DACA for Criminal Consequences
DACA Criminal Consequences
DHS will deem "significant" any misdemeanor, regardless of the sentence imposed, involving burglary, domestic violence, sexual abuse or exploitation, unlawful possession of firearms, driving under the influence, or drug distribution or drug trafficking. In addition, DHS will deem significant any other misdemeanor for which an applicant was sentenced to more than 90 days in jail, not including suspended sentences and time held pursuant to immigration detention. Minor traffic offenses and convictions for immigration-related offenses classified as felonies or misdemeanors by state laws (e.g. Arizona SB 1070) will not be considered.
Any federal, state, or local offense that is punishable by imprisonment of more than one year is considered a felony for Deferred Action for Childhood Arrivals.
Significant misdemeanors include, but are not limited to, any federal, state or local offense that is punishable by imprisonment of more than five days and less than one year and involves domestic violence, sexual abuse, unlawful possession or use of a firearm, drug sales, burglary or driving under the influence.
Any misdemeanor for which the person received a jail sentence of more than 90 days is considered a significant misdemeanor as well.
If a person commits three non-significant misdemeanors, he will be ineligible for DACA as well. If the three non-significant misdemeanors do not occur on the same day nor arise from the same act or scheme of misconduct, the alien will remain ineligible. Non-significant misdemeanors include only federal, state, or local offenses punishable by imprisonment of more than five days and less than one year. If a person with criminal convictions falls under the ineligibility criteria stated above, it may still be possible to obtain DACA approval if he can show exceptional circumstances. Such approvals are likely to be very rare.
There are several types of convictions that will not lead to automatic disqualification. These include:
• Any state immigration-related felony or misdemeanor
• Minor traffic offenses, such as driving without a license
• Juvenile delinquencies
• Expunged convictions Threat to Public Safety or National Security
While any criminal history can result in a discretionary denial, some offenses could prompt the Department of Homeland Security to analyze whether the applicant is a threat to public safety or national security. DHS will analyze DACE applicants using a totality of the circumstances approach in which the applicant as a whole and his/her history is scrutinized carefully.
The Department of Homeland Security will inquire as to whether an applicant is a threat to public safety. This will include gang membership and affiliation issues or participation in criminal activities. If a person is deemed a threat to public safety, the applicant must show exceptional circumstances in order to obtain approval.
Immigration examiners may deny an application if they find the applicant has participated in activities that are a threat to national security including, but not limited to, persecution of others, involvement with terrorist activities or espionage.
Even where no criminal bar to approval is present, an applicant is not guaranteed a grant of deferred action. DHS may consider an individual's total criminal history, including non-significant misdemeanor convictions, juvenile delinquency, and expunged convictions. DHS will determine under the "totality of circumstances" of the individual's application whether to grant deferred action.
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