Having a DUI can be a huge problem for DACA (“Deferred Action”/”Dream Act”) recipients and applicants. There are many other offenses that will count as a criminal bar for DACA (meaning you will not be eligible for DACA), but here I will only talk about DUI’s.
Among a host of strict requirements for DACA (see my previous blog post here: DACA Requirments ), an applicant must also NOT be convicted of a felony, significant misdemeanor, or multiple misdemeanors, and not pose a threat to public safety or national security. Under the umbrella of “significant misdemeanor” is “driving under the influence of alcohol or drugs“. (Again, I won’t go into the other criminal bars in this post). But note that a felony DUI would be interpreted to count under the “felony” bar. Also note that overall, any criminal record can result in a discretionary denial. This is in line with the premise that DACA is considered to be a discretionary relief for noncitizens.
What is significant misdemeanor? It is a standard specifically set up for DACA. A significant misdemeanor is a federal, state, or local criminal offense that is punishable by a maximum term of imprisonment of one year or less but greater than 5 days involving: domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm, drug sales (distribution or trafficking), burglary, driving under the influence of alcohol or drugs; or any other misdemeanor not listed here for which the person received an order of jail sentence of more than 90 days.
Importantly, USCIS states: “A minor traffic offense will not be considered a misdemeanor for purposes of this process, but it is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed.” Regardless of the actual sentence you received (whether you received jail time or not), a DUI will be considered a significant misdemeanor. (Read USCIS guidance on DACA at USCIS). For purposes of immigration, a plea is considered a “conviction”. A plea to a DUI (which is common in DUI’s) is still a “conviction”.
One may still be eligible for DACA with a criminal history if they can show “exceptional circumstances” (please consult an attorney on this).
Note that expunged conviction does not automatically disqualify an individual from DACA. Expungement is encouraged. But again, keep in mind that any criminal history can result in a discretionary denial. Thus, an expunged conviction is still subject to discretion. This is determined on a case-by-case basis.
If you are a noncitizen applying for DACA relief, or if you are a DACA recipient, or if you are renewing your DACA, AND you are facing DUI charges, be sure to tell your defense attorney of your immigration status. As a general rule, if you are applying for DACA or are renewing DACA, and you have any criminal record (including current or past DUI) – even if the case was dismissed, always consult an immigration attorney that specializes in criminal consequences beforehand.