What Happens to Your DACA if You're Arrested or Charged With a Crime
DACA protects your right to live and work here — but a criminal charge can put that protection at risk overnight. Here's what every Dreamer in Colorado needs to know before the next court date.
By Aaron Elinoff, Managing Partner · Novo Legal Group (CO Bar #46468) ·
DACA Is Not a Guarantee — and Criminal Charges Change the Calculation
You built a life here. Maybe you came as a child. You went to school, found work, built a family — and DACA gave you the legal breathing room to do all of it. Then comes an arrest, a charge, a court date nobody planned for. And now everything you built feels like it's sitting on a fault line nobody told you about.
DACA — Deferred Action for Childhood Arrivals — grants a temporary period of protected presence and work authorization. It is not a path to a green card. It is not permanent status. It is a renewable grant of enforcement discretion, codified under 8 CFR § 236.21 (the 2022 DACA Final Rule), and it can be terminated. A criminal charge is one of the clearest ways that termination can happen. The gap between "I was arrested" and "my DACA is gone" can be a single plea offer accepted by someone who did not understand the immigration stakes.
If you have a green card rather than DACA, a different but equally serious set of rules applies — see our how criminal charges affect your green card spoke page. This page is written for DACA recipients.
What DACA Actually Protects (and What It Doesn't)
DACA gives you two things: a forbearance from removal (USCIS will not pursue your deportation while your grant is active) and work authorization through an Employment Authorization Document (EAD). That is the full scope of the protection. DACA does not give you lawful permanent residence. It does not give you a path to citizenship on its own. And — critically — it does not create any immunity from the consequences of a criminal conviction.
When your DACA is active and uncontested, you are protected from deportation as long as you do not create new grounds for termination. A criminal conviction can create exactly that.
The Difference Between an Arrest and a Conviction for DACA Purposes
An arrest alone does not terminate DACA. An arrest that leads to charges, charges that lead to a plea, and a plea that constitutes a "conviction" under federal immigration law — that is the sequence that matters. Under 8 CFR § 236.22, which incorporates the INA § 101(a)(48)(A) definition of conviction, a "conviction" for DACA purposes means a formal judgment of guilt, or a guilty or nolo contendere plea plus any court-imposed condition (supervision, probation, restitution, community service), even if the underlying judgment is formally withheld.
This means the dangerous moment is not the arrest. It is the plea offer. And it is the moment when most DACA recipients get advice from a criminal defense attorney who has not analyzed the immigration side.
Why Colorado's "Legalized" Marijuana Creates a False Sense of Safety
Colorado legalized recreational marijuana under state law. If you were arrested for marijuana possession, your criminal defense attorney may tell you that the charge is minor, likely to be dismissed or deferred, and nothing to worry about. That advice may be correct for criminal law purposes. For DACA purposes, it may be dangerously incomplete.
Marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act (21 U.S.C. § 812), regardless of Colorado state law. For DACA purposes specifically, the key point is narrower than the broader removal-law analysis: simple marijuana possession is not one of the enumerated "significant misdemeanor" offenses under the DACA rule — only drug distribution or trafficking is. Whether a possession conviction affects DACA is a separate, fact-specific question — one that generally turns on the sentence imposed and how many prior misdemeanors a person has. It is not automatically safe, and it is not automatically disqualifying. See the full analysis in the section below, and our DUI and immigration consequences blog post for the full context on Colorado drug charges and federal immigration law.
Talk to our crimmigration team — (888) 746-5245 | Contact Novo Legal
The "Significant Misdemeanor" Standard — The Rule That Ends DACA
Under 8 CFR § 236.22(b)(6) — codified in the 2022 DACA Final Rule, which — like the DACA program itself — remains the subject of ongoing federal litigation — a DACA recipient is barred from the program if they have been convicted of a felony, a "significant misdemeanor," or three or more non-significant misdemeanors. The significant-misdemeanor standard is the one most likely to apply to the kinds of charges that Dreamers in Colorado actually face: drug charges, DUI, domestic incidents, weapons offenses. Here is exactly how it works.
The Three-Part Test USCIS Uses to Classify a Charge
A misdemeanor is a "significant misdemeanor" under 8 CFR § 236.22(b)(6) if it meets any one of the following three criteria:
Prong 1 — Enumerated offense (regardless of sentence). The offense is on this list, with no sentence threshold required:
- Domestic violence
- Sexual abuse or exploitation
- Burglary
- Unlawful possession or use of a firearm
- Drug distribution or trafficking
- Driving under the influence (DUI)
If your charge falls in any of these categories, it qualifies as a significant misdemeanor regardless of what sentence was actually imposed or whether you served any time at all.
