Deferred Action for Childhood Arrivals with Criminal Records

I would strongly encourage any DREAMers with criminal records to consult with an attorney prior to submitting any Deferred Action for Childhood Arrival (“DACA”) petitions.

DREAMers with felonies, significant misdemeanors, or certain non-significant misdemeanors are ineligible for DACA.  See below for the definitions of significant vs. non-significant misdemeanors.  

Crucial Issues:

The official Q&A has very important language that each DREAMer needs to note.  Here are the two sentences I consider crucial in the official Q&A:

1. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.
2. Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances.  Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion.

What does this language mean, and why is it important?  It basically means that DHS can look at the totality of circumstances when analyzing a criminal record.  My interpretation is that DHS can look at the underlying conduct and not merely the conviction to deny a DACA application.  For example, PC 273.5 is the applicable domestic violence statute in California.  A conviction under PC 273.5 definitely renders a DREAMer ineligible for DACA as a significant misdemeanor.  However, what about a conviction under PC 243(e)(1)?  This is the less serious domestic battery charge in California that does not mention domestic violence.  A battery could be the slightest bit of force, or an unwanted touching.  This should qualify as a non-significant misdemeanor in that it is not an offense of domestic violence and typically does not have a sentence of more than 90 days.  HOWEVER, under the language above, DHS could look at the underlying conduct and take the position that this is really an offense of domestic violence.  DHS could then deny this DREAMer’s DACA application.      

Here are the official definitions for significant vs. non-significant misdemeanors:

What offenses constitute a significant misdemeanor?
For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

What offenses constitute a non-significant misdemeanor?
For purposes of this process, a non-significant misdemeanor is any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and
2. Is one for which the individual was sentenced to time in custody of 90 days or less. The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE.

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