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I Was Convicted of a Crime – Am I Eligible for DACA?

I Was Convicted of a Crime – Am I Eligible for DACA?

The answer to the above question isn’t a simple yes or no. It’ll heavily depend on what you were convicted of. Even then, if you were convicted of a crime that would make you ineligible there is still hope that an attorney can help you expunge or set aside your conviction.

First, let’s discuss the things that will bar you from being eligible for DACA.

Felonies

Felonies are defined as any criminal offenses (federal, state, or local, that are punishable by more than one year in prison.

Misdemeanors

Misdemeanors are criminal offenses punishable by less than one year in prison. Significant misdemeanors are just a handful such as domestic violence, burglary, sexual abuse or exploitation, drug trafficking, unlawful possession or use of a firearm, and DUIs

Three misdemeanors

If you are convicted of three or more misdemeanors (without regard for whether they are “significant”), you will be considered ineligible for DACA

Second, let’s discuss the types of offenses that do not lead to automatic ineligibility for DACA.

Simple Traffic Violations

These are simple things such as speeding tickets, driving without a license, or a parking ticket

Juvenile offenses

Criminal convictions where you were tried as a juvenile and not as an adult will not be a bar to DACA.

Vacated Convictions

Convictions that are later vacated will not harm your eligibility for DACA.

Finally, we will discuss how even a criminal conviction that bars eligibility for DACA does not mean there is no hope for you. Depending on the situation, you can have the conviction vacated or expunged.

A way to vacate you’re a conviction is to rely on Penal Code §1473.7 to file a Motion to Vacate a Conviction or Sentence. This statute allows you to have the conviction set aside if your attorney at the time did not inform you of potential immigration consequences from your guilty plea. This argument relies on the idea that you would have accepted alternative punishments if you had been aware that the current one would have immigration consequences. Therefore, although this filing does vacate the current conviction, it does not automatically dismiss the case. It is possible that the prosecutor can re-file charges against you and you will need to re-negotiate an alternative case resolution that will not leave you vulnerable to negative immigration consequences. Note that this method requires that you plead guilty or nolo contendre, it will not help you if you went to trial and were convicted.

You can also try to get your conviction expunged. An expungement is a “cleansing” of your record so that a criminal conviction does not show up your record. Note that it does not erase the conviction, but it merely shows that you have fulfilled certain requirements (depending on the conviction) that allows the record to be cleared. Although expunged records are not automatic bars for DACA, USCIS can still consider them when deciding whether or not to approve your application. Nevertheless, it is worth it to go through the process so that you are at least able to try to apply.

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