New Rule Proposed to Strengthen DACA Protections

WASHINGTON — The Biden administration proposed a new rule on Monday that its says will “preserve and fortify” the Deferred Action for Childhood Arrivals program and protect undocumented people in the program from legal challenges.

The Deferred Action for Childhood Arrivals program, more commonly known as DACA, is an Obama-era initiative that sought to protect the estimated 600,000 undocumented people who were brought into the country illegally as minors.

The program provides these individuals with a renewable two-year period of deferred action from deportation and makes them eligible for a work permit in the U.S. 

To be eligible for the program, recipients cannot have felonies or serious misdemeanors on their records, but unlike the proposed DREAM Act, DACA does not provide a path to citizenship for recipients.

In recent years, DACA has been litigated time and again, particularly since former President Donald Trump announced, in September 2017, that he intended to phase out the program.

Among the lawsuits filed in the wake of that announcement was Department of Homeland Security v. Regents of the University of California.

In June 2020, the Supreme Court, ruled that Trump’s rescission was arbitrary and capricious under the federal Administrative Procedures Act, but did not rule on the merits of DACA itself.

On Jan. 20, 2021, President Biden issued an executive order reversing Trump’s decision, but earlier this summer, U.S. District Judge Andrw Hanen, presiding in Texas, ruled the Obama administration had created the program “in violation of the law.”

The Biden administration is appealing that ruling.

As things stand now, Hanen is allowing the program to continue as the litigation plays out, but he has prevented the government from accepting new applications to the program.

The new rule

, which takes up 81 pages in the federal register, stems from that decision.

“The rule embraces the consistent judgment that has been maintained by the department—and by three presidential administrations since the policy first was announced—that DACA recipients should not be a priority for removal,” the Department of Homeland Security said in a statement.

In essence according to a Federal Register notice published Tuesday, the rule responds to Biden’s memorandum of Jan. 20, 2021, ‘’Preserving and Fortifying Deferred Action for Childhood Arrivals,” in which Biden stated: 

“DACA reflects a judgment that these immigrants should not be a priority for removal based on humanitarian concerns and other considerations, and that work authorization will enable them to support themselves and their families, and to contribute to our economy, while they remain.”

The proposed rule, “recognizes that, as a general matter, DACA recipients, who came to this country many years ago as children, lacked the intent to violate the law, have not been convicted of any serious crimes, and remain valued members of our communities. 

“It reflects the conclusion that, while they are in the United States, they should have access to a process that, operating on a case-by-case basis, may allow them to work to support themselves and their families, and to contribute to our economy in multiple ways.”

The notice continues, “This proposed rule also accounts for the momentous decisions DACA recipients have made in ordering their lives in reliance on and as a result of this policy, and it seeks to continue the benefits that have accrued to DACA recipients, their families, their communities, and to the department itself that have been made possible by the policy.”

The rule also includes a host of technical revisions of the program’s original text.

DHS Secretary Alejandro Mayorkas went on to say in a statement that while publishing the notice of proposed rulemaking is an important step “only Congress can provide permanent protection.” 

“I support the inclusion of immigration reform in the reconciliation bill and urge Congress to act swiftly to provide Dreamers the legal status they need and deserve,” he said.

The move follows a ruling by U.S. Senate parliamentarian last week that rejected Democrats’ plan to include a pathway to citizenship for millions of undocumented people, including those in the DACA program, in the $3.5 trillion reconciliation package currently being hotly debated on Capitol Hill.

Those interested in submitting comments on the rulemaking, identified by DHS Docket No. 2021-0006, may do so through the Federal eRulemaking Portal at https://www.regulations.gov. Follow the website instructions for submitting comments.