Updated August 3, 2012. A surprising number of criminal convictions will keep DREAMers from enjoying the benefits of the recently announced deferred action program. According to the Department of Homeland Security, anyone convicted of a felony offense, a “significant misdemeanor”, or any three or more misdemeanors won’t be protected. Let’s look at each category of offenses:

Any felony offense: This one’s simple to understand: conviction of any felony offense will disqualify an individual. The severity of the offense, the lightness of the sentence, or the fairness of the conviction is irrelevant.

Any “significant misdemeanor”: This category—new to immigration law—is surprisingly broad. DHS defined a  “significant misdemeanor” as “a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.”

My concern is that this interpretation doesn’t account for the severity of the crime. Take assault, for example. Assault is one of those crimes that can be punished as a ticket-only class C misdemeanor (mere shoving) all the way to a felony for more serious assaults. It’s the same for theft, which can range from an extremely minor ticket-only shoplifting conviction, all the way to grand theft auto and much, much more. Drug possession is also troubling because it includes possession of very small amounts of marijuana for personal use—something that many, many adults from every walk of life have done in the past.

UPDATE August 3, 2012: As of today, DHS refined the definition of a “significant misdemeanor” to “a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

  1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
  2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.”

This refined definition eliminates many of the concerns expressed above. Note that it doen’t include drug possession or small thefts or assaults.

And finally, any three or more misdemeanor offenses will also disqualify an individual. This rule has already been applied to TPS cases, but I don’t expect to see many DREAMers barred by it. DREAMers, after all, were too busy studying and trying to make something out of themselves.

A few words about juvenile delinquency: No offense that was treated as juvenile delinquency (in juvenile court, of course) counts. In our legal system, juvenile delinquencies aren’t “crimes.” Now read the disclaimer below.

Having said all this, please, please don’t try to be your own lawyer. If you’re a DREAMer with a criminal blemish, seek out an experienced immigration lawyer immediately. We’ve seen many similar cases before, and you’d be surprised at the rabbits we’ve been able to pull from the hats.

If you have any questions, I encourage you to schedule a consultation by calling 214-630-0080.

José A. Pineda, Dallas Immigration Attorney