Who Shouldn't Apply for DACA Deferred Action

If you meet the initial requirements for Deferred Action for Childhood Arrivals (DACA) relief as outlined at “Deferred Action for Young Immigrants: Application Process,” then you may want to submit an application to obtain two (or three, beginning some time in 2015) years of protection from deportation as well as a permit to work in the United States.

But consider your situation carefully before submitting an application. Certain immigrants should not apply for DACA because there is a greater risk that their cases may be referred to Immigration and Customs Enforcement (ICE), which may lead to removal proceedings being instituted against them in the future. For more information about this, see the article, “Risks and Downsides of Applying for DACA.”

You Have an Incident of Fraud in Your Past

If you entered the U.S. by means of fraud, you should not apply for DACA relief. Doing so would risk having your case referred to ICE. An instance of fraud includes using a counterfeit identity document such as a fake passport or a falsified birth certificate to obtain a visa or another immigration benefit.

Even if you entered the U.S. as a minor child or your parent or guardian used a false document on your behalf without your knowledge, until a law is passed that forgives fraud that was committed unknowingly U.S. Citizenship and Immigration Services (USCIS) still considers it to be part of your immigration history.

You Have Committed Serious Immigration Offenses

DACA is a purely discretionary form of protection from deportation. That means that USCIS may disqualify applicants who have serious immigration violations in their history or have committed several offenses, such as multiple reentries, as well as immigrants who have been deported in the past.

If the DACA program ends at some later date (due perhaps to a change of presidential administration or the passage of a contrary immigration law) certain immigrants who have submitted this information may be subject to scrutiny from the immigration enforcement authorities in the future.

You Have a Criminal Record

You are ineligible for DACA if you have been convicted of a felony, one “significant” misdemeanor, or three or more misdemeanor offenses that do not arise from a single event. Minor traffic offenses do not count as a misdemeanor for the purposes of DACA even if they are classified as a misdemeanor under state law.

The concept of a “significant misdemeanor” is a relatively new one in immigration law, but it has been described by the Department of Homeland Security as a criminal offense leading to more than 90 days of imprisonment or any case (even if no prison sentence was ordered) that involves violence, threats, assault, sexual abuse or exploitation, burglary, larceny, fraud, driving while intoxicated, obstruction of justice or bribery, drug possession, distribution or trafficking, fleeing from a lawful arrest or prosecution, or leaving the scene of an accident.

One upside to the DACA application process is that USCIS is not immediately disqualifying applicants with just one or two misdemeanors or those with juvenile convictions or expunged offenses. USCIS will look at the juvenile or expunged records of applicants and will decide on a case-by-case basis whether to grant DACA relief based on the circumstances. But even after that, the immigration officials might deny your application.

If you have any doubt as to whether a criminal conviction of yours could disqualify you from DACA relief and possibly lead to an ICE referral, consult an immigration attorney. The attorney can help you obtain a copy of your state criminal record or a FBI background check and advise you whether or not you should apply.

You May Be Viewed as a Public Safety or National Security Threat

You may also be disqualified from receiving benefits under DACA and may be placed into removal proceedings if you are considered a threat to public safety or national security. USCIS may take into consideration any criminal activity that did not result in a conviction – even arrests and dismissed charges.

USCIS has stated that membership in a gang or an organization with criminal activities that threaten the public welfare or the United States would qualify as a public safety or national security threat. Again, since DACA is considered discretionary relief, any membership in a group that is flagged as having terrorist ties or anti-American views might lead to the denial of your application and possible investigation by ICE in the future.