The Biden administration revealed its plans for an updated DACA program Monday, looking to overcome a court ruling that struck down the original program this summer for not going through the full regulatory process.
Homeland Security is trying to fix that problem with the new proposal by announcing the plan and making it available for notice and comment.
Homeland Security Secretary Alejandro Mayorkas said many of the 825,000 people who have been granted a tentative foothold in the country under the Deferred Action for Childhood Arrivals program since 2012 have gone on to become valuable members of their communities, and he said putting the program on firm legal footing is long overdue.
“The Biden-Harris Administration continues to take action to protect Dreamers and recognize their contributions to this country,” he said in a statement announcing the updated policy. “This notice of proposed rulemaking is an important step to achieve that goal.”
The policy tracks closely with the original program, which the Obama administration created by memo in 2012: Immigrants who arrived in the U.S. illegally while under age 16, who came before June 15, 2007, weren’t older than 30 as of June 15, 2012, and have made an effort to get a high school education or serve in the military are eligible.
DACA, officially known as Deferred Action for Childhood Arrivals, grants a two-year stay of deportation and work permits, which carry some taxpayer benefits, though recipients are still in the country without authorization and if their DACA status lapses they are technically able to be deported.
In reality, few were ever real targets for removal unless they had criminal entanglements. The real benefit of DACA was the work permit and the opportunities it brings.
U.S. District Judge Andrew Hanen over the summer ruled that the Obama administration cut too many corners when it created DACA, and said as a major policy change it should have been put through the formal rulemaking process, not created through a memo.
He issued an injunction but allowed current DACA holders to continue in the program, while blocking new applicants.
The new proposal, which will be published in the Federal Register on Tuesday and was released online Monday, is an attempt to correct for the failings Judge Hanen identified.
It does not completely settle the issue, though.
In ruling on a different Obama-era deportation amnesty, known as Deferred Action for Parents of Americans or DAPA, a federal appeals court found such a broad amnesty runs counter to immigration law. DACA could face similar attacks as a violation of law, should the Biden administration finalize the new proposal.
Given the legal issues with DACA, there’s been a developing consensus on Capitol Hill that Dreamers, the immigrants who generally qualify for DACA, deserve more lasting protection.
But Democrats insist Dreamers must be part of a broader legalization package that would cover as many as 8 million people, while Republicans say that’s too broad, and demand any plan be coupled with border security and enforcement tools that Democrats resist.
Immigrant-rights activists said the Biden proposal will give Dreamers some assurances, but they said Congress still needs to deliver a full pathway to citizenship for the Dreamers, who in many cases have been raised in the U.S. and have little memory or knowledge of their home countries.
“Formalizing DACA is a positive step, but it’s not a permanent fix. This development is yet another reminder that Congress must act,” said Ali Noorani, president and CEO of the National Immigration Forum.