The purpose of DACA is to protect eligible immigrant youth — known as “DREAMers” — who came to the United States when they were children from deportation. To qualify for Deferred Action a person must not have been convicted of a felony, a significant misdemeanor, or three or more non-significant misdemeanors, and not pose a threat to public safety or national security. A criminal conviction, therefore, may be a bar to eligibility for DACA.
What is a “Significant Misdemeanor?”
In determining whether someone has been convicted of a significant misdemeanor, USCIS will consider the totality of the circumstances regarding the criminal behavior and make decisions on an individualized basis. However, USCIS does use a set of guidelines while looking at criminal history. These guidelines state that a significant misdemeanor is, for starters, a misdemeanor; meaning, according to federal law, a crime punishable by five days to one year in jail regardless of the actual sentence imposed. A misdemeanor that includes any of the following offenses will be considered "significant":
- domestic violence
- sexual abuse or exploitation
- unlawful possession or use of a firearm
- drug distribution or trafficking, or
- driving under the influence of alcohol or drugs (DUI or DWI).
For example, DACA beneficiaries who are charged with DUI but ultimately plead guilty to a lesser criminal offense such as reckless or negligent driving may be able to preserve their DACA eligibility. However, if they are sentenced to time in custody of 90 days or more (not including any suspended sentence) the conviction will still be considered a conviction for a Significant Misdemeanor.
What if my Conviction is not a “Significant Misdemeanor?”
USCIS also provides guidelines to determine whether conduct that did not meet any of these criteria can be considered to be a significant misdemeanor.
If you were convicted of a misdemeanor that does not fit the categories listed above, your misdemeanor can still be viewed as a significant misdemeanor if you were sentenced to time in custody of more than 90 days. This time does not include time in suspended sentences or time served beyond the sentence while under an immigration hold. Importantly, even if the sentence was for 90 days or less, USCIS retains discretion to determine that your crime was a significant enough misdemeanor to disqualify your application.
What if I am Convicted of Three or More Misdemeanors?
If you were convicted of three or more misdemeanors, your application may be denied even if none of the crimes was a significant misdemeanor. For purposes of DUI, that means even a plea to a
non-significant misdemeanor such as Reckless or Negligent Driving could lead to DACA ineligibility if they have prior criminal convictions. However, if the misdemeanors arose out of the same set of facts on the same date, USCIS may look upon that misconduct as one misdemeanor rather than multiple misdemeanors.
If you are not sure whether you or your child is eligible for DACA, see an experienced immigration attorney.