On Nov. 20, 2014, President Obama announced that he will provide immediate relief for many of those impacted by our broken immigration system, and he is offering Congress an architecture for permanent reforms to the immigration laws. http://www.dhs.gov/immigration-action

Under the new policies, the DHS will augment the successful Deferred Action for Childhood Arrivals (DACA) program by providing temporary relief for the parents of U.S. Citizens and lawful permanent residents. The new program, to be called Deferred Action for Parent Accountability (DAPA), will ensure that millions of U.S. Citizen and lawful permanent resident children will remain unified with their parents. The President also announced new enforcement policies and steps to improve the adjudication of business and family visas.
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecu...

The criminal requirements for these new programs, under Priority 1, include two relevant subsections. First, the benefits of this Executive Action are not available to (d) aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien's immigration status Second, the new programs exclude (e) aliens convicted of an "aggravated felony," as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.

The programs exclude those convicted of an offense classified as a felony in the convicting jurisdiction This is a broad definition, and depends on the state law definition of felony. Certain states like Maryland and Pennsylvania classify as a misdemeanor offenses for which the punishment is more than a year. Under federal law, any offense punishable by more than a year is a felony. The Executive Action defines misdemeanor under the law of the jurisdiction of conviction, which can include offenses with maxima greater than one year if state law so provides. It does not use the federal definition of misdemeanor, which provides that a misdemeanor cannot be punished by a sentence greater than one year. For example, under DACA and DAPA, a conviction for a Pennsylvania misdemeanor punishable by a two-year sentence is a misdemeanor for DACA and DAPA purposes even though it would be a felony under the definition of "felony" that applies in federal criminal cases. The exception to the general rule for state and local offenses for which immigration status is an element of the offense maintains eligibility for people in Arizona convicted of state felony offenses that targeted immigrants unfairly and, in Sheriff Joe's case, among others, unlawfully.

The felony bar is not triggered by felony convictions for a state or local offense for which an essential element was the alien's immigration status In the original DACA context, advocates argued that false document felonies should count as immigration-related offenses and not counted against the immigrant. This argument was rejected. This interpretation will probably also apply in the context of the Nov. 20, 2014 Revised Enforcement Priorities.

Requiring immigration status to be an essential element means that it is a fact that must be established in order to obtain a conviction under the criminal statute. Under the categorical analysis as outlined in the Supreme Courts decisions in Moncrieffe and Descamps, this means that a jury could not convict someone of this crime without the prosecutor proving it beyond a reasonable doubt. See Moncrieffe v Holder (2013) ___US ___, 133 S Ct 1678; Descamps v United States (2013) ___ US ___, 133 S Ct 2276.

An element of a crime is distinct from the means by which a crime can be committed. For example, there are numerous means by which someone may commit the crime of identity theft, one of which could be using someone elses greencard. Just because the offense was committed by using documents that implicated immigration status " or were for a purpose involving immigration status " does not mean that it is an essential element. The key is not what the person did, or the means by which they committed the crime. The key is in the specific essential elements of the criminal offense that are that are required for conviction under the law of the jurisdiction. Two good sources to determine elements, as opposed to means, in addition to the express language of the statute are to look at jury instructions and to see if your state supreme court has addressed the issue of the definition of elements (as to which the jury must unanimously agree to conviction) as opposed to the means by which the offense was committed (as to which they do not need to do so). See the National Immigration Projects advisory on Descamps, which discusses this in greater detail. See also analysis provided by the Immigrant Legal Resource Center on this issue.

The criminal bars for DACA and the definitions of felony, significant misdemeanor and misdemeanor appear to be unchanged by the new memos issued on Nov. 20 and these definitions now also apply to DAPA. Therefore, under the new Executive Action, a misdemeanor still requires a potential sentence of more than 5 days. Note, however, that the bars of the second and third priorities (including the misdemeanor bars) are not absolute. There is a provision allowing CIS/ICE to waive them under proper circumstances. Even the first priority bar can be waived, but the standard is much higher.