With Maryland’s 444th General Assembly underway, some state lawmakers are pushing for the Probation, Not Deportation bill.

Tyrone Turner / WAMU/DCist

After years of hard work, Vanessa and her husband Manuel live a relatively peaceful life in Maryland with their four-year-old son (Vanessa spoke to DCist/WAMU on behalf of her husband, who as a DACA recipient could be deported over a misdemeanor at this time. They both requested the use of pseudonyms to avoid repercussions that could affect his immigration status). Vanessa says that Manuel left Guatemala with his relatives as a teenager. Like many immigrants, he came to the U.S. in the hopes of finding new opportunities for himself and to help his family back in Guatemala. Although he didn’t have a high school diploma or GED, he did enroll in classes at a community college. It wasn’t long before he found his calling, working in the carpet and tile industry in Maryland.

Since coming to Maryland, Manuel has ticked off something of an American Dream checklist. He started his own business, which currently employs four people. He met his wife, Vanessa, and they bought their own home. Manuel even sends money back to his family in Guatemala. Although he’s not a U.S. citizen, he is here legally thanks to his Deferred Action for Childhood Arrivals (DACA) status, which is up for renewal at the end of February.

“We pay taxes literally every year,” said Vanessa, who is a U.S. citizen. “He owns his own business. Plays soccer, like, every Sunday. We take our son everywhere. We have a dog. It’s just like, perfect life.”

In his 17 years living in Maryland, Manuel has worked hard to build his version of a perfect life; but his story is not without missteps. In October of 2020, he was arrested for driving under the influence.

According to Vanessa, it was a serious and unusual lapse in judgment for Manuel, who had no previous criminal record. It resulted in an ignition interlock being installed in his car which includes a breathalyzer check before the car will start. In addition, he makes monthly payments for the fine he received. He also enrolled in a counseling program for alcohol, which he took time off work to complete before his first court date.

“He just knows how important immigration is and doesn’t want to lose anything in this country,” said Vanessa. “He is very serious about just rectifying the mistakes and knowing that he could lose everything here.”

In March of 2021, Manuel was able to receive probation without being convicted of a crime through a process known as a “Probation Before Judgment,” or PBJ disposition. It’s a mechanism in Maryland law that allows defense attorneys, prosecutors, and judges to work together to allow people with first-time offenses to avoid a criminal conviction. Defendants are still technically found guilty under state law, but it’s not supposed to show up on their record.

According to Judge Andre M. Davis, a retired member of the United States Court of Appeals for the Fourth Circuit, PBJ has existed in Maryland for decades, and it is commonly used for qualifying misdemeanors like a first-time DUI. However, a PBJ is typically interpreted as a conviction under federal law. This means it can have unintended consequences for non-citizens, including DACA recipients like Manuel. Davis says it puts them at risk of losing their immigration status and getting deported.

“It is the combination of Maryland law and federal law that results in a profound injustice to people who are not citizens of the United States,” said Davis, who supports proposed legislation in Maryland that would change the current status of PBJ. “They get deported. We shouldn’t be treating these people who get PBJ in that manner. It’s unjust. It’s unequal. And Maryland needs to step up and do the right thing.”

At the end of February, Manuel is supposed to renew his status with DACA like he does every two years. But because federal law recognizes his PBJ as a conviction of a DUI – which is a significant misdemeanor under DACA policy – he might be ineligible.

“Should he even apply for it having the PBJ on his record?” said Vanessa. “I don’t know how it’s all going to work out, but basically our immigration lawyer said with a PBJ, the DACA is really in jeopardy.”

The thought of losing her husband is difficult for Vanessa. She says she worries every day about risking everything they’ve worked for.

“We’d probably lose the house,” said Vanessa. “My husband also owns an LLC and has four employees who might also lose their jobs if he is also sent back. So it would be very, very hard to say the least.”

But most of all, she worries what it would be like for her son to lose his dad.

“My son. I mean, he’s the top priority. He’s all I’m worried about. He loves daddy, and I just can’t imagine him not having him every day at the house,” said Vanessa.

According to Vanessa, Manuel’s first lawyer didn’t clarify that a PBJ could be just as bad as a conviction for immigrants. And although the family has a new lawyer trying to get an appeal on the disposition, the right to appeal is typically waived by defendants when they accept a PBJ from a judge.

Manuel is not alone. Immigration advocates have been working to solve the issue for years. Gabriela Quercia Kahrl, associate director at the University of Maryland’s Chacón Center for Immigrant Justice, says it’s not only unfair, but also unintentional.

“They accept probation because everyone around the table recognizes this is not somebody who should have a criminal conviction,” says Kahrl. “All of a sudden they’re in jail. They’re separated from their families. They lose their jobs or lose their apartments. They’ve lost their children. It’s a horrible thing and it’s not what anyone wanted, but by the time the Maryland system gets around to fixing it, the damage has already been done.”

With Maryland’s 444th General Assembly underway, some state lawmakers – including Senator Susan Lee and Delegate Wanika Fisher – are working with Kahrl and other advocates to ensure people who take the disposition aren’t putting themselves at risk of being deported. They say a technical fix would get the disposition back to its intended purpose under their proposed Probation, Not Deportation bill.

“It just allows a court to find the facts justifying the finding of guilt, which would align with many other states in the union,” said Senator Lee, who co-sponsored the bill. “It’s just a common sense law, and we’re hoping that we can get it passed this session.”

According to Kahrl, the bill has received support from both lawmakers and state officials, including the Attorney General. She says that kind of support could be key to the bill passing.

“This bill really is an opportunity for the Maryland General Assembly to to correct an error that they didn’t intend and to correct the interference of the federal government,” said Kahrl, who helped to draft the bill. “We really feel this is a bill that everyone should be able to get behind. State’s attorneys as well as as well as the judiciary. And we have a lot of support from immigration judges and from members of the bench on this bill.”

The bill has been introduced in both the House of Delegates and the State Senate; it will need to pass both chambers and then be signed into law by the governor to become law. Still, for families like Manuel and Vanessa’s, the proposed bill offers hope and an opportunity to stay together.

“They should not tear up any family,” said Vanessa. “People can make mistakes. Why can’t you have a second chance?”

Vanessa, along with other people potentially impacted by the bill, plans to testify before the State Senate in a hearing on February 2.

Filed Under: Immigrant Communities, Maryland General Assembly, Maryland legislature, Probation Not Deportation,