Biden administration proposes rule reinstating DACA

The Biden administration on Tuesday moved to strengthen protections for those brought to the U.S. undocumented as children, an effort to combat legal challenges to a program first started under former President Obama.

A proposed rule from the Department of Homeland Security (DHS) would solidify the Deferred Action for Childhood Arrivals (DACA) program, which was suspended under former President Trump and enjoined by a Texas court in July of this year, leaving an estimated million people in immigration limbo.

“This proposed rule embraces the consistent judgment that has been maintained by the Department — and by three presidential administrations since the policy first was announced — that DACA recipients should not be a priority for removal,” DHS wrote in the rule.

“The proposed rule recognizes that enforcement resources are limited, that sensible priorities must necessarily be set, and that it is not generally the best use of those limited resources to remove productive young people to countries where they may not have lived since early childhood and whose languages they may not even speak. It recognizes that, as a general matter, DACA recipients, who came to this country many years ago as children, lacked the intent to violate the law, have not been convicted of any serious crimes, and remain valued members of our communities.”

Immigration advocates celebrated the Biden administration’s response to the Texas litigation that limited DACA, but said a legislative solution is the only way to provide permanent relief for Dreamers.

“What is needed is for the Biden administration to really focus its time and energy, especially on getting a permanent solution — DACA is just not sufficient,” said Marielena Hincapié, executive director of the National Immigration Law Center.

Still, the proposal allows DHS to start the long bureaucratic process that could eventually allow it to accept new applicants into DACA, with or without congressional action.

Nearly 600,000 people applied for and received DACA under the Biden administration, but some 50,000 newer applicants had not yet been enrolled in the program when it was suspended under Trump. There are also 1.3 million so-called Dreamers living in the U.S. who would likely meet the criteria for the program, according to estimates from the Migration Policy Institute.

The proposal from Biden is not an expansion of the program, which provides work authorization and deferral from deportation for its recipients. 

It keeps the dates first outlined under the Obama administration, requiring beneficiaries to have entered the United States in 2007 or before to have been present in 2012 when the program was created, and to have been born on or after June 16, 1981.

Jorge Loweree, policy director at the American Immigration Council, described the proposal as largely “importing” the 2012 requirements of the program.

“That the administration had the opportunity to expand the criteria and chose not to do so is unfortunate because as currently written the proposed regulation would be limited to people that entered in 2007, so 14 years ago,” he said.

“So a 5 year old that entered in 2010 who is 16 years old now and is in high school, is undocumented and otherwise following the rules and would like to go to college is shut out from this program, and why is that the case? We should be looking at expanding this program. There’s no reason to draw arbitrary lines to cut off people, some of whom have been in the country for years.”

The new rule allows potential beneficiaries to apply separately for deferral from deportation, paying only an $85 fee, or for both deferral and a work permit by paying the $495 fee that was previously in effect.

That aspect likely appeals to a prior decision from the Supreme Court challenging Trump’s rescission of DACA which suggested disentangling deportation relief from work authorization.

Loweree said applying for deportation deferral without a work permit would be of little appeal to potential beneficiaries, who would risk identifying themselves to the government as undocumented immigrants.

Still, the separation of deportation deferral and issuance of work permits is at the core of the debate over whether DACA is truly an exercise in prosecutorial discretion.

The rule largely seeks to combat a July ruling from Judge Andrew Hanen, who argued the program violated the Administrative Procedures Act, which governs the lengthy rulemaking process. The ruling left intact the program’s benefits for those enrolled but barred new applications for DACA status.

The DHS proposal responds to Hanen’s ruling, going deep into detail both into the economic benefits of the DACA program, and the Biden administration’s assertion that it is an exercise of prosecutorial discretion, rather than a government action creating new rights for beneficiaries.

But DACA under the new rule, if fully implemented, would not be substantially different from the original program.

“What they’re doing here is they’re actually just dotting all the i’s and crossing t’s,” said Hincapié.

“A big part of what they tried to do was write things out in more detail to address the questions from the court,” she added.

By going through the full rulemaking process and inviting public comment, the Biden administration’s approach is more likely to survive any future court challenges, but it could be months before DHS starts enrolling new beneficiaries.

Advocates hope by then Democrats in Congress will have passed a reconciliation bill that includes protections for many undocumented immigrants, including Dreamers, at least partially replacing a program that was meant to be a stopgap.

DACA was first implemented by Obama in 2012 after he failed to get legislative protections for Dreamers in his first term.

The program was vilified by immigration restrictionists as executive overreach, as it not only called for prosecutorial discretion to avoid deporting low-priority undocumented immigrants, but also granted them the right to work and apply for international travel permits.

But the program was widely popular both with the general public and with its beneficiaries, as it allowed Dreamers access to education, credit, social services and work.

At its peak, DACA protected about 800,000 people, although that number has shrunk significantly as many Dreamers have found avenues toward permanent legal status.

The Biden administration’s memo outlining the new DACA rule puts on official record DHS’s view of the economic contributions of DACA beneficiaries, as well as the size of the U.S.-citizen population that’s directly affected by the policy.

According to DHS, “Over 250,000 children have been born in the United States with at least one parent who is a DACA recipient, and about 1.5 million people in the United States share a home with a DACA recipient.”

Those households pay $5.6 billion in annual federal taxes and $3.1 billion in state and local taxes, as well as $556.7 in annual mortgage payments and $2.3 billion in rent each year.

Updated 5:02 p.m.