Even a misdemeanor conviction for driving while under the influence of alcohol or drugs may negatively impact a Deferred Action/Dream Act (DACA) applicant or recipient. There are a wide variety of criminal offenses that can bar you from the benefits of DACA, but this article will strictly focus on DUI offenses. Remember that DACA simply represents an opportunity for a non-citizen to get discretionary relief. Any criminal record could potentially result in a discretionary denial.
There are a number of very strict DACA requirements. For example, an applicant may not have convictions for any felony, significant misdemeanor or multiple misdemeanors. Also, he or she must not pose any threat to national security or public safety.
The term “significant misdemeanor” should be closely examined. Misdemeanor DUIs are deemed to be significant misdemeanors under the terms of the Act. This means that a single conviction for misdemeanor DUI could result in a denial of relief under DACA. A felony DUI conviction is automatically a reason for denial under the Act’s felony provision.
What Is a Significant Misdemeanor?
The “significant misdemeanor” standard is unique to DACA. It is defined as a local, state or federal criminal offense that carries a potential jail term ranging from five days to one year, pertaining to the distribution or trafficking of drugs, domestic violence, sexual exploitation or abuse, burglary, unlawful possession of a firearm or driving under the influence of drugs or alcohol. Plus, any other type of misdemeanor in which the individual actually received a jail sentence of 90 days or more is defined as a significant misdemeanor.
However, USCIS has gone on to state that “it is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed.” This means that a misdemeanor DUI conviction will be deemed a significant misdemeanor under DACA even if no jail sentence is imposed. More information can be found under “USCIS Guidance” at USCIS.
Plea Deals are Still Convictions
It is also critical to understand that a plea agreement is still considered a conviction for immigration purposes. DUIs are commonly resolved through plea deals, so this is an important point to be aware of.
What About Expunged Convictions?
It is natural to wonder whether an expunged conviction will or will not disqualify one from DACA. Expunging a criminal record is typically encouraged, because it can benefit an individual in an number of ways. However, when it comes to DACA, there is no absolute guarantee that an expunged conviction will be disregarded. This is because of the discretionary powers granted to immigration authorities under DACA. Ultimately, the potential impact of an expunged conviction on immigration status will be decided on a case-by-case basis.
Exceptions Under DACA – Some Individuals are Still Eligible
There are certain “exceptional circumstances” under which a person with a criminal history may still be eligible for DACA. Consult with one of our experienced immigration attorneys to learn more about possibilities for exceptions in a DAPA or DACA case..
Contact Tucker, Nong & Associates for Legal Help with Criminal Charges & Your DACA Status
It is clear that DUIs can have a significant impact on an individual’s status under DACA. Therefore, when you are facing DUI charges, is very important to notify your attorney of your immigration status. If you are a non-citizen seeking relief under DACA, be sure to tell your attorney. If you are already a DACA recipient, it is also vital that you let your attorney know this. Finally, if you are in the process of renewing your DACA, it is also imperative that your attorney be told of this. Let your attorney know of any past criminal charges, convictions or dismissals when you are either applying for or renewing DACA. Always consult with an immigration attorney that understands the potential serious consequences of criminal charges and convictions under DACA.