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I have a criminal history, can I get Deferred Action (DACA)?

Produced by Jennifer Klein, Immigration Impact Unit-CPCS, and MLRI
Created August 22, 2012

If you have a criminal history, you may still be able to get Deferred Action.

  1. Get copies of your:
    1. Criminal Offender Record Information (CORI), see How do I get a copy of my CORI? and
    2. FBI records, see the FBI’s web page Identification Record Request/Criminal Background Check.
  2. Read your records carefully.
  3. On your records, mark:
    1. convictions,
    2. Continuations Without a Finding” (CWOFs), and
    3. juvenile cases.

4 Barriers to Deferred Action

You probably cannot get Deferred Action if:

  1. you have been convicted of a felony;
  2. you have been convicted of a “significant misdemeanor”;
  3. you have been convicted of at least 3 misdemeanors; or
  4. you pose a threat to national security or public safety.

CWOF

USCIS counts a “Continuation Without a Finding” (CWOF) as a conviction. You probably cannot get Deferred Action if your records show CWOFs for any of the 4 Barriers to Deferred Action.

Juvenile cases

USCIS says you may be able to get Deferred Action even if your records show “juvenile delinquency”. They will look at the details of each applicant’s record to see if you can get Deferred Action. Every application with juvenile cases is different. If you have any juvenile cases on your record, talk to an immigration specialist.

Exceptional circumstances

If you have a conviction or a CWOF for any of the 4 barriers to Deferred Action, you may still be able to get Deferred Action. You must show “exceptional circumstances.” Talk to an immigration specialist. It is not clear yet, how to show “exceptional circumstances”. It may be very hard to get Deferred Action this way.

Important

If you have any criminal history, see an immigration specialist before you apply for Deferred Action for Childhood Arrivals (DACA).

What is a ‘felony’?

A felony is any offense where the most prison time you can get is more than one year.

What is a misdemeanor?

A misdemeanor is any offense where:

  1. the most prison time you can get is one year or less, and
  2. the least prison time you can get is more than five days.

What is a ‘significant’ misdemeanor?

A ‘significant’ misdemeanor is:

  • a misdemeanor that involves domestic violence, sexual abuse or exploitation, burglary, operating under the influence (OUI), unlawful possession or use of a firearm, or drug distribution or drug trafficking; or
  • any misdemeanor for which you are sentenced to more than 90 days in prison. The time in prison does not include suspended sentences, pre-trial detention, or time when Immigration and Customs Enforcement (ICE) is holding you in detention.

‘3 or more non-significant misdemeanors’

The 3 misdemeanors must not have been committed on the same day.

They must not come from the same action.

If you were convicted of committing several misdemeanors on the same day, only one will count. If you were convicted of several misdemeanors from the same action, only one will count.

Minor traffic offenses, like driving without a license, do not count toward the 3 misdemeanors.

What is a ‘threat to national security or public safety’?

USCIS has not defined ‘a threat to national security or public safety’. The USCIS FAQ says that these might count:

  • gang membership,
  • participating in criminal activities, or
  • participating in activities that threaten the United States.

USCIS may look at all of your criminal history when they decide if you are a ‘threat’. Your criminal history includes arrests and dismissed charges.

If you have a criminal history, see an immigration specialist before you apply for Deferred Action for Childhood Arrivals (DACA).