Can I keep DACA if I have been arrested, cited or convicted? Getting your records ready

This page explains the rules. It is not legal advice. A lawyer or DOJ accredited representative must look at your own record before you file a DACA request or ask to travel. Free help is listed at the end.

What does the DACA rule say about crimes?

The DACA rule (8 CFR 236.22) says you cannot get DACA if you have been convicted of:

• a felony (a crime that can be punished by more than one year in prison), or
• one of the listed misdemeanors, or
• three or more other misdemeanors that did not happen on the same date and did not come from the same act.

The listed misdemeanors are domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, and driving under the influence. These count no matter what the sentence was. Any other misdemeanor also counts on this list if the sentence was more than 90 days in custody. Time that was suspended does not count toward the 90 days.

USCIS can also deny DACA if it decides a person is a threat to public safety or national security. USCIS lists gang membership and taking part in criminal activity as signs of a public safety threat.

One other misdemeanor that is not on the list does not end DACA by itself, but USCIS can weigh it when it decides your case.

What does not count against me?

USCIS's DACA questions and answers say:

• Minor traffic offenses, such as driving without a license, are not counted as misdemeanors for DACA. They can still be part of the overall review.
• Convictions under state laws about immigration status are not counted.
• Expunged convictions and juvenile court cases are not counted as disqualifying convictions, but USCIS looks at them case by case. A young person who was tried and convicted as an adult has a conviction.

What about infractions? USCIS counts a misdemeanor for DACA only if the crime can be punished by more than 5 days and up to 1 year in jail (USCIS DACA FAQ Q69, checked October 21, 2026). California law says an infraction "is not punishable by imprisonment" (Penal Code 19.6, read on a public mirror, checked October 21, 2026). So an infraction, such as many traffic tickets, does not fit USCIS's misdemeanor definition. USCIS can still look at your whole record, and a case that started as a misdemeanor and was later reduced can be tricky. Show your lawyer the final court papers.

What if I was arrested but not convicted?

The rule's bars are about convictions, not arrests. But you still have to tell USCIS about every arrest, and prove what happened.

The Form I-821D instructions ask, for each arrest or charge, for an original or court certified copy of the complete arrest record and the final result (the "disposition"). If no charges were filed, they ask for an official statement from the police agency that arrested you. For a sealed or expunged case, they ask for the certified court order.

What about a DUI?

A DUI is one of the listed misdemeanors, so a DUI conviction disqualifies you from DACA no matter the sentence. Some charges that start as a DUI end with a different conviction. That difference matters, so show your lawyer the final court papers, not just the arrest.

Does an expungement help?

For DACA, it can help, but it does not erase your record.

• In immigration law, a conviction that a state court cleared only to reward rehabilitation, such as a California expungement under Penal Code 1203.4 or automatic Clean Slate relief, generally still counts as a conviction (Matter of Pickering, BIA 2003).
• USCIS's DACA guidance says it does not treat expunged convictions as automatic bars, but it still reviews them case by case. You still have to report them.
• Some California laws let a court undo a conviction because of a legal problem in the case, which can matter for immigration. For example, Penal Code 1473.7 lets a person ask to vacate a conviction that is legally invalid, including when they did not understand its immigration consequences. Penal Code 1203.43 helps some people who completed deferred entry of judgment.

Ask a lawyer whether any of these fit your case before you file, and do not let your renewal date pass while you wait.

What records should I gather?

Gather these before your legal check, for every incident, in any state:

1. Your FBI record. The FBI Identity History Summary costs $18. You can request it online and get fingerprinted at a participating post office, or request it by mail.
2. Your California record. The California Department of Justice has a version for immigration use (form BCIA 8016 VISA, $32 plus the Live Scan fingerprint fee). The $25 Record Review (form BCIA 8016RR) lets you see your own record, but the DOJ says records you request for your own review "cannot be used for Visa/Immigration." A fee waiver covers only the $25 Record Review fee, not the Live Scan fee. Ask your lawyer which one you need.
3. Court papers. A certified copy of the complaint and the final disposition from the court where each case was heard. In San Mateo County, the Superior Court's Records Management office at 400 County Center, Redwood City, charges $40 to certify a copy, $0.50 per page side, and $15 for a search that takes more than 10 minutes. It says it replies to mail requests within 30 days.
4. A police statement, if you were arrested but never charged.
5. Your driving record, if you had any traffic case involving alcohol or drugs. The DMV charges $2 online or $5 by mail with form INF 1125.

Records can take weeks. Start early, before your renewal window.

Example (made up): Daniel was cited for shoplifting in Redwood City in 2019. The case was dismissed. Four months before his renewal window opens, he requests his FBI record online, books a Live Scan for the California DOJ immigration record, and asks the San Mateo court by mail for a certified copy of the dismissal. He brings all three to a free legal screening before he files.

What if I am arrested now?

• Say you want to speak with a lawyer and do not sign anything you do not understand. See Your rights with DACA if you meet ICE or the police.
• Tell your criminal defense lawyer you have DACA. California law (Penal Code 1016.3) requires defense lawyers to give accurate advice about the immigration consequences of a plea. Ask them to talk with an immigration lawyer before you accept any plea.
• Know about the Laken Riley Act. This 2025 federal law requires immigration detention for some people who are charged with, arrested for, convicted of or admit to burglary, theft, larceny, shoplifting, assault of a law enforcement officer, or a crime that causes death or serious bodily injury, even without a conviction. It covers people who are inadmissible on certain grounds, including being in the U.S. without having been admitted or paroled (8 U.S.C. 1226(c)(1)(E), checked October 21, 2026). The law does not name DACA. But many DACA recipients who first came in without inspection fall in that group, so an arrest alone can carry this risk. Ask a lawyer what it means for you.
• Talk with a lawyer before any travel. Leaving the country, even with advance parole, can carry extra risk when you have an open case or a record. See What must I do to keep my DACA?.

What else changed in 2026?

• A proposed rule, not final. On June 5, 2026, DHS proposed a rule that would generally deny work permits after any arrest, charge or conviction, and would treat diversion as an arrest even if later expunged. Its criminal parts would apply to DACA work permits. Comments closed August 4, 2026. As of October 18, 2026 it is only a proposal.
• More discretion. On May 8, 2026, USCIS issued a policy alert called "Deferred Action as an Extraordinary Use of Prosecutorial Discretion." USCIS says it reaffirms deferred action as an extraordinary use of discretion, and it changed the Policy Manual's deferred action part (USCIS Policy Manual updates, checked October 21, 2026). Legal groups read it as a sign of stricter review. Any record makes a lawyer's review before you file more important.

Is there a checklist I can print?

Who can help?

These are free or low cost public offices and nonprofit clinics. Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• Community Legal Services in East Palo Alto: 650-326-6440.
• California funded immigration legal services: CDSS provider list, or call (916) 651-8017.
• San Mateo County Private Defender Program: (650) 298-4000. It represents people in San Mateo County criminal cases who qualify for a lawyer at public expense (San Mateo County Bar Association, checked October 21, 2026). Ask whether it can help you clear an old record.
• California courts self help: Clean your record if you are not a citizen.