By Parviz Malakouti-Fitzgerald, Esq.
Some DACA recipients can possibly successfully renew DACA, even after a California driving under the influence (“DUI”) arrest or even conviction.
Article Outline:
At present, such a renewal is possible a) after an expungement, and b) with a DACA renewal application full of positive equities.” However, even in these cases, an approval is at USCIS’s discretion, and an applicant can be “denied on discretion.”
At Malakouti Law, we’ve been able to successfully renew DACA for applicants who had a California DUI conviction that was expunged.
Note: this article applies only to California convictions. Other states require a different analysis!
San Clemente pier in Calif
General “Rule” For DACA & DUI Convictions
As many DACA recipients know, to renew Deferred Action for Childhood Arrivals (“DACA”), one must not have been convicted of a felony or a significant misdemeanor. “Significant misdemeanors” that disqualify one from renewing DACA are:
“…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…” (emphasis added)
This means that driving in the influence (“DUI”) is a disqualifying misdemeanor for the purposes of DACA. For Dreamers in many states, being convicted of a DUI is the end of the road for them as far as DACA is concerned. They won’t be able to renew DACA, regardless of how well they are rehabilitated from the conviction nor how important DACA is to them.
This can be devastating because the DACA recipient loses their protection from deportation (i.e. the “deferred action” in “DACA”), the work permit, and they start accruing unlawful presence.
Note: Be sure to consult with a qualified immigration lawyer about your particular situation before giving up on a DACA renewal.
DUI in California
However, California is a little different in a good way.
In California, DUI is charged as VC 23152(a) or (b). Unfortunately, this means that if you are convicted of VC 23152(a) or (b) in California, you’ll be disqualified from being able to apply for a DACA renewal (or an initial application).
But, in California, DUI convictions are eligible for expungement under PC 1203.4, and at present, USCIS considers an expunged DUI conviction to not be a disqualifying significant misdemeanor automatically preventing one from renewing DACA.
This means an expunged DUI in California can pave the way to be able to apply ro renew DACA again.
Note: First time offenders are sometimes able to plea down from VC 23152 to a “wet reckless” (VC 23103/23103.5) sometimes with the help of an immigration opinion letter, thereby avoiding a DUI conviction.
DUI Conviction Expungement (in California)
In California, convictions for DUI are eligible to be expunged under PC 1203.4 once all the sentencing conditions are fulfilled. This last line is extremely important because one of the common sentencing guidelines in California for first time DUI offenders is a probation period of 24 or 36 months.
DUI renewal applicants with such a sentencing requirement have to either a) wait out the time or b) explore applying for early termination of probation. In any case, once all sentencing requirements, including probation, have been fulfilled, the applicant can apply to expunge the conviction.
Once expungement is successfully obtained, the applicant is clear to apply for the DACA renewal, with evidence of positive equities.
DACA Renewal Application WITH Evidence of
Positive Equities
Expunging the CA DUI conviction is just the beginning.
Remember - a DACA renewal application from an applicant who has an expunged DUI conviction (in California) can still be denied renewal “on merit.” This means that although the applicant was not automatically disqualified from consideration, USCIS can still deem the applicant to not merit the benefit of DACA. For that reason, it's important to send a strong DACA renewal application in the cases.
So to show merit of discretion, we apply for a DACA renewal with evidence of positive equities. The more, the better.
At Malakouti Law, all of our DACA with DUI conviction renewal successes have been cases in which we sent significant evidence of positive equities to USCIS.
We break positive equities into three general categories:
Volunteer/Community service
Conviction rehabilitation
Ties to the U.S.
We gather and present that evidence in different written forms:
Certificates of completion
Emails/letters demonstrating the planning or completion of some task
Business records showing school attendance
Sworn declarations (i.e. “character letters”)
We also draft a short 3-5 page cover letter that lists all the evidence and makes an argument in favor of approval for the applicant. Each applicant’s circumstances are different, but, in my opinion, a solid DACA renewal application with evidence of positive equities will usually have at least eight pieces of evidence showing the applicant deserves USCIS’s merit of discretion.
We send off the DACA renewal application, hopefully with a load of evidence of positive equities then hope for the best and wait to hear back from USCIS.
Video Explainer
Consult with Malakouti Law
If you’re a Dreamer who’s been arrested, charged or convicted of DUI, you can book a consultation with us to learn how we can help you preserve DACA, as well as the possibility of future immigration benefits.
If you don’t have a criminal defense lawyer, we can refer you to reputable counsel as well.
Book a consultation with a qualified immigration lawyer who can answer your questions, including those you didn’t know you had.
Each immigration and citizenship case is particular and you should consult with a qualified, licensed immigration lawyer about your case before taking any steps. The Law Office of Parviz Malakouti does not guarantee the accuracy of information presented nor assume responsibility for actions taken in reliance of this information. The information in this page could become outdated. Attorney marketing.