What offenses constitute a non-significant misdemeanor?
For purposes of this process, a non-significant misdemeanor is any 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 that meets the following criteria:
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.
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.
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.
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.
Typically you will need to disclose everything. Call an experienced immigration attorney to help you.
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I am going to assume for the moment that your opinion of your eligibility for Deferred Action for Childhood Arrivals (DACA) is correct -- that you are eligible for the DACA benefit, except for the question about the marijuana-related conviction.
First, I will repeat what I have written here on AVVO and with other web sites: If you have EVER, ANYWHERE in the world been arrested for a crime -- whether convicted or not -- it can be a problem for you to obtain an immigration benefit in the USA. It does NOT matter that YOU think it was minor. It does NOT matter that you were a juvenile. It does NOT matter that you may only been "cautioned." It does NOT matter that you may have been tried and acquitted. An arrest -- to say nothing of a conviction -- is going to make things difficult.
The application form will ask whether you've EVER been arrested or convictions. You must tell the truth, whether you think US Citizenship & Immigration Services will "find out" or not.
In a regular immigration case, a single juvenile conviction for a small -- repeat, SMALL -- amount of marijuana for personal use is likely to be alright, under a couple of exceptions. However, Deferred Action is new and untested.
For DACA, US Citizenship & Immigration Services (USCIS) says that juvenile convictions are not an automatic disqualifier, but they DO NOT say that they will be ignored. Also, the memoranda we have from USCIS about DACA say that drug convictions for "distribution or trafficking" are significant. This would imply that simple possession of a small amount -- typically under 30 grams -- would be treated more leniently. We would all like to think so, BUT WE DO NOT KNOW THIS, AND USCIS HAS GIVEN US NO ADDITIONAL GUIDANCE.
If I were handling your case, I would urge you to wait to see who other, similar cases are being handled by USCIS before putting in your paperwork. After all, it would be best to keep you as safe as possible.
I must remind you that although I am an attorney, I am not YOUR attorney. The information I am providing you is general information about the law. If you would like specific information or advice, I am going to suggest that you make an appointment to come in, or call, to chat with us.
Additional information is needed to answer your question. Were you convicted? Was it an infraction, misdemeanor or a felony? Were you charged as a juvenile or as an adult, even though you may have been a minor at the time? The fact that you mentioned an expungement leads me to believe you may have been charged as an adult. How much marijuana was involved.
The fact that you had a background check done that came back with no criminal record does not mean that your background check used the same databases that USCIS or any other government agency has access to.
DACA, or deferred action as everyone call it, is a new process, which still has a lot of unknowns. Each individual application will be processed and granted or denied based upon its individual merits.
I strongly suggest that you contact an experienced immigration attorney for a face-to-face consultation and give him/her all of the facts surrounding your arrest. He/she would then be in a better position to analyze your case and advise you of your options.
Legal disclaimer: The answer provided is general in nature and because not all facts are known, it should not be construed as legal advice. The answer does not create an attorney/client relationship. You should speak to an attorney for further information.
Will likely be decided on a case by case basis in your situation. Contact a qualified attorney to see what your case entails and the possible risks.
Best of luck,
-Sanjay A. Paul, Esq.
This is not legal advice. No attorney client relationship exists between us.