I have a criminal record. Can I still apply for Deferred Action for Parents (DAPA) under Pres. Obama’s Executive Action Program?

I have a criminal record. Can I still apply for Deferred Action for Parents (DAPA) under Pres. Obama’s Executive Action Program?

President Obama’s Executive Action announcement on immigration could help millions of undocumented parents of U.S. citizens and permanent residents live and work legally in the United States. Provides a three-year stay of deportation

Many people who might otherwise qualify however could be barred because of past illegal activity. Not all crimes and criminal conduct will disqualify you from Executive Action. It’s critical to consult with a knowledgeable and experienced criminal immigration attorney to make the best decision about whether to apply for Executive Action. Handling these difficult immigration issues without a lawyer may lead to deportation.

Following is a summary of how parents of U.S. citizens and legal permanent residents can qualify under Deferred Action for Parents, and what criminal activity might bar you from DAPA benefits. For general DAPA eligibility requirements, visit our Executive Immigration Action blog.

Parents of U.S. Citizens and Legal Permanent Residents are disqualified from DAPA if they fall under any one of three immigration enforcement priorities set forth under the DHS Memorandum, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum” (November 20, 2014).

Priority 1 (threats to national security, border security, and public safety)

Aliens described in this priority represent the highest priority to which enforcement resources should be directed:

• aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
• aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;
• aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 52 l(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang;
• aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien’s immigration status; and
• aliens convicted of an “aggravated felony,” as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.

Priority 2 (misdemeanants and new immigration violators)

Aliens described in this priority, who are also not described in Priority 1, represent the second-highest priority for apprehension and removal. Resources should be dedicated accordingly to the removal of the following:

• aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element was the alien’s immigration status, provided the offenses arise out of three separate incidents;
• aliens convicted of a “significant misdemeanor,” which for these purposes is an offense of domestic violence ; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence);
• aliens apprehended anywhere in the United States after unlawfully entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014 ; and
• aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.

Priority 3 non-citizens are those who have been issued a final order of removal on or after January 1, 2014. Non-citizens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal.

Our office has been closely analyzing these criminal and law enforcement grounds for DAPA eligibility, and have reached a few important conclusions. Ineligibility for DAPA breaks down along two lines: one for misconduct, and the other for convictions.

Ineligibility for misconduct involves activities such as terrorism, espionage, and threats to national security (Priority 1), as well as illegal entry into the United States on or after January 1, 2014 or significant abuse of the U.S. visa system (Priority 3). All other forms of ineligibility relating to criminal conduct require a conviction.

A “conviction” is defined under immigration law at INA Sec. 101(a)(48):

The term “conviction” means a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

What does this mean? A DAPA applicant who was arrested or even charged with a disqualifying crime like felony possession for felony of methamphetamine, but who was only convicted of some other, non-disqualifying crime, like misdemeanor controlled substance possession, might still be eligible for DAPA Executive Action benefits.

Additionally, immigration law does not consider most juvenile criminal adjudications to constitute a conviction for immigration purposes. If you have a juvie record, chances are those offenses don’t qualify as convictions that might make you ineligible for DAPA Executive Action benefits.

But what if you already have a felony conviction? In California, it may be possible to reduce that conviction to a misdemeanor under Section 17 of the California Penal Code. USCIS is generally required to respect a State Court’s ultimate felony/misdemeanor disposition of a conviction, so a reduction to a non-“significant misdemeanor” under Prior 2 might reinstate DAPA eligibility.

Likewise, regarding three or more non-significant misdemeanors, certain misdemeanors, like petty theft, trespassing, or disturbing the peace, may qualify under California for a reduction to an infraction. Once an infraction is obtained, USCIS must respect the ultimate disposition, thereby qualifying the Applicant for DAPA benefits.

New developments under California law may also provide a pathway for non-citizens with drug or drug paraphernalia convictions to qualify for DAPA immigration benefits. Such offenses traditionally under California law could be classified as a felony. Now under Prop. 47, they qualify as misdemeanors. As non-trafficking controlled substance offenses don’t fall under Priority 1-3 disqualifying crimes, a misdemeanor drug possession offense might not disqualify a non-citizen from DAPA Executive Action.

One last important point: just because a crime sounds “bad” doesn’t necessarily mean it is “bad” for immigration purposes. Crimes like “burglary” and “domestic violence” have a specific federal definition that simply do not align with the California Penal Code for burglary and DV offenses. For instance, “burglary” under federal law requires breaking in or some other unpermitted entry into a place or dwelling, while California burglary does not. Likewise, “domestic violence” under federal law requires actual physical force and violence, which is not required under California Penal Code Section 243(e) spousal battery, which only requires an unwanted touching. In some cases, where it is extremely urgent to obtain some kind of protection from deportation, it might be appropriate to argue that a non-citizen qualifies for DAPA even if convicted of such an offense.

As stated above, however, you must consult with an experienced criminal immigration attorney, so you can be aware of all the risks applying for DAPA Executive Action benefits with a criminal record. Moving ahead without a lawyer could very well lead to deportation.