On June 18, 2020, the Supreme Court ruled in a 5-to-4 decision, rejecting the Trump administration’s shut down of the DACA program. This Supreme Court decision provided a sigh of relief for Dreamers. The Court did not rule on the program itself, rather looked at whether the Trump administration followed the proper procedures for closing the program, which the ruling finds that the Trump administration failed to follow proper procedures. This ruling means that the DACA program is still “up in the air”, although analysts seem to agree that Trump will not be able to take another attempt at shutting down the program during his current term. This means is that DACA recipients can renew and USCIS is obligated to accept new DACA cases. With the program’s status uncertain, now more than ever, is a good time to renew your status or file to be a DACA recipient.
There are several requirements that you need to fulfill in order to be eligible to become a DACA recipient. Meanwhile, there is only one significant restriction on becoming a recipient: Any felony offenses, or “significant misdemeanor,” or three total non-significant misdemeanors can deny your ability to become a DACA recipient. Overcoming this restriction is complicated for a couple of reasons. First, unlike other adjudicated immigration cases, DACA cases are unique in that USCIS has much more discretion in approving or denying cases, meaning that they can in a sense arbitrarily decide a case. Second, if you are charged with any of the three factors mentioned above, you are automatically banned from being a DACA recipient. Furthermore, when USCIS looks at your criminal record, they do not look at what your actual charge was but rather, what the maximum potential sentence of the crime you committed can be. These reasons can make it difficult to become eligible for DACA if you have a criminal background.
However, there are certain exceptions that can allow you to apply for DACA, although certain exceptions have greater chances of success than others. These exceptions will be listed in the frequency of occurrence and rate of success. The first is a conviction for a minor traffic offense, such as driving without a license or insurance. As long as you are not convicted of driving under the influence of either alcohol or drugs, this misdemeanor does not count as one for the purposes of DACA. The second is expunged convictions. Another unique part of DACA is that expunged convictions are treated differently compared to traditional immigration law. Expunged convictions stand as expunged convictions in terms of DACA compared to traditional immigration law where expunged convictions are essentially treated as unexpunged. Therefore, getting your conviction expunged can significantly help your chances of getting your DACA case approved. Third is juvenile delinquency adjudications. If you are tried as a juvenile, that does not make you automatically barred from receiving DACA. The fourth is if you are convicted of a state-specific immigration-related offense.
Ultimately, while there are exceptions that still allow you to apply for DACA, remember that in the end, it is up to the discretion of USCIS. Your criminal record will be examined in its entirety by the Department of Homeland Security to assess whether you pose a threat to public safety or national security. It is important to speak with an immigration attorney about your options. Not proceeding carefully could lead to you being deported by ICE.