When applying for the deferred action for childhood arrivals program (DACA) you must answer questions about your criminal background. Many potential applicants who otherwise qualify for DACA are discouraged because their criminal history includes a misdemeanor or a traffic offense and they feel that they may be taking an unnecessary risk by applying for DACA.
The decision of whether to apply has been made even more confusing by the fact that U.S. Citizenship and Immigration Services (USCIS) is using a new standard to review criminal history in DACA cases. According to USCIS, people convicted of either a felony or what USCIS calls a “significant misdemeanor” are not eligible to file for DACA. That still leaves open the possibility for some people with a criminal history to apply, but your best bet is to consult with an attorney before taking this step.
What Qualifies as a Significant Misdemeanor?
In determining whether someone has been convicted of a significant misdemeanor, USCIS states that it will consider the totality of the circumstances regarding the criminal behavior and make decisions on an individualized basis. However, USCIS does use a set of guidelines while looking at criminal history.
These guidelines state that a significant misdemeanor is, for starters, a misdemeanor -- meaning, according to federal law, a crime punishable by five days to one year in jail regardless of the actual sentence imposed. A misdemeanor that includes any of the following offenses will be considered "significant":
- domestic violence
- sexual abuse or exploitation
- unlawful possession or use of a firearm
- drug distribution or trafficking, or
- driving under the influence of alcohol or drugs (DUI or DWI).
USCIS also provides guidelines to determine whether conduct that did not meet any of these criteria can be considered to be a significant misdemeanor.
If you were convicted of a misdemeanor that does not fit the categories listed above, your misdemeanor can still be viewed as a significant misdemeanor if you were sentenced to time in custody of more than 90 days. This time does not include time in suspended sentences or time served beyond the sentence while under an immigration hold. Importantly, even if the sentence was for 90 days or less, USCIS specifically states that it retains discretion to determine that your crime was a significant enough misdemeanor to disqualify your application.
What If I Have More Than One Misdemeanor on my Record?
If you have been convicted of multiple misdemeanors, but none of them constituted significant misdemeanors, USCIS may still deny your application. USCIS states that if you were convicted of three or more misdemeanors, your application may be denied even if none of the crimes was a significant misdemeanor.
However, if the misdemeanors arose out of the same set of facts on the same date, USCIS may look upon that misconduct as one misdemeanor rather than multiple misdemeanors.
What If I Have a Traffic Offense on My Record?
USCIS will not view minor traffic offenses, such as a speeding ticket or a ticket for driving without a license, as misdemeanors. This is important because many people have two or three traffic tickets in their history. These tickets will not disqualify you.
You might even consider using the tickets for evidence of presence in the U.S. if you do not have other documentation for a specific date as required by the application. However, any traffic offense involving driving under the influence (DUI or DWI) will be considered a significant misdemeanor no matter the sentence that was imposed.
Is It Safe to Apply for Deferred Action If My Criminal History Doesn't Include a Significant Misdemeanor?
If you have a misdemeanor in your past but you feel that it does not rise to the level of a significant misdemeanor, you should prepare documentation for USCIS so that the reviewer can determine that you are not disqualified from DACA. In addition to the other evidence you provide with your application, a certified disposition or other court documentation that provides details regarding your criminal background will be useful.
In addition, it would be helpful to have your attorney draft a brief memorandum regarding your criminal history indicating that you should not be disqualified from applying for DACA. Consult with your attorney regarding recommendations for your specific situation.