Certain criminal convictions are bars to eligibility for DACA. However, if these convictions can be “expunged,” they will cease to be an absolute bar. Here, an “expungement” refers to any legal process where a criminal court can withdraw, erase, seal, or otherwise eliminate a conviction under a state statute, based on the fact that the person completed probation or other requirements, or for humanitarian reasons. Note that while DACA government materials call this an “expungement,” different state laws may use different terms for this kind of rehabilitative relief. An expungement is not given effect for most immigration purposes – but it does work for DACA. For example, a misdemeanor conviction for driving under the influence is a bar to applying for DACA as a “significant misdemeanor.” If the person has the conviction “expunged,” however, they are not barred from applying, and if they have enough positive equities they may well be granted DACA.
This Advisory discusses “expungement” and similar statutes available in states across the country, and also provides more information about DACA and rehabilitative relief. Note that the advisory was written in September 2015, so be sure to check to see if the state law has changed since then.