Codifying and Fortifying DACA

The Biden administration is publishing a new proposed rule today aimed at codifying into regulation the Deferred Action for Childhood Arrivals program established by former president Obama.

The proposed rule issued by the Department of Homeland Security would not expand eligibility for DACA, which to date has provided protection from deportation as well as work authorization to more than 800,000 people who were brought to the U.S. without documentation as children, including many current and former college students.

The proposed rule to “preserve and fortify” DACA comes in the context of a July ruling from a Texas district court judge finding the program unlawful partly because it was promulgated without notice-and-comment rule making.

U.S. District Judge Andrew S. Hanen also ruled that the authority for creating such a program lies with Congress, not the executive branch. He ordered the administration not to accept any new applications for DACA. The Biden administration has appealed the ruling.

Former president Trump tried to end the DACA program, but he was blocked in his efforts to do so by the Supreme Court. In a 5-to-4 ruling, the Supreme Court found that the Trump administration did not comply with procedural requirements for appropriately ending the program as outlined in the Administrative Procedure Act.

Immigration law experts noted that the newly published 205-page proposed rule on DACA does not include major changes to the DACA program and keeps eligibility criteria the same. However, the proposed rule does decouple work authorization from protection against deportation. DACA applicants would still be eligible to receive work authorization, but they would have the option of to seek protection from deportation without also applying for work authorization.

Individuals who apply for DACA protections against deportation without also applying for work authorization would pay a fee of $85, while the existing fee of $495 would be maintained for those who apply for work authorization and deportation protections.

Aaron Reichlin-Melnick, policy council for the American Immigration Council, said on Twitter that in severing the work authorization from the deportation protections, “DHS is basically recognizing that the work permit portion of DACA could potentially be struck down, and saying that they think if that happens they may still be able to protect people with DACA from being arrested and deported.”

Stephen Yale-Loehr, a professor of immigration law at Cornell Law School, said that both the district court in Texas and the Supreme Court “raised concerns about the automatic work permit aspect of the original DACA program, so by separating the two I think the Department of Homeland Security thinks they will have a stronger litigation strategy.”

Overall, Yale-Loehr described the rule as “an effort to bulletproof the existing program from litigation challenges.”

Still, even if this rule is finalized, he said it will not head off all potential legal challenges.

“This may take care of the procedural problems that Judge Hanen identified in his July ruling, but there are still the substantive challenges that Texas and other states will press,” Yale-Loehr said. “For example, they are sure to argue that only Congress can enact such a wide-ranging program.”

Michael A. Olivas, the emeritus William B. Bates Distinguished Chair in Law at the University of Houston Law Center and an expert on the legal and political history of DACA, said he does not believe the proposed rule will shore up the legal basis for the program.

“I don’t think it gives it any legal footing because it was never properly shut down, and if they don’t try to shut it down, it continues on its lawful way,” he said. “It’s presumed constitutional until it’s found not to be.”

Olivas added that he believes the 2020 Supreme Court ruling blocking the Trump administration’s attempt to shut down DACA was premised on the court’s assumption the program was constitutional.

Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration, a group of college leaders who advocate for welcoming immigration policies for undocumented, immigrant and international students, said the organization welcomes “this proposed rule with the goal of strengthening and reinforcing” the DACA program.

But she pointed out that many students entering and enrolled in college now are not eligible for DACA because in order to be eligible they would have had to have arrived in the U.S. by June 15, 2007. The Presidents’ Alliance estimates that there are about 427,345 undocumented students in higher education, and that fewer than half of those students -- 181,624 -- are eligible for DACA.

“Ultimately, an administrative solution is not possible,” Feldblum said. “There is no administrative solution. There’s only a legislative solution. That’s the imperative, and it just continues to grow in urgency.”

The proposed rule itself asserts a need for legislative action. It also describes the historical use of prosecutorial discretion and deferred action in immigration enforcement and includes a legal analysis of the history of DACA in the courts, up to and including Judge Hanen’s ruling in July.

“I think there was an honesty by the agency about why it was promulgating a rule,” said Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar at Penn State Law School and an expert on prosecutorial discretion in immigration enforcement. “I found the explanation itself to be honest and transparent about the landscape we’re in and choices and options available to the agency and the way it has decided to act.”