Beware when judges and prosecutors dangle before criminal defendants the prospect of an ultimate dismissal of a criminal case after first necessitating a finding of facts sufficient to prove guilt, whether under Va. Code § 19.2-303.2 or otherwise.

Beware even when criminal defense lawyers encourage such a path without having fully considered the possible booby traps/consequential collateral risks along the way, for starters including what happens when the dismissal conditions are deemed not to have been met (which then leads to a conviction and sentencing). In that regard, a very experienced and capable Virginia criminal defense lawyer once seemed irritated that I was not encouraging such a disposition for a marijuana possession client with a student visa, and I proceeded to obtain an acquittal.

Eleuterio Payan Jaquez learned this lesson the hard way. Fifteen years after obtaining his green card/permanent resident visa, Payan got arrested for cocaine possession in Charlottesville, Virginia. Payan entered a guilty plea and got a disposition under Va. Code § 18.2-251, whereby a drug possession defendant receives a finding of facts sufficient to prove guilt, gets put on probation without entry of a conviction, and then ultimately gets the case dismissed upon successful completion of probation. Payan v. Sessions, ___ F.3d ___ (4th Cir., June 8, 2017).

A few months after Payan obtained his 251 dismissal, the United States Department of Homeland Security in 2008 moved forward with deportation proceedings. Payan’s claims of hardship (having United States citizen children) and consideration for his 251 dismissal were unsuccessful in challenging deportation, both before the Immigration Judge and the Justice Department’s Board of Immigration Appeals.

Payan’s plight underlines once again why it is essential for any criminal defendant to obtain a qualified lawyer to fight the case tooth and nail. Payan’s appellate lawyer, whom I know, is well qualified both in immigration and criminal defense. If that same lawyer or another qualified lawyer represented Payan when he entered a guilty plea to cocaine possession it is possible that the lawyer concluded that this was the best way to hedge Payan’s bets; of course, defendants sometimes take courses of action that run counter to their lawyers’ advice.

Repeatedly, employers, security clearance authorities, and immigration authorities here and abroad can end up treating these Virginia sufficient facts dispositions to be equivalent to convictions even when the case ultimately gets dismissed. Nevertheless, I regularly see unrepresented criminal defendants in the Fairfax County courthouse and beyond jump at obtaining such dispositions for misdemeanor theft and marijuana possession cases. In Virginia Juvenile and Domestic Relations District Court cases, the prosecution often dangles a similar disposition offer before defendants under Va. Code § 18.2-57.3.

Payan obtained no relief from the Fourth Circuit’s Crespo decision that says a 251 disposition is not a conviction for immigration law purposes where the judge finds sufficient facts to convict but where the defendant has not admitted guilt.

Yes, it is not cheap to hire a lawyer for criminal defense. However, for Payan alone, when his 251 disposition did not save him from deportation, he ended up paying for a lawyer (if he had one for his immigration proceedings) to challenge DHS’s deportation efforts before the Immigration Judge and Board of Immigration Appeals, and paying a lawyer for his appeal to the Fourth Circuit. Nonetheless, he still did not prevail against deportation proceedings.

When charged with a crime, it is important for the defendant not only to look at the micro view of defending against the case, but also the macro view of the collateral consequences of the case on the defendant’s reputation, livelihood, and immigration status here and abroad.