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 crImmigration.com readers to update me about their own experiences or point out any errors or omissions.