A drug charge option in California that protects immigrants

This page is general information, not legal advice. Every case is different. Your defense lawyer and an immigration expert should decide together what is safest for you.

Why is a drug conviction so dangerous for immigrants?

Because federal immigration law treats almost any drug conviction harshly.

• Green card holders can be deported for a conviction "relating to a controlled substance." The only exception is a single offense of possessing 30 grams or less of marijuana for personal use.
• People seeking a green card or visa can be barred for a drug conviction, or even for admitting to drug conduct.
• Citizenship can be blocked by a drug conviction.

A small charge, even an infraction, can lead to detention and deportation. We say this plainly because you deserve to know the stakes before you plead.

What is Penal Code 372.5?

It is a California law, added by AB 2195, that took effect January 1, 2023. It lets a drug case end with a plea to public nuisance (Penal Code 370) instead of a drug crime.

Here is how it works:

1. You are charged with a drug offense.
2. The prosecutor agrees to dismiss the drug charge or charges.
3. You plead to public nuisance instead.
4. The public nuisance charge is punished at the same level as the drug charge that was dropped.

The law covers a wide range of drug charges: possession, use, possession of paraphernalia, and also cultivating, making, transporting, giving away or selling a drug, or offering to. For felony charges, the law lists sale and transport type charges and unlawful possession, but not use or paraphernalia.

Why does it help immigrants?

Because the conviction is for public nuisance, not for a drug crime. The Immigrant Legal Resource Center (ILRC), a national immigrant legal group, says a public nuisance conviction under this law is not a controlled substance conviction for immigration purposes. That is why immigrant advocates pushed for it. It can also help with housing and jobs.

We want to be real with you: this is the view of immigration defense experts. It is not a court ruling or a federal rule, and immigration officials could disagree. Your immigration lawyer should look at your exact plea.

Who decides if I get it?

The prosecutor must agree. Your defense lawyer has to ask, and the district attorney has to say yes. For an infraction level drug charge, the law also allows it when the judge gives an "indicated sentence," meaning the judge says in advance what sentence they would give.

Not every prosecutor offers it in every case. Your criminal record, the facts and local policy all matter.

You have help on your side. California law requires your defense lawyer to give you accurate advice about the immigration effects of any plea, and to try to defend against them in line with your goals. The law also says prosecutors must consider avoiding immigration harm when they negotiate a plea. You do not have to tell the judge your immigration status.

Read more: Before you take a plea deal: your lawyer must explain immigration effects.

What are the limits?

Public nuisance is safer than a drug plea, but it is not magic. Ask your lawyer about each of these:

• Selling cases. If the charge was about selling, immigration officials can bar a green card when they have "reason to believe" someone was involved in drug trafficking. No conviction is needed. Police reports could still matter.
• What you say. Admitting drug use or drug crimes to an immigration or border officer can create a bar by itself. Do not discuss the facts with any immigration officer without advice.
• The plea paperwork. Ask what facts the court record will say. Your lawyer can tell you whether the record names a drug.
• Drug abuse findings. Federal law also bars people found to be drug abusers or addicts from a green card.
• DACA. A felony conviction of any kind blocks DACA. A felony public nuisance plea would still be a felony. A misdemeanor counts toward DACA's limit of three. Push for the lowest level you can get.
• The arrest still happened. Immigration forms ask about arrests. Plan to answer truthfully with a lawyer's help.

How does it compare to other options?

If you qualify for pretrial diversion under Penal Code 1000, that is often the first thing to ask about, because it requires no plea at all. See Is a diversion program safe if I am not a citizen? and What Prop 36 means for immigrants.

What could this look like?

Example (fictional). Marco has DACA. He is charged with a misdemeanor for possessing a small amount of a drug. He does not qualify for pretrial diversion because of an old case. His public defender, knowing he is not a citizen, asks the prosecutor to dismiss the drug charge and accept a plea to public nuisance under Penal Code 372.5 as an infraction. The prosecutor agrees. Marco's lawyer also checks with an immigration expert that the plea record does not name a drug. DACA's criminal rules name felonies and misdemeanors, not infractions, so the infraction level matters. Marco still has an immigration lawyer review the final papers before his next DACA renewal.

What should I do right now?

1. Don't plead guilty at your first court date without talking to a lawyer about immigration.
2. Tell your defense lawyer you are not a citizen. If you have a public defender, tell them too. They need to know to protect you.
3. Ask for an immigration consultation. Ask your defense lawyer whether they can get advice from an immigration expert on your case, or get your own from the list below.
4. Ask about the options above, in order: diversion, then 372.5, then anything else.
5. Stay quiet with immigration officers about the case and about drug use.
6. If ICE has a hold on you, read Not a citizen and arrested in California.

Questions people ask

I already pleaded guilty to a drug charge. Is it too late? Not always. Some old pleas can be undone. See Penal Code 1473.7 and Clearing an old drug diversion plea.

Does 372.5 work for a marijuana charge? It covers drug charges as California defines "drug." Ask your lawyer whether it fits your marijuana charge. For old marijuana convictions, see Clearing an old marijuana conviction.

Is a public nuisance plea a crime involving moral turpitude? Ask your immigration lawyer. See What is a crime involving moral turpitude?

Can I ask for this if I am a U.S. citizen? Yes. Citizens can use it too. It can protect housing and jobs.

Who can help?

Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• Your defense lawyer or public defender. They handle the plea. Ask them to talk with an immigration expert.
• Community Legal Services in East Palo Alto (CLSEPA): 650-326-6440. Lists immigration help for people with low income in San Mateo and Santa Clara counties.
• State funded immigration legal help anywhere in California: the California Department of Social Services provider map, or call (916) 651-8017.
• More options: Free or low cost immigration legal help in the Bay Area.

If drug or alcohol use is part of what you are facing, you deserve care too. See Is it safe to get help for drug or alcohol use if I am an immigrant?

Is there a script I can bring to my lawyer?

A charge is not a conviction yet. Ask the questions. You have more options than you might think.