President Obama made it clear that “felons” and not families are going to be prioritized for deportation. An undocumented individual who has a U.S. citizen child and who plans to file for relief under the Deferred Action for Parents Accountability (DAPA) must ensure that he has no criminal history that will get him in serious trouble.
Lawrence entered the United States in 2000 on a visitor visa. One year after the expiration of his visa, he was arrested for DUI and was put on probation. He has a U.S. citizen child but is not married. The mother gave the full physical custody of the child to him. He now wants to know whether he will be eligible for an employment authorization document based on the recent Executive Actions of President Obama. Will his arrest more than 10 years ago affect his eligibility to apply for employment authorization based on the DAPA?
Criminal Bars
The Department of Homeland Security released its own policies on November 20, 2014 pertaining to the priorities for apprehension and removal of undocumented immigrants. Those who pose threats to national security, border security or public safety, which includes those convicted as felons, and those arrested at the border will be given highest priority. Also, on the priority lists for apprehension are those who are convicted of multiple or significant misdemeanor offenses.
Federal law governs whether an offense is considered a felony or a misdemeanor. A felony is an offense punishable by a potential sentence of more than one year. A misdemeanor is an offense punishable by more than 5 days but less than a year. While generally a misdemeanor is not a ground for removal, the DHS considers conviction for a “significant misdemeanor” as a ground for ineligibility for relief under the DAPA.
An offense is described as a “significant misdemeanor” regardless of the sentence imposed, and may include crimes such as burglary, domestic violence, sexual abuse or exploitation, unlawful possession or use of firearms, driving under the influence and drug distribution or trafficking. It may also include any other offenses for which the individual was sentenced to 90 days imprisonment, not including suspended sentences.
In the case of Lawrence, he has a conviction for driving under the influence of alcohol and this will be considered a “significant misdemeanor” and a criminal bar that will prevent him from obtaining any relief as a parent of a U.S. citizen under the DAPA. The specific guidelines are soon to be released by the U.S. Citizenship and Immigration Services and whether or not exceptional circumstances will be considered to overcome the bar is still unknown.
Since the implementation of DAPA will not take place until after 180 days from November 20, 2014, those who have criminal histories must take steps to obtain copies of all police reports and records of disposition of any criminal charges. It does not matter how long ago the crime was committed. An assessment by a qualified legal professional of all offenses must be sought if one is contemplating on availing of DAPA relief. Not all criminal offenses will disqualify a future DAPA applicant but certain criminal offenses irrespective of sentences may have serious adverse immigration consequences.
(Atty. Lourdes Santos Tancinco is a partner at Tancinco Law Offices and may be reached at 1888 930 0808, law@tancinco.com, facebook.com/tancincolaw or at tancinco.weareph.com/old)
