Jen was 10 years old when her parents brought her to the United States. When she was about to graduate high school and filling out her college applications, she was shocked and horrified to learn from parents that they were in the United States illegally. She put aside her dreams of going to college and helped her parents clean houses and offices. She met and fell in love with Jerry one of their workers and they eventually got married. Like Jen, Jerry was also brought here from Mexico as a child.
When Deferred Action for Childhood Arrivals (“DACA”) came out last year, allowing certain individuals who came to the United States as children to request for deferred action, Jerry applied and his DACA request was granted. Jenny, however, has not submitted a DACA application up to now. Several years ago, in a heated argument with Jerry, the neighbors called the police to their apartment. When the police came, they noticed scratch marks on both of Jerry’s arms. Jenny was charged with domestic violence. Fortunately, for her the charges were reduced and she was eventually convicted with disturbing the peace, a misdemeanor. She is afraid that her domestic violence charge and criminal conviction for disturbing the peace would make her ineligible for DACA.
DACA provides a much welcome and needed relief to thousands of individuals who were brought here to the United States as children. If found eligible for DACA, the individual is granted work authorizations allowing them to legally work in the United States, and can then obtain a Social Security number and a driver’s license. Most importantly eligibility under DACA grants the individual “authorized stay” in the United States. What that means is that the individual who is covered by DACA is not deportable.
One of the key eligibility requirements to qualify for DACA is the individual must not have been convicted of a felony, significant misdemeanor, or 3 or more “non-significant misdemeanors” occurring on different dates and arising out of different acts, omissions, or schemes of misconduct, and do not otherwise pose a threat to national security or public safety.
For purposes of DACA, the federal criminal classification governs in determining whether an offense is a felony or a misdemeanor. A “felony” is an offense punishable by a potential sentence of more than 1 year. A misdemeanor is an offense punishable by a potential sentence of more than 5 days but not more than a year. A “significant misdemeanor” for purposes of the DACA includes a misdemeanor as defined by federal law and for which the maximum term of imprisonment authorized is 1 year or less but greater than 5 days and regardless of the sentence imposed, involves burglary, domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm, driving under the influence, and drug distribution or trafficking. A “significant misdemeanor” may also include any other misdemeanor for which the individual was sentenced for more than 90 days.
In Jen’s case, while she was charged with a crime of domestic violence, she was convicted of the offence of disturbing the peace, a misdemeanor. What determines eligibility is not the criminal charge, but the criminal conviction. Had Jen been convicted of a domestic violence crime, she will not likely be eligible for DACA since that conviction would be construed as a “significant misdemeanor.” However, Jen was convicted of disturbing the peace, a misdemeanor. For DACA purposes, Jen’s conviction is for a “non-significant misdemeanor.” The term “non-significant misdemeanor” includes any misdemeanor punishable by imprisonment of more than 5 days but not more than a year that is not identified per se as a “significant misdemeanor.”
While Jen does not appear to be ineligible to apply under DACA, keep in mind that DACA is a type of prosecutorial discretion and each DACA request will be evaluated on a case-by-case basis. It would be best for Jen to consult an immigration lawyer before she files her DACA application.
Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Sacramento. 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 (415) 495-8088; (619) 955-6277; firstname.lastname@example.org