Deferred Action for Childhood Arrivals (DACA) (Criminal Conviction Guidelines)

Christopher Montes De Oca Esq.

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Criminal Defense Attorney

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Posted almost 2 years ago. 6 helpful votes

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1

Who may not qualify under DACA for National Security and Public Safety Reasons?

If you have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or are otherwise deemed to pose a threat to national security or public safety, you will not be considered for deferred action under this process.

2

What is Felony for DACA purposes?

A felony is a federal, state or local criminal offense punishable by imprisonment for a term exceeding one year.

3

What is a "Significant Misdemeanor?"

A significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and: Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or, If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

4

Is a conviction for Driving Under the Influence (DUI) a "Significant Misdemeanor?"

Yes, it appears like a conviction for driving under the influence (DUI) would be a significant misdemeanor as defined by federal law and you would not be considered for deferred action under DACA.

5

What counts as the time in custody & are there any exceptions to this guide?

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.

6

What is "Non-significant Misdemeanor?"

A crime is considered a non-significant misdemeanor (maximum term of imprisonment is one year or less but greater than five days) if it: Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and Is one for which the individual was sentenced to time in custody of 90 days or less. The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE. Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion.

7

What about a minor traffic ticket?

A minor traffic offense will not be considered a misdemeanor for purposes of this process, but it is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed.

8

What about multiple minor Traffic Tickets?

If I have a minor traffic offense, such as driving without a license, will it be considered a non-significant misdemeanor that counts towards the "three or more non-significant misdemeanors" making me unable to receive consideration for an exercise of prosecutorial discretion under this new process? A minor traffic offense will not be considered a misdemeanor for purposes of this process. However, your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion. It is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed.

9

Will offenses criminalized as felonies or misdemeanors by state immigration laws be considered felonies or misdemeanors for purpose of this process?

No. Immigration-related offenses characterized as felonies or misdemeanors by state immigration laws will not be treated as disqualifying felonies or misdemeanors for the purpose of considering a request for consideration of deferred action pursuant to this process.

10

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

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.

11

What qualifies as a national security or public safety threat?

If the background check or other information uncovered during the review of your request for deferred action indicates that your presence in the United States threatens public safety or national security, you will not be able to receive consideration for an exercise of prosecutorial discretion except where DHS determines there are exceptional circumstances. Indicators that you pose such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.

12

Are their any exceptions to the above mentioned rules?

Yes, DHS may determine that there are exceptional circumstances to your case. Please contact an Immigration Attorney to further discuss your individual situation.

Additional Resources

U.S. Department of Homeland Security U.S. Citizenship and Immigration Services www.uscis.gov USCIS National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 Please remember that this information is generic in nature and not intended as specific legal advice for your individual situation. This area is constantly changing so it is imperative that you always contact an attorney to seek legal advice. Furthermore, you should contact an Immigration Attorney and a Criminal Defense Attorney in your specific jurisdiction.

USCIS (DACA)

USCIS Frequently Asked Questions

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