Offense
Public nuisance under PC 370 includes anything injurious to health, etc.
Punishable under PC 372.5
(a) infraction;
(b) misdo or infraction; or
(c) 16-2-3 felony or misdo
Aggravated Felony (AF)
Not AF
Not an AF as “drug trafficking” b/c PC 370 is overbroad and indivisible.
But better option is to plead to an immigration-neutral non-drug offense, especially for persons who must apply for relief.
See Advice
Crime Involving Moral Turpitude (CIMT)
Not CIMT
Public nuisance is not a CIMT.
Other Removal Grounds
Not a CSO conviction.
Under the categorical approach, 370/372.5 cannot be a federally defined CS conviction because it has no element relating to CS. PC 372.5 does not admit to a CS offense, and “drug” in the statute is overbroad and indivisible compared to definition of CS. See 372.5(d).
Danger of a future CS admission.
While 370/372.5 is far better than a CS conviction, risks remain for undocumented people and others who may need to apply for lawful status. With a 370/372.5 immigration officials may pressure them to admit to the original drug charge, which in turn could disqualify them from acquiring lawful status.
A plea to a serious non-drug offense may or may not be better than 370/372.5, depending on individual circumstances. Expert crim/imm advice is especially needed here.
Defense counsel should advise D not to discuss the charges or underlying conduct with immigration authorities unless they have good immigration counsel.
See discussion at Advice, Undocumented Clients
Advice and Comments
For other CS defense strategies, see 11377. For more on PC 370/372,5 see ILRC, Fact Sheet on PC 372.5 which also can be provided to prosecutors. See also Overview: Controlled Substance and see CS advisories at www.ilrc.org/crimes-summaries.
What PC 370/372.5 does. It permits a negotiated plea that accepts the criminal penalties of a charged CS offense, but avoids the worst additional civil penalties. Civil immigration penalties for a minor drug offense are extreme and often include deportation and permanent family separation regardless of hardship.
In a procedure similar to a wet reckless in response to a DUI charge, if D is charged with a CS offense they can try to negotiate instead to a plea to public nuisance, PC 370 and 372.5. Similar to a wet, the DA cannot affirmatively charge 370/372.5. The defense must request it and the DA will decide whether to agree. D can plead to public nuisance as an infraction, misdemeanor, or felony under PC 372.5(a)-(c) and the drug charges will be dismissed.
The plea is to PC 370, so the conviction is not of a CS offense, CIMT, or AF. But this plea still helps some clients more than others, because some CS immigration penalties do not require a conviction; see below. At this time, 370/372 is not priorable for 11395.
Compare to PC 32. Section PC 32 has long been used as an informal substitute immigration plea for a drug charge to avoid a CS conviction. PC 370/372.5 has similar effect, except (1) it can take a year or more without being an AF, while PC 32 cannot, and (2) unlike PC 32, it is not a legal fiction, which may make some DA’s more willing to bargain. On the down side, some immigration officials may be more hostile faced with a 370/372.5 conviction than with a PC 32.
Which clients this best helps. Conviction of 370/372.5 does not make an immigrant deportable. That would require conviction of an AF, CS offense, or CIMT. But 372.5 does not entirely protect the person from being inadmissible under grounds that do not require a CS conviction.
LPRs. Conviction of 372.5 will not make an LPR deportable. So it is safe for LPRs who are not already deportable.
It also may help LPRs who travel outside the US. (although this is NOT recommended) or who have become deportable but can apply for relief like LPR cancellation that does not require them to prove that they are admissible. But an LPR who applies for adjustment of status as a defense to removal must show they are admissible, and they face the same problem as undocumented clients, described below. See endnote on LPRs1
When a plea to PC 372.5 is not necessarily dangerous to an LPR. No LPR will be found deportable for a plea to PC § 372.5, because deportability requires a conviction of a federal controlled substance.
For further discussion of being inadmissible based on a formal admission of a CS offense, see ILRC, Immigrants and Marijuana (May 2021). A defense exists based on several older BIA decisions. The BIA has held that if a person’s conduct was brought to criminal court and the result was less than a conviction, e.g., due to charges being dropped, the person cannot be found inadmissible for “admitting” that same conduct. See, e.g., Matter of E.V., 5 I&N Dec. 194 (BIA 1953); Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968), Matter of Seda, 17 I&N Dec. 550 (BIA 1980). While that ought to protect an admission to immigration authorities that one did commit the original drug charge in a § 372.5 situation, we cannot be sure that authorities would apply the defense because – it’s immigration proceedings.
