What if I have had contact with law enforcement?
In general, if you have been arrested but were never convicted, you are eligible to apply for Deferred Action if you meet all of the other criteria. However, if you have been convicted of a felony, a significant misdemeanor or more than two other misdemeanors, you are not eligible and should not apply.
It is important to understand the definitions that DHS is using to evaluate any criminal record you might have. A felony is defined as any state or federal crime for which the maximum sentence is more than one year in custody, regardless of the time you actually served.
USCIS defines a significant misdemeanor as any crime for which the maximum sentence is 6 days to one year, and for which you actually served more than 90 days in custody. There are also several crimes defined as significant misdemeanors under all circumstances. They include:
- Domestic violence;
- Sexual abuse or exploitation;
- Unlawful possession or use of a firearm;
- Drug distribution or trafficking; or
- Driving under the influence (DUI).
A conviction for any of these crimes makes you ineligible for Deferred Action.
A non-significant misdemeanor is any crime for which the maximum sentence is 6 days to one year, and for which you serve less than 90 days. Generally, minor traffic offenses, including driving without a license, will not count toward the maximum of two misdemeanors.
Similarly, a juvenile or expunged conviction will not automatically disqualify you. However, DHS will consider your whole record along with other pertinent facts in order to determine if a grant of Deferred Action is justified. DHS retains the right to deny you deferred action on the basis of a single criminal offense for which you were sentenced to less than 90 days in custody, even if it was committed when you were a juvenile.
You could also be disqualified for Deferred Action if you are considered to be a threat to national security or public safety. Information might come to light during your background check that suggests you should not be allowed to remain in the U.S. If this happened, you could be referred to ICE for removal. Indicators that you pose a threat include gang membership, participation in criminal activities without being convicted, or participation in other activities that threaten the U.S.
This does not mean that every person who has ever been affiliated with a gang or suspected of being a gang member is ineligible for DACA. If you are in this situation, you may be able to provide other evidence to DHS to help them make a determination that you are not a threat to public safety. However, before making an application, you should consult with an immigration attorney to assess your risks and chances of success.