If you are applying for deferred action for childhood arrivals, you cannot have committed a “significant misdemeanor.” U.S. Citizenship and Immigration Services (USCIS) holds that any individual who has been convicted of a felony, significant misdemeanor, three or more non-significant misdemeanors, or otherwise poses a threat to national security or public safety is not eligible for deferment.
USCIS guidelines maintain an offense is a significant misdemeanor if it is defined as a misdemeanor by federal law and could cause you to remain in state or federal prison or a county jail for between five days and one year. A significant misdemeanor is one that involves any of the following accusations or charges: domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence. A few examples of significant misdemeanors are carrying a concealed weapon without a permit, failure to report a known or suspected case of sexual misconduct, and violation of a restraining order involving domestic violence. A few examples of non-significant misdemeanors are possession of drug paraphernalia, public intoxication, disorderly conduct, and trespass.
USCIS guidelines further state that an offense is a significant misdemeanor if the sentence is for more than 90 days in custody. Time for suspended sentences or time that an individual is held in immigration detention does not count toward the 90-day period.
The “three or more non-significant misdemeanors” rule seems complicated, but is actually simple. An individual applying for deferred action cannot have committed three or more non-significant misdemeanors that are separate from one another. Non-significant misdemeanors are separate when they did not occur on the same day and did not arise out of the same act, omission, or scheme of misconduct. For example, if an individual was driving recklessly, with a suspended license, and was stopped by the police, he would later be charged and convicted of two non-significant misdemeanors. These offenses occurred on the same day and arose out of the same act. If an individual was stopped on four different occasions: the first day for driving recklessly, the second day for fleeing from an officer, the third day for driving with a suspended license, and the fourth day for falsifying a disabled-person permit, he would later be charged and convicted of four non-significant misdemeanors. These offenses did not occur on the same day and arise out of the same act. The individual convicted of two non-significant misdemeanors would be eligible to apply for deferred action. The individual convicted of four non-significant misdemeanors would not be eligible to apply for deferred action.
USCIS does not consider a minor traffic offense, such as driving without a valid license, as a non-significant misdemeanor that counts toward the “three or more non-significant misdemeanors.” USCIS does not treat an immigration-related offense that a state characterizes as a felony or misdemeanor as disqualifying. An example of such an offense is a violation of Arizona S.B. 1070. USCIS considers expunged and juvenile convictions on a case-by-case basis.
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