USCIS has the authority to issue a Notice to Appear, which begins a removal proceeding. USCIS can also refer a case to ICE for a decision on whether to begin removal proceedings. At times, when an alien files an application or petition, such as an application for naturalization, USCIS will learn of the applicant's criminal record. In such cases, the alien risks having his or her case referred to ICE for a decision on whether to begin removal proceedings.
USCIS issued guidance in November of 2011 on when it would refer a case to ICE for possible removal proceedings. The guidance can be found at this link. In general, if a crime qualifies as an "aggravated felony" under U.S. immigration law, concerns street gangs, or involves violating another person's human rights, then USCIS will refer the matter to ICE.
Turning back to eligibility for deferred action, USCIS guidelines say that an applicant must not have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors.
USCIS provides further explanation on its Frequently Asked Questions page. First, USCIS states that expunged convictions and juvenile convictions will not automatically disqualify a person for consideration for deferred action. Rather, an applicant with such convictions will have his or her case assessed on a case-by-case basis. The point here is that if there is a conviction for a felony or a significant misdemeanor which was either a juvenile conviction, or was later expunged, the applicant should be prepared to address the particular facts and circumstance on his or her case to show that USCIS should still exercise its discretion. This can include the facts and circumstances surrounding the conviction itself, as well as any hardships that another person would face if deferred action were not granted. An example could be a U.S. citizen child of the applicant, who has a significant health concern.
USCIS warns further that if the applicant was juvenile at the time of conviction, but was tried as an adult, then the conviction will be treated as an adult conviction.
A felony is defined as a crime punishable by imprisonment for a term exceeding one year. Notice that USCIS uses the word "punishable" and not "punished." This would tend to show that even if a person was actually punished for less than a year, if the possible sentence for the crime exceeded one year, then USCIS would consider the offense a felony.
As for significant misdemeanors, some categories are clear. Domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking and driving under the influence are all considered significant misdemeanors, not matter what sentence was actually imposed.
For other misdemeanors, they will be considered significant if they were punished by imprisonment for more than 90 days. When considering the term of imprisonment in this instance, USCIS states that it will not consider any time that was suspended. This is a departure from other areas of immigration law, where a term of imprisonment includes the entire sentence, even if part of the sentence was suspended.
USCIS states that traffic infractions will not be considered misdemeanors. However, it warns that if there is a pattern of such infractions an alien's entire offense record will be examined to determine whether the exercise of discretion is warranted. In making this assertion, USCIS makes reference to driving under the influence. This appears to give a clue that if there is a history of traffic infractions, which may not themselves rise to the level of driving under the influence, but which shows that alcohol was involved, USCIS may consider such cases as evidence of alcoholism, and thus deny deferred action on that basis.
Whether or not a misdemeanor is considered significant, if an applicant has been convicted of three or more, then he or she will not be considered for deferred action. On this point, USCIS indicates that if there are multiple misdemeanor convictions occurring on the same date and arising out of the same act, omission, or scheme of misconduct, then they may not necessarily be considered more than one conviction.
Finally, some states have criminalized certain immigration-related offenses. Illegal presence alone, for example, is not a federal crime. But some states have moved to make it a state crime. Some states and localities have also attempted to criminalize employing or leasing to a person known to lack a legal immigration status. USCIS provides that convictions for felonies or misdemeanors of immigration-related crimes will not disqualify a person for deferred action.
A person who wants to apply for deferred action, but who has a criminal conviction should consult with a lawyer, and give careful consideration before making such an application.
By: William J. Kovatch, Jr.
(703) 837-8832
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