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DACA Revamp Proposed by Biden’s Homeland Security Agency (2)

Sept. 27, 2021, 1:09 PMUpdated: Sept. 27, 2021, 7:32 PM

The Biden administration Monday released its proposed measure to preserve and fortify an Obama-era program that protects “Dreamers” from deportation after a federal judge declared the original initiative illegal.

The Deferred Action for Childhood Arrivals program, which protects young immigrants from deportation and allows them to work in the U.S., is expected to be on stronger if not sure footing with a regulation on the books.

“The Biden-Harris Administration continues to take action to protect Dreamers and recognize their contributions to this country,” Secretary Alejandro Mayorkas said in a statement announcing the revived initiative. “This notice of proposed rulemaking is an important step to achieve that goal.”

“However,” he added, “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.”

U.S. District Judge Andrew Hanen in Brownsville, Texas, halted the program for new applicants in mid-July, and cast doubt on its future for its more than 600,000 participants. That ruling is being appealed.

Then-President Barack Obama created DACA in 2012 through a secretarial memo after Congress failed in repeated attempts to shield from deportation young immigrants who were brought to the U.S. as minors. The program has since become one of the most contested aspects of federal immigration policy.

The new proposal, if finalized after a public comment period, would finally put DACA into regulation form—offering more protection from legal challenges and potential reversal by future administrations. Trump officials attempted to end the program but were stymied in court for failing to go through a full public process.

Immigrants who were younger than 16 when they arrived in the U.S., have been here since 2007, have a high school degree or equivalent, or have served honorably in the military, and haven’t been convicted of felonies or significant misdemeanors can apply for protection from deportation under the proposal. The measure also includes a process to apply for a work permit.

Congressional Action

Democratic plans to include a DACA measure in the budget reconciliation process were foiled by the U.S. Senate parliamentarian on Sept. 19 when she concluded the provision’s policy goals outweighed its budgetary impact, rendering it ineligible for inclusion in the larger package.

Mayorkas briefly addressed the issue during remarks at a conference Monday, saying the parliamentarian’s ruling focused on “that which was squarely presented to her” and didn’t mark an end to the effort to update immigration laws.

“The drive for legislation is unrelenting, and correctly so,” Mayorkas said. “It is so imperative.”

Democrats had presented a plan to legalize “Dreamers,” essential workers, and other immigrants. They’re now exploring backup options that would tweak existing statutes to provide other pathways to legal status.

Immigrants’ rights advocates praised the Biden administration’s DACA proposal Monday but echoed calls for congressional action. The National Immigration Forum noted that a final regulation could still be struck down in court.

“Formalizing DACA is a positive step, but it’s not a permanent fix,” forum President and CEO Ali Noorani said in a statement. “This development is yet another reminder that Congress must act.”

(Adds comments from Mayorkas, Noorani in second section.)

To contact the reporters on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com; Lydia O'Neal in Washington at loneal@bloombergtax.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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