By Attorney Farhad Sethna © 2014
On January 24, 2014, the USCIS issued a “Field Guidance” on the subject of DACA (Deferred Action for Childhood Arrival) applicants who may have certain disqualifying criminal convictions.
As background, the DACA administrative discretion guidance allows USCIS to approve DACA status and consequently employment authorization for two years, which can be renewed, for any childhood arrival to the United States. Such childhood arrival must have been in the United States on or before June 15, 2007, must have been under the age of sixteen at the time of arrival, and must be under the age of thirty-one on June 15, 2012. Also, such an applicant should have had at least a high school diploma, or GED, or be working toward a high school diploma or GED. Finally, the DACA guidelines require an applicant have at most, three minor misdemeanors. Other than minor misdemeanors, most other convictions including felonies or “significant misdemeanors” would make an applicant ineligible to receive DACA status. It is this last item that has been the most troubling thus far. The USCIS has denied many DACA applications simply because the applicant had a criminal history.
Given that many of these convictions took place when the DACA applicant was below the age of eighteen, or still a juvenile, the USCIS decided to revisit the situation.
Consequently, in an act of administrative discretion, the USCIS has decided that if an applicant’s offense falls under the “petit offense” or “youthful offender” exception under INA §212 (a)(2)(A)(ii) or it appears that the applicant’s criminal offense is not a crime involving moral turpitude (CIMT) under INA §212 (a)(2)(A)(i)(I), such offense will not be a bar to DACA status..
As a result of this Field Guidance, USCIS has determined to reopen DACA cases that have been denied on the basis of criminal ineligibility alone and reevaluate those cases in light of these relaxed guidelines.
Consequently, if an applicant had a previous criminal conviction that meets the above guidelines, and that applicant either did not apply for DACA or had their DACA application denied, that applicant should contact the USCIS. The USCIS should reopen and reevaluate their case. If the applicant would have been eligible for DACA but for the conviction, they should seek legal assistance and apply for DACA if they have never done so.
Copyright, Farhad Sethna, Attorney, 2014
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.