7/21/21 - The U.S. government is accepting all DACA requests, but only granting renewal requests. You can still submit a new DACA application to hold your place in line.
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How to expunge your criminal record as a DACA applicant

August 5, 2021
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Summary

You must always get an immigration lawyer’s help with your application if you have a criminal history. The U.S. government will check your criminal record for any crimes that disqualify you from getting the immigration benefit you’re applying for. It may be possible to take these crimes off your criminal record; this is called expunging your criminal record. Your crimes that would otherwise disqualify you from immigration benefits will no longer count against you. The U.S. government will still see your expunged records, but they possibly won’t harm your application. This article explains disqualifying criminal convictions for Deferred Action for Childhood Arrivals (DACA) and how to get an expungement of your criminal record to apply for DACA.

Overview

What crimes prevent you from getting DACA?

There are three different crimes, or “criminal bars,” that will stop you from getting Deferred Action for Childhood Arrivals (DACA). The first crime is a felony, such as murder or rape. The second crime is a significant misdemeanor. A misdemeanor is any crime that the court could punish with five days to one year in jail. It doesn’t matter what your actual sentence was. A significant misdemeanor is a misdemeanor with a severe offense, such as domestic violence or burglary. The final “criminal bar” would be three or more regular misdemeanors. The three have to come from different incidents. 

In immigration law, two rules make a criminal offense a conviction. If you plead guilty or the judge finds you guilty, and second, if you suffer any punishment for your crime, your offense is a conviction. Punishment could include paying court fees, a fine, or probation.

What is an expungement?

“Expungement” is when the court takes a criminal conviction off your record. However, this can only happen at the state level. Courts cannot expunge convictions for federal crimes.

There are two different ways you can get an expungement. First, the state can take away the limitations you face because of your record. For example, you may be able to apply for public housing again. The state may also want to help convicts rehabilitate. So some states may expunge your convictions if you complete probation and are a first-time offender. They may want to give you a "second chance." Second, the state law may expunge your conviction if there was a legal flaw. For example, if the court wrongfully convicted you, your conviction may be expunged. 

What counts as a DACA expungement?

Criminal history expungements improve your DACA immigration application’s chances. You would have a better chance of approval during a U.S. Citizenship and Immigration Services (USCIS) background check. USCIS, through law enforcement like the FBI, has the right to examine your sealed records. USCIS will consider the nature and severity of your criminal offense. They will decide whether you are a threat to public safety. 

For DACA immigration purposes, USCIS won’t automatically disqualify you for an expunged conviction. For instance, in California and Arizona, USCIS has given DACA to people with expunged DUI convictions. Expungements are still considered convictions for other immigration statuses. For example, rules are different if you apply for a green card, lawful permanent resident status, or naturalization to become a U.S. citizen. 

U.S. Immigration and Customs Enforcement (ICE) has a different policy for expunged convictions. They assess conviction records or arrest records on a case-by-case basis. They want to determine if you are a priority for deportation. 

Generally, ICE and USCIS consider expungement a good sign. Expungement can help your chances when law enforcement decides your immigration consequences. So you should seek legal advice from a lawyer or law firm about your specific immigration case.  

How can I get an immigration expungement?

Your eligibility for expungement depends on the state where your conviction happened. Different U.S. states have different rules. So, expungement is a hard process to go through alone. You should talk to a lawyer.  

Here are the rules for the states with the highest immigrant populations:

State Rule
California You can get expunged for certain crimes. These include minor felonies and some misdemeanors. Being expunged will give back most of your rights and remove most limits.
Texas The state will not expunge any criminal convictions. However, you can get relief for certain offenses. These offenses do not include DUIs or violent crimes. Relief can include dismissal of charges, no conviction, and sealing your records.
Florida The state will not expunge convictions. However, a judge could “withhold adjudication of guilt.” If you plead guilty or no contest, or if a trial found you guilty, the judge can decide to “adjudicate guilt” or “withhold.” If they withhold, you won’t be a formally convicted criminal. You won’t lose certain rights or face certain limits from a criminal record.
New York The state will not expunge convictions. However, you can seal your records for certain offenses. You may also apply for a “Certificate of Relief from Disabilities” or a “Certificate of Good Conduct.” These can remove many of the criminal record limits.
New Jersey The court can give you a certificate that is evidence of your improvement. This certificate can act as a waiver for some limits or bars to employment.

If you live outside of these states, talk to immigration or criminal defense lawyers. They can help you decide if you qualify for criminal record expungement.

Conclusion

Expunging your criminal record is complicated, but working with a good immigration attorney can make it easier. If you successfully get your crimes expunged, and can't afford the attorney fees and don't want to handle your DACA application alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!

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