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Questions About Criminal History and Deferred Action

San Francisco, CA |

Dear Lawyers,

I will finalize my DACA forms next week with my lawyer, but I am still scared about my past criminal record!

I was cited for petty theft 484(a), and Receiving stolen property 496(a) in California.
I have since gotten my cased dismissed by PRE-Trial diversion for both counts.

My concern is with 2nd count. It reads receiving stolen property on my DOJ livescan, minutes and disposition court documents. But, It also uses the phrase "through extortion" at the end of the misd. complaint/narrative from the Attorney General . I am afraid it will reflect terribly during review!

I never threatened, forced, spoke or demanded. How can I defend myself?
Will a dismissed case be enough? Please advise with guidance or ?'s I can my lawyer.

Thank you so much! This community rocks!

I forgot to mention that both count were under the same incident and we dismissed with no plea entered.

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Attorney answers 4

Best Answer

When you apply for DACA, DHS looks at the totality of the circumstances. This means that not one offense or deficiency will lead to denial. Rather, DHS will look at everything together and make its determination. With that said, criminal convictions are different. If you have 3 non-significant misdemeanor crimes, you'll have a bar to deferred action.

It seems that you have two charges, but no convictions. An important thing to determine is if these charges arise from one incident or are they two separate incidents? Also, is the receiving stolen property charge a felony charge or a misdemeanor?

Even where no criminal bar is present, you are not guaranteed a grant of DACA. DHS can exercise discretionary denial to deny your petition.

I highly suggest you meet with an immigration attorney in person to fully discuss your facts and your crimes. With your criminal history, I think a consultation is definitely worth it. I wish you all the best.

This information is intended as general information only. This communication does not establish an attorney-client relationship between me and the asker.



Thank you for your response. It was only one incident and both charges are misdemeanors only.



In addition, there was no plea entered for both counts.


I do not practice immigration law. However it is my understanding convictions not arrests can cause issues. If you got both those charges dismissed you should be alright especially if you have an attorney to assist you in the immigration process.
Robert Driessen

Mr. Driessen is a former Deputy DA in Orange County with over 8 years of criminal law experience. Nothing stated on this site shall in anyway be construed as legal advice, or as creating any attorney client relationship. If you would like to hire Mr. Driessen, feel free to contact him at



Thank you for responding. I have been told before that I should not worry. One Lawyer even stated that I was "one of the lucky ones". However, I know that this is a serious issue. It's been a blow to my dignity and integrity and I have been fighting to earn it back.


I agree with Ms. Hamayel

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship.



Mr. Capriottti, Would you also agree that the evidence such as length of time present (since age 3) and education (soon to be college grad with 2 major) also be considered. I really want to prove that i am not a terrible person. It was a mistake to even be in that situation. Would the civil courts approval for a dismissal also be taken into account?

F. J. Capriotti III

F. J. Capriotti III


Yes, I agree with Ms. Hamayel ... they look at the 'total' package ... this is why it is more important than ever that you work with an immigration attorney. Yes, if the charges were completely dismissed, with no diversion or alternate sentencing ... they will take that into account.


Normally, a conviction that involves theft functions as a bar to admissibility as it is considered a "crime of moral turpitude." In your case, however, you did not suffer such a conviction, as your charges were dismissed per pre-trial diversion. Diversion is dismissal of charges in the interest of justice. And an offense that is dismissed in the interest of justice should not affect your immigration relief. However, as another attorney pointed out, the decision to deny your application is discretionary and that discretion can be affected by the specifics of your case. I recommend you contact an immigration attorney who is well versed in the immigration consequeces of criminal offenses/convictions.

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