Prong 2 — 90-day custody sentence. The offense is not on the enumerated list above, but you were sentenced to more than 90 days of actual time in custody. Suspended sentences do not count toward this threshold — only actual custody time.
Prong 3 — Three-misdemeanor rule. You have been convicted of three or more misdemeanors that did not occur on the same date and did not arise from the same act, omission, or scheme of misconduct. The individual severity of each misdemeanor does not matter — three non-significant misdemeanors together are a mandatory bar.
The distinction matters enormously in practice: a charge that looks minor under Colorado law can be a DACA-ending event under Prong 1, with no sentence required. And three separate minor charges — each one apparently harmless on its own — can combine into a mandatory bar under Prong 3.
Which Colorado Charges Almost Always Qualify as Significant Misdemeanors
DUI is the most common example. Under 8 CFR § 236.22(b)(6), DUI is enumerated as a significant misdemeanor regardless of how Colorado classifies the offense and regardless of any sentence imposed. A first-offense DUI — even one that results in a plea to a reduced charge, even one that avoids jail time entirely — may still constitute a significant misdemeanor depending on the specific offense of conviction. Consult crimmigration counsel before any DUI plea is entered. For the full DUI analysis, see our DUI and immigration consequences blog post.
Drug distribution or trafficking is also enumerated, regardless of sentence. But — and this matters for the Carlos scenario — simple marijuana possession is NOT on the enumerated list. Only distribution and trafficking are. A single Colorado marijuana possession conviction does not automatically constitute a significant misdemeanor under Prong 1. It could still be disqualifying under Prong 2 (if the sentence imposed involved more than 90 days actual custody) or Prong 3 (if it is the third or subsequent misdemeanor conviction on separate dates from separate acts). The determination is fact-specific, not automatic.
Domestic violence, weapons possession offenses, and burglary charges each carry significant misdemeanor status regardless of sentence. These are areas where a conviction — including a plea to a misdemeanor-level offense — can end DACA without any custody time.
Three Misdemeanors = Automatic Ineligibility, Regardless of Severity
This is the rule that catches people by surprise. Under 8 CFR § 236.22(b)(6), three misdemeanor convictions that did not occur on the same date and did not arise from the same act are a mandatory bar — full stop. The rule does not ask whether any individual charge was serious. It counts them.
A DACA recipient who had one minor misdemeanor five years ago and one minor misdemeanor two years ago is one more misdemeanor conviction away from losing DACA eligibility permanently under this prong, even if none of those three charges involved violence, drugs, or any of the enumerated categories. That is why any new charge — no matter how minor it looks in criminal court — requires an immigration analysis before any plea is entered.
Felonies and DACA — A Hard Stop
Under 8 CFR § 236.22(b)(6), any felony conviction is an absolute bar to DACA. There is no discretion, no exception, no sentence threshold. If you are convicted of a felony under federal, state, or local law, your DACA is over.
What Counts as a Felony Under DACA Rules
For DACA purposes, "felony" means an offense classified as a felony under the law of the jurisdiction where the offense occurred, including Colorado state law, or under federal law. The DACA regulation does not apply a categorical-approach immigration analysis to the felony bar the way removal proceedings sometimes do — if Colorado classifies the offense as a felony, USCIS generally treats it as one.
The Aggravated Felony Problem — Why Immigration's Definition Is Broader
For DACA purposes, the operative bar is the plain felony bar described above. But if your DACA is terminated and you are placed in removal proceedings, a separate and more expansive standard applies: the "aggravated felony" definition under INA § 101(a)(43) (8 U.S.C. § 1101(a)(43)). That definition includes dozens of offense categories — some of which are not felonies under Colorado law and some of which carry immigration consequences far out of proportion to their criminal penalties. A suspended sentence of one year or more on a qualifying offense can constitute an aggravated felony for removal purposes.
The aggravated felony analysis is primarily relevant to what happens after DACA termination — in removal proceedings before an immigration judge. For the full doctrine, including the categorical-approach analysis and its application to Colorado charges, see our aggravated felony immigration consequences blog post, which includes a DACA-specific sidebar. The aggravated-felony spoke page at /en/criminal-defense/immigration/aggravated-felonies is forthcoming.
