By Parviz Malakouti-Fitzgerald, Esq.
If you are a deferred action for childhood arrivals (“DACA”) recipient, it can be easy to make a misstep that puts your DACA in jeopardy.
Article Outline:
As an immigration lawyer, I’ve spoken to hundreds of DACA recipients and non-DACA dreamers. These are the five most common DACA mistakes I see being made, and how to avoid them.
#1 - Domestic Violence (“DV”)
One of the requirements to qualify for an initial DACA application or a renewal is that the applicant not have been convicted for “an offense of domestic violence.” This means that a single conviction for domestic violence (whether misdemeanor or felony) makes a DACA applicant ineligible to renew DACA.
Obviously, you should strive to be convicted of any crime, but DV crimes come with a higher price for a DACA holder or applicant. Keep that in mind when thinking about who you’re dating!
#2 - Driving Under the Influence ("DUI")
Similar to DV offenses, a single conviction for driving under the influence of drugs (including alcohol), as a general matter, disqualifies someone for being considered for a DACA renewal or an initial grant of DACA.
DUI (along with DV) are treated as convictions that automatically disqualify a person for DACA. If you’re arrested and charged with DUI, you should contact a qualified immigration lawyer right away in addition to your criminal defense lawyer.
An immigration lawyer can work hand in hand with the criminal defense lawyer to see if strategies such as a legal opinion letter or a positive equities packet can result in a plea bargain that avoids a DUI conviction.
Also, in California, a DUI conviction can sometimes be expunged, thus allowing a person to apply to renew DACA once again.
#3 - Any Involvement with Marijuana
Here’s the bottom line: even though it’s legal in many states (including the sunny state of California), marijuana is still illegal federally.
Remember, generally, if a behavior is legal in a particular state but illegal federally, then that means it is illegal in the United States. This means that any involvement, including purchasing, sale, or consumption of marijuana can be enough for a person to be denied a DACA renewal.
As an immigration lawyer, I’ve heard from many people who don’t want to accept this fact. My advice is to accept it, and if you’re still thinking of consuming marijuana as a non U.S. citizen, “only roll the dice if you can pay the price.” as they say.
#4 - Any Possession or Purchase of Firearms
People who are “illegally or unlawfully” in the United States are prohibited from purchasing, selling, possessing or handling firearms or ammunition. The applicable statute here is a federal law - 18 U.S.C. § 922(g)(5)(A).
Are DACA recipients “illegally or unlawfully” in the United States?
When talking about the possession of firearms, yes. The key point here is that for the purposes of this law, courts do consider DACA recipients to be “unlawfully” in the United States. You can click here to read about a DACA recipient who was convicted under this law in 2018.
This means that if you have DACA (or are completely undocumented), it’s illegal for you to buy or own guns or even go to a gun range and fire weapons (“possession” can mean just having something in your hands).
Also, just because someone has fired guns at a gun range or even purchased a gun does not mean it was legal to do so. I advise my immigration clients to avoid firearms until they are at least a legal permanent resident, and ideally until they are a U.S. citizen.
#5 - Incorrect Answer on I-821D “Arrest” Question
If you’ve ever been arrested, even if the charges were later dropped, you must disclose the arrest on your DACA application (I-821D).
Page 4, part 4, question #1 asks:
“Have you EVER been arrested for, charged with, or convicted of a felony or misdemeanor”
Many DACA recipients I’ve spoken to have believed they must only report an arrest on their I-821D if they were also convicted of a crime. That is a misinterpretation of the question.
The I-821D question that trips up DACA recipients
If you’ve been arrested OR charged OR convicted of a felony, it must be reported on page 4, part 4, question #1 of the I-821D.
If you’ve mistakenly failed to report an arrest on a previous I-821D DACA application, you may want to consult with a qualified immigration lawyer to see if the mistake can be remedied.
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The Law Office of Parviz Malakouti does not guarantee the accuracy of information presented nor assume responsibility for actions taken in reliance of this information. The information in this page could become outdated. Each immigration case is particular and you should consult with a qualified, licensed immigration lawyer about your case before taking any steps.