DACA: Deferred action for childhood arrivals; criminal convictions clarified, including disqualifying any DUI

The USCIS provided new information on this program opening on August 15, 2012 for young immigrants; the fees for example are now fixed at $465.00.  The new publication  indicates the scope of criminal convictions they will consider for this program differs from what they have used in the past as disqualifying offenses.  For each category, there is an additional qualifier; even if you are found to have qualifying offenses, the USCIS will still consider whether you can establish "exceptional circumstances", and may still grant the application. However, DHS also made it clear this program is an exercise of their sole and unreviewable discretion, and can consider all circumstances of an alien's history, including any criminal conviction, and may deny an applicant despite the express criteria below; meaning even if an applicant does not meet the disqualifying guidelines below, they may still be denied.

There are several categories of offenses that will disqualify, an applicant for deferred action:

1.  A felony offense;

A felony is defined differently from state law; and will apply to all criminal convictions, at any level, which are punishable by imprisonment for a term exceeding one year.  This means that most state misdemeanor charges will all disqualify applicants under this category, since most Colorado misdemeanors are punishable by more than 365 days in a county jail.  However, most municipal offenses punishable by a term of one year or less, will NOT disqualify an applicant under this category alone.  Minor misdemeanor offenses like M2 and M3 offenses in Colorado will not disqualify individuals as felony offenses.

2.  A significant misdemeanor offense;

by implication, this will include all offenses not under the first category, so those crimes punishable by a term of one year, or less, and more than five days;

the exception to this rule is that certain offenses will disqualify regardless of their sentence range; including domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence.

Additionally, any conviction for driving under the influence with knowledge that your privilege to drive is revoked or suspended, may constitute a crime of moral turpitude and be the basis for a separate deportation action, see, In Matter of Lopez-Meza, 22 I & N Dec. 1188 (BIA 1999).

Driving under the influence convictions can contribute to a finding of inadmissibility based on a physical or mental disorder – alcoholism – if it has caused a threat to the property, safety, or welfare of the alien or others under INA § 212(a)(1)(A)(iii).  There can be aggravating factors to any DUI conviction, including any threat of injury to a third party, that may result in a finding that the DUI was a crime of moral turpitude; see, Hernandez Perez v. Holder (8th Circuit 2009)(plea of guilty to DUI and child endangerment, with 'knowing' mental state and threat of injury to child disqualified applicant for cancellation of removal).

A Driving While Ability Impaired conviction in Colorado does not appear to violate this category, as the federal DUI law is defined much like the Colorado counterpart (BAC at or above .08); but a DWAI violation does not exist in federal law and would not meet the definition, absent other aggravating circumstances.  See, 36 C.F.R. 4.23.

the second exception to this will be any conviction for which an actual sentence of 91 days or more was imposed and served; and excludes any time served as part of any detainer for an ICE hold, or any time served outside the actual imposed sentence.  This does not appear to include time suspended on a sentence, but only that time actually served in custody on a sentence.

3.  three or more other (non-significant) misdemeanor offenses;

this is another category of offenses classified as misdemeanors under federal law;

any imposed and actually served sentence must be 90 days or less;

these crimes cannot include any of the 'per se' convictions listed above;

not occurring on the same date;

not arising out of the same act, omission or scheme of misconduct;

not a minor traffic offense like driving without a license;

 This category is not yet fully explained, and is referred to as "non-significant" misdemeanors elsewhere in the same publication; by implication the commission of any three non-significant misdemeanors outside of the category directly above may amount to a set of disqualifying offenses.

4.  Public safety.

This category is very general, and will include an ill-defined consideration by the Department of those who pose any threat to public safety.  Examples may include gang membership, participation in criminal activities, or participation in activities that threaten the United States, dismissed charges of violence, habitual drug use, or sex crimes.  The Department under this category can consider nearly anything a client was ever accused of doing, or persons with whom they were supposedly associating with in their past.

 The USCIS will consider any, and all, convictions and even juvenile adjudications in making its determination of eligibility, and even said it will consider expunged juvenile adjudications; a category of offenses used almost nowhere else, and involving those juvenile adjudications that were permanently eliminated from a juvenile's record, usually after a court hearing on expungement.  Additionally, if a juvenile is not convicted, tried, or sentenced until they are an adult (over the age of 18), the USCIS indicates they will be 'treated as an adult'.

An individual applying for this program, or any other of the recent programs like prosecutorial discretion, may risk placing themselves before DHS with a case likely to result in a Notice to Appear and initiation of removal proceedings.  The newest guidelines used by DHS to issue such notices is available at