SOCS IN WASHINGTON STATE, WITHHELD GUILTY PLEAS IN OREGON, AND ACDS IN NEW YORK – THE POSSIBLE IMMIGRATION CONSEQUENCES OF DIFFERENT STATE ARRANGEMENTS

A deferred disposition will be a permanent conviction for immigration purposes, even where the noncitizen defendant has complied with conditions and the charges are subsequently dismissed, if:

1. the noncitizen entered a plea of guilty; or
2. the noncitizen has admitted sufficient facts to warrant a finding of guilt, and;
3. some form of punishment, penalty or restraint has been ordered.

According to the U.S. Immigration code, in certain circumstances, even if someone did not plea guilty, but entered into an alternative resolution to a criminal charge, they could still be subject to immigration consequences of the alternative arrangement. These three alternative arrangements are all so different from each other when it comes to immigration law.  This article is meant to describe these differences.

WITHHELD GUILTY PLEAS

In the states of California and Oregon, the state courts like to enter into alternative arrangements called “Withheld Guilty Pleas”. This is a situation where the defendant pleads guilty, “off the record” in front of the judge, but the judge withholds the plea.  Figuratively, he places it in a drawer and holds it until the defendant complies with all the terms of the arrangement.  (Community service, pay a fine, drug treatment, behavioral therapy, etc.).  Unfortunately, the U.S. immigration code, a plea, no matter what, held on the record, or withheld off the record, does not make a difference.  The authorities of ICE and the federal government, will try their best to remove someone if they pled guilty to a deportable crime, whether it was on the record or not.  It is advisable to anyone who enters into a withheld plea, to get the advice of an immigration attorney before entering into such a plea.  Considering that currently in 2017 both California and Oregon declare themselves “sanctuary” states, they do not seem to be following such a status when they have such “withheld” pleas that are injurious to people’s immigration status.  There are no statutory state laws requiring withheld guilty pleas be immigration friendly.

SOCS: STIPULATED ORDERS OF CONTINUANCE

In Washington state, Stipulated Orders of Continuance are often entered mainly in the lower District Courts handling Gross Misdemeanors and Misdemeanors.  Stipulated orders of continuance (SOC), dispositional continuances, and specialty court (e.g., drug or mental health court) agreements will all be deemed permanent convictions for immigration purposes, unless the language of the deferral agreement does not involve a finding or plea of guilty, nor an admission of facts sufficient “to warrant a finding of guilt.” Without such language in such agreements, the benefit of these deferred adjudication opportunities are often rendered moot for noncitizen defendants since they will end up with removable convictions, even if they comply with the conditions imposed and the charges are subsequently dismissed. Many courts throughout the state have revisited these agreements and are now using agreements whose language comports with state law, maintains the integrity of the procedures and is “immigration safe” (i.e., does not require admission of guilt or facts sufficient to warrant a finding of guilt). “Immigration safe” agreements avoid fitting the immigration definition of a conviction by making clear that the agreement itself is not an admission of sufficient facts or guilt, and that the consideration of evidence is contingent on lack of future compliance. If a court decides to use “immigration-safe” agreements, best practices suggest that they be used in all cases, rather than a separate agreement for noncitizen defendants. Even though courts, are trying to save some immigrants with their immigration safe SOCs, there are no statutory state laws requiring SOCs be immigration friendly.

ACDs: ADJOURNMENT IN CONTEMPLATION OF DISMISSAL

In the state of New York, they have an alternative resolution in criminal cases called ADJOURNMENT IN CONTEMPLATION OF DISMISSAL. This is similar in all respects to an SOC but it is statutory under New York law.

According to New York law, The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution. In New York city, they are referred to as ACDs. Outside New York city, in the state, they are referred to as ACODs. These allows a court to defer the disposition of a defendant’s case, with the potential that the defendant’s charge will be dismissed if the defendant does not engage in additional criminal conduct or other acts prohibited by the court as a condition of the ACD. The defendant subject to the adjournment in contemplation of dismissal is restored to the status he or she occupied prior to arrest, either during or after the period of adjournment that accompanies the ACD: that is, all records of the arrest and after the period for which the ACD applies; however, in many jurisdictions a local law enforcement record of the arrest is retained by default, unless that record is explicitly expunged.

The judge adjourning in contemplation of dismissal may impose specific conditions on the defendant subject to the ACD, which may include community service, drug rehabilitation, making restitution with a victim of the circumstances, avoiding contact with the victim, or completing some other diversion program. It may also be accompanied by an admonition to abstain from wanton, injurious, criminal, abusive or disruptive behavior. On the acceptance of the ACD and its without disposition and the defendant is released without bail condition.

A big difference between the SOCs / Withheld Pleas versus the ACODs / ACDs, is that ACDs, by state statute, are immigration friendly as long as there is no stated plea or admission on the record and they are worded correctly. ACDs/ACODs are considered the golden objective in most criminal cases in New York.  With an appropriately worded ACD, the charge can be immigration friendly as to removability of people.  They can still be a problem on the excludability of those trying to legally re-enter the country.

– Gregory Scott Hoover

Gregory Scott Hoover’s primary area of legal practice is in the form of civil and criminal litigation and assisting those involved in real estate transactions. Mr. Hoover is licensed in both Oregon and Washington, and New York, U.S.A., and England and Wales. Mr. Hoover is also a skilled negotiator, mediator and arbitrator. As a skilled negotiator and litigator, Mr. Hoover can skillfully resolve your situation through effective negotiations or, if necessary, aggressively represent your matter in court.

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