The Dream Act – Deferred Action for Childhood Arrivals (DACA) and Juvenile Records
What is the Dream Act?
On June 15, 2012, President Barack Obama signed a memo calling for deferred action for undocumented individuals who came to the United States as children, who meet several guidelines, and have pursued education or military service. The law is commonly referred to as “The Dream Act,” and those who qualify or apply are referred to as “Dreamers.”
Deferred Action status allows an individual to apply for a work permit (employment authorization) for a two-year period. Deferred Action does not provide lawful status.
Individuals who meet the following requirements can apply for The Dream Act or the Deferred Action for Childhood Arrivals:
- Were under the age of 31 as of June 15, 2012;
- Arrived in the United States before their 16th birthday;
- Have continuously resided in the United States from June 15, 2007, up to the present time;
- Entered the United States without inspection before June 15, 2012, or had lawful immigration status expired as of June 15, 2012;
- Physically present in the United States on June 15, 2012, and at the time of making the Deferred Action request;
- Are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;
- Have not been convicted of a felony, a significant misdemeanor, or more than three misdemeanors, or do not pose a threat to national security or public safety.
Can an individual be disqualified from the Dream Act for any criminal act?
Yes. You will not be considered for the Dream Act if you have been convicted of:
- A felony offense;
- A significant misdemeanor offense; or
- Three or more other non-significant misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct.
Even if an individual falls under one of these categories, he or she may still be able to qualify for the Deferred Action if he or she can show exceptional circumstances.
If an individual does not fall under one of these categories, the U.S. Citizenship and Immigration Services (USCIS) may disqualify him or her if:
- He or she is otherwise deemed to pose a threat to national security or public safety.
If you have a criminal history, an attorney can review your case and answer any questions or dispel any doubts you may have. We have represented applicants with a criminal history, whom successfully qualified for the Dream Act.
Is there a difference between a criminal conviction and juvenile delinquency?
Yes. A criminal conviction beings in an adult criminal court and refers to the process involving alleged violations of law by an adult – 18 years or older – or violations of law by juveniles – 18 years or under – who are tried and convicted as adults. Conversely, juvenile delinquency involves alleged violations of law by individuals 18 years or under. Unlike the adult criminal system, the purpose of the juvenile delinquency system is not to punish minors for allegedly violating the law, but instead to rehabilitate juveniles. The adult criminal system and the juvenile system use different language. Juveniles found to have violated the law are not “convicted” of a crime; instead the juvenile court “adjudicates” a juvenile a “ward of the court” for violating the law. Juveniles are not “sentenced” for violating a crime, and instead the juvenile court makes a “disposition.”
If an individual went through the juvenile delinquency process, does he or she have a juvenile delinquency adjudication?
Not necessarily. Before a juvenile is adjudicated, his or her case may be settled informally or “diverted” to probation; he or she may be eligible for informal probation or informal supervision. If a juvenile successfully completes informal probation, his or her case may be dismissed, and deemed to have never occurred. This means that the juvenile would not be adjudicated a ward of the court, and there would be no disposition in his or her case. If a juvenile’s case is not settled informally or through deferred entry of judgment, he or she may be adjudicated a ward of the court. Under certain circumstances, a juvenile may be tried as an adult in an adult court, which may result in an adult conviction.
Can you apply for the Dream Act if you have prior juvenile adjudication?
Yes. Even if you have a prior juvenile adjudication, it does not automatically disqualify you for the Dream Act. USCIS will determine an individual’s application for Deferred Action under the “totality of the circumstances.” This means that USCIS may exercise its discretion to decide whether or not to take Deferred Action on an applicant’s case. On the other hand, USCIS has the discretion to deny an application for any criminal history or if it finds the applicant to be a threat to public safety. Individuals with gang membership or who have participated in criminal activities may be deemed a threat to public safety. If the USCIS finds an applicant to be a threat to public safety, applying for Deferred Action may place that individual in removal proceedings. It is critical that you consult with an experienced immigration attorney to determine if there is any risk in submitting a Deferred Action application. At The Cruz Law Office, we can review your case to determine the best course of action for your application for the Dream Act.
How can an individual seal their juvenile record?
If a juvenile court dismissed an individual’s case after January 1, 2015, and he or she did not commit a violent or serious offense, then his or her case will be automatically sealed. If the juvenile court finds that an individual successfully completed probation, the court will dismiss the case and may automatically seal the individual’s record. If, however, the juvenile court finds that an individual did not satisfactorily complete probation, his or her case will not be dismissed nor will the case be automatically sealed. If the juvenile records are not automatically sealed, an individual can file a petition with the juvenile court to seal his or her juvenile records. If the person meets certain qualifications and the offense is not a serious or violent offense, then he or she would be eligible to seal his or her juvenile records. Each case is considered on a case-by-case basis.
At The Cruz Law Office, we can petition the juvenile court to seal your record. Having a juvenile record may often be a barrier. Sealing your record will help you continue living your life without any stigma.
What are the effects of sealing a juvenile record?
If the juvenile court grants an individual’s petition to seal his or her record, the juvenile court will send a record sealing order to all of the agencies involved in the individual’s case to seal the record. The agencies involved in the individual’s case will be directed to respond to anyone asking for the juvenile record by stating, “The applicant has no record.” Once the juvenile record is sealed, the case will be deemed to have never occurred.
If an individual has a juvenile adjudication and his or her record has been sealed, should he or she disclose it in his or her Deferred Action application?
It depends. Currently, there is no known legal exception allowing non-disclosure of a juvenile adjudication for immigration purposes, even when state law allows a sealed record to be deemed never to have occurred. Although an individual is not required to disclose a sealed juvenile record, failing to disclose a sealed juvenile record may appear like the individual is engaging in fraud. Additionally, even though the juvenile record is successfully sealed, the FBI or Department of Homeland Security might have known of the case before the juvenile record was sealed. If the juvenile court does not automatically seal an individual’s case upon successful completion of any court order, in most cases, the individual would have to wait until he or she is at least 18 years old to petition the court to seal his or her record. As a result, the juvenile record might have been shared with the federal government while he or she was still a minor or until the record was sealed.
Further, Form I-821D, Question 1 of Part 4, requires that an applicant disclose whether he or she has ever been arrested for, charged with, or convicted of a felony or misdemeanor, including incidents handled in juvenile court. Thus, even if an individual’s juvenile records have been sealed, he or she may be required to disclose his or her arrest as a juvenile.
An experienced immigration attorney would be able to determine the best course of action when applying for Deferred Action. Additionally, each state has its own confidentiality laws that would prevent an individual from disclosing his or her juvenile record without first obtaining court permission, even if the records were lawfully obtained. At The Cruz Law Office, we will review your criminal history, advise you on the best course of action, and ensure that you are complying with state and federal laws when you submit your Deferred Action application.
If an individual’s juvenile record has been sealed, should he or she submit any juvenile adjudication documents?
It depends on the state law. If the state law prohibits disclosure of juvenile records, then the applicant does not need to submit copies of any juvenile adjudication.
If you have a criminal history or juvenile adjudications, and even if the criminal records have been expunged or the juvenile adjudications have been sealed, at The Cruz Law Office, we can review your case to determine the best course of action when applying for Deferred Action. The USCIS reviews each case under the totality of the circumstances to determine if the applicant merits a favorable exercise of prosecutorial discretion. Having an experience immigration attorney review your case before submitting your application for Deferred Action will greatly benefit you. We can advise you on any possible risk you may face, and whether you should submit proof of positive equities. Our office is here to help you regain confidence in your future and begging the process to a bright future.
Legal Disclaimer: Nothing in this website should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation.