MALDEF, NILC, ACLU Misrepresent DACA in Lawsuit Against Arizona

By Jon Feere and Jon Feere on November 30, 2012

A coalition of high-immigration activist groups has filed a lawsuit against Arizona over the state's decision to not issue driver's licenses to illegal aliens granted deferred action (DACA) by President Obama. In their complaint, the groups misrepresent DACA, inaccurately describing the program's eligibility criteria. Specifically, the attorneys wrote:

Under DACA, certain DREAMers are eligible to obtain 'deferred action' from the federal government upon meeting specific criteria such as the attainment of a high school diploma and passing a rigorous background check including the absence of a criminal record.

This single sentence contains two factual errors about the requirements of the DACA program.

Related Topics:

First, there is no requirement that applicants actually graduate from high school or any educational program. All that is required under the USCIS guidelines is that applicants are enrolled in an educational program at the time they apply for Deferred Action. They can drop out the day after they fill out the forms. USCIS explains that a person is eligible if they simply are "currently in school". Alternatively, a person would be eligible if they "graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States". The education component can also be met if a person is in a "literacy or career training program" at the time they apply for Deferred Action. USCIS notes that it has a lot of leeway in determining what programs qualify.

The second factual error is the claim that applicants must prove an "absence of a criminal record". In reality, applicants can have an extensive criminal record, provided that they have not been convicted of a "felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety". This means that an illegal alien with two misdemeanors would not be barred from the DACA program. Misdemeanors are crimes less serious than felonies and may result in fines, probation, and imprisonment under a year. But that's only half the story. The timing of the misdemeanors is significant and multiple misdemeanors may only count as one strike against the applicant. As USCIS explains in its DACA guidelines, an applicant is ineligible if he has three or more misdemeanors "not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct". An illegal alien who commits a handful of misdemeanors during one incident will see those crimes counted as "one misdemeanor" for purposes of DACA. The alien could commit an additional series of misdemeanors at a later date and, provided they all occurred during one incident, they would only count as a second misdemeanor.

These non-significant misdemeanors include things like petty theft, possession of drug paraphernalia, public intoxication, fleeing from an officer, disorderly conduct, vandalism, indecent exposure, prostitution, and trespass. USCIS notes that a "minor traffic offense, such as driving without a license" will not be considered a misdemeanor even though it might be under state law. Other driving misdemeanors under state law that will likely be given a pass include failure to stop at the scene of an accident, driving without insurance, and reckless driving.

On the plus side, it appears that if a sentence results in more than 90 days in jail, USCIS will consider the misdemeanor to be a "significant misdemeanor", rendering the applicant ineligible for DACA.

It is difficult to imagine that each of the attorneys at these powerful groups didn't conduct basic research prior to filing a lawsuit against Arizona, but the only other explanation is that they are attempting to mischaracterize DACA in order to mislead the judges sitting on the U.S. District Court.

For the record, all the plaintiffs represented in this specific case appear to have graduated high school, and there is no indication — thus far — that any of them has a criminal record.