Applying for Deferred Action With a Criminal Record

Will your criminal record be a bar to your eligibility for Deferred Action for Childhood Arrivals? The new deferred action immigration policy has several eligibility requirements including a relatively clean criminal record. If you have a minor conviction on your record, are you still eligible? Is it worth getting your conviction expunged or dismissed? And if you are considering a plea bargain, are there certain charges you should avoid?

If you apply for deferred action status, the Department of Homeland Security (DHS) will consider you entire criminal record—including arrests and dismissed convictions, but not all convictions are considered bars to eligibility.  Below is a brief explanation and links to further resources.

1. Deferred Action is a discretionary policy, but these offenses generally disqualify an individual at the outset:

  • A felony conviction (offenses punishable by more than one year of imprisonment).
  • A “significant misdemeanor” conviction. “Significant misdemeanors” include: domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm, drug sales, burglary, driving under the influence, and any other misdemeanor for which you received a jail sentence of more than 90 days.
  • Multiple misdemeanor convictions: three or more non-significant misdemeanors, not including traffic offenses (such as driving without a license).
  • Convictions suggesting that you pose a threat to national or public safety (e.g., with gang enhancements).

Even if you have the above types of convictions on your record, you may be eligible under exceptional circumstances (See INA 240(e)).

How do you know what type of conviction you have? If you are considering applying for deferred action, you should request your entire criminal record (from the FBI as well as the Department of Justice in any state where you lived or were arrested) so that you can check for the exact status of any contact you have had with law enforcement and also so that you can check it for mistakes.

2.  Is it worth it to get an old conviction dismissed or expunged?

Having an old conviction dismissed or expunged may help your application if your conviction would otherwise automatically disqualify you. The Law Offices of Thomas Greenberg has extensive experience getting old convictions dismissed and can help you.

Another option—better than getting a dismissal—would be to withdraw your plea (if it was recently entered) for good cause under California Penal Code section 1018 or have your plea vacated (undone) for legal error.  It can be a complex and difficult process to get a judge to vacate your plea, but it may be worthwhile.

3.  What about juvenile convictions?

Juvenile convictions do not automatically disqualify you for deferred action, however, they will be considered.

4. What if you have criminal charges pending?

If you have a criminal case pending, tell your attorney that you are a noncitizen and that you want to try to preserve your eligibility for deferred action. You may want to consider the following options, if available: informally deferring an entry of plea; seeking a deferred adjudication; entering a plea to a lesser, non-significant misdemeanor offense and obtaining a lesser jail sentence; pleading to an infraction or a minor traffic offense—if you are facing a DUI, you definitely want to try to pursue a lesser plea to protect your eligibility for deferred action. The Law Offices of Thomas Greenberg has been very successful in helping clients get charges reduced and protecting their immigration status.

Additional Resources:

Own the Dream

Immigrant Legal Resource Center

U.S. Citizenship and Immigration Services:


Your Criminal Conviction and Your Job Application

Applying for a Job With a Criminal Record

The federal government is realizing how much criminal convictions for even minor transgressions of the law can hold people back from getting or keeping jobs. Currently, one in four Americans has a criminal conviction of some sort. Employers have a lot of access to applicants’ background reports. Employers can hold some convictions against you, but not others, and employers are required to follow certain procedures when looking into your criminal background.

This new video by the Federal Trade Commission provides some helpful information about how to deal with your criminal conviction when applying for jobs and what rights you have if you think an employer is discriminating against you for your criminal record:



Once The Restraining Order is Up, Should You Make Contact with the Alleged Victim?

Very often, people facing charges where a restraining order has been imposed want to approach the alleged victim after the restraining order expires in order to try to make amends or to find out if the person wants to testify against you.  Where children are involved or the relationship is complicated in other ways, the restraining order may have caused excruciating disruption to your life.  Is talking to the person protected by the restraining order before or while court proceedings are underway a good idea?

 These are some things you should consider before making contact:

1. If you talk to him/her, could you in any way be charged with the crime of dissuading a witness? Dissuading a witness/victim (PC 136.1) is a very serious charge that you do not want added to whatever you are already facing.  You may be charged with PC 136.1 if you prevent, dissuade, or intimidate a witness from doing any of the following:

    • Attending or testifying at any court proceeding,
    • Reporting the crime,
    • Aiding in the prosecution of the case, or
    • Aiding in the arrest process.

2. Is the alleged victim the person who called the police?  Keep in mind that this person got you arrested once and he/she might get you arrested again.  If the alleged victim is unstable or extremely angry, he/she may make a false report even if your is completely non-violent and within the bounds of the law.

3. Do you have anyone else who could talk to the alleged victim instead of you?  For personal matters, do you have a close friend or family member?  Regarding your case and whether the alleged victim is interested in testifying against you, it is best to go through a professional so that neither you nor your friend or family member risks being charged with dissuading a witness.  Can you go through an investigator?

