Will my DACA application be denied by USCIS if I was convicted of a crime in the past?
USCIS has outlined the adjudication of Deferred Action applications when the applicant has been convicted of a crime or multiple crimes. For example, as a matter of policy, USCIS will not approve Defer Action applications if the applicant has been convicted of a crime involving DUI. USCIS also reserves the power to deny DACA applications where the applicants have been convicted of violent or “significant” misdemeanors, without defining what constitutes significant. This policy effectively gave the adjudicating officer at USCIS immense power to deny DACA applications where the applicants have been convicted of one or multiple crimes.
Nothing is more frightening and stressful than being accused of committing a crime. Some crimes are more serious than others, but the truth is that every criminal offense can carry serious penalties that could completely disrupt your life.
Will USCIS conduct a background check when reviewing my request for Consideration of Deferred Action for Childhood Arrivals (DACA)?
Yes. You must undergo biographic and biometric background checks for employer before USCIS will exercise prosecutorial discretion under the Consideration of Deferred Action for Childhood Arrivals process. If you have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety, you will not be considered for Deferred Action for Childhood Arrivals except in exceptional circumstances.
If I have been convicted of a misdemeanor, can I still qualify for Deferred Action?
An applicant can still qualify for Consideration of Deferred Action for Childhood Arrivals only if you were not convicted of a “significant misdemeanor” or of three or more misdemeanors, non-concurrently. If you have questions regarding your eligibility for DACA, contact our Los Angeles immigration attorney now for a FREE consultation.
What is a “significant misdemeanor” for the purposes of the USCIS DACA application?
A “significant misdemeanor” is a misdemeanor as defined by federal law as one for which the maximum term of imprisonment authorized is one year or less but greater than five days. DHS will deem significant any misdemeanor for which an individual received a sentence of more than 90 days in jail, not including suspended sentences and time held pursuant to an immigration detainer. Regardless of the sentence imposed, DHS will also deem significant any misdemeanor involving burglary, domestic violence, sexual abuse or exploitation, unlawful possession of firearms, driving under the influence or drug distribution or trafficking.
Are there any other crimes that automatically bar me from DACA?
You may also be ineligible if you committed an offense that is one for which you were 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
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 United States 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.
If I do not have any criminal convictions, will I be granted DACA benefits?
The absence of a criminal history, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. The Department of Homeland Security 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 three months or less.
What is a “felony offense”?
For purposes of the deferred action initiative, a felony is any federal, state, or local criminal offense punishable by imprisonment for more than one year. Thus, offenses that are considered misdemeanors under state or local law may qualify as felonies if the maximum punishment is more than a year in prison.
What is a “misdemeanor offense”?
For purposes of the deferred action initiative, a misdemeanor is any federal, state, or local offense punishable by more than five days but one year or less in jail.
Are there any exceptions to the criminal grounds of ineligibility for DACA?
Yes, minor traffic offenses will not be considered misdemeanors under the initiative, even if punishable by more than five days in jail. In addition, convictions for immigration-related offenses created by state laws (e.g. Arizona SB 1070) will not be considered. Finally, expunged and juvenile convictions will be considered on a case-by-case basis.
DACA applicants are approved on a case-by-case basis and it is important to have your application fully prepared prior to requesting consideration of Deferred Action for Childhood Arrivals. Contact our U.S. immigration lawyer now for a FREE consultation.