The Biden administration’s final rule to preserve and fortify the Deferred Action for Childhood Arrivals (DACA) program went into effect on Monday. The rule is currently the subject of ongoing litigation in court.
“This final rule is our effort to preserve and fortify DACA to the fullest extent possible,” said Secretary of Homeland Security Alejandro Mayorkas in a statement. “Ultimately, we need Congress to urgently pass legislation that provides Dreamers with the permanent protection they need and deserve.”
Earlier this month, a federal judge ruled that the program could continue temporarily after a federal appeals court ruled the policy unlawful.
U.S. District Judge Andrew Hanen said the program would be allowed to continue for now but new applicants would still be barred from applying.
Hanen asked attorneys in the case to submit more information, but he set no date for future hearings.
DACA protects people who were brought to the country as children without legal status, or who later fell out of legal status, by granting them work authorization, protecting them from deportation, and in some cases allowing them travel permits.
Hanen last year found that DACA was unlawful in part because it was created by a memorandum written by the former DHS Secretary, Janet Napolitano, and not created by the formal agency rulemaking process, which requires public “notice and comment.” But he allowed the program to temporarily continue for those already with DACA status.
In late August the Biden administration released the final version of a rule to codify and fortify DACA in an attempt to protect the program and its recipients from ongoing legal threats.
A federal appeals court last week affirmed Hanen’s 2021 ruling, but ordered a review of the Biden administration revisions to protect and fortify the policy.
The three-judge panel of the New Orleans-based 5th Circuit Court did not order the Biden administration to shut down the program, but it did bar the approval of first-time DACA applications.
The appeals court sent the case back to Judge Hanen, asking him to review the Biden administration’s new rule.
The new rule is not remarkably different from the program as enacted by memo in 2012. It does not expand the number of people eligible for DACA, nor does it address the issues of processing delays or frequency of renewals. However, by going through the formal rulemaking process, during which the Department of Homeland Security (DHS) collected over 16,000 public comments, the government has rendered moot at least one purported reason that DACA is not legal.
The Biden administration appealed Judge Hanen’s ruling to the Fifth Circuit, which hears appeals from the federal district courts in Texas, Louisiana, and Mississippi. The three-judge panel heard oral arguments on July 6, 2022, and appeared unconvinced by the government’s arguments in favor of the DACA program’s legality.
According to a report by FWD.us, a bipartisan organization focused on immigration and criminal justice reform, the end of the DACA program would cost the U.S. 22,000 jobs a month, every month for the next two years — that’s 1,000 jobs every business day for the next two years. According to the same analysis, each day for two years, nearly 1,000 immediate U.S. citizen family members will see a loved one at immediate risk of deportation.
DHS Secretary Alejandro Mayorkas called on Congress to pass legislation to create a pathway to citizenship for Dreamers, along with many lawmakers on Capitol Hill, who urged their colleagues to support the Dream and Promise Act.
In the meantime, DHS has vowed to continue protecting the DACA program. In the event a judge ends the program, the government will appeal to the U.S. Supreme Court.