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The intersection of criminal law and immigration law

Update on deferred action crime bars

In June I wrote about the crime-based bars to deferred action under the Obama Administration’s much-discussed policy initiative for young people lacking authorization to be in the United States. Since then the U.S. Citizenship and Immigration Services agency, the Department of Homeland Security unit charged with administering the policy initiative, has released more specific guidance on the vaguely defined bars.

Otherwise eligible applicants will ordinarily be denied if they have been convicted of a felony, “significant misdemeanor,” or three or more non-significant misdemeanors. According to the guidance USCIS provides on its web site, USCIS is defining “felony” and “misdemeanor” largely in accordance with federal criminal law. That is, “[a] felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year” and a “misdemeanor” is a crime “for which the maximum term of imprisonment authorized is one year or less but greater than five days.” As for Temporary Protected Status, a crime is not considered a “misdemeanor” for purposes of deferred action if the maximum possible term of imprisonment is five days or less. 8 C.F.R. § 244.1.

Importantly, USCIS has provided a bit more clarity about what constitutes a “significant misdemeanor.” This is particularly helpful because the phrase “significant misdemeanor” doesn’t exist in immigration law or federal criminal law so advocates have been trying to comprehend what exactly the government means.

According to USCIS, a “significant misdemeanor” is a misdemeanor that “[r]egardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or, [i]f not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.”

This is a broad definition; one that, as I wrote previously, is clearly intended to include most young people convicted of a crime. USCIS took special pains to emphasize that DUI convictions constitute significant misdemeanors, presumably out of concern that many young people have this type of blemish on their record.

Simple drug possession offenses are notably not included in this list. That’s not to say that a simple drug possession conviction won’t result in denial. As USCIS states, “the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.”

In other words, the policy initiative doesn’t confer any rights on anyone. Ultimately, USCIS holds the cards; just like it can decide to grant deferred action on any basis it wishes, it can decide to deny on any basis it wishes.

The prudent thing is to consult with an immigration attorney (preferably one that is a member of the American Immigration Lawyers Association, the largest professional association of immigration attorneys in the country) before contacting USCIS so that you can weigh the costs and benefits of applying under the best informed circumstances possible. This is especially true for anyone who has had an encounter with law enforcement authorities of any type for any situation. As should be clear from this blog post and my previous discussion (plus all the comments on this blog and elsewhere, including this helpful Practice Advisory by a group of well-respected organizations, about what the crime-bars mean), this is complicated terrain. All young people who think they may be eligible should consult with an immigration lawyer. If you think you can’t afford to hire one, look for a local non-profit organization that can provide free or low cost assistance. And if you don’t live in an area where that’s available, call an immigration lawyer anyway and explain your financial situation; you might just be able to work something out.

Comments

  1. A couple of other of anomalies:
    1) The felony definition would not include certain crimes that count as agg fels. For instance, the FAQ requires the max possible sentence to exceed one year. AND it does not count suspended sentences. This means that while an indiana theft conviction w/ a suspended sentence of 1 year counts as an agg fel, it doesn’t disqualify from deferred action.
    2) And the sig misdemeanors now no longer include larceny or obstruction of justice.

    While the first guidance made it seem like USCIS wanted to broaden the definition to include NON-CIMTs (such as assaults and duis), the new guidance specifically excludes some common CIMTs, and grounds of removal.

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