How will criminal history affect application or eligibility for the deferred action for young people process?

Applicants for the newly announced Deferred Action for Young People process will not be eligible if they have ever been convicted of a felony, a significant misdemeanor (defined further below), three or more misdemeanors or otherwise pose a threat to national security or public safety.

What constitutes a significant misdemeanor?

According to USCIS:

For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

  1. Regardless 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,
  2. If 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.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, 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.

To communicate directly with Attorney Jamie Hernan regarding the Deferred Action Process, contact the Hernan Law Firm at (678) 275-4000 or click on the “Make an Appointment” tab on this website.

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