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 They plead guilty and complete a period of probation, after which the plea is withdrawn and charges are dismissed.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The new Colorado law provides procedures for courts to vacate an unconstitutional guilty plea where it has already been withdrawn and the charges dismissed.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. Read more