Criminal Convictions, DACA, and DAPA: Who Qualifies and Who Doesn’t?


On February 18, 2015, USCIS will begin accepting the first applications for the expanded DACA (Deferred Action for Childhood Arrivals) program, which was initiated as a part of Obama’s November 20 announcement on Executive Action immigration reform.  The expanded DACA will eliminate the “age cap” from the previous program, allowing individuals of any age to apply as long as they meet the other requirements.  Further, the expanded DACA program will push back the required date of entry into the U.S. from June 15, 2007 to January 1, 2010, and will extend the duration of DACA status to 3 years.

In addition, on May 19—90 days after USCIS opens the gates to the expanded DACA program—it is anticipated that the government will begin accepting the first applications for the new DAPA (Deferred Action for Parental Accountability) program, which applies to parents of United States Citizens or Lawful Permanent Residents who were born on or before November 20, 2014.

There is a tremendous amount of excitement surrounding Obama’s Executive Action in the immigrant community, and our office has been receiving a steady flow of calls from people who are interested in applying.  However, many people are concerned that prior criminal convictions may disqualify them from eligibility for “expanded DACA” or DAPA, and in many cases these concerns are well-founded.  Though USCIS guidance about which crimes will prevent applicants from qualifying has thus far been murky at best, here’s a primer on which types of convictions will cause problems:

First, prospective “expanded DACA” applicants will be disqualified from eligibility if they have:

1.) One “felony,”

2) One “significant misdemeanor,” or

3) Three “misdemeanors” of any kind as long as they did not occur on the same date and did not arise out of the same act or scheme of misconduct.

“Felony” and “misdemeanor” are in quotes here because USCIS uses the generic federal definition of these crimes, whereas each state’s classification of what is a felony and what is a misdemeanor can be different.  To complicate things further, there is a lack of clarity as to what USCIS considers to be a “significant” misdemeanor.

The criminal eligibility requirements for DAPA are similar to DACA. However, in addition to the three disqualifying criminal factors listed above, you’ll also be ineligible for DAPA if you have one “aggravated felony,” which is defined in INA section 101(a)(43).

So, what is a “felony?”  For purposes of Executive Action eligibility, a “felony” means any federal, state, or local offense that is punishable by imprisonment of more than one year.  Most state misdemeanor statutes have a maximum penalty of 365 days, which makes them non-felony offenses. But, applicants should be careful to closely examine the statute they were convicted under to make sure that even if the conviction was classified as a misdemeanor the maximum sentence is not more than one year.  If it is, USCIS will consider it a felony no matter what your state courts call it.

The “significant misdemeanor” definition is a bit less clear.  Essentially, it is defined as 1.) any offense that is punishable by imprisonment of 365 days or less, but more than 5 days, and 2.) involves domestic violence, sexual abuse or exploitation, unlawful possession of a firearm, drug sales, burglary, or driving under the influence of alcohol or drugs.

In addition, the definition also includes any other misdemeanor that is not listed above for which the person received a jail sentence of more than 90 days (not counting suspended sentences).  This definition is devastating news for a huge swath of potential applicants, as it basically disqualifies anyone who has a DUI from applying for executive action.  One potential ray of hope may be the possibility of expunging such convictions, as USCIS has not explicitly ruled out eligibility for those who have been convicted of DUIs but have subsequently had them expunged.  Stay tuned for more clarification on this issue in the coming weeks.

Finally, DACA and DAPA applicants will be ineligible to apply if they have three non-significant misdemeanors.  Non-significant misdemeanors are defined offenses that are punishable by a maximum term of imprisonment of one year or less but more than 5 days (meaning fine-only offenses do not count), and that did not occur on the same day or arise from the same act or scheme of misconduct.  Therefore, if an individual was convicted of three counts of, for example, vandalism, which emerged out of one night of spray painting three different public spaces, he could still be eligible for DAPA/DACA as long as he met all other requirements, because he could argue that the convictions emerged out of the same scheme of misconduct.

As a general rule, if you do have a criminal record of any kind and are interested in applying for executive action, it is in your best interest to consult with an immigration attorney prior to applying.  As with all things in the foggy world of immigration law, it’s better to be safe than sorry.