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 underage, and was driving, so he was found guilty of N.J.S. 39:4-50.14 a baby DUI.

Under Deferred Action, you are ineligible if you were convicted of a single significant misdemeanor. Generally, a DUI conviction doesn’t carry immigration consequences. However, for this program, the Department of Homeland Security (DHS) says that a DUI qualifies as a significant misdemeanor. While I happen to think it should not be a bright line rule, DHS should recognize that not all DUIs are the same, so 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 or greater. If no distinction is made between adult and youth DUIs for purposes of the deferred action, young drivers the 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.  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.

Cases like Ernesto highlight why you should always challenge any DUI charge.