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Ernesto, twenty-six, came to the U.S. when he was five. He meets all of the eligibility required for deferred action except one. When he was 20, Ernesto was charged with a DUI. He had some alcohol, was under age, and was driving, so he was found guilty of N.J.S. 39:4-50.14 a “baby DUI.”Under the new deferred action initiative, if you were convicted of a single “significant misdemeanor, you are ineligible. A significant misdemeanor is defined as:A federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence (DUI) 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 (emphasis added).

Despite this definition, it is still unclear which offenses Department of Homeland Security (DHS) will deem significant. Without additional clarification, many potential applicants, like Ernesto, will not know whether they are eligible for deferred action. Generally, a DUI conviction doesn’t carry immigration consequences. However, for this program, DHS says that a single DUI is a significant misdemeanor. DHS should recognize that not all DUIs are the same, and thus, not all DUI convictions should bar deferred action. All 50 states criminalize driving with a blood alcohol content (BAC) of .08 or above. However, New Jersey also punishes a person under 21 for driving with a BAC of .01. This zero tolerance law is not about public safety, but to prevent persons from drinking and driving as adults. If no distinction is made between adult and youth DUIs for purposes of the deferred action, young drivers the very population this policy is meant to help—will be negatively and disparately impacted. DHS should consider mitigating factors and positive equities before determining that someone like Ernesto, an otherwise eligible applicant, is barred due to a single DUI. Ernesto learned his lesson. It was not evidence of an ongoing problem. Without more, there is no indication that he is a threat to public safety. For example, what if Ernesto was (1) charged with a DUI for sitting intoxicated in an inoperable vehicle, or (2) biking while intoxicated, in neither case is he a danger to others.