Colorado limits immigration consequences of a criminal record

Colorado joins other states this session that passed legislation to avoid federal immigration consequences of state criminal matters.  The new Colorado laws—SB 30 and HB 1148—work at different stages of criminal proceedings to protect people from possible deportation: SB 30 remedies past wrongs by vacating unconstitutional guilty pleas, and SB 1148 will prevent future deportations resulting from potential one-year sentences.

On May 28, Colorado enacted SB 30, which went into effect immediately and helps ensure that when a person is offered a non-conviction diversion, it is not treated as a conviction for immigration purposes.  In many states, people facing criminal charges are offered the chance to avoid a conviction by agreeing to a type of diversion called deferred adjudication.  They plead guilty and complete a period of probation, after which the plea is withdrawn and charges are dismissed.  Sounds good right?  Not for a non-citizen.  In that case, federal law treats this arrangement as a conviction—sufficient to initiate deportation proceedings.  See 8 U.S.C. § 1101(a)(48)(A); § 1227(a)(2).  However, such a plea may be unconstitutional if a person was not properly advised of these immigration consequences.  See Padilla v. Kentucky, 559 U.S. 356 (2010).

The new Colorado law provides procedures for courts to vacate an unconstitutional guilty plea where it has already been withdrawn and the charges dismissed.  See Colo. Rev. Stat. § 18-1-410.5.  (The law applies to pleas that have been withdrawn in connection with a deferred judgment agreement, or dismissal of drug charges under a since repealed law.  It applies to both past and future cases.)  Defendants must submit a motion to the court alleging that: (1) the defendant “has suffered, is currently suffering, or will suffer” adverse immigration consequences, and (2) the defendant was not informed or adequately advised of the immigration consequences resulting from the guilty plea, or that the plea was otherwise “constitutionally infirm.”  Colo. Rev. Stat. § 18-1-410.5(2), (3).  The court “shall” grant a motion to vacate if the prosecutor does not oppose it within 21 days.  Colo. Rev. Stat. § 18-1-410.5(4)(a).  If the prosecutor objects, the court holds an evidentiary hearing.  Id.  Notably, the law prevents prosecutors from relying on a deferred judgment agreement, plea paperwork, or court transcript to oppose the motion, unless the documents “clearly” show that defendant was informed that immigration consequences would persist after withdrawing the guilty plea.  Colo. Rev. Stat. § 18-1-410.5(4)(c).

The second Colorado bill, HB 1148, enacted on March 28, reduces the maximum sentence for certain low-level convictions to 364 days.  (The bill will go into effect on August 2, unless a referendum petition is filed.)  When it comes to immigration, federal law ties judges’ hands.  They often have little to no discretion to prevent deportation if a conviction meets certain criteria.  One example is mandatory deportation for state misdemeanors carrying a potential one-year sentence.  See 8 U.S.C. § 1227(a)(2).  It does not matter that a judge may actually give a five-day prison sentence or probation.  Once convicted of a crime carrying a one-year maximum sentence, a person faces potential immigration consequences.

Colorado’s new law amends the maximum sentence allowed for certain drug misdemeanors, drug petty offenses, violations of municipal ordinances, and other misdemeanors with sentences undetermined by statute.  See Colo. Rev. Stat. § 13-10-113; § 18-1.3-501; § 18-1.3-505.  Previous law provided a statutory maximum sentence of one year; the new law reduces that maximum by one day.  Anyone convicted under these statutes will be subject only to a potential 364-day sentence and will avoid immigration consequences.  Colorado becomes the seventh state to adopt 364-day legislation, joining Washington, Nevada, California, Oregon, New York, and Utah.

These two bills are part of a surge of new state legislation aiming to reduce collateral consequences and other barriers to successful reintegration for individuals with a criminal record.  So far this year, state legislatures have enacted an astonishing 88 bills in this area (dwarfing 2018’s 61 new laws, which itself was unprecedented).  We reported on some of these laws in our first quarter update, and look forward to reporting more for our second quarter update in July.

This post is part of a series for CCRC’s non-conviction records project, a study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred dispositions, and acquittals.

Kelly Cunningham

Kelly Cunningham is a recent graduate of Washington and Lee University School of Law. Kelly has interned for state and federal public defender offices in Colorado. Kelly became interested in collateral consequences after working with clients facing deportation because of their involvement with the criminal justice system. During law school, Kelly focused her research on prosecutorial discretion and international women’s rights law. In the fall, Kelly will serve as a law clerk for the Honorable Hugh Lawson at the U.S. District Court for the Middle District of Georgia.

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