Eligibility for Deferred Action for Those With a Criminal Record
Individuals are not eligible for deferred action if they have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to public safety.
What is a felony?
A felony is defined as any federal, state or local criminal offense punishable by imprisonment for more than one year, even if the applicant did not serve more than one year. The “one year” rule turns some state misdemeanor offenses into felonies even if they are not officially listed as felonies under state law.
What makes a misdemeanor “significant”?
DHS has advised that a significant misdemeanor includes any federal, state or local criminal offense punishable by up to one year of imprisonment. There are some crimes that are considered significant misdemeanors even if the law does not specify imprisonment as a consequences. These include offenses involving:
|♦||Violence, threats or assault, including domestic violence;|
|♦||Sexual abuse or exploitation|
|♦||Burglary, larceny or fraud|
|♦||Driving under the influence of alcohol or drugs|
|♦||Bribery or obstruction of justice;|
|♦||Unlawful flight from arrest, prosecution or the scene of an accident;|
|♦||Unlawful possession or use of a firearm;|
|♦||Drug distribution or trafficking;|
|♦||Unlawful possession of drugs.|
This list potentially includes a wide range of conduct, including many offenses that would not impact a person’s immigration status under current immigration law.
DHS has stated that a person convicted of 3 or more non-significant misdemeanors will be ineligible for Deferred Action. Sometimes a person who has been arrested is charged with multiple misdemeanors at the same time. It appears that DHS will not count these as individual offenses as long as they arise out of the same act, omission, or scheme.
More guidance needed
It is unclear at present whether the circumstances of a crime, how long ago it occurred, or other considerations will be considered as mitigating factors. It is also unclear whether traffic violations – which are treated as criminal offenses in some places and non-criminal violations in others – will count as non-significant misdemeanors. Finally, DHS has not yet specified whether juvenile convictions will be considered when evaluating a person for Deferred Action.
If you would like to receive further information on the Deferred Action program when it is available, please contact Immigration Law Associates and provide your name, phone number and/or email address.
If you have specific questions about your eligibility, or believe you are eligible and would like to begin gathering documents, please call us at 847-763-8500 to set up an appointment with one of our attorneys.