Applying for DACA with a Juvenile or Criminal Record

By: Lilli Berbano Baculi, Esq.The United States Immigration and Customs Enforcement (ICE) has already announced its renewal procedures for individuals granted Deferred Action for Childhood Arrivals (DACA) for the periods of June 15, 2012 – August 15, 2012. However, individuals who were granted Deferred Action by U.S. Citizenship and Immigration Services (USCIS), will have to wait for further instructions. USCIS anticipates publishing a new form in late May 2014, to be used for both initial DACA requests and for DACA renewal requests.Beginning September 2014, the initial two-year grants of deferred action for early recipients of DACA from USCIS are due to expire under their own terms, and USCIS is actively preparing for the DACA renewal process so that eligible individuals can request and receive an extension of their deferred action without experiencing any lapse in their lawful presence or work authorization.

Many young individuals have already taken advantage of the Deferred Action for Childhood Arrivals (DACA) program. While this does not provide a pathway to getting lawful permanent resident status (i.e., a green card) or citizenship, this nevertheless allows young individuals to remain in the U.S. and apply for a work authorization document.

A key element to qualify for deferred action is that an individual “must not have been convicted of a felony, a significant misdemeanor, or three or more non-significant misdemeanors, and not pose a threat to public safety or national security.” For example, a conviction for a felony, “significant misdemeanor,” or “multiple misdemeanors” will automatically bar eligibility for DACA unless the Applicant is able to show “exceptional circumstances.”

What about Juvenile Delinquency Adjudications?    Juvenile Delinquency is an act that would have been a crime if it were committed by an adult.

Juvenile delinquency adjudication varies from state to state. However, under Federal Law, a disposition of juvenile delinquency is defined as a finding made by a juvenile court of a violation of law committed by a person prior to his or her 18th birthday. The Board of Immigration Appeals has ruled that “to determine whether state juvenile proceeding results in a criminal conviction or civil delinquency adjudication, [it] will compare the judgment in question with adjudications under the Federal Juvenile Delinquency Act (FJDA).”

What counts as a conviction for a felony?    A felony is a federal, state or local offense that carries a potential sentence of more than one year.

What counts as a conviction for a significant misdemeanor? A “significant misdemeanor” is a federal, state, or local criminal offense punishable by imprisonment of one year or less, but more than five days and is an offense of domestic violence; certain crimes involving a controlled substances (distribution or trafficking of controlled substances); burglary; driving under the influence of alcohol or drugs; or any other misdemeanor for which the person received a jail sentence of more than 90 days.

What counts as a conviction for multiple misdemeanors?  “Multiple misdemeanors” are three or more non-significant misdemeanors not occurring on the same day and not arising from the same act or scheme of misconduct. For this purpose, a misdemeanor is a federal, state, or local criminal offense punishable by imprisonment of one year or less, but more than five days.

Each Application is assessed on a case-by-case basis to determine whether, under particular circumstances, a favorable exercise of prosecutorial discretion will be granted to an Applicant. So, an expunged conviction and juvenile convictions will not automatically disqualify an applicant. However, if you are a juvenile but was tried and convicted as an adult, you will be treated as an adult for purposes of the deferred action for childhood arrivals process.

The Application asks “Have you ever been arrested for, charged with, or convicted of a felony or a misdemeanor.” Failure to disclose a juvenile adjudication might be considered fraud and lead to the initiation of removal proceedings. Even if the juvenile case is under seal, there is no guarantee that the incident will not appear on the FBI rap sheet. The Department of Homeland Security (DHS) is taking biometrics (fingerprinting) of all DACA Applicants, and thus can access FBI rap sheets in each case.

It is important to know your options, and understand the process involving the DACA program. An experienced immigration law firm or attorney will be able to help you navigate through the DACA application process, including how to handle a criminal history or juvenile record.

Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento, and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 509-7280;lbaculi@ctvattys.com.