The Deferred Action for Childhood Arrivals (“DACA”) program celebrated a decade of existence earlier this year. DACA went into effect as an executive order signed by President Obama to protect undocumented immigrants who arrived in the United States as minors without “the formal agency rulemaking process, which requires public notice and comment”. It was intended as a “stopgap measure to protect some of the nation’s most vulnerable immigrants”, from deportation and allow beneficiaries to obtain work authorization and reside legally in the US. DACA was never meant to be a permanent solution but a means to be used for a limited time until Congress passed new immigration legislation addressing the immigration status of certain undocumented minors.

DACA is Codified

On October 31, 2022, The Department of Homeland Security’s (“DHS”) final rule codifying the DACA program went into effect. The execution of the final rule replaces the guidance memo that created DACA in 2012 after failed attempts to pass the DREAM Act through Congress. The codification of DACA reinforces the Biden administration’s commitment to Dreamers with the aim to reinstate DACA and afford new applicants and renewal applicants benefit, however “it does not move it any closer to becoming law.”

The final rule’s criteria for recipients to qualify for DACA remain unchanged. In order to qualify for DACA, participants had to have been present in the United States since 2007, have arrived before turning sixteen, and be under the age of thirty-one as of 2012, in addition to meeting educational and criminal history requirements. However, there are some important changes and clarifications contained within the final rule, including:

USCIS will first issue a Notice of Intent to Terminate before any discretionary termination of DACA and provide an opportunity to respond unless the recipient has been convicted of an offense of egregious public safety or national security. In addition, the new rule clarifies that DHS will not automatically terminate DACA simply because a Notice to Appear has been issued or filed;
Clarification that expunged convictions, juvenile delinquency adjudications, and immigration-related offenses characterized as felonies or misdemeanors under state laws are not considered automatically disqualifying convictions;
Employment authorization granted through DACA will not be terminated at the onset of removal proceedings. Nevertheless, once an individual’s DACA status is terminated, employment authorization is also terminated; and
Current DACA recipients do not need to apply for the program under the final rule if their benefits are valid.

Notably, DACA advocates have welcomed the regulation but are “disappointed that age eligibility was unchanged.” Now that DACA is based on formal regulation, the program is being preserved and fortified while it still remains the subject of litigation in court.

DACA’s Legal Challenge

The Biden administration’s move to codify DACA was “intended to insulate DACA from legal challenge”, however DACA remains blocked by a July 2021 ruling that declared the program unlawful. That ruling prompted the federal government to stop processing new applications from DACA-eligible immigrants and those beneficiaries whose DACA expired more than a year ago. The decision was recently upheld by The Fifth Circuit Court of Appeals which found the 2012 DACA Memo unlawful and remanded the case to the lower court. At this time, the Texas Court ruling continues to prohibit DHS from implementing the rule as to new applicants, US Citizenship and Immigration Services (“USCIS”) continues “to accept but cannot process initial DACA requests.”

The Future of DACA

Over 600,000 current DACA recipients continue to live in the immigration limbo they have found themselves in for years and DACA remains in jeopardy. Although the Biden administration’s move to codify DACA marks progress, the bottom line is that “we need Congress to urgently pass legislation that provides Dreamers with the permanent protection they need and deserve”, as expressed by Secretary of Homeland Security Alejandro N. Mayorkas. We remain hopeful the implementation of the final rule will lead to legislation granting a pathway to so many who know only this country as home as Senate Democrats “restart talks to help DACA recipients during lame-duck session.”