Tuesday, August 14, 2012

New “Mini” Categorical Analysis for Deferred Action

Tomorrow, August 15, 2012, USCIS will begin processing applications for deferred action of arriving children (DACA), the so-called DREAM initiative of the Obama administration pending comprehensive immigration reform to give young people who were brought to the US relief from deportation and a chance to obtain employment authorization in two year increments.

Individuals will be ineligible for approval if they have been convicted of a felony, a significant misdemeanor, or three or more non-significant misdemeanors (excluding minor traffic offenses) absent exceptional circumstances, which have not been clarified. Immigration-related offenses classified as felonies and misdemeanors under state laws (such as Arizona’s SB 1070) will not be taken into consideration. Whether a state law crime is considered a felony or misdemeanor will not depend upon the classification given to it by state law. Rather, federal definitions will govern. This gives rise to a categorical analysis similar to other areas of immigration law, relying upon the Supreme Court decision in Taylor v. United States, 495 U.S. 575, (1990) and its progeny, except that the content and contours are very different. For this reason I call the analysis a “mini”-categorical one, which is applicable only to DACA.

A “felony” is an offense punishable by a potential sentence of more than one year. A misdemeanor is an offense punishable by more than five days, but less than a year. A violation which carries a sentence of five days or less, such as a municipal violation, may not be counted as a misdemeanor, but may nonetheless be taken into consideration under the totality of the circumstances.

A “significant misdemeanor” includes any misdemeanor, regardless of the sentence imposed, involving burglary, domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm; driving under the influence; and drug distribution or trafficking, which are per se deemed to be significant. Other misdemeanors are significant if the sentence imposed was more than 90 days of actual imprisonment.

Whether a crime is a per se significant misdemeanor will also likely require a categorical analysis, as in other areas of immigration law. Thus federal elements will likely be applied to a burglary conviction to determine if a state law conviction actually was for burglary, regardless of how the state labels the crime. Unlike other areas of immigration law, the “modified” categorical analysis will probably not apply, as officers in the exercise of discretion presumably will be able to consider all sorts of records that might not pass a modified categorical analysis under Shepard v. United States, 544 U.S. 13 (2005), and its progeny, such a database records of law enforcement agencies and police reports. Divisible statutes are also unlikely to be considered for similar considerations.

Individuals with three or more non-significant misdemeanors not occurring on the same date and not arising out of the same act, omission or scheme of misconduct, which result in a sentence of more than five days, are also ineligible for deferred action. Minor traffic offenses, including driving without a license, will not count towards the three or more non-significant misdemeanor bar. However, DHS has stated that a person’s entire history of offenses can be considered, along with other facts, to determine whether deferred action is warranted under the totality of the circumstances.

A juvenile delinquency adjudication will not automatically disqualify an applicant from DACA relief. A minor with a delinquency adjudication will get a case-by-case review to see if the “particular circumstances” of his or her case warrant a positive exercise of discretion, though it is likely that a delinquency adjudication which otherwise would have been considered a significant misdemeanor for an adult, such as a drug offense, will be a disqualification. Expunged convictions, whether for criminal offenses or juvenile adjudications will be treated similarly; that is, they will likely not be taken into account unless they are evidence of serious misconduct. This is very different from other areas of immigration law, where expungements count as convictions.

Thus, where there has been previous contact with law enforcement, a DACA applicant should consult with competent criminal law savvy immigration counsel before applying for deferred action, as disqualification from DACA could result in removal proceedings of the individual or even family relatives listed in the application form, at some future time, if not immediately.

The guidance provided by DHS makes it possible to predict whether an individual will be disqualified by prior troubles with the law under these rules, though in the exercise of discretion, a certain level of criminal history may be waived, provided there are strong countervailing equities.

The author is indebted to the American Immigration Council's LAC for its practice advisory updates, and wishes to acknowledge and recommend this this resource.