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Deferred Action for Childhood Arrivals (DACA)

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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;
  • burglary;
  • 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.

Warning!

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.

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Related Information on DACA

Requirements for Deferred Action for Childhood Arrivals (DACA – Dreamer Work Permit)

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Click Here to read Ranchod Law.com Content in Spanish
As of August 15, 2012, United States Citizenship and Immigration Services (USCIS) will begin accepting requests for consideration for deferred action for childhood arrivals (DACA). An individual should submit a request with a form requesting an employment authorization document. Forms and instructions will be available on the USCIS website on August 15 here. There is a $465 filing fee per person. USCIS requires that an individual filing for deferred action submit evidence showing the individual:

  • was born after June 15, 1981;
  • arrived in the United States before the age of 16;
  • has continuously resided in the United States since June 15, 2007 up to the present time;
  • was present in the United States on June 15, 2012;
  • entered without inspection before June 15, 2012, or the individual’s lawful immigration status expired as of June 15, 2012;
  • is currently in school, has graduated or received a certificate of completion from high school, obtained a general educational development certificate (GED), or is an honorably discharged veteran of the United States Coast Guard or Armed Forces;
  • and is at least 15 years of age at the time of filing, if the individual has never been the subject of a removal proceeding and the individual’s case was not terminated before this request.

An individual can request deferred action if he or she is currently in removal proceedings, has been issued a final removal order, or has a voluntary departure order. An individual does not need to be 15 years of age or older to be considered if any of the above are true. An individual should submit a copy of the removal order or any document issued by the immigration judge or final decision from the BIA Appeals (BIA). An individual who is in immigration detention cannot request deferred action.

If an individual has left the United States for a short period of time, USCIS may consider the absence “brief, casual, and innocent.” Such an absence is not deemed to interrupt the requirement of having continuous residence in the United States since June 15, 2007. USCIS has particular requirements for these types of absences. Please read the USCIS information sheet to learn more.

USCIS will conduct a biographic and biometric background check of all individuals who apply for deferred action. Each individual is considered on a case-by-case basis. An individual will be rejected if he or she has been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, or if he or she is deemed to pose a threat to national security or public safety.

USCIS currently does not offer an appeal or motion to reconsider the denial of a request. If a request is granted, the individual in question will not be placed into Removal Proceedings or removed from the United States for two years. An individual whose request has been granted may request an extension of both deferred action and employment authorization after two years.

Related Information on DACA