Regarding LPR cancellation: An LPR must have accrued seven years of residence in the U.S. after admission in any status in order to qualify. Under INA § 240A(d)(1), as interpreted by the Supreme Court, a person who becomes inadmissible by making a qualifying admission that they committed a controlled substance offense thereby “stops the clock” on the accrual of their required seven years of residence, as of the date of the admitted conduct. Therefore, an LPR convicted of § 372.5 should decline to make a formal admission of the originally charged drug conduct, especially if that conduct occurred before they accrued the seven years. If they already admitted the conduct to immigration authorities, they can assert that the admission is not “qualifying.” As discussed above, one reason it should not qualify is that the conduct was brought to criminal court and the result was less than a conviction. See further discussion at ILRC, Eligibility for Relief: Cancellation of Removal for Permanent Residents (Dec. 2022).
Regarding travel outside the United States: An LPR who travels outside the United States is deemed not to be making a new “admission,” and not to have to face the grounds of inadmissibility, upon their return. However, they can lose this status and be deemed to be making a new “admission” to the country, if they come within an exception at INA 101(a)(13)(C). One of those exceptions is if authorities can prove that the LPR has “committed” an inadmissible offense. See INA 101(a)(13)(C)(v), discussed at Matter of Rivas, 26 I&N Dec. 130 (BIA 2013). It is best for LPRs charged with any drug offense not to travel outside the U.S. until they naturalize. But if an LPR conviction of PC 372.5 does travel, that conviction alone is not sufficient for border authorities to prove that the LPR actually committed an inadmissible offense. If the LPR declines to answer any questions, eventually they should be permitted to enter, either because the government failed to prove that they committed a CS offense and thus came within INA § 101(a)(13)(C), or because they did become subject to admissibility but they were not in fact inadmissible because they neither were convicted of, nor formally admitted, a CS offense. See discussion at ILRC, Immigrants and Marijuana (May 2021).
Regarding application for adjustment of status. Here the LPR has the burden to show that they are inadmissible, and adjustment as a remedy can be denied as a matter of discretion. This puts the LPR applicant in a position similar to an undocumented person applying for relief. and get expert advice if a situation is not clear.
Undocumented clients; inadmissibility without a CS conviction. All undocumented clients must apply for immigration relief in order to remain lawfully in the U.S. Most but not all forms of relief require them to prove they are admissible, as well as deserving of a positive exercise of discretion.
Two grounds of inadmissibility linked to CS do not require a conviction and thus are not entirely protected by 372.5.
First, a person who makes a qualifying admission that they committed a CS offense is inadmissible. Immigration authorities may pressure the person to “admit” to the originally charged CS offense, to get them to make themselves inadmissible. If that occurred, immigration advocates should argue that under BIA precedent, admitting to conduct addressed in a dropped charge (as the CS charge is dropped under 372.5) does not trigger inadmissibility in this way.2Older BIA decisions hold that if conduct is charged in criminal court and the result is less than a conviction (due to charges being dropped, pretrial diversion granted, or the conviction being vacated), the person cannot be found inadmissible for admitting that same conduct. See Matter of E.V., 5 I&N Dec. 194 (BIA 1953); Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968), Matter of Seda, 17 I&N Dec. 550 (BIA 1980) and see ILRC, All Those Rules About Crimes Involving Moral Turpitude” (June 2020), pp 10-11, at www.ilrc.org/crimes-summaries. Even if the client is not found inadmissible, with a hostile judge their refusal to discuss the incident can be a basis for a discretionary denial of the relief. If instead the D had been able to plead to a different, non-CS related offense, there likely would be less pressure.
Second, if immigration authorities have probative and substantial evidence to support “reason to believe” the person ever assisted or participated in trafficking in a federal CS, they are inadmissible. The 370/372.5 in response to trafficking charge may inspire ICE to seek that. This is a fact-based removal ground and evidence is not limited to the record or the person’s own admissions. Evidence of sale, or possession or cultivation for sale, may be sufficient for this ground (although dropped charges alleging sale should not), so defenders can only do so much. See discussion in HSC 11379.
Still, removal defense counsel may be able to prevail despite this. In every case, PC 370/372.5 or 32 are far better than conviction of an offense relating to a federal CS. (The only exception might be for a non-USC who would not be destroyed by a possession conviction, e.g., an asylee or refugee, and who thinks a plea to possession will help prevent inquiries into whether there is “reason to believe” they trafficked.)
Factual basis for the plea: Best practice is to avoid a record that describes drug conduct. If possible, state as a factual basis conduct that is charged under 370 (loud noise, etc.). Or decline to state specific facts under People v. Palmer, 58 Cal.4th 110 (2013).
SB54: This is not an enumerated offense so should not permit LEA cooperation with ICE.