The Obama administration proposed a rule to address concerns raised by a Houston federal judge who ruled that the Deferred Action for Childhood Arrivals program was unlawful. This is largely due to the Obama administration's failure to comply with procedural requirements. The Obama-era initiative is mirrored in the new rule. It reaffirms the 2012 policy and seeks to make it more solid by going through federal regulatory.
Andrew Hanen, a U.S. District Judge, was appointed by President George W. Bush. He said that the Obama administration had overstepped its authority, and failed to properly seek feedback from the public. While allowing renewals to continue, he prohibited new enrollments. Appealing is the Biden administration.
The 205 page proposal solicits public feedback in order to address Hanen’s concern. However, it is not clear if this would be sufficient. The Federal Register will publish the proposed regulation Tuesday. This will trigger a 60-day comment period, and ensure that it won't take effect for several more months.
The Texas Attorney General Ken Paxton's office did not immediately respond when Hanen challenged DACA along with eight other states.
DACA was created by the Obama administration with a memo from Janet Napolitano, then-Homeland Security secretary. This was intended to be a temporary measure while Congress legislated for a permanent solution. It never happened.
DACA is not a product of legislation. It falls under a category that can be more easily changed from one administration. The Supreme Court ruled that President Donald Trump did not properly execute his DACA memo, and he tried to repeal it.
The Biden administration is trying to secure DACA's protection through a formal rule, which is more stringent than the original memo but not legislation. It hopes to get a legal stamp from the courts.
If Congress does not act first, it seems likely that the Supreme Court could be called upon again to weigh in.
As congressional Democrats struggle to include immigration provisions within their $3.5 trillion 10-year package of social-environment initiatives, the Biden administration's decision comes at a time when they are struggling to do so. Democrats can't afford to lose too many votes if they include language in the bill that would allow millions of immigrants to remain permanently in the U.S.
The Senate's nonpartisan parliamentarian stated earlier this month that the Senate's immigration provisions could not be included in the sweeping bill as it violated its budget rules.
Alejandro Mayorkas, Homeland Security Secretary, called on Monday again for Congress to quickly provide the "legal status they require and deserve."
Mayorkas stated that the Biden-Harris Administration will continue to take action to protect Dreamers, and to recognize their contributions to this nation. Mayorkas used a term commonly used for immigrant children who arrived in the U.S. as young children with their parents. This notice of proposed rulemaking represents an important step in achieving that goal.
Mayorkas was echoed by some pro-immigration advocates.
Ali Noorani, President of the National Immigration Forum, stated that a more formalized DACA version will stabilize the lives DACA-eligible Dreamers, but that legislative action is still required to fully consolidate DACA recipients' contributions and expand protections for other Dreamers, and create a pathway to permanent legal status. Although formalizing DACA is a positive move, it's not a permanent solution.
The Democratic-controlled House passed legislation earlier in the year that would allow Dreamers to become legal permanent residences. However, the bill is still dead in the Senate. Republicans blocked the bill and bipartisan talks are stalled. Further reducing legislative prospects was the Senate parliamentarian's decision. Advocates claimed they would propose alternative immigration provisions in the hope that they would be allowed in the bill. However, it is not clear that this would succeed.
Stephen Yale-Loehr is Cornell Law School's professor of immigration law. He said that the proposal does not make any major changes to the program and was meant to "bulletproof it from lawsuit challenges."
The proposal follows the same criteria as the