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AS DEFINED UNDER DEFERRED ACTION?
The buzz words around immigrants are Deferred Action. Ever since President Obama declared that undocumented youths who entered the U.S. illegally with their parents can have a two-year respite from the fear of deportation, there arose questions and concerns as to qualifications and the law. In order to ease your mind and continue to clarify the conditions by which you may apply, I want to discuss multiple misdemeanors and their impact on your qualification for this program.
The Department of Homeland Security is concerned that individuals who have been arrested several times will be in the mix of applicants. They want to be sure that multiple offenders are not granted a legal benefit, even if temporary. Knowing this, clarity and precision become all the more important. It is precisely that lack of clarity that makes me, as an immigration attorney, uncomfortable with some elements of this process.
We already discussed significant misdemeanor and DUI as situations that may have a negative impact on your ability to apply for Deferred Action. Now I want to discuss the meaning of three or more other misdemeanors not occurring on the same day and not arising out of the same act, omission, or scheme of misconduct, another disqualifier for Deferred Action. What exactly is a misdemeanor? Does it include traffic violations?
Federal law defines a misdemeanor as one where the maximum jail time is six days to 365 days and is not a significant-misdemeanor and you served 90 days or less in jail. DHS has further advised that multiple misdemeanors will not include minor traffic offenses. However, what precisely is a minor traffic offense is less clear. Importantly, driving without a license is considered a minor traffic offense. However, what about driving with a suspended license? That is a common occurrence in New Jersey. Some courts will suspend the license of an unauthorized driver after a first offense. The consequence of a DREAMer, unlike a U.S. Citizen, is that he or she cannot restore his or her license until they achieve legal status. Thus, any subsequent offense will necessarily include not only driving without a license but also driving with a suspended license. This happens more often in areas where there is little or no public transportation to take individuals to work.
Other examples of traffic offenses or status offense may be considered criminal violations in some states include, driving an uninsured vehicle, leaving the scene of an accident, and others. What about non-traffic offense such as fishing without a license, removing materials from a forest without a license, selling without a permit, or unlawful assembly? The common element is that an undocumented alien cannot gain the proper status to get the necessary license because of how he or she entered the country. Here are a couple of more: disorderly conduct, disturbing the peace, trespassing, and resisting arrest without violence all considered misdemeanors.
In addition to status crimes, very minor offenses should not make you ineligible for deferred action. There is already precedent in immigration law not to count all misdemeanors or criminal violations as such for certain immigration purposes. For example, in the context of Temporary Protected Status (TPS), INA § 244(c)(2)(B), states that an individual convicted of two or more misdemeanors committed in the U.S. is ineligible for TPS, but their definition of misdemeanor is offense punishable by imprisonment for a term of one year or less, and excludes imprisonment for 5 days or less. 8 C.F.R. § 244.1. USCIS states that deeming such . . . violations as disqualifying an individual for TPS would be in tension with the humanitarian purpose of the TPS program and would lead to incongruous results. The same logic should apply to Deferred Action. Insignificant crimes such as these, even where there are multiple convictions, should be a bar to deferred action.
I hope this discussion makes clear that you must make a thorough analysis of your entire history before you apply. Your future is at stake; take the time to consult with an experienced immigration attorney before you apply. It may make a world of difference to you literally.
I welcome your questions.