DACA recipients benefit from the Deferred Action for Childhood Arrivals (“DACA”) program which provides some immigration relief for children brought to the United States illegally at a young age. If you have DACA, then the U.S. government essentially overlooks your illegal entry into the country and you can obtain a driver’s license, work permit and are protected from deportation – unless you get into certain kinds of trouble with the law. What should you do if you have DACA and get charged with a crime?
While DACA offers protection from deportation, it is a fragile type of status and can be denied or taken away – it is not an automatic right. Any type of contact with law enforcement can be used against you in your DACA application or renewal. Worse, certain types of criminal activity pose absolute bars to receiving DACA. See generally, U.S. Citizenship and Immigration Services, Consideration of Deferred Action for Childhood Arrivals, www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca#guidelines.
First, a conviction of any felony offense is a bar to DACA. This includes any federal, state, or local offense that is punishable by imprisonment of more than one year.
Second, a conviction of a “significant misdemeanor” is a bar to DACA. This includes any federal, state, or local offense that is punishable by imprisonment of one year or less (but more than five days) and is an offense involving: domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm, drug sales, burglary, driving under the influence of alcohol or drugs, or any other misdemeanor not listed above for which you received a jail sentence of more than 90 days. (Suspended sentences do not count towards those 90 days.)
Third, convictions of three or more “non-significant misdemeanors” comprise a bar to DACA. These include convictions stemming from events that neither occurred on the same day nor arose from the same act or scheme of misconduct. A non-significant misdemeanor may be a federal, state or local offense that is punishable by imprisonment of one year or less (but more than five days).
If you fall within one of those three criminal bars, you may still be able to qualify for DACA if you can show “exceptional circumstances.” However, an approval based on exceptional circumstances is very hard to obtain. Your best bet – don’t risk it! If you have been drinking and need to get home, use one of the many options available to you other than driving yourself! Call a taxi, call an Uber, have a friend drive. A drunk driving conviction means you will lose DACA and could be deported.
While the criminal bars to DACA are broad, certain offenses will not automatically disqualify you from DACA: any state immigration-related felony or misdemeanor is not an automatic bar; juvenile delinquency is not an automatic bar; expunged convictions are not automatic bars, and a minor traffic offense (like driving without a license) does not count as a non-significant misdemeanor. Perhaps surprisingly, certain other offenses are not automatic bars to DACA status. For example, a gross misdemeanor or misdemeanor drug possession offense (not sale) still leaves you eligible for DACA (although a DWI of any level is an automatic bar). However, the Department of Homeland Security (“DHS”) will still consider these types of offenses within a totality of the circumstances or public safety threat analysis, as described below. You probably will be asked to explain the circumstances of the incident upon request and may need to show other positive factors to support your petition and overcome the discretionary aspect of granting DACA.
Once you submit your petition, and even if you don’t have a conviction which automatically bars you from DACA, DHS can use its discretion in choosing to grant or deny your DACA petition. This means that any criminal history can result in your DACA petition being denied based on discretion – so any brush with the law puts you at risk. Even if you do not have an automatic bar to DACA, immigration authorities will consider your total criminal history, including juvenile delinquency, expunged convictions, and non-significant misdemeanor convictions, as part of their decision to grant or deny your petition. DHS uses a “totality of the circumstances” test in these circumstances. Likewise, if DHS finds that you are a threat to public safety (such threats include gang membership or participation in criminal activities), or a threat to national security, then you may receive deferred action through DACA only after showing “exceptional circumstances.”
If you are applying for DACA or want to renew your DACA status, and have had any contact with law enforcement or face any criminal charges, please contact a criminal defense attorney at Wilson Law Group. The outcome of your criminal case may determine whether you remain in the United States. Our attorneys work as one to provide the best protection for you regarding your immigration options as we help you to navigate the criminal courts and fight for the best option in your criminal case.
Call 612-436-7100 to schedule a free consultation.