The Biden administration is again seeking to support the Deferred Action for Childhood Arrivals (DACA) program against ongoing legal challenges that threaten to revoke protections for thousands of immigrants.
The effort is an important signal of the Biden administration’s commitment to the program, but is far from a perfect solution. While the more than 450 pages last rule, effective Oct. 31, would formally codify DACA as a federal ordinance, it will give current “DREAMers” — unauthorized immigrants who came to the US as children — little immediate protection. It also does not allow new DACA applications for the time being, limiting the impact to the more than 600,000 people currently enrolled in the program.
“Today, we deliver on our promise to preserve and strengthen DACA by finalizing a rule that will strengthen protections such as work permits, allowing Dreamers to live more freely and invest more fully in their communities,” said President Joe Biden. in a statement on Wednesday.
Since former President Barack Obama created the program through executive measures in 2012, the program has served more than 800,000 DREAMers of deportation and made them apply for work permits. recent legal challenges however, the program put it at risk, prompting the Biden administration to enact the new rule.
With more than two months remaining before the rule goes into effect, the immediate status quo won’t change, meaning those legal challenges still loom over the program, and DREAMers have no protection against new challenges in the intervening period.
Even if the rule goes into effect, courts can still find the program illegal. If the rule is successfully implemented and Biden is not re-elected in 2024, his successor may be able to overthrow it, but will likely have to go through the arduous federal regulatory process to do so. Because of all this, the rule is no substitute for codifying the program into federal law, which is the only ironclad measure that would ensure its survival against attacks by anti-immigrant hawks.
“While the Biden administration’s new rule sends a clear message that DACA works, our communities need more,” said Marielena Hincapié, executive director of the National Immigration Law Center. in a statement. “Strengthening DACA is a critical step, but it is not a substitute for congressional action.”
What the rule does and doesn’t do?
The rule replaces the policy guidelines set forth in the 2012 memo created by DACA, maintaining the pre-existing eligibility criteria and process for DACA applicants to apply for work permits. It also reaffirms that DACA is not a form of legal status, but that DACA recipients are considered “legally present” for certain purposes — and should not be prioritized for deportation.
But the rule is not a panacea. Former President Donald Trump shut down DACA to new applicants but stopped completely dismantling the program after the Supreme Court prevented him from doing so in a June 2020 ruling. The Biden administration briefly resumed processing new applicants and approved some. 1,900 people for DACA status in the first five months of 2021, before a federal judge in Texas ordered it to stop. About 1.1 million individuals could be eligible for the program from the end of 2021. For now, that court order remains in effect, despite the new rule.
Immigrant advocates have also called on the Biden administration to update the eligibility criteria for the program, which they claim are outdated. Current criteria require applicants to be under the age of 31 as of June 15, 2012, and have lived continuously in the US since at least June 15, 2007. Those eligibility dates have not been updated since the program was created.
The Justice Department has not immediately responded to comments about why the rule has not updated eligibility requirements, but it is likely out of fear of legal challenges.
The fact that the rule passed the federal regulatory process — which solicited and reviewed more than 16,000 responses from the public — would potentially make it more robust to legal challenges than the 2012 memo. But the program still faces immediate threats from a pending lawsuit in the U.S. Fifth Circuit Court of Appeals, and further challenges to the rule are expected.
If the Fifth Circuit takes down DACA as expected, an average of 5,000 DACA recipients over the next two years will lose their ability to operate and become vulnerable to deportation, according to Todd Schultethe chairman of the immigrant advocacy group FWD.us.
“Given this fact, it is absolutely critical for current DACA recipients to seek renewals as soon as they qualify and consult an attorney about their options,” he wrote in a statement to the group on Twitter.
DACA has fallen victim to a stalemate in Congress
Versions of the DREAM Act, which would have codified the DACA program into federal law and provided DREAMers with a path to citizenship, have failed for years.
In March 2021 a round of bipartisan negotiations extinct. A bipartisan group of senators – including Sens. Dick Durbin (D-IL), Alex Padilla (D-CA), Thom Tillis (R-NC) and John Cornyn (R-TX) – resumed talks on immigration reform in April, but has yet to make meaningful progress.
One reason for this is that Republicans have shown little interest in passing the DREAM Act or similar legislation unless accompanied by reinforced border security measures, something Democrats have rejected. However, because of the majority of Democrats in the Senate, they need Republican support to overcome every filibuster and pass legislation.
Democrats tried to go it alone last year and pass immigration reforms in a social spending bill through budget reconciliation, which only requires a simple majority, but the Senate MP rejected some of their proposalsarguing that the new policy violated the reconciliation rules.
Immigration reforms remain widely popular: A June 2021 poll by the American Civil Liberties Union found that: 72 percent of voters support the DREAM law. Such a poll, however, has had little impact on GOP lawmakers, and with the midterm elections months away, Republicans have even less incentive to help Democrats achieve their long-term goal of protecting DREAMers.
And by delaying action, Republicans may be able to strengthen their negotiating position on the issue. If the Republicans regain control of the House, as commonly expectedthe chances of the DREAM Act being passed without Democrats agreeing to at least some GOP demands on the border is incredibly slim.
If there’s a glimmer of hope for DREAMers, it might be in the Senate compromise on another very divisive topic: gun control. Congress has been at a standstill over gun control since the 2012 shooting at Sandy Hook Elementary School in Newtown, Connecticut. But a series of major mass shootings eventually garnered enough bipartisan support to approve a gun security package earlier this year that didn’t go as far as Democrats wanted, but still introduced tailor-made reforms. With the right motivation, immigration lawyers hope that a similar type of negotiation on immigration will be possible as well.
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