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Jacob Hamburger, Stephen W. Yale-Loehr, Aug. 30, 2022
"On Tuesday, the Biden administration published a new rule codifying the Deferred Action for Childhood Arrivals (DACA) program for the first time into the formal regulatory code. Since President Obama announced DACA in 2012, it has provided hundreds of thousands of people who came to the United States as children—often referred to as “Dreamers”—temporary protection from deportation and work permits. Following litigation attempting to rescind the program’s protections in recent years, the Biden administration has presented the new regulation as a way to “preserve and fortify” DACA. But in the midst of ongoing legal battles, DACA remains on life support, and President Biden and Congress will need to do more to ensure a better future for Dreamers.
The Biden administration moved to codify DACA in large part to try to moot an ongoing federal court case that places the program’s survival at risk. Last year, Judge Andrew Hanen of the Southern District of Texas—a Trump appointee—held that DACA was unlawfully created, among other reasons, because it did not go through a formal rulemaking procedure known as “notice and comment.” This case is now on appeal, and a ruling from the Fifth Circuit Court of Appeals is likely in the coming weeks. In the meantime, the Biden administration completed the notice and comment process, accepting more than 16,000 public comments as it drafted the final DACA regulation. As a result, at least one of the district court’s reasons for holding DACA unlawful is likely no longer an issue for the case on appeal.
The new regulation might help defend DACA against the looming threat from the federal courts. But it might not. After all, Judge Hanen cited a litany of other reasons for striking down DACA under administrative and immigration law, which like-minded judges on the Court of Appeals may find compelling. While the Fifth Circuit’s next move remains uncertain, what is certain is that the new rule does little to strengthen DACA in any meaningful sense.
Because the Biden administration chiefly focused on its battle with the courts, the new rule fails to adopt any substantive measures to expand or strengthen the DACA program. Most conspicuously, the government declined to extend the date that a young immigrant must have arrived in the United States to apply for DACA. That date remains June 15, 2007. This means that even if the program survives the Fifth Circuit’s ruling, undocumented youth that turned 15 this past June are the last Dreamers who can receive its protection. In principle, codifying DACA ought to provide a framework for the program to endure for the future. By keeping the original eligibility date, however, the administration effectively set an expiration date for DACA regardless of what the courts decide.
The regulation also passed over a number of smaller reforms that would have ensured an easier process for DACA applicants. As some commenters noted, DACA recipients must renew their status every two years. Given unpredictable processing times, it is common to lose work authorization if a renewal application is granted too late, leading to many Dreamers being fired from their jobs. Many applicants also struggle to provide evidence that they were living in the United States during the necessary time period to qualify for DACA. The administration declined to adopt procedures such as automatic renewals of work permits, or looser evidentiary standards, largely out of concern that these reforms would be interpreted by courts as limiting the government’s discretion to decide individual cases—a key component of the legal justification for DACA in the first place.
Ultimately, given the context in which this regulation emerged, it was always unlikely that we would see a major expansion of DACA. As has been apparent from the beginning of the program more than a decade ago, the only sure way of protecting Dreamers in the long run is for Congress to adopt legislation granting them permanent status. While the Senate’s commitment to the filibuster rule and the Republican Party’s near-unanimous opposition to any immigration bill have long seemed like immovable obstacles to a legislative solution, this latest rulemaking process demonstrates that a defensive battle with the federal judiciary is hardly preferable. As President Biden and his allies have delivered on campaign promises such as gun control and canceling student debt—also once considered outside the realm of political possibility—they should not shrink from the opportunity to fulfill the promise to Dreamers."
Jacob Hamburger is a Postdoctoral Associate at Cornell Law School. His research focuses on immigration federalism, exploring state and local policies that promote immigrant inclusion in areas including employment, access to justice, and democratic participation. He earned his J.D. from the University of Chicago Law School, and previously worked as a staff immigration attorney at Legal Aid Chicago. Steve Yale-Loehr has practiced immigration law for over 35 years. He is co-author of Immigration Law and Procedure, the leading 21-volume treatise on U.S. immigration law. He also teaches immigration and asylum law at Cornell Law School as Professor of Immigration Practice and is of counsel at Miller Mayer in Ithaca, New York. He also founded and was the original executive director of Invest In the USA, a trade association of EB-5 immigrant investor regional centers.