Arrested, But Not Convicted of Domestic Violence: Can I Get DACA?

USCIS's discretionary power a problem for applicants who have a DV arrest on their record.

Question

I've been putting off applying for DACA because I once got arrested for domestic violence, after an argument with my wife. In the end, I pleaded guilty to resisting arrest, and didn't serve any prison time. So I don't actually have a domestic violence conviction.

What do you think? Is there any chance I could get DACA?

Answer

Even without an actual conviction of domestic violence on your record, your prospects of successfully applying for Deferred Action for Childhood Arrivals (DACA) do not look good.

By way of background, DACA is a program created by President Obama via Executive Order in 2012. It allows immigrants who were brought to the United States as children and who meet certain other eligibility requirements to apply for two years’ protection from deportation (removal), as well a work permit.

Decisions on DACA applications are made by U.S. Citizenship and Immigration Services (USCIS) as a matter of discretion—meaning it does not have to grant any application unless it feels the person deserves a break from possible deportation.

There are a number of outright bars to receiving DACA, as well. Among these is having been convicted of a significant misdemeanor, or otherwise presenting a threat to U.S. national security or public safety. Domestic violence convictions are definitely viewed as "significant misdemeanors" by USCIS, and would bar your eligibility.

But even in cases of applicants who were, like you have described, arrested for a domestic violence but convicted of a lesser offense, USCIS has been denying DACA. Remember, USCIS can deny a DACA application simply as a matter of discretion. It could also potentially find that your conviction for resisting arrest was a public safety issue.

Without knowing the exact details of your case, however, no one can give you a definitive answer on whether you might qualify for DACA or some other immigration remedy. You would be wise to consult with an experienced immigration attorney.  

 

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