Crimes Involving Moral Turpitude and DACA Renewal
Crimes involving moral turpitude (CIMTs) are a separate immigration category — offenses involving fraud, intent to harm, or conduct society treats as morally reprehensible. CIMTs are primarily a deportability framework for lawful permanent residents, addressed in full on our how criminal charges affect your green card page.
For DACA recipients, the CIMT analysis matters most at the post-termination stage — if DACA ends and removal proceedings follow. At the DACA renewal stage, the operative bars are the ones in 8 CFR § 236.22 (felony, significant misdemeanor, three-misdemeanor rule), not the INA's CIMT deportability framework. However, a charge that constitutes a CIMT may also qualify as a significant misdemeanor under one of the three prongs above — so the analysis often overlaps. For the full CIMT doctrine, see our crimes involving moral turpitude immigration consequences blog post. The CIMT spoke page at /en/criminal-defense/immigration/cimt is forthcoming.
Immigration Implications — What a Charge Means at Renewal and Beyond
When USCIS Reviews Your Criminal Record at DACA Renewal
DACA is renewable, generally in two-year increments, and renewal requires a new I-821D application to USCIS. Every renewal is an opportunity for USCIS to review your criminal history. USCIS applies the 8 CFR § 236.22 bars — felony, significant misdemeanor, three-misdemeanor rule — at every renewal cycle. A conviction that did not exist at your last renewal will be evaluated at your next one.
Beyond the mandatory bars, USCIS retains broad discretion to deny DACA renewal as a matter of discretion even without a mandatory disqualifying conviction. The regulation permits USCIS to weigh public safety factors, criminal history patterns, and other discretionary considerations. A pattern of arrests — even without convictions — can inform that discretionary analysis, though an arrest alone is not a conviction and does not constitute a mandatory bar.
This is also the stage where the deferred-judgment question becomes critical. See the Colorado-specific section below.
ICE Referral Risk — How an Arrest Enters the Enforcement System
Historically, 8 CFR § 236.23(c)(2) provided that when USCIS denies a DACA request, it generally will not refer the case to ICE unless the denial involves fraud, a national-security concern, or a public-safety concern. That regulatory provision is part of the 2022 DACA Final Rule, whose legal status remains in active litigation. As of August 2026, DACA renewals for existing recipients are being processed while the program remains closed to first-time applicants; the enforcement environment around DACA has changed materially since 2023. Because this landscape shifts, a DACA renewal should not be assumed to be automatically insulated from ICE referral under current conditions. Anyone weighing whether and when to renew — especially with any criminal history — often does so with a crimmigration attorney who tracks the current posture.
Colorado-Specific: Deferred Judgments, Plea Offers, and the INA "Conviction" Trap
This is the most Colorado-specific and most practically urgent section on this page. If your criminal defense attorney is recommending a deferred judgment, you need to understand what that means for DACA before you accept.
Under Colorado law (C.R.S. § 18-1.3-102), a deferred judgment requires you to enter a guilty plea first. The court then defers sentencing for a period of time — up to two years on a misdemeanor — while you comply with court-ordered conditions: supervision, community service, restitution, treatment, or similar requirements. If you successfully complete the deferral period, your guilty plea is withdrawn and the charge is dismissed with prejudice. Your Colorado criminal record, on its face, shows a dismissal.
Under federal immigration law, the picture may be more complicated. 8 CFR § 236.22 expressly incorporates the INA § 101(a)(48)(A) definition of "conviction," which includes any case where the defendant entered a guilty plea and the court imposed some form of punishment, penalty, or restraint — even if formal judgment was withheld. A Colorado deferred judgment requires exactly that combination: a guilty plea plus court-imposed conditions. That combination may constitute a "conviction" under the INA standard regardless of what happens on successful completion under state law.
The 8 CFR § 236.22 regulation does carve out "expunged convictions" from the disqualification count. But a successfully completed Colorado deferred judgment results in dismissal with prejudice — not a formal expungement. Whether USCIS treats that dismissal as functionally equivalent to an expungement for DACA purposes is a question that turns on USCIS operational practice and any applicable BIA or circuit-court guidance. There is currently no confirmed Tenth Circuit case that specifically resolves this intersection for DACA renewal purposes.
What this means in practice: a criminal defense attorney who tells you to accept a deferred judgment on a DUI, drug charge, domestic incident, or any other significant-misdemeanor-category offense may be giving you advice that is correct under Colorado law and catastrophic for your DACA. A crimmigration attorney needs to evaluate the specific plea before it is entered — not after.
