Pursuant to pending litigation, the DACA program-once thought expired-is still in operation. USCIS is currently accepting renewal applications, and depending on the outcome of a pending case, may soon start accepting initial applications from those who did not apply for deferred action previously. The benefits of deferred action have been discussed previously, the most notable of which are protection from removal and employment authorization. That being said, not everyone with DACA status will necessarily qualify to renew it. It is not uncommon for those who have been granted DACA to commit acts which will jeopardize their ability to renew. And contrary to popular belief, DWI and criminal felonies are not the only means by which an individual will be denied.
According to USCIS policy, an applicant for DACA will be denied if convicted of
· A felony offense;
· A significant misdemeanor; or
· Three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of conduct; or
· The applicant poses a threat to national security or public safety.
Under the guidelines, a misdemeanor is considered an offense that carries a potential jail sentence of year or less, but more than five days. The offense will be deemed “significant” if it is one of:
· Domestic violence
· Drug distribution or trafficking
· Driving while under the influence
· Sexual abuse or exploitation, or
· Unlawful possession or use of a firearm
Notably, a conviction of the above will qualify regardless of whether or not a jail sentence was imposed, provided that the crime is punishable by a range of six days to a year. While a majority of the listed crimes are discrete offenses with specific federal definitions, some of them are not, such as domestic violence, which can potentially implicate several types of offenses that are not nominally labeled “domestic violence,” such as assault. Consequentially, determining whether a specific offense will or will not be considered a significant misdemeanor requires careful analysis.
A second way in which an offense can be considered a significant misdemeanor, if it does not involve the above type of crimes, is if the applicant was sentenced to a jail term of more than ninety days. Importantly, an individual does not necessarily have to serve the full ninety days in order to be ineligible, as long as the court sentenced him/her to that period of time.
Alternatively, an applicant may be denied DACA if he or she is convicted of three or more misdemeanors. As above, the offense must be punishable by a term of jail term with a minimum of six days and a maximum of one year. However, under this prong, the triggering crimes do not have to be one of the enumerated crimes listed under the “significant” rubric, ie., burglary, drug distribution, etc. Instead, the offenses must result in convictions and court ordered jail sentences of up to ninety days. Additionally, the three offenses must be separate offenses that do not arise out of the same incident.
Notwithstanding that conviction of a felony, significant misdemeanor, or three or more misdemeanors are ordinarily disqualifying offenses, an individual is not absolutely barred from applying for deferred status. Although the vast majority of applicants with any of the aforementioned convictions will be rejected, the DACA program does accord an officer discretion to grant DACA if the applicant can demonstrate “exceptional circumstances.” Furthermore, not every type of criminal conviction will clearly fall under an automatic bar. There are some nuances that can make a critical difference in the success or failure of an application. For more information on eligibility for DACA, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.