Crime provisions of deferred action policy bar most people convicted of a crime

Last week’s momentous announcement by President Obama that his administration would grant deferred action to some undocumented individuals who might otherwise be eligible for DREAM Act relief if ever it passes came with the unsurprising caveat that most people who have a criminal history are not eligible. Of the 1.4 million people that the Pew Hispanic Center estimates may benefit from last week’s policy initiative, some will undoubtedly be ineligible because of a past criminal altercation.

Initial media reports painted the crime-based bar in broad strokes, however, which it makes it difficult to contemplate who might be ineligible. With the hope of beginning to clarify this feature of last week’s announcement, I thought I would explore the criminal ineligibility criteria a bit further.

My initial impression is that the Administration seems to have gone out of its way to make the crime-based bar rather broad. Few people convicted of any offense, it seems to me from a reading of the initial materials DHS has issued, will benefit from the new initiative.

To begin, Secretary Janet Napolitano’s press release announcing the new policy  states that individuals are eligible for deferred action under if, among other requirements, they “[h]ave not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety.” A memo Napolitano sent to the heads of ICE, CIS, and CBP uses the same language.

I’ll address each prong of this crime-based ineligibility in turn. Let’s begin with what constitutes a “felony.” The Administration seems to be using a broader definition than normally used in immigration law. Because Congress is thought to want to treat all crimes alike regardless in which state they are committed, immigration law usually concerns itself with how a crime is defined according to federal law. In this way, if a state punishes possession of marijuana as a state felony, that doesn’t necessarily make it a felony for federal law purposes, including immigration law. Following this reasoning, in Lopez v. Gonzales, 549 U.S. 47 (2006), the Court explained that we look to federal law to decide if a crime is a misdemeanor or felony, unless Congress says otherwise.

The Administration, however, has adopted a different approach. According to a Frequently Asked Questions document that DHS released, “A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.” FAQ at 5. This seems to mean that there’s no need for a messy analysis of how a state offense is treated under federal law. If the state punishes it by more than a year imprisonment, then it’s a felony for deferred action purposes.

Importantly, assuming DHS uses the interpretation of “punishable” with which immigration lawyers are familiar (and I have no reason to think they won’t), that means that the actual sentence issued or served doesn’t matter. What matters is whether the maximum sentence possible was for more than one year of prison time. Less clear is what happens if a crime was punishable by a year or less of imprisonment in the jurisdiction in which it was actually prosecuted, but punishable by more than a year in the federal system. Would this bar eligibility? Admittedly, off the top of my head I can’t think of an example so if anyone out there can come up with one, let me know (same goes for those of you who think I’m pursuing a pointless exercise).

Now turning to what constitutes a “significant misdemeanor offense.” Again, the Administration has taken a pretty broad path. The FAQ explains that

“[a] significant misdemeanor is 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 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.” FAQ at 5.

I’m at a loss for what doesn’t fall within this list except for misdemeanor immigration crimes like the illegal entry prosecutions under INA § 275 that the Administration has shown a fondness for pursuing. As with the felony bar, DHS includes crimes defined as misdemeanors by any jurisdiction—federal, state, or local.

[Update: Thanks to Linus Chan for pointing out that driving without a license and driving with a suspended license are not included.]

Next up is the bar to eligibility for people convicted of “multiple misdemeanor offenses.” First off, the FAQ modified the “multiple misdemeanor” language a bit by explaining: “Individuals who have been convicted of…three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct…are not eligible to be considered for deferred action under the new process.” FAQ at 5. Interestingly, the three-crime requirement deviates from the INA’s “multiple criminal convictions” ground of inadmissibility that requires just two or more offenses. INA § 212(a)(2)(B).

Finally, no one who “otherwise pose[s] a threat to national security or public safety” is eligible. According to DHS, participation in criminal activity or gang membership are “indicia” of a threat. FAQ at 5. I’m not sure what this means and I haven’t seen a more detailed explanation.

One other consideration is worth noting. In a conference call yesterday, USCIS Director Alejandro Mayorkas reportedly said that the agency hasn’t decided how it will deal with juvenile adjudications–that is, whether they will be treated as convictions or not.

