In late August the Biden administration released the final version of a rule to codify and fortify the Deferred Action for Childhood Arrivals (DACA) program in an attempt to protect the program and its recipients from ongoing legal threats.
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. “Dreamers,” as DACA recipients are frequently called, have long been a symbol of immigrant youth. In reality, however, many Dreamers are now transitioning into middle age and have families of their own.
In fact, the overwhelming majority of the country’s undocumented high school graduates will be ineligible for DACA when they graduate because they entered the U.S. after the program’s required arrival date of June 15, 2007. The new DACA regulation largely mirrors the program as it was created in 2012, which included the requirement that a DACA applicant have been present in the country prior to 2007.
This date has never been updated, even when the Department of Homeland Security (DHS) released the final rule last month. It means, for example, that someone turning 16 who has lived most of their lives in the U.S. is still shut out of the program. “By keeping the original eligibility date,” write Jacob Hamburger and Stephen Yale-Loehr for Slate, “the administration effectively set an expiration date for DACA regardless of what the courts decide.”
The Biden administration moved to codify DACA because the program remains in legal peril, due in part to the manner in which it was created.
After the state of Texas and others sued the government to stop the program, a federal judge in Texas ruled in July 2021 that DACA was illegal and barred new applications to the program, though current recipients could continue to renew their DACA grants. Specifically, U.S. District Judge Andrew Hanen 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.”
Because the DACA rule was drafted in response to this litigation, the rule released by DHS was not remarkably different from the program as enacted by memo in 2012. It did not expand the number of people eligible for DACA, nor did it address the issues of processing delays or frequency of renewals. However, by going through the formal rulemaking process, during which 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.
The case is still being reviewed, but many immigration advocates fear the appeals court will rule against the program. And beyond the concrete harms to Dreamers if that should happen, such as loss of work authorization and protection from deportation, the protracted legal battle surrounding DACA has taken a toll: DACA recipients reported a drop in feelings of integration and inclusion in the U.S. of 15% from 2020 to 2021.
In the meantime, and regardless of the rule’s publication, there is still a chance that the DACA rule might not take effect. The final rule is scheduled to take effect on October 31, 2022, but only if it does not itself become the subject of a lawsuit.
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 the Fifth Circuit finds the program unlawful, the government will appeal to the U.S. Supreme Court.