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The Deferred Action for Childhood Arrivals program (DACA) provides protection from deportation and grants work authorization to qualifying non-immigrants who were brought to the U.S. before age 16. Currently, the U.S. Citizenship and Immigration Services is no longer accepting new applications, although it is processing renewals. However, an April court decision, currently on hold, could potentially open the program up to new applicants.

Are you qualified for DACA, or would a criminal issue keep you out of the program? Did you know that an immigration attorney may be able to help you overcome that disqualification?

Where DACA stands in the courts now

On September 5, 2017, the Trump administration announced it would phase out the program starting on March 5, 2018. That decision led to litigation by DACA supporters, and federal courts in California and New York responded by issuing nationwide injunctions requiring the program to continue. Both courts found that the decision to rescind DACA was arbitrary and capricious, making the decision unlawful.

Under those injunctions, not only do existing DACA beneficiaries maintain their protections but they are also allowed to renew their status. The injunctions remain in effect, although both rulings are being appealed by the government.

Many qualifying people have not yet applied for DACA, however and, unfortunately, those courts did not order the government to accept any new applications. On April 24, 2018, however, a federal court in Washington, D.C., issued an order requiring immigration authorities not only to process DACA renewals but to also accept new applications.

The court delayed putting its order into effect for 90 days, to allow the government an opportunity to better explain why its decision to rescind the DACA program was not arbitrary and capricious. If the D.C. court is not satisfied with the government's explanation, the order could go into effect on July 24.

If the Washington, D.C., court order does go into effect, USCIS would have to begin accepting new DACA applications.

What are the basic qualifications for DACA?

Generally, people seeking DACA protection must:

  • Have been under age 31 as of June 15, 2012
  • Have arrived in the U.S. before their 16th birthday
  • Have continuously resided in the U.S. since June 15, 2007
  • Have been physically present in the U.S. on both June 15, 2012 and when applying for DACA
  • Have had no other lawful status as of June 15, 2012
  • Be enrolled in or have graduated from high school or a GED program, or be an honorably discharged veteran of the U.S. armed forces or Coast Guard
  • Not have been convicted of a felony, a significant misdemeanor, or three or more minor misdemeanors, and not be considered a public safety or national security threat. Significant misdemeanors include, for example, DUI, domestic violence, or any offense for which your sentence was more than 90 days in custody.

What can I do if I am facing a disqualifying criminal charge?

If you are charged with any felony or a significant misdemeanor such as DUI or domestic violence, it's crucial to understand the potential effect it could have on a future DACA application. Not only could the issue prevent a new applicant from being approved, but it could also derail a renewal application.

In general, non-US citizens should always consult an immigration attorney when criminal issues arise. A criminal defense attorney may not understand how decisions in even a minor criminal case could affect your immigration status.

If you are facing criminal charges and need to renew your DACA status -- or you would like to apply should new applications be accepted -- we urge you to contact Yew Immigration Law Group. We can assess your situation and determine what steps can be taken to address the criminal charge so you still qualify for DACA.

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