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DACA Rule Release Aims to Bolster Program for ‘Dreamers’ (1)

Aug. 24, 2022, 8:18 PMUpdated: Aug. 24, 2022, 9:13 PM

The Biden administration on Wednesday released the final version of regulations intended to fortify the Deferred Action for Childhood Arrivals program against legal challenges.

The program, launched in a 2012 memo by the Obama administration, offers protection from deportation and the ability to work legally to some 600,000 undocumented young people who came to the US as children. The regulation replaces the Obama-era memo and takes effect Oct. 31.

The Biden administration crafted the regulation in response to legal challenges that have plagued DACA since its inception. The rule doesn’t make the program bulletproof, however, as some litigants and judges question whether the Department of Homeland Security has authority to issue broad deportation protections at all.

“Today, we are taking another step to do everything in our power to preserve and fortify DACA, an extraordinary program that has transformed the lives of so many Dreamers,” Homeland Security Secretary Alejandro Mayorkas said in a statement.

Mayorkas called on Congress to pass legislation to create a pathway to citizenship for DACA recipients, often known as Dreamers. Many lawmakers quickly echoed that sentiment, pushing the Senate to take up House-passed legislation (H.R. 6) protecting Dreamers and other undocumented immigrants.

“This step forward does not take away from the urgency for 10 Senate Republicans to join all Democrats to pass the House-passed bipartisan Dream and Promise Act and provide certainty and a pathway to citizenship for our hardworking Dreamers across the country,” Congressional Hispanic Caucus Chair Raul Ruiz (D-Calif.) said in a statement.

The legislation would need the support of 10 Republicans and all Democrats to meet the Senate’s 60-vote threshold—an uphill battle amid increasing Capitol Hill polarization on immigration policy ahead of midterm elections.

Inside the Rule

The DHS’s final regulation maintains existing criteria for DACA status and the process for seeking work authorization. The rule will apply only to DACA renewal requests, not to new applications, while a federal court order remains in place barring DHS from granting new requests for status.

DACA has faced challenges in court from Republican-led states even after a Trump administration effort to rescind the program was overturned by the US Supreme Court in 2020.

Last year, Houston-based US District Judge Andrew Hanen ruled the program was unlawful because it was created through a secretarial memo and not a formal rulemaking process. The US Court of Appeals for the Fifth Circuit heard arguments in an appeal of that ruling in July.

“DHS has carefully and respectfully considered all aspects of the analysis in that decision, including that decision’s conclusions about DACA’s substantive legality,” the agency said in the final regulation Wednesday, adding that it “respectfully disagrees.”

The Department of Homeland Security received more than 16,000 comments in response to a draft rule released in September. The proposed rule largely codified the 2012 memo that created the program.

However, the draft regulations allowed recipients to apply for deferred action and work eligibility separately, to the chagrin of immigration advocates and business groups who feared that could ultimately undermine employment authorization. The final version retains the existing process.

(Updated with additional reporting throughout.)

To contact the reporters on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com; Andrew Kreighbaum in Washington at akreighbaum@bgov.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Laura D. Francis at lfrancis@bloomberglaw.com