Here’s a process that plays out hundreds of times every year in Colorado: A person is charged with a low-level crime such as simple drug possession or petty theft. A prosecutor offers that person a deal in which the defendant pleads guilty, successfully completes their sentence — say, a couple years of probation and maybe a rehabilitation class — and their case is dismissed. The record of it will be sealed at the end of the probationary period.
But there is one group for whom the process — known as deferred judgment — comes with a catch. For non-citizens, those here legally and illegally alike, deferred judgment does not clear the legal slate. For this group, the same guilty plea can, years or decades later, mean a denial of citizenship or deportation.
“What I learned time and time again,” said Sen. Julie Gonzales, a first-year Democratic legislator who worked for six years as a paralegal for the immigration law firm of Hans Meyer, “is that the people who actually have done everything the criminal justice system had asked of them were the folks who had no remedy available to them.”
On Wednesday at the Capitol, the Senate Judiciary Committee voted 3-2 to advance a bill from Gonzales that aims to sidestep this conflict between state law and federal immigration policy.
The remedy she’s proposed would allow non-citizens who’ve successfully completed deferred judgments to petition to have their guilty pleas withdrawn. It’s a roundabout way to effectively dismiss their convictions as the state already does with many others.
“We recognize that any contact (with the criminal justice system), however exceedingly minor it may be, can cause lasting consequences to defendants,” Gonzales said, adding that the bill is “rooted in my experiences working with clients who were facing these particularly draconian immigration consequences.”
Meyer and other immigration attorneys and advocates already tried to solve this problem in court. Meyer argued before the Colorado Court of Appeals in 2014 that his client Jose Espino-Paez, a Colorado non-citizen who’d accepted a deferred judgment, was not informed by his lawyer at the time that pleading guilty could detail his application for legal residency. Meyer told the court that Espino-Paez should be able to withdraw his plea.
But the Court of Appeals in ruled 4-2 against Espino-Paez. He appealed to the Colorado Supreme Court, which in 2017 found that it did not have the authority to rule on the matter.
Gonzales’ bill, in essence, seeks to give state courts that authority.
If her bill does become law, the onus will be on the affected non-citizens to petition for withdrawal — but immigration advocates are OK with that.
Right now, Meyer said, “In every case like this, the D.A. has gotten what they wanted but the defendant is getting screwed. Most people wouldn’t have taken these deals if they knew it might end with them being separated from their children and deported.”
Meyer added that a D.A.’s office would still be able to fight a withdrawal under Gonzales’ bill.
He estimated that “several hundred, if not several thousand” people in Colorado could be affected the bill goes through.
No one testified against Gonzales’ bill. Republicans John Cooke and Bob Gardner voted against the proposal but they declined to comment when the committee members went around explaining how and why they’d vote. Gonzales joined Democrats Pete Lee and Robert Rodriguez in passing the bill.
Among those speaking out in support were immigration attorneys, the office of Denver D.A. Beth McCann, the University of Denver Sturm College of Law and the Colorado Criminal Defense Bar.
Erica Cano, a Thornton woman married to a non-citizen who satisfied his deferred judgment about a decade ago, testified that her husband thought the offense for which he pleaded guilty — she declined to specify what it was — was something that should have been a “speed bump” but is now a “road block.”
“It’s really keeping us in limbo,” she said. “We want to stay (in the U.S.). … I want to continue living here. And this bill gives us some hope for that. Right now, there is no hope.”
People like Cano’s husband, argued Tristan Gorman of the Criminal Defense Bar, often don’t realize how much trouble they’re in until after they’ve completed their deferred judgments.
“Most of them are going to think, ‘Well, I’ve done my part, … and now it’s like the case never happened,’” she said. “Instead, it’s quite the opposite.”
“It’s a real problem. And it has happened to an awful lot of people.”