and any factual basis for the plea agreed to by the defendant. After some back and forth, the Ninth Circuit held that the defense protects all immigrants, including those applying for relief, in Marinelarena.

Effect of Pereida. In Pereida v. Wilkinson, 141 S.Ct. 754 (March 4, 2021), the Supreme court weakened the defense in two ways. First, it rejected Marinelarena and held that the inconclusive record defense does not help an immigrant applying for relief, e.g., all undocumented people, deportable LPRs, etc. In the drug context, those people must prove that the substance was chorionic gonadotropin. But the defense does help an LPR who is contesting deportability. ICE must prove that the offense was a federal CS.

Second, in dicta the Court stated that Shepard likely never applied to immigration proceedings so that evidence from outside the record of conviction can be used to prove the specific substance. The Ninth Circuit seems to be adopting this. Going forward, this means that sanitizing the record of conviction documents may help an LPR to avoid deportability – but this is not guaranteed. LPRs who created a vague record of conviction before March 4, 2021 should have a good argument that this dicta cannot be applied retroactively.

For further discussion see ILRC, Pereida v. Wilkinson and California offenses (April 2021). For how to create an inconclusive record of conviction, see endnote.⁶

7. Eliminate a prior CS conviction

Vacatur per PC 1473.7, 1016.5, habeas corpus, etc. California has several types of post-conviction relief that can help immigrants; see especially PC 1473.7. See advisories at the endnote at the start of this section, in particular ILRC, Overview of California Post-Conviction Relief for Immigrants (July 2022), and see the new ILRC book, California Post-Conviction Relief for Immigrants: How to Use Criminal Courts to Erase the Immigration Consequences of Crimes (January 2023) and materials at www.ilrc.org/immigrant-post-conviction-relief.

Other PCR is specific to minor drug offenses:

Former DEJ. People who pled guilty under former PC 1000, Deferred Entry of Judgment (1996-2917) and who ever obtain dismissal under former 1000.3 can submit a free, simple application under PC 1203.43 to eliminate this “conviction” for immigration purposes. But because of ICE pushback in removal proceedings on its effectiveness, one should either (a) make it clear to the criminal court judge or at least to immigration authorities that the person believed that the DEJ promise of “no conviction” included for immigration purposes, and/or see PC 1473.2(e)(2), next.

Former DEJ or Prop 36. A PD might be able obtain a vacatur under PC 1473.7(e)(2), easily and without conflict of interest. Section (e)(2) creates a presumption of legal invalidity of the plea if there was a representation that completion of the diversion program would mean that there was no conviction or arrest record, which in fact is stated in Prop 36 and the former DEJ. To help in immigration proceedings, it would be best if the defendant files a declaration stating (honestly) that they understood this to include no conviction for immigration purposes, and relied on that in deciding to plead. See PCR advisory in endnote above.

Conviction on or before 7/14/11. For a qualifying D, first conviction for possession of a CS or of paraphernalia (but not use), or for giving away a small amount of marijuana, from on or before 7/14/11 is eliminated for immigration purposes by rehabilitative statutes like 1203.4, withdrawal per Prop 36, former 1000.3, etc. D must not have violated probation or had a prior pretrial diversion (but these limitations might not apply if D was under age 21 at time of plea.) See H&S C 11360 and see Lujan advisory link at endnote above. The Ninth Circuit found that a prior removal of a person who would have qualified for Lujan treatment was a gross miscarriage of justice.⁷