Talk to a lawyer about filing if you have ANY criminal history.
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.
Call an experienced immigration attorney to help you.
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First, Arrests and convictions are always a problem with immigration. I always tell people: 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 more complicated.
In this case, my admonition is that you contact an attorney. An arrest/conviction is always a complication, and you should not try to pilot any immigration case by yourself, where there has been an arrest.
To put you at ease somewhat, I would guess that a California trespassing conviction -- assuming there is ABSOLUTELY nothing else -- is probably not going to create too big a problem for you.
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.
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