Travel, Advance Parole, and Why Your DACA May Not Protect Re-Entry
DACA does not give a recipient the right to travel internationally and return freely. A DACA recipient who travels abroad without first obtaining advance parole — a separate grant of permission to re-enter — generally risks losing the ability to return. The availability of advance parole for DACA recipients has itself been affected by litigation and policy changes, so this is an area to confirm with counsel before making any travel plans. Even with advance parole, a returning DACA recipient may be subject to inadmissibility grounds at the border under INA § 212(a)(2) (8 U.S.C. § 1182(a)(2)), which includes criminal grounds.
If you have a criminal conviction — even one that has never triggered a DACA termination or a USCIS concern — that conviction can create an inadmissibility bar when you seek re-entry. The inadmissibility framework is applied at the port of entry and operates differently from the DACA renewal framework at USCIS. A conviction that has no effect on your DACA renewal may still prevent you from re-entering the country after international travel.
Anyone with DACA who has any criminal history should consult a crimmigration attorney before traveling internationally. The advance parole application should also be evaluated with full knowledge of the conviction record.
Your DACA is worth fighting for.
Novo Legal's criminal defense and immigration teams work every case together — because a plea that ignores immigration consequences is not a real deal. Call us at (888) 746-5245.
Schedule a ConsultationHow Novo Legal Defends DACA Recipients in Colorado
We are not a criminal defense firm that also knows some immigration law. We are a crimmigration practice — which means the criminal and immigration sides of your case are never analyzed in isolation. When a Dreamer contacts us after an arrest, both teams are on the case from day one.
Here is what that looks like for DACA recipients specifically.
Criminal Defense and Immigration — We Work Every Case Together
When you call us after an arrest, your criminal case and your immigration status are treated as one file. The criminal defense attorney evaluates the charges, the evidence, and what plea options exist in Colorado court. The immigration attorney maps each of those options against the 8 CFR § 236.22 bars — the significant-misdemeanor test, the three-misdemeanor count, the felony bar — and against the INA conviction definition that governs Colorado deferred judgments.
Those two analyses happen in parallel. You do not get a plea recommendation and then an immigration afterthought. You get a defense strategy where both outcomes are part of the plan from the start.
The U.S. Supreme Court held in Padilla v. Kentucky, 559 U.S. 356 (2010), that criminal defense attorneys are constitutionally required to advise noncitizen clients about the deportation consequences of a guilty plea. We go further — we do not just advise on consequences. We build a defense strategy designed to avoid them.
Plea Negotiation With Your DACA Status in Mind
The most important moment in most criminal cases is not the trial — it is the plea offer. A prosecutor's disposition that resolves the criminal case well may also be the disposition that ends your DACA. Our attorneys ask a different question before recommending any plea: what does this do to immigration status?
Sometimes a charge can be resolved to a different offense — one that avoids the significant-misdemeanor category under 8 CFR § 236.22. Sometimes the sentence structure matters: avoiding more than 90 days of actual custody can be the difference between a DACA bar and no bar on a non-enumerated charge. Sometimes fighting the charges outright is the only safe path. We evaluate every option through both lenses before recommending one.
Fighting the Charges Before They Reach USCIS
The best outcome for DACA purposes is often a dismissal of the charges entirely — before any conviction enters the record. We fight the criminal case on its merits, because winning in criminal court is the cleanest immigration result.
When the evidence supports a challenge — to the stop, the search, the arrest, the sufficiency of the charges — we bring it. A charge that is dismissed is a charge that never reaches USCIS, never appears in the conviction count, and never triggers a significant-misdemeanor analysis. Preventing the conviction is always our first objective. Post-conviction options may exist in some cases — including motions based on Padilla where prior counsel failed to advise on immigration consequences — but the time to act is before the plea, not after.
Colorado Courts, Colorado Stakes — We Know Both
Our attorneys appear regularly in Colorado's criminal courts — Denver, Arapahoe, Adams, Jefferson, Boulder, and across the Front Range. We know the prosecutors, the local practices around plea offers, and how immigration-sensitive plea structures are received in Colorado courtrooms. We also appear in federal immigration court and before USCIS.
For DACA recipients, local court knowledge and immigration court knowledge need to be in the same room. They are. Every time.
Protect Your DACA — Schedule a Consultation Today
You have been in this country since you were a child. You have built something here. One charge — one plea entered without the right analysis — should not be allowed to take that away.
