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By Barry L. Frager
Frege Law Firm
Deferred Action for Childhood Arrivals (DACA) was implemented on June 15, 2012, and USCIS began accepting DACA applications in August 2012. As of today, there are approximately 530,000 DACA beneficiaries in the United States. USCIS is currently accepting first-time DACA applications from eligible individuals who have never received DACA (or whose status as a DACA beneficiary has lapsed for more than one year). However, USCIS is not reviewing these new first-time applications, nor is it approving work authorization applications based on these new applications. These “new” applications are currently pending until policy changes regarding how these applications are processed.
For people who currently have DACA, a DUI is a common way to lose DACA eligibility and become ineligible to renew their work permit under DACA. Our office represents a large number of DACA recipients and also receives calls from people with questions about DACA. When someone with DACA is arrested for a DUI, our office receives calls asking how this arrest will affect the individual’s DACA status. Once a person is arrested and charged for a DUI, that person needs to immediately contact an immigration attorney who is assisting them with DACA. We often have people contact us after they have pleaded guilty to a DUI, at which point there is little an immigration attorney can do to help the person maintain their DACA status. An immigration attorney must communicate with the person who was arrested and their criminal attorney and explain the consequences of pleading guilty to a DUI charge.
However, even if a person contacts our office after being arrested for DUI but before the criminal case is concluded, it can still be difficult to get a positive outcome.
Typically, the evidence in a DUI case is against the defendant and the likelihood of a conviction is high. This evidence may include blood alcohol tests, field sobriety tests, dashcam footage, officer notes, etc. Once a person is convicted of a DUI, USCIS may deem that person ineligible for DACA because DUIs are considered “major misdemeanors” and may lead to deportation. To qualify for DACA, a person must not have been convicted of a felony, a major misdemeanor, or three or more non-major misdemeanors.
We have worked with criminal attorneys to assist in getting DUI charges dismissed or reduced to lesser charges where the person then pleads guilty. Lesser charges may also be considered “serious misdemeanors” by USCIS. Additionally, we have found that even if the charges are ultimately dismissed, the criminal court process can take a significant amount of time and impact the person’s ability to renew their DACA status in a timely manner. All DACA renewal applications require biometrics, and a DUI arrest results in USCIS receiving a notice of arrest. Failure to renew DACA in a timely manner may result in the inability to legally work or drive in the United States.
It is also important to note that ICE (Immigration and Customs Enforcement) is currently detaining individuals for recent DUI convictions. This is either done by detaining individuals in a criminal holding facility for DUI or by detaining them following a DUI conviction. If an individual is disqualified from DACA protections, they may be denied an immigration bond to be released from immigration detention and/or removed from the United States. All people should consider the consequences of a DUI before getting behind the wheel, but DACA recipients should be aware of the additional immigration consequences of any criminal charges that could jeopardize their status.
Spanish:
Deferred Action for Childhood Arrivals (DACA) was implemented on June 15, 2012, and USCIS began accepting DACA applications in August 2012. As of now, there are approximately 530,000 DACA beneficiaries in the United States. USCIS is currently accepting new, first-time DACA applications from eligible people who have never applied for DACA (or who have been DACA beneficiaries whose status has lapsed for more than one year). However, USCIS is not reviewing these new applications or approving work authorization applications based on these new applications for the first time. All of these “new” applications are currently in a pending status until there is a change in policy regarding how these applications are processed.
For people who currently have DACA, a common way to lose DACA and not be able to renew work authorization under DACA is by driving under the influence. Our office represents a large number of DACA recipients and we receive calls from people who have questions about DACA. When a DACA person is arrested for a DUI, our office receives calls asking how the arrest will affect the person’s DACA status. As soon as a person is arrested and charged with a DUI, that person should immediately contact an immigration attorney who is helping them with DACA. We often have people contact us after they plead guilty to a DUI, and at this point, there is not much an immigration attorney can do to help the person maintain their DACA status. It is very important for an immigration attorney to contact the person who was arrested and their criminal attorney and explain the consequences of pleading guilty to the DUI charge.
However, even if a person contacts our office after being arrested for a DUI and before the criminal case is concluded, it is often still a challenge for that person to obtain a positive outcome. One felony, one major misdemeanor, or three or more non-major misdemeanors.
We work with criminal attorneys to help get the DUI charge dismissed or reduced to a lesser charge, and the person then pleads guilty. USCIS may also consider this misdemeanor charge a “major misdemeanor.” Additionally, we have found that even if the charges are ultimately dismissed, the criminal court process takes a significant amount of time and can impact a person’s ability to renew their DACA status in a timely manner. All DACA renewal applications require biometrics, and a DUI arrest will result in a notice of arrest to USCIS. Failure to renew DACA on time may result in you being unable to legally work or drive in the United States.
It is also important to note that ICE (Immigration Customs and Enforcement) is currently detaining people who have recently been caught driving under the influence. Either by holding them in a criminal detention center where the person is being held for a DUI, or by detaining them following a DUI conviction. If a person is disqualified from DACA protections, they may be denied an immigration bond, unable to be released from immigration detention, and/or deported from the United States. All people should consider the consequences of driving under the influence before getting behind the wheel of a car, but DACA recipients should be aware of the additional immigration consequences of any criminal charges that could jeopardize their status.
photo: Frederick J. Brown/AFP/Getty Images
Posts DUI and DACA are not a good combination First appeared in Latin Media Publishing.
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