There is no question that the Administration’s position will benefit many deserving individuals–perhaps even hundreds of thousands or millions. Indeed, one client of García & García Attorneys at Law, where I’m of counsel, already received good news. The point here is simply to begin to understand the extent to which criminal convictions will keep undocumented youth from receiving deferred action under this initiative’s announced criteria.

My initial impression is that most undocumented young people who have been convicted of a crime–any crime–will find little comfort in the policy. Ultimately, though, the true measure will come once we start getting a sense of how DHS officials on the ground are interpreting President Obama and Secretary Napolitano’s mandate. I invite readers to update me about their own experiences or point out any errors or omissions.


  1. Linus says

    Looking at other forms of imm relief that use misdemeanors & felonies versus CIMTs and Agg felony definitions, we have TPS from INA 244(c)(2)& INA 245A(a)(4)(B).

    The biggest departure from both of those eligibility requirements is the addition of the “significant” misdemeanor aspect.

    It seems odd to list “significant” misdemeanor but not refer to CIMTs unless of course the Agency wanted to avoid the case law around CIMTs and make sure that DUIs and domestic assaults are always treated as disqualifying crimes.

  2. says

    Excellent article. I believe that simple trespass would also likely be an example of a misdemeanor offense to survive scrutiny. It would seem 3 driving without a license “convictions” would not — that is disconcerting.

  3. Beverley says

    If USCIS is going to seize on any opportunity to deny deferred action, then people with “no operator’s/driver’s license” convictions are going to be really, really disappointed. And in those jurisdictions where multiple “N.O.L.” convictions get progressively worse, USCIS will be able to call them “serious misdemeanors.”

  4. says

    Very timely article. I have an appointment tomorrow to explain to a heartbroken mother why her son does not qualify. The son was attending college when he was pulled over for a standard traffic stop that ended up with him in detention. He bonded out and was headed back to college, or so I believed, when he called me from jail, claiming a chain of misunderstandings that led to a felony indictment, and convictions for multiple misdemeanors. Naturally, the client is convinced, along with many of his detention mates, that he is an outstanding prospect for Pres. Obama’s new initiative, but since he felt the need, while out on bond, to burglarize a couple of cars, a building, and evading arrest, he can be outstanding in Mexico considering those actions that ended his dream, and shattered his mother’s heart. But for the hard work of his criminal defense attorney, he easily could have ended up with the same felonies his cohorts in crime plead to for the same events. But we do have others who should qualify, and for them, we are grateful Mr. President.

  5. Vanessa says

    dreamer with DUI but lived here 22 years, graduated high school, went to college. Clean record except or one DUI. Disqualified?? Mistakes happen but to keep condemning someone for a mistake? People live and learn, don’t they?

  6. Norma says

    For years Latinos had been waiting for something like this to happen. It is sad that you are using their desperation to scam them! The USCIS has not even set a cost price and you’re charging people over a thousand dollars AND promising citizenship. It is sad to see educated Latinos are turning their own backs to their own people.

  7. Cesar says


    You are correct that the deferred action policy does not provide a path to citizenship. At best it provides a two-year reprieve from initiation of removal proceedings and employment authorization. Even when a plausible legal avenue to citizenship exists, no attorney should ever make that promise. The law is too complicated to guarantee any particular outcome beyond zealous advocacy. We have at all times tried to be clear about what benefits the deferred action policy may provide, and I apologize if at any point anyone has caused any confusion.

    As for your concern about fees, the fact is that private attorneys must charge clients for services. Though DHS has not yet begun accepting application for deferred action under this policy initiative, there is nothing unreasonable about attorneys beginning to prepare their clients’ cases for the day in mid-August when DHS does begin accepting applications. You are, of course, free to believe that a particular attorneys’ fees are set too high and search for a different attorney. I should add, though, that the attorneys at García and García Attorneys at Law are not charging $1,000 in attorneys fees; they are or will charge less. Combined with the amount that DHS can be expected to charge for filing an Employment Authorization Document application, fingerprinting fees, and other costs, however, the price to clients will likely exceed $1,000.  I expect that if you compared these fees to those charged by other attorneys, you would find them reasonable.

    César Cuauhtémoc García Hernández

  8. Cesar says

    Mr. Hernández,

    You should speak with an immigration attorney about your particular concern. You should not rely on any information posted on this blog to make a decision about the viability of your legal claim. Feel free to contact the attorneys at García & García Attorneys at Law or another attorney of your choice.

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