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).
Inadmissible if “admits” CS offense?
Immigration authorities may pressure the person to formally admit to the original CS offense, in an effort to make the person inadmissible, or they may deny relief as a matter of discretion. Immigration advocates should resist this.
Might be inadmissible for “reason to believe” trafficking if there is sufficient evidence.
See Advice.
Advice and Comments
For more information, see discussion at H&S C 11377 and see ILRC, How to Defend Immigrants Charged with Drug Offenses, including PC 372.5 (2023). See also ILRC, Fact Sheet on PC 372.5 which, e.g., can be provided to prosecutors.
What it does. PC 372.5 allows the parties to agree to plead to public nuisance in lieu of the drug charges (much like a “wet reckless” in lieu of DUI charges). Similar to a wet, the DA cannot affirmatively charge 372.5, but if defense request it DA will decide whether to agree. D can plead to public nuisance as felony, misdemeanor or infraction under PC 372.5(a)-(c) and the drug charges will be dismissed.
D pleads to being a public nuisance, PC 370. Under the categorical approach, 370 is not a conviction of a CS offense, CIMT, or AF. But the plea still helps some clients more than others, because some inadmissibility grounds do not require a conviction; 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) PC 372.5 directly refers to dismissed drug charge. While this reference may make some DA’s more willing to accept the plea, it also make immigration authorities more likely to try to punish the person by seeking to find them inadmissible without a conviction (if the person actually has to prove they are admissible.
Which clients this best helps. Conviction of 372.5 should not make a non-USC 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 conviction.
LPRs. Conviction of 372.5 will not make an LPR deportable.
It may help LPRs who travel outside the US. (although this is NOT recommended) or who have become deportable but can apply for relief where they do not have the burden to prove they are admissible. But an LPR who applies for adjustment of status as a defense to removal must show they are admissible. They face the same problem as undocumented clients, described below.
See endnote on LPRs1When a plea to PC 372.5 is not necessarily dangerous to an LPR. No LPR will be found deportable for a plea to PC § 372.6, 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 people; 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 a federal-CS offense, to make themselves inadmissible (although BIA case law indicates that if conduct was brought to court and charges dropped, admission of that same conduct should not trigger inadmissibility.2Several older BIA decisions have found that one is not inadmissible for admitting a CIMT or CS offense, if that conduct was brought to criminal court and the result was less than a conviction, e.g., due to charges being dropped. See discussion in the above endnote of this principle and 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).) Even without a formal admission, information about the underlying conduct, or just their refusal to discuss it, might be a basis for a discretionary denial. If instead they had pled 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 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, 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.
Note that in every case, 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.)
In sum, the best resolutions for a drug charge in order are
1. No conviction (e.g. dismissal or pretrial diversion)
2. Conviction of a substitute immigration-neutral offense that does not relate to drugs, or conviction of an offense relating to specific non-federal substance.
3. Plea to misdo PC 32, PC 372.5 or (with less than a year) felony PC 32
See discussion of defense strategies at 11377, above.
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). See Advisory, above.