MARYLAND OFFICE OF THE PUBLIC DEFENDER IMMIGRATION PROGRAM

Transcription

1 MARYLAND OFFICE OF THE PUBLIC DEFENDER IMMIGRATION PROGRAM EXPANDED ADVISORY 4.0 RULES FOR DACA/ DAPA AND IMPACT OF COMMON MARYLAND CONVICTIONS i Rules for DHS program of Deferred Action for Childhood Arrivals (DACA) ii Residence Requirement In U.S. since before age 16 and since 1/1/2010 (as revised) Classifications of Charges Felony = potential sentence of more than one year Misdemeanor = potential sentence of 5 days to one year, but is not significant misdemeanor. Excludes minor traffic offenses such as driving without a license. Significant misdemeanor = potential sentence is 5 days to one year, and is: Domestic violence Sexual abuse or exploitation Unlawful possession or use of firearm Drug distribution or trafficking Burglary DUI or Any misdemeanor with an imposed jail sentence of 90 days or more (time to be served in custody, not suspended) PBJ = conviction Juvenile adjudication = not conviction. iii Presumptive Disqualifications One felony = presumptive disqualification One significant misdemeanor = presumptive disqualification Three misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct = presumptive disqualification 1

2 Rules for DHS program of Deferred Action for Parents of Americans iv (DAPA) Basic Requirements In U.S. since 1/1/2010 and parent of United States Citizen or Lawful Permanent Resident child born on or before 11/20/14. Child can be of any age, married or unmarried. May include stepchild or adopted child, if meets requirements under immigration law. Classifications of Charges Felony = defined as felony by Maryland law Significant misdemeanor = defined by Maryland law as misdemeanor v and is: Domestic violence Sexual abuse or exploitation Unlawful possession or use of firearm Drug distribution or trafficking Burglary DUI Any misdemeanor with an imposed jail sentence of 90 days or more (time to be served in custody, not suspended) Misdemeanor = defined as misdemeanor by Maryland law, except for minor traffic offenses PBJ = conviction Juvenile adjudications: unclear if same rule as DACA; DHS has not said Presumptive Disqualifications One felony = presumptive disqualification One aggravated felony as defined in INA section 101(a)(43) at time of conviction = presumptive disqualification One significant misdemeanor = presumptive disqualification Three misdemeanors arising out of three separate incidents = presumptive disqualification 2

3 NOTE: THIS CHART OF MARYLAND STATUTES AND CONSEQUENCES APPLIES ONLY TO THE DACA AND DAPA PROGRAMS. SOME OF THE LABELS AND RULES APPLIED BY DHS IN THESE PROGRAMS (e.g., SIGNIFICANT, ) APPLY ONLY TO DACA AND DAPA AND DO NOT APPLY TO OTHER IMMIGRATION STATUSES OR APPLICATIONS. THESE CONVICTIONS MAY HAVE DIFFERENT AND / OR ADDITIONAL CONSEQUENCES FOR DEPORTABILITY; INADMISSIBILITY; INELIGIBILITY FOR DEFENSES TO REMOVAL; AND QUALIFICATION FOR TEMPORARY PROTECTED STATUS, ADJUSTMENT OF STATUS, U.S. CITIZENSHIP, ETC. CHARGE MAXIMUM PENALTY EFFECT FOR DACA EFFECT FOR DAPA Assault 2 nd degree CR Y but SIGNIFICANT IF DV OR if SENTENCED to Burglary 4 th Degree vi CR Y SIGNIFICANT CDS Distribution CR Disorderly conduct CR Up to 20Y 60D Driving under Influence vii TA Driving Without a License TA (a) False Gov t ID: Possession, Display CR False Statement to Police CR 9-501, 502 Malicious Destruction of Property less than $1000 CR 6-301(c) 1Y 60D 6M 6M SIGNIFICANT SHOULD BE MINOR TRAFFIC OFFENSE, NOT viii but but SIGNIFICANT SHOULD BE MINOR TRAFFIC OFFENSE, NOT ix but SIGNIF but SIGNIF 60D 3

