DACA Status and Criminal Charges

Deferred Action for Childhood Arrivals (DACA) is a generous immigration policy that offers the possibility of renewable deferred action status for two years at a time to people who arrived in the U.S. as undocumented children. Essentially, this allows certain people who lack citizenship to come out of the shadows, participate in the system, and start to weave themselves into the social fabric.

The DACA program makes a world of difference to a lot of people. Regardless of how you feel about the cultural conversation surrounding immigration, most reasonable people can agree that the State has no business punishing children for the perceived sins of their parents. When it comes to punishing DACA recipients for their own transgressions—well, that’s a different story.

DACA’s generosity comes with some strict limitations. For example, any felony conviction makes you categorically ineligible for deferred action status. A significant misdemeanor conviction will likewise prevent a DACA renewal.

Significant misdemeanors include crimes of domestic violence, sexual abuse, burglary, unlawful possession of a firearm, and drug trafficking. It’s hard to argue that restrictions like these are unfair, as many of these significant misdemeanors involve violence or harm to another person.

More importantly, all of the offenses listed above require mens rea—what non-lawyers might call a guilty mind. If a crime requires mens rea, this means you can only be convicted if you intended to commit the crime. Most criminal offenses require some showing of bad intent. Unfortunately, this isn’t the case with DUI / OVWI.

DUI / OVWI is included on the list of significant misdemeanors, but it doesn’t require a guilty mind. Operating while intoxicated is a strict liability offense, which means that if you did it, you’re guilty—whether you meant to do it or not. DUI / OVWI is completely distinct from the other significant misdemeanors, but it’s lumped in with them all the same. If this sounds unfair, that’s because it is.

Imagine the following scenario: Friendship leads to enthusiasm, and enthusiasm leads to a party. The party leads to intoxication, and intoxication leads to impaired judgment. Impaired judgment leads to drunk driving, and drunk driving leads to a misdemeanor conviction. Assuming that no one was hurt, is this the sort of mistake that should result in deportation? Where’s the sense of proportionality?

Insignificant misdemeanors can also prevent your DACA renewal. If you have three misdemeanor convictions that didn’t arise from the same conduct or scheme, you become ineligible for deferred action status. This is serious, especially for individuals who’ve been in the U.S. since they were young children—they’re facing the prospect of being deported to a “home” country that isn’t home at all.

This is why it’s vitally important for undocumented defendants to fight their criminal charges. In many cases, a conviction will wreck your DACA status. In those circumstances, you almost always want to go to trial. There’s very little incentive to negotiate with the State when a conviction is going to get you kicked out of the country.

Unless you have a lawyer who’s able to, say, get your DUI / OVWI reduced to a reckless driving charge, trying to bargain doesn’t make much sense. At trial, you at least have a chance of being acquitted. If you’re undocumented and facing criminal charges, you need to find the best defense attorney you can, because pleading guilty to a felony or a significant misdemeanor is as good as signing your own deportation papers.

The process of being a criminal defendant is hard enough for citizens, and it’s 10 times as difficult for people who were born on the wrong side of our national borders. When you’re caught up in a bad situation, it’s natural to want to take the path of least resistance, but if you’re undocumented, you must resist this impulse.

The Marc Lopez Law Firm understands your dilemma and recognizes the importance of a strategically-sound defense. Don’t plead guilty without talking to an attorney. Give us a call at 317-632-3642, and remember—always plead the 5th!