When Significant Misdemeanors Bar DACA Eligibility

People convicted of either a felony or what USCIS calls a “significant misdemeanor” are not eligible to file for DACA. Learn more about that standard here.

As a non-citizen in the U.S. applying for the Deferred Action for Childhood Arrivals program (DACA), you will have to answer questions about your criminal background, if any. Many potential applicants who otherwise qualify for DACA are discouraged because their criminal history includes a misdemeanor or a traffic offense and feel that they might be taking an unnecessary risk by applying for DACA.

Deciding whether that's true has been made especially confusing by the fact that U.S. Citizenship and Immigration Services (USCIS) is using a relatively new standard to review criminal history in DACA cases. According to USCIS, people convicted of either a felony or what USCIS calls a "significant misdemeanor" are not eligible to file for DACA.

That still leaves open the possibility that some people with a criminal history can successfully apply for DACA. Your best bet, however, is to consult with an attorney before taking this step.

What Does USCIS Consider a Significant Misdemeanor?

In determining whether someone has been convicted of a significant misdemeanor, USCIS states that it will consider the totality of the circumstances regarding the criminal behavior and make decisions on an individualized basis. However, USCIS does use a set of guidelines (covered in its Frequently Asked Questions) while looking at criminal history.

These guidelines state that a significant misdemeanor is, for starters, a misdemeanor according to federal law. That means a crime punishable by five days to one year in jail regardless of the actual sentence imposed. It's also a crime that also includes any of the following:

  • conviction for domestic violence
  • conviction for sexual abuse or exploitation
  • conviction for burglary
  • conviction unlawful possession or use of a firearm
  • conviction for drug distribution or trafficking, or
  • conviction driving under the influence of alcohol or drugs (DUI or DWI), or
  • an actual sentence to time in custody of more than 90 days.

It won't count toward the 90-day sentence standard if the applicant served a suspended sentence or time beyond the sentence while under an immigration hold. Importantly, even if the sentence was for 90 days or less, USCIS specifically states that it retains discretion to determine that your crime was a significant enough misdemeanor to disqualify your application.

What If I Have More Than One Misdemeanor on Record?

If you have been convicted of multiple misdemeanors, even if none of them constituted significant misdemeanors, USCIS may still deny your application. USCIS states that if someone has been convicted of three or more misdemeanors, the application may be denied even if none of the crimes rose to the level of being a significant misdemeanor.

However, if the misdemeanors arose out of the same set of facts on the same date, USCIS may look upon that misconduct as one misdemeanor rather than multiple misdemeanors.

What If I Have a Traffic Offense on Record?

USCIS will not view minor traffic offenses, such as a speeding ticket or a ticket for driving without a license, as misdemeanors. This is important because many people have two or three traffic tickets in their history. These tickets will not disqualify you.

You might even consider using the tickets for evidence of presence in the U.S. if you do not have other documentation for a specific date as required by the application. However, any traffic offense involving driving under the influence (DUI or DWI) will be considered a significant misdemeanor no matter what sentence was imposed.

Is It Safe to Apply for DACA If My Criminal History Doesn't Include a Significant Misdemeanor?

If you have a misdemeanor in your past but believe that it does not rise to the level of a significant misdemeanor, you should prepare documentation for USCIS so that the reviewer can determine that you are not disqualified from DACA.

In addition to the other evidence you submit with your application, a certified disposition or other court documentation providing details regarding your criminal background will be useful.

In addition, it would be helpful to have your attorney draft a brief memorandum regarding your criminal history, explaining and arguing that you should not be disqualified from applying for DACA. Consult with an attorney regarding recommendations for your specific situation.

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