Donald Trump has promised important changes to immigration policy within his first 100 days in office, and the last few days have certainly borne that out. As an immigration attorney, I have been anxiously awaiting his policy decisions about Deferred Action for Childhood Arrivals (DACA), also known as “the Dream Act”.
DACA is a program that benefits children who entered this country illegally at a young age. If you are accepted into the DACA program, the government essentially overlooks your illegal entry into this country and you can remain. The policy reason for this act was to prevent children who had entered at a young age, through no fault or act of their own, from being removed to a country they never knew.
The prerequisites are that the child be in school or have graduated, and been physically present in the United States before June 2007. Once the application is approved the child has DACA status. Once you have DACA your only responsibility is to renew it. However, you can lose your DACA status if you are convicted of certain criminal charges.
I want to cover the criminal side of the DACA program and how to best maneuver the situation for criminal defense attorneys. First, if an applicant has plead guilty to a state or federal felony, they will become ineligible for DACA renewal. This includes BOTH convictions and deferred adjudication.
Therefore, reduction to a misdemeanor could be the difference between your client’s ability to stay in the US and being subject to deportation. In fact, many other forms of immigration approval are balanced on felony convictions, as well, and will likely cause problems for the non-citizen client. To classify as a felony under Immigration law, the crime must be punishable by one year or more in prison.
Therefore misdemeanors, which carry a maximum of one year jail time in Texas, cannot constitute a felony for immigration purposes. Example, if you are convicted of a crime which is punishable for more than a year, it doesn’t matter if you get deferred or probation. It will make you ineligible for DACA.
Immigration also has its own definition for “Aggravated Felony”, which is more complicated but doesn’t apply to DACA standards.
If an individual pleads guilty to a “significant misdemeanor” they will also become ineligible for DACA. To classify as a significant misdemeanor the individual must have been convicted of a state misdemeanor and sentenced to more than 90 days of confinement OR be convicted of one of these enumerated charges:
- Domestic Violence
- Sexual Abuse
- Unlawful possession of a firearm
- Driving under the influence
A lawyer should see if the charge can be changed so it doesn’t fit within the meaning of “significant misdemeanor.” For example, if a DACA applicant were charged with Driving Under the Influence, a conviction would render him ineligible for approval or renewal. However, a conviction for a lesser offense, such as Reckless Driving, would not affect DACA acceptance.
An applicant is also rendered ineligible for DACA by pleading guilty to three non-significant misdemeanors. Essentially, it’s a three strikes you’re out rule. If you are convicted of any three misdemeanors not arising out of the same situation, you will be ineligible for DACA.
It doesn’t matter if you got them 5 years apart from each other. Three strikes and you are out. Interestingly, the law specifies that traffic offenses and other minor offenses, in some places categorized as citations rather than misdemeanors, don’t count toward the three misdemeanors. If you can, explore reduction to a traffic offense.
When an applicant’s DACA application is under review the United States Customs Immigration Service (USCIS) has complete power over the application. An agent looks over the application and they have the discretion to approve or deny it. Despite never being convicted of a crime, if the agent finds that you are a “threat to national security or public safety,” they can deny an application outright.
I am concerned that this may be where the Trump administration exercises its discretion, and denies good DACA applicants out of misguided and discriminatory intent. In my experience, under the Obama administration, the Dream Act was meant to benefit more than to punish.
I have had a few clients who lost DACA status due to a criminal conviction, but I have also seen the happiness a family gets when they open their acceptance letters.
The connection between immigration and criminal law is an important factor when dealing with the government. On one side, you have the United States who wants to make sure they aren’t allowing bad people into our country to do harm. On the other side, you have good immigrants who just got caught in a bad situation.
It is for this reason that having a lawyer who knows both areas of the law will greatly affect the outcome. With Trump mentioning he will sign more Executive Orders soon, I am curious to see the implications it will have on the DACA program.
If you are considering DACA and have had previous arrests, please call us for a free consultation with a Houston immigration lawyer at (832) 819-3723.