H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
Published on:

The 2012 Deferred Action Immigration Policy and The Criminal History Component

It is a wonderful policy that lets the innocent children of undocumented immigrants the opportunity to live safe, happy, and open lives in this great country of ours. The Obama administration’s decision to permit this opportunity is a little confusing as it relates to the criminal background check required to pass muster under the new policy. This article addresses that issue.

What Is Deferred Action?

Deferred Action is a decision by immigration authorities to not pursue an individual for removal proceedings because the individual does not present a serious threat to the United States.

A grant of Deferred Action does not mean that the person’s immigration status is now legal.

The deferred action and work permit period is valid for two years, with the option to renew.

However, if government policy changes or if the applicant commits an act that is contrary to their eligibility for deferred action, they can lose the grant of deferred action.


Who is eligible for Deferred Action?
In order to be eligible for Deferred Action, an individual must prove that he or she:

  • Is 15 years old or older on the day he/she applies (except for persons applying while under a final order of removal);
  • Was under 31 years old on June 15, 2012
  • Came to the United States under the age of 16;
  • Has continuously resided in the United States since June 15, 2007;
  • Was physically present in the United States on June 15, 2012 , and at the time of submitting the application;
  • Did not hold a lawful immigration status on June 15, 2012;
  • Is currently attending school, has graduated from high school, has obtained a G.E.D. certificate, or is an honorably discharged veteran of the U.S. Armed Forces or Coast Guard;

What is the Background Check and Criminal History Component of The 2012 Deferred Action Immigration Policy?

The applicant must establish that they have not been convicted of a felony offense, a significant misdemeanor offense, three of more other misdemeanor offenses, nor otherwise pose a threat to national security or public safety.

What do the criminal background checks involve?

In order to receive Deferred Action and a work permit, the government requires an applicant’s fingerprints for a background check. The USCIS then checks an individual’s biographic and biometric information against a variety of databases maintained by the Department of Homeland Security (DHS) and other federal government agencies.

The Deferred Action eligibility requirements state that to apply the applicant cannot have been convicted of a significant misdemeanor offense.

Which begs the question – What offenses qualify as a “significant misdemeanor”?

A significant misdemeanor is a misdemeanor as defined by federal law (maximum term of imprisonment is 1 year or less but greater than 5 days),

and:

1) Regardless of sentenced 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) Not an offense listed above, but the individual was sentenced to time in custody of more than 90 days.

The Deferred Action eligibility requirements also state that to apply the applicant cannot have been convicted of multiple misdemeanors.

How many non-significant misdemeanors are considered “multiple misdemeanors”?

Three or more non-significant misdemeanors that did not occur on the same day and did not arise out of the same act, omission, or scheme of misconduct are considered multiple misdemeanors.

The Deferred Action eligibility requirements also state that to apply the applicant cannot “pose a threat to national security or public safety.”

What does this mean?

The statement “pose a threat to national security or public safety” is broad. The USCIS stated that examples of an individual that poses such a threat are: someone who has belonged to a gang or someone who has participated in criminal activities.

…, “if a background check or other information uncovered during the review of an individual’s request for deferred action indicates that the individual’s presence in the U.S. threatens public safety or national security, he or she will be ineligible for an exercise of prosecutorial discretion of any kind.” The evidence that an individual poses such a threat includes, but it not limited to: “gang membership, participation in criminal activities, or participation in other activities that threaten the United States.”

It is not necessary for an individual to have been convicted of a crime in order for the government to determine that they have participated in gangs or activities that “threaten the United States.”

H. Michael’s Take:

The basic felony and misdemeanor aspects of this program are clear. The “threat to public safety or national security” is much more troubling. At this point – little information is available to help flush out this requirement – this criminal defense lawyer will update this entry in the near future with any and all information I can find.

Confidentiality Issues; USCIS has recently clarified that the information shared on DACA application is protected from disclosure to ICE (U. S. Immigration and Customs Enforcement) and CBP (U.S. Customs and Border Protection) for the purpose of immigration enforcement proceedings unless the applicant meets the criteria for initiation of removal proceedings.

In Colorado – if you have an immigration issue that requires a lawyer – I would advise you contact lawyer David Kolko from David Kolko and Associates 303-371-1822