4. Can you get a legal opinion before you talk to the alleged victim to find out what you should and should not say or discuss, and to find out whether talking to him/her is really in your interest.  The Law Offices of Thomas Greenberg have handled hundreds of these cases and are a good resource.  Call today to discuss your case.

Criminal Threats

California Penal Code section 422 defines the crime of “criminal threats” (formerly “terrorist threats”) as threatening to kill or physically harm someone, causing that person to reasonably fear for his/herself or his/her family member. The threat must be unconditional, unequivocal, specific and immediate. The threat may be communicated verbally, in writing, or electronically. If you are being charged with PC 422 and have made threats against multiple people or made threats on more than one occasion, you could face penalties for each threat communicated.

Criminal threats (PC 422) can be charged as either a misdemeanor or a felony. A misdemeanor conviction for criminal threats can result in up to a year in jail. A felony conviction for criminal threats can result in up to four years in prison, plus one year if a dangerous or deadly weapon was used. A felony conviction for criminal threats can be considered a “strike” under California’s three strikes law.

Criminal threats is a serious charge. Criminal threats is considered a crime of moral turpitude, and as such, a conviction for PC 422 may expose you to professional discipline or deportation or removal if you are a legal immigrant or alien. Criminal threats is also considered a crime of violence and is considered a deportable domestic violence offense if committed against a domestic violence victim. If a sentence of a year or more is imposed, PC 422 is considered an aggravated felony.

Criminal threats is often one of several charges filed in situations involving battery or domestic violence, although it is also charged as a single offense, such as if the prosecutor does not have enough evidence to substantiate a more grievous crime. Your attorney may be able to get your PC 422 charged reduced or dismissed. Depending on the facts, one of the following lesser charges may be a better option for you in plea bargaining:

  • PC 236 – false imprisonment (misdemeanor 236 generally is not a crime of moral turpitude)
  • PC 240, 241 – simple assault (not a crime of moral turpitude)
  • PC 415 – public disturbance (misdemeanor or infraction)
  • PC 594 – vandalism (not a crime of moral turpitude)
  • PC 602.5 – trespass (not a crime of moral turpitude)

Defenses for Criminal Threats

The facts of your case may support one or more of the following defenses:

  1. The statement was not specific – e.g., “What do I have to do to get your attention—burn down the neighborhood?” (it isn’t clear that a specific person is being threatened) or “I’m going to kill the (unknown) person who took my things and put her body on your porch” (the statement to kill an unknown person is not specific enough to be considered a criminal threat).
  2. The statement was equivocal.
  3. The recipient’s fear was not reasonable – e.g., the statement was so outrageous as to be unbelievable.
  4. The person who was threatened was not actually in fear.
  5. The person threatened only experienced fleeting, momentary fear.
  6. You did not intend your statement to be received as a threat—e.g., you were just blowing off steam.
  7. The statements were constitutionally protected speech. PC 422 is intended to punish those who try to instill fear in others; it was not enacted to punish emotional outbursts, and it does not punish such things as “mere angry utterances or ranting soliloquies, however violent.” (Ryan D., supra, 100 Cal.App.4th at p. 861, 123 Cal.Rptr.2d 193.).
  8. A threatening gesture was made but no threat was communicated verbally, in writing, or electronically.
  9. No threat was made—the allegation was false.

Additional Complications to Criminal Threat Charges

You may be facing significantly increased penalties if your charge of PC 422 arose out of one of the situations below:

PC 136.1: Dissuading a Witness

It is illegal to prevent or attempt to prevent any witness or victim of a crime from reporting the crime or testifying about the crime. If you attempt to dissuade a witness from testifying by threatening imminent harm, then you may be charged with PC 422 in addition to PC 136.1. PC 136.1 is a wobbler (it may be charged as a felony or a misdemeanor), punishable by up to a year in county jail (as a misdemeanor) or up to four years in state prison (as a felony).

PC 518: Extortion

Extortion is the use of force or threats to gain money, property, or other services. Extortion is a felony punishable by two, three, or four years in prison and up to a $10,000 fine.

Domestic Violence

PC 422 may be one of several charges filed after a domestic violence arrest, or the charge of criminal threats as a crime of domestic violence may be filed. Domestic violence charges may be filed if the victim is the defendant’s current or former spouse, romantic partner, roommate, child, or parent.

PC 646.9: Stalking

Stalking is the crime of harassing or threatening a person to the point that the person fears for the safety of his/herself or his/her family. The crime of stalking may be charged in addition to the crime of criminal  threats. A conviction for stalking adds up to five years in state prison (for a felony) or up to a year in county jail (for a misdemeanor).

PC 186.22: Gang Enhancement

Making a criminal threat for the benefit of a gang can increase the sentence for a PC 422 conviction by five, ten, fifteen, twenty years in prison, or 25 years to life.
Criminal threats is a serious charge, whether you are facing it as a solitary charge or combined with other charges. It’s important that you get an experienced attorney who will fight for you. The Law Offices of Thomas Greenberg has handled hundreds of PC 422 cases and can help you get the best possible outcome. Call today for a free consultation.