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Is it possible of being approved for deferred action if i was convicted of a DUI 3 years ago but got it expunged recently?

Northridge, CA |

I was convicted of DUI. I blew a 0.10 a little over 3 years ago but got it expunged a few weeks ago because an immigration lawyer told me that it would increase my chances when applying.
Other then that, i meet all the requirements for deferred action and i have siblings that have also applied and been approved for deferred / affirmative action.

Attorney Answers 6

Posted

I disagree with my colleagues. Because you now have an expungement, you are eligible to apply for DACA. That does not mean that it is certain to be approved, just that it will not be automatically denied due to the conviction.

Under the DACA guidelines, a conviction for a significant misdemeanor (including a DUI), is an automatic bar unless the person shows exceptional circumstances.

However, DHS expressly states in DACA guidance that an expungement will take the conviction outside of the automatic bar realm and allow the applicant to present favorable and negative factors (just like a juvenile offense):

Q7: Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion?

A7: Expunged convictions and juvenile convictions will not automatically disqualify you. Your request will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. If you were a juvenile, but tried and convicted as an adult, you will be treated as an adult for purposes of the deferred action for childhood arrivals process.

So, if you have a DUI conviction you pretty much automatically will be denied. If you get an expungement, you will not be automatically denied but need to show the favorable factors that will outweight your history. That would include evidence of rehabilitation, good works, family ties, hardship, etc.

It is true that an expungement generally is of no effect for immigration purposes. That is a matter of the Immigration and Nationality Act. But, DACA is a purely discretionary program and DHS has been uncharacteristically generous with the standards for criminal bars (i.e. allowing conviction of simple drug possession to not be an automatic bar).

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3 comments

Alexander Joseph Segal

Alexander Joseph Segal

Posted

I am just curious, how did you make this leap?

Kevin Michael Crabtree

Kevin Michael Crabtree

Posted

I only quoted part of the guidelines. They begin by stating that one felony, a significant misdemeanor (including DUI), or three non-significant misdemeanors will *automatically* bar someone and USCIS will not consider DACA. Then, further down, they state that expunged or juvenile cases will not automatically bar the person but they will be factored into the totality of the circumstances. In isolation, I agree that the first statement I quoted does not illuminate very much what they are saying. But, in the context of the criminal bar scheme they are discussing, I think the most reasonable interpretation is that the expungement policy will be applied to otherwise disqualifying offenses. ILRC has published a practice advisory in which they support this interpretation (i.e. an offense that otherwise would be a bar can be expunged and then the applicant at least has the chance to present his case). http://www.ilrc.org/files/documents/ilrc-understanding_criminal_bars_to_deferred_action_5.pdf It may still be an uphill battle to be approved, but since a first time DUI standing alone would not fit within the parameters of the September 2011 USCIS Notice to Appear issuance guidance (www.uscis.gov/NTA) it seems like the potential benefits would normally outweigh the potential risks in the case of a potential DACA applicant who has an expunged DUI.

Alexander Joseph Segal

Alexander Joseph Segal

Posted

I did not know about this advisory. It is very informative, though I completely disagree with this interpretation. I bet DHS will take an oposite position in most cases. I am also sure that adjudication of this issue will vary dramatically from jurisdiction to jurisdiction and from officer to officer and will definitely need some good lawyering. Especially because most district courts will take a position on an APA action that this benefit is purely discretional and thus not reviewable as they do with refusal to join in reopening cases and a litany of others.

Posted

USCIS memoranda indicates that a DUI is a "significant misdemeanor" that would prevent approval of a DACA application. Also, expungements generally have no effect on the immigration consequences of a conviction. In any event, you should consult with a qualified immigration specialist to discuss your all of your options, including DACA.

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Posted

An expungement is worthless for immigration purposes. A DUI conviction, while not disqualifying you from DACA relief altogether, makes approval more difficult. You'll need a top calibre immigration attorney in your area to represent, prepare and file your case.

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

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Posted

I agree with my colleagues. Immigration law treats criminal adjudications differently from criminal law. You would be best advised to receive a legal option from an experienced immigration attorney who can examine the totality of your criminal and immigration history. be careful of relying on advise from a notario who will make promises and likely just steal your money.

Legal disclaimer: The statement above is provided by CC Abbott is based on general assistance and not intended to be a legal opinion because not all the facts are provided. The person requesting information and all others reading the answer should retain an attorney who is permitted by the state bar within the jurisdiction who can examine the complete facts and provide a legal opinion on your case. All information provided in the above answer and other information provided by CC Abbott does not create an attorney/client relationship within any state of Federal law.

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Posted

No. Your DACA application will be denied. An expungment does not erase the fact you were convicted. An immigration attorney can help you figure out if there is another way for you to sty in the US.

The answer provided here is general in nature and does not take into account other factors that may need to be reviewed for a more precise answer. You should consult with an immigration attorney before taking any action. The answer here is not intended to create an attorney-client relationship.

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Posted

it Is possible to be approved for DACA.

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