Is a DUI a “significant misdemeanor” for purposes of Deferred Action?

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The Secretary of Homeland Security announced in mid June that certain people who came to the United States as children may request consideration of deferred immigration action by USCIS.    I don’t practice immigration law, but as a criminal defense attorney practicing in Southern California, there is a lot of crossover between criminal and immigration issues.   In fact, the Supreme Court recently held that criminal lawyers must have at least a basic understanding of the immigration consequences of criminal convictions for their clients in order to be considered competent counsel.  See Padilla v. Kentucky 130 S.Ct 1473 (2010)

In light of the Court’s holding in Padilla, any criminal defense lawyer practicing in the California Court system needs to be aware of how convictions for various crimes under the California Penal Code, California Health and Safety Code, and California Vehicle Code will effect the immigration status of a client.   As of June 2012, this analysis also includes what effects convictions can have on eligibility for deferred action by USCIS.

To pose the same question in English instead of legalese…Will I be able to apply for deferred action if I get convicted of a DUI?  How about reckless driving? A wet? What happens if I catch a domestic violence case?   These issues have a HUGE impact for clients as deferred action eligibility can have tremendous benefits.    For example, achieving status under deferred action will make a client eligible for a California Drivers license because someone who has achieved deferred action status is no longer in the country illegally.    A second major benefit is the ability to apply for a work permit to become lawfully employed.   Although deferred action does not provide a pathway to citizenship (unlike the Dream Act immigration reformists were hoping for), it does provide a pathway to a drivers license and lawful employment, tremendous benefits that could be lost based on certain criminal convictions.

So what types of convictions are considered “significant misdemeanors”?  According to Crime -IQ (a great APP I highly recommend for anyone practicing criminal defense), the list includes “An offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; driving under the influence; or, any other offense for which the individual was sentenced to time in custody of more than 90 days, will prevent consideration for deferral.”

So if you want to stay out of hot water under Padilla, make sure you advise your criminal defense clients who may be eligible for deferred action that a conviction for any of these types of offenses will make them automatically ineligibly for deferred action!

 

 

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