EXPUNGEMENT

If you have a criminal conviction, that may prevent you from qualifying for the Deferred Action for Childhood Arrivals (DACA) program. The below are the current DACA rules as to criminal convictions. Expungement of criminal convictions may result in someone who otherwise wouldn’t qualify for DACA qualifying for the benefits of the program.

We recommend that if you have been arrested, charged or convicted of a crime that you consider contacting our office to check into expunging it.

DACA Rules On Criminal Convictions

You should review your criminal record, if any. If you have been convicted of a felony, a “significant misdemeanor”, three or more other misdemeanors, you will not qualify for DACA.

For the purposes of this discussion, the following definitions apply:

  1. A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.
  2. A significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:
    1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
    2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
    The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). The Department of Homeland Security (DHS) retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.
  3. A nonsignificant misdemeanor is any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:
    1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and
    2. Is one for which the individual was sentenced to time in custody of 90 days or less. The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE.

Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion.

However, there are some important caveats:

  1. Expunged convictions and juvenile convictions will not automatically disqualify you. Your petition will be examined on a cases-by-case basis.
  2. A minor traffic offense will not be considered a misdemeanor for purposes of this process. However, your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion.
  3. Immigration-related offenses characterized as felonies under state laws will not disqualify the applicant.

What You Should Do to Prepare Now

  1. If you have ever been charged or convicted of a crime, it is strong recommended that you contact our office to see if the offense can be expunged from your record.
  2. Obtain a copy of your criminal history.
  3. Expunge any convictions from your record that you can. Consider expunging traffic infractions and arrests that did not result in a conviction also.

How Expungement Works in Indiana

In 2011, the Indiana General Assembly passed legislation permitting individuals to seal portions of their criminal record, which was revised and condensed in to Indiana Code 35-38-9 effective July 1, 2013. If successful, any case that has been restricted will not show up on a criminal history check by noncriminal justice organizations or individuals. Criminal justice agencies like the court, prosecutor and police continue to have access to all information. Please note: Although this has been nicknamed an "expungement law," Indiana's Second Chance Law only restricts access to criminal records It DOES NOT forever erase or expunge one's criminal history. Petitioners filing under the Second Chance Law do not have to pay a filing fee.

There are different classifications of individuals that may qualify to restrict access to criminal records pursuant to Indiana Code 35-38-9.

Individuals NOT Determined To Be Guilty

This section applies to those individuals where:

  1. the arrest did not result in a conviction or juvenile adjudication; or
  2. the arrest resulted in a conviction or juvenile adjudication and the conviction or adjudication was vacated on appeal.

At least one year after the date of arrest, a person may petition to seal records contained in the court's files; the files of the department of correction; the files of the bureau of motor vehicles; and the files of any other person who provided treatment or services to the petitioning person under a court order; that relate to the person's arrest. A person who files a petition to seal arrest records is not required to pay a filing fee.

Individuals Convicted of a Misdemeanor, Including Class D Felony Reduced to a Misdemeanor

This section applies only to a person convicted of a misdemeanor, including a Class D felony reduced to a misdemeanor.

At least five years after the date of conviction (unless the prosecuting attorney consents in writing to an earlier period), the person convicted of the misdemeanor may petition the court to restrict access to records contained in a court's files; the files of the department of correction; the files of the bureau of motor vehicles; and the files of any other person who provided treatment or services to the petitioning person under a court order; that relate to the person's misdemeanor conviction.

The court will order conviction records to be restricted if there is convincing evidence that:

  1. the period required by this section has elapsed;
  2. no charges are pending against the person;
  3. the person does not have an existing or pending driver's license suspension;
  4. the person has successfully completed the person's sentence, including any term of supervised release, and satisfied all other obligations placed on the person as part of the sentence; and
  5. the person has not been convicted of a crime within the previous five (5) years.

Individuals Convicted of a Non-Violent Felony

Except as provided in subsection (b), this section applies only to a person convicted of a felony.
(b) This section DOES NOT apply to the following:
(1) An elected official convicted of an offense while serving the official's term or as a candidate for public office.
(2) A sex or violent offender (as defined in IC 11-8-8-5).
(3) A person convicted of a felony that resulted in serious bodily injury to another person.
(4) A person convicted of an offense described in:
(A) IC 35-42-1;
(B) IC 35-42-3.5; or
(C) IC 35-42-4.

At least eight years after the completion of the person's sentence (including the completion of any term of supervised release and the satisfaction of all other obligations placed on the person as part of the sentence, unless the prosecuting attorney consents in writing to an earlier period), a person may petition the court to restrict access to a court's files; the files of the department of correction; the files of the bureau of motor vehicles; and the files of any other person who provided treatment or services to the petitioning person under a court order; that relate to the person's felony conviction.

The court will order conviction records to be restricted if there is convincing evidence that:

  1. the period required by this section has elapsed;
  2. no charges are pending against the person;
  3. the person does not have an existing or pending driver's license suspension;
  4. the person has successfully completed the person's sentence, including any term of supervised release, and satisfied all other obligations placed on the person as part of the sentence; and
  5. the person has not been convicted of a crime within the previous eight (8) years;

Individuals Convicted of a Violent or Sexual Felony

Except as provided in subsection (b), this section applies to a person convicted of a felony, including:

  1. an elected official convicted of an offense while serving the official's term or as a candidate for public office; and
  2. a person convicted of a felony that resulted in serious bodily injury to another person.
(b) This section DOES NOT apply to the following:
  1. A sex or violent offender (as defined in IC 11-8-8-5).
  2. A person convicted of an offense described in IC 35-42-1; IC 35-42-3.5; or IC 35-42-4.

At least ten years after the completion of the person's sentence (including the completion of any term of supervised release and the satisfaction of all other obligations placed on the person as part of the sentence, unless the prosecuting attorney consents in writing to an earlier period), the individual may petition the court to restrict access to records contained in a court's files; the files of any other person who provided treatment or services to the petitioning person under a court order that relate to the person's felony conviction.

The court will order conviction records to be restricted if there is convincing evidence that:

  1. the period required by this section has elapsed;
  2. no charges are pending against the person;
  3. the person does not have an existing or pending driver's license suspension;
  4. the person has successfully completed the person's sentence, including any term of supervised release, and satisfied all other obligations placed on the person as part of the sentence;
  5. the person has not been convicted of a crime within the previous ten (10) years; and
  6. the prosecuting attorney has consented in writing to the expungement of the person's criminal records; the court may order the conviction records described in subsection (c) marked as expunged in accordance with section 7 of this chapter.

The Bottom Line: If you are considering applying for DACA and you have a criminal conviction, we strongly encourage you to contact our office to help you work through these issues.