Novo Legal Group is a Spanish-first, bilingual crimmigration practice serving Colorado. Every attorney and staff member is bilingual in English and Spanish. When you call, you reach a team that understands the criminal side and the immigration side — and fights on both.
The crimmigration hub covers the full landscape of how criminal and immigration law intersect for every status. This page is for DACA recipients specifically. If someone you know has a green card and is facing criminal charges, direct them to the green card and criminal charges page.
Call us at (888) 746-5245 or schedule online. We handle consultations by phone, video, and in person at our Denver office.
Don't face this alone.
Your DACA, your future, your life in this country — it's worth fighting for. Call Novo Legal at (888) 746-5245.
Schedule a ConsultationWhy Choose Novo Legal for DACA Criminal Defense in Colorado
Novo Legal Group was built to serve the immigrant community in Colorado — not as a side service, but as our mission. We take the cases that matter most to our community. We fight them like they matter. Because they do.
For DACA recipients, that means you will never get a criminal defense attorney who hands off the immigration question to someone else. One team. Both sides. Every case.
We have negotiated immigration-conscious pleas for DACA recipients, filed Padilla motions when prior counsel fell short, and defended Dreamers whose situations looked impossible — because giving up on someone who has called this country home since childhood is simply not something we do.
Frequently Asked Questions — DACA and Criminal Charges
Can a misdemeanor affect my DACA?
Yes. A misdemeanor may affect your DACA if it is a "significant misdemeanor" under 8 CFR § 236.22(b)(6). A misdemeanor is significant if it falls on an enumerated list (DUI, domestic violence, firearms, drug distribution or trafficking, sexual abuse, burglary), results in more than 90 days of actual custody, or is your third or subsequent misdemeanor conviction from separate acts on separate dates. Even a charge that seems minor under Colorado law may qualify. A crimmigration attorney should evaluate any misdemeanor before you enter a plea.
What is a significant misdemeanor for DACA purposes?
Under 8 CFR § 236.22(b)(6), a "significant misdemeanor" for DACA purposes is a misdemeanor that meets any one of three criteria: (1) it is an enumerated offense — domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or DUI — regardless of sentence; (2) the sentence imposed was more than 90 days of actual custody; or (3) it is one of three or more misdemeanor convictions not arising from the same act on the same date. A significant misdemeanor conviction is a mandatory bar to DACA.
Does a felony end your DACA?
Yes. Under 8 CFR § 236.22(b)(6), any felony conviction under federal, state, or local law is an absolute bar to DACA. There is no discretion, no sentence threshold, and no exception. If Colorado classifies an offense as a felony, USCIS generally treats it as one for DACA purposes.
Does a deferred judgment affect DACA in Colorado?
It may. A Colorado deferred judgment under C.R.S. § 18-1.3-102 requires entry of a guilty plea as a condition of the deferral. Under federal immigration law (INA § 101(a)(48)(A)), a guilty plea combined with any court-imposed condition may constitute a "conviction" even if the Colorado record ultimately shows a dismissal after successful completion. Whether a completed deferred judgment counts as a conviction for DACA renewal purposes is a fact-specific question that a crimmigration attorney must evaluate before the plea is accepted — not after.
Can an arrest alone terminate my DACA?
An arrest alone does not terminate DACA. The sequence that matters is an arrest that leads to charges, charges that lead to a plea, and a plea that constitutes a "conviction" under federal immigration law. However, a pattern of arrests — even without convictions — can inform USCIS's discretionary analysis at DACA renewal. The dangerous moment is the plea offer, not the arrest itself.
DACA Criminal Defense Resources
The following resources are confirmed live and expand on topics introduced on this page:
- Crimmigration Hub — The Immigrant's Criminal Defense Attorney — Parent pillar; overview of how criminal and immigration law intersect for every status
- How Criminal Charges Affect Your Green Card — Sibling spoke; for LPR/permanent residents — DACA audience is explicitly redirected here for the LPR frame
- Crimes Involving Moral Turpitude and Immigration Consequences — Full CIMT doctrine deep-dive
- Aggravated Felony and Deportation: What You Need to Know — INA § 101(a)(43) analysis; includes DACA sidebar
- DUI and Immigration Consequences — DUI as an enumerated significant misdemeanor; full Colorado analysis
- Schedule a Consultation — Phone, video, or in person; bilingual intake
RESOURCES FROM OUR BLOG
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Denver Criminal Defense Lawyers and Summer Event Arrests
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