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Deffered Action under the Obama Order – What crimes render an applicant ineligible for deferred action?

This issue of criminal offenses and who may be excluded because of this from the Deferred Action changes, is a subject of concern for many people. The American Immigration Council issued a Guide on the subject and you can see a discussion below on this subject.

Individuals are not eligible for deferred action if they have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety. The FAQ issued by DHS provides important information regarding how these categories will be defined.

A “felony offense” includes any federal, state or local criminal offense punishable by imprisonment for more than one year. Thus, some state misdemeanor offenses may be characterized as felonies for purposes of the new memorandum.

A “significant misdemeanor” includes any federal, state or local criminal offense punishable by up to one year of imprisonment or even no imprisonment and involving violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.

This definition potentially encompasses a wide range of conduct, including many offenses that would not impact a person’s immigration status under current immigration law. However, it is unclear how decision makers ultimately will determine whether a misdemeanor disqualifies a person for deferred action. It is also unclear whether the circumstances of an offense, how long ago it occurred, or other considerations will have any impact on this analysis.

As a result,clients who have any type of criminal history should proceed with caution, particularly with respect to those clients who currently are not in removal proceedings, but might be viewed as a high enforcement priority.

The FAQ does not separately define a “non-significant misdemeanor.” Presumably, this term includes federal, state, and local criminal offenses punishable by up to one year of imprisonment that do not qualify as “significant misdemeanors.” Individuals with three or more non-significant misdemeanors not occurring on the same date and not arising out of the same act, omission or scheme of misconduct are ineligible for deferred action. It remains to be seen whether traffic violations—which are treated as criminal offenses in some jurisdictions, and non-criminal violations in others—will count as “non-significant misdemeanors.”
A strict reading of the memorandum would disqualify a large number of individuals in jurisdictions where minor offenses, like driving without a license, are treated as criminal misdemeanors.

DHS has not yet specified whether juvenile adjudications will be considered criminal convictions under the new policy. Even absent a criminal conviction, individuals are ineligible for deferred action if their background checks or other information reveal that they pose a threat to public safety or national security. Relevant factors include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.

In preliminary discussions, DHS has indicated that it intends to adhere to the spirit of the memorandum and not apply it in an overly rigid manner. An applicant with a potentially disqualifying criminal offense, but with mitigating factors and other significant equities, might still have an application favorably considered. However, as discussed above, such an individual risks potential removal if he or she is determined to fit an enforcement priority.