Recently, several individuals with certain criminal convictions have contacted our offices with a concern as to their eligibility for benefits under the Deferred Action for Childhood Arrivals (DACA) based on their prior criminal history.
For their information, the DACA rules categorized three specific groups under which an applicant with a criminal past would not be eligible for DACA benefits as a matter of law. These three groups are:
Group 1: is composed by those individuals who have been convicted of any type of felony. For immigration purposes, a felony is a federal, estate, or local offense punishable by a term of imprisonment for one year or more;
Group 2: is composed by those individuals who have been convicted of any of the “significant misdemeanors”, regardless of the sentence imposed: the significant misdemeanors are:
- domestic violence;
- sexual abuse;
- sexual exploitation;
- unlawful possession of a firearm;
- unlawful use of a firearm;
- drug distribution;
- drug trafficking
- driving under the influence of drugs.
Group 3: is composed by those individuals who have been convicted of a misdemeanor not listed under the second group, listed above, but who were sentenced to time in custody of more than 90 days.
Self-applicants share a common confusion when reading the DACA guidelines found in the USCIS’s website, which refer to “Non-significant Misdemeanor” offenses. This confusion possibly arises from the fact that the “Non-significant Misdemeanor” column also lists the same type of offenses listed under the “Significant Misdemeanor” column. A Non-significant Misdemeanor is essentially a conviction for a crime not listed under the second or third groups.
So, if your crime is one not listed in group two, and you were sentenced to time in custody of less than 90 days, you are eligible to apply for DACA benefits.
The DACA regulations, confer discretionary authority to Service Officials to look at the facts surrounding a non-significant misdemeanor before rendering a decision on an applicant’s case: in other words, even if an applicant is eligible because the crime does not render the applicant absolutely ineligible for DACA benefits, the Service may still deny it at the Service’s discretion. Therefore, it is important that applicants with any type of criminal conviction consult with an experienced legal professional before submitting their applications for DACA benefits.