This Maryland Lawyer believes that people facing criminal charges with immigration consequences should be educated about their rights. As written in an earlier post found here, our firm takes legal advice on these issues very seriously. I included some information below, the substance of which, came from our favorite immigration attorney, Van Doan, found here.
Maryland lawyer explains new law
On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as “children” (defined as under the age of 31 as of June 15, 2012) and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization. Deferred action is a discretionary determination to defer removal action/deportation proceedings of an individual as an act of prosecutorial discretion.
Requirements for the change
Among the many eligibility requirements what may be of interest to family law practitioners is the requirement that the non-citizen be “currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.” Thus, despite some of the challenges we may be facing in getting children registered children for school, it’s really important for this population of “children” that they get registered ASAP because they must be enrolled when they file for deferred action. The United States Citizenship and Immigration Services (USCIS) will start accepting applications on August 15, 2012.
Of equal importance, and of interest to criminal law practitioners is that the non-citizen “have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.” As of August 3, 2012, USCIS defined these terms as follows:
- Felony – a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.
- Significant misdemeanor – 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: (NOTE: The list is NOT exclusive)
- 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,
- 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.
- Driving under the influence is a significant misdemeanor regardless of the sentence imposed.
- Three or more other misdemeanors – offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct
Maryland lawyer What about Minor Traffic Offenses?
Note that “minor” traffic offenses and immigration-related offenses will not disqualify the non-citizen from being considered for deferred action, but USCIS reserves the right to look the individual’s entire record and make a decision based on a totality of the circumstances.
Moreover, during the Q&A session with USCIS on August 3, 2012, there were more questions than answers regarding various crimes. It’s our hope that we will receive further guidance/clarification in the very near future. For the full FAQ on deferred action, please visit: