Diverted Into Deportation: The Immigration Consequences Of Diversion Programs In Maryland
Diversion programs, also commonly referred to as alternative sanctions, are programs intended to help people charged with certain offenses avoid jail time, convictions, and associated costs. These programs are commonly used for individuals who have been charged with an offense that is related to an underlying substance abuse problem. For these individuals, diversion programs offer opportunities for rehabilitation and enrollment in community- based treatment programs as an alternative to incarceration. Successful completion of a diversion program usually results in dismissal of the criminal charges that brought the individual before the justice system or in expungement of any conviction that resulted from those charges.
Depending on how a diversion program is structured, an individual can enter the program either before the disposition of the underlying charge or after a plea is entered.2 In Maryland, most diversion programs require individuals to enter a guilty plea or accept a Probation Before Judgment (PBJ)—a disposition that the state of Maryland does not consider to be a criminal conviction—in order to participate in the program. This is problematic in the immigration context because of the relationship between these dispositions and grounds of removability under immigration law: a guilty plea or a PBJ is enough to count as a “conviction” for immigration purposes, even if the state court never enters a nding of guilt. Most controlled substance offense convictions automatically trigger removal proceedings, and can lead to harsh consequences, such as deportation and prolonged mandatory detention. Thus, participation in a controlled substance diversion program puts members of Maryland’s large noncitizen community at risk of prolonged detention and possible deportation. That result is punitive and inconsistent with the rehabilitative and community-oriented goals of diversion programs.
A number of other states, including Connecticut and Florida, have diversion programs in place that avoid such harsh immigration consequences. These programs could provide a useful model for Maryland. Notably in Maryland, Howard County and Washington County have diversion programs that do not require an individual to accept a guilty plea in order to participate, and therefore do not result in a conviction for immigration purposes. These two counties—especially Washington County because of the more expansive number of qualifying offenses for participation in its diversion programs—can therefore provide a model diversion program for other Maryland counties. Maryland, and speci c counties within Maryland with high noncitizen populations, should examine and restructure diversion programs so as not to impose convictions on successful diversion program participants.