4 Malicious Destruction of Property $1000 or more CR 6-301(b) Possession Marijuana less than 10 grams CR ; 5-601(c)(2)(ii) Possession Marijuana 10 grams or more CR 5-601(c)(2) Possession Not Marijuana CR 5-601(c)(1) 3Y Fine only 1Y 4Y SHOULD NOT BE A but SHOULD NOT BE A Reckless Driving TA (a) Fine only SHOULD NOT BE A unless considered minor traffic offense Reckless Endangerment CR Y or FIREARM x Resisting Arrest CR y Theft less than $100 CR 7-104(g)(3) 90D MISD but SIGNIF MISD if SENTENCED to JAIL = JAIL = Theft less than $1000 CR 7-104(g)(2) Theft 1k 10k CR 7-104(g)(1)(i) 18M 10Y MISD but AG FEL IF SENTENCE IMPOSED W/ SUSPENDED TIME > 1Y; or SENTENCED to but AG FEL IF SENTENCE IMPOSED, INCLUDING SUSPENDED TIME > 1Y Theft 10k 100k CR 7-104(g)(1)(ii) Violating a Protective/ Peace Order 15Y 90D but SIGNIF MISD IF DV CASE or if SENTENCED to JAIL = but AG FEL IF SENTENCE IMPOSED, INCLUDING SUSPENDED TIME > 1Y but SIGNIFICANT IF DV or if SENTENCED to JAIL = 4

5 i This advisory was written by Nadine Wettstein and Alyson Sincavage of Maryland OPD. We thank Patrick Taurel of the American Immigration Council, Professor Maureen Sweeney of the University of Maryland College of Law, and Emily Datnoff of Maryland OPD for their very helpful edits and comments. Comments or questions, please ii For DHS s website explaining these programs and the anticipated time for applications, see iii An applicant who was a juvenile but was tried and convicted as an adult will be treated as an adult for purposes of DACA. DHS has not said how juvenile adjudications will be considered for DAPA. iv Some government materials previously called the program Deferred Action for Parental Accountability but the DHS website now says Deferred Action for Parents of Americans. v In Maryland, offenses are either a misdemeanor or a felony. Even minor traffic offenses punishable by fines and no jail time are misdemeanors in Maryland. vi A Maryland burglary conviction, no matter the degree, will presumptively disqualify an applicant for DACA or DAPA. The example used here, fourth-degree burglary, is the lowest degree and is a misdemeanor under Maryland law, with a potential sentence of 3 years. This would be a felony under DACA rules but a significant misdemeanor under DAPA rules. Either way, it is a presumptive disqualification. vii In practice, DHS has applied the one DUI conviction rule beyond convictions for driving under the influence, TA (a), to convictions for driving while impaired, TA (b), which carries a lesser requirement for blood alcohol level. Advocates are urging DHS to moderate the rule disqualifying DACA and DAPA applicants for one DUI conviction. viii The DHS National Standard Operating Procedure for DACA (dated April 4, 2013, Version 2.0, at page 83) says the following about driving without a license convictions: When evaluating a request for consideration for deferred action for childhood arrivals, a minor traffic offense, such as driving without a license, will not be considered a misdemeanor that counts towards the three or more non-significant misdemeanors. However, the requestor s entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, he/she warrants an exercise of prosecutorial discretion. Available at: We assume the same would be true for convictions of driving on a suspended license but the SOP does not specifically address that charge. ix The DHS National Standard Operating Procedure for DACA (dated April 4, 2013, Version 2.0, at page 83) addresses DWL convictions. We assume the same policy will apply for DAPA. The SOP says: When evaluating a request for consideration for deferred action for childhood arrivals, a minor traffic offense, such as driving without a license, will not be considered a misdemeanor that counts towards the three or more nonsignificant misdemeanors. However, the requestor s entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, he/she warrants an exercise of prosecutorial discretion. Available at: We assume the same would be true for convictions of driving on a suspended license but the SOP does not specifically address that charge. x Maryland reckless endangerment can be committed by discharge of a firearm from a motor vehicle in a manner that creates a substantial risk of death or serious physical injury to another. CR If this is the subsection under which the client is convicted, it may be interpreted as a significant misdemeanor for DAPA as a misdemeanor involving unlawful possession or use of a firearm. 5