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Which Crimes in New Jersey Affect Eligibility for DREAM Deferred Action?

One often-overlooked area of discussion regarding the DREAMer Deferred Action program is the effect of criminal convictions on one’s eligibility. The June 15 Memorandum made clear that individuals convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses will not qualify for deferred action. However, it did not specifically define what was a “significant offense” was or even what constituted a felony. Since then, USCIS has released more guidance on the matter on its website (USCIS.GOV):

A felony is defined as a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.

A “significant misdemeanor” is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.

Individuals not convicted of a felony or significant misdemeanor but who have been convicted of three or more other misdemeanors not occurring on the same day and not arising out of the same act, omission, or scheme of misconduct are similarly disqualified.

In sum, felonies are defined as crimes punishable by more than one-year jail. A “significant misdemeanor” is a crime that is punishable by less than a year in jail (or even no jail) if the crime is of a nature described above, ie., involves violence, theft, drugs, etc. Multiple misdemeanors are three or more misdemeanors that do not arise out of the same day or incident.

In New Jersey, those with convictions for petty offenses such as Shoplifting (NJSA 2C:20-11), Simple Assault (NJSA 2C:12-1), possession of marijuana under 50 grams (NJSA 2C:35-10(a)(4)), and even DWI (NJSA 39:4-50) could possibly be disqualified. Even though these offenses would not be classified as felonies–since the maximum possible jail sentence in municipal court for an offense in New Jersey is six months–they would nevertheless arguably bar an applicant if USCIS deems the offense(s) a significant misdemeanor. Theoretically, even three separate convictions of disorderly conduct (NJSA 2C:33-2) arising out of different days and incidents could disqualify an individual under the multiple misdemeanors prong. Given the importance of having a “clean” record, it is especially important for potentially eligible DREAMers who have to appear in municipal court to consult with both qualified criminal and immigration defense counsel.

8/3/12 Update: According to FAQ#2, a “significant misdemeanor” is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving while under the influence, regardless of the sentence imposed. Any offense not involving the aforementioned areas but in which an individual has served 90 days in jail will also be deemed a “significant misdemeanor.”