Criminal records and the Obama immigration initiative

December 30, 2014 CCRC Staff

The National Immigration Project of the National Lawyers Guild and the Immigrant Legal Resource Center have published a practice advisory for criminal defense lawyers representing non-citizens seeking relief under the Deferred Action for Parental Accountability (DAPA) program announced by President Obama on November 20, 2014. DHS simultaneously announced new priorities for enforcement that will bar eligibility for the new program, many of which are based on criminal conduct or convictions. The nine-page practice advisory provides technical assistance to criminal defense practitioners seeking to navigate the eligibility shoals of the new program for clients facing criminal charges.

The advisory explains DAPA thus:

DAPA offers benefits similar to the Deferred Action for Childhood Arrivals (DACA) program that has existed since 2012. It provides “deferred action,” which means that, even though the individual is undocumented and subject to deportation, the government agrees to “defer” any actions to remove them. While deferred action does not provide a pathway to lawful permanent resident status (a green card) or citizenship, it will allow recipients to remain in the U.S. and obtain an employment authorization document that will entitle them to work here legally.

The DAPA crimes bars are similar to those under the DACA program, in making ineligible for relief anyone convicted of a felony, a “significant” misdemeanor, or three misdemeanors. But what constitutes a disqualifying felony and misdemeanor differs under the two programs. Also it is clear that juvenile dispositions and expunged convictions are not an absolute bar to DACA, but this has not yet been clarified for DAPA. (Other than these special deferred action programs, expungement has little effect in immigration proceedings.)

A DAPA-disqualifying “aggravated felony” may include some misdemeanors, if a sentence of a year or more was imposed (including suspended sentences), or if it involves sexual abuse or fraud exceeding $10,000. “Significant” misdemeanors include domestic violence, unlawful possession of a firearm, drug sales, burglary, DUI, or any case where the sentence imposed is 90 days or more (excluding suspended sentences). Convictions or conduct relating to a “criminal street gang” as defined in 18 U.S.C. § 521(a) are also a bar to DAPA. A state crime of which immigration status is an essential element will not be disqualifying, but a federal immigration offense (such as illegal re-entry) is likely to be.

The advisory suggests defense strategies to avoid a disqualifying disposition, including negotiating for pre-plea diversion or deferred sentencing, for consecutive sentences of less than 90 days each,or for a more severe non-jail sentence in exchange for a reduced charge. Counsel are advised to explore reducing a felony to a misdemeanor, where that is permitted under state law, as in California and Indiana. Multiple misdemeanor convictions arising from the same incident only count as one conviction, for purposes of the bar based on three misdemeanor convictions.

The advisory contains links to a variety of other practice resources for defense attorneys representing non-citizens, including an advisory for clients potentially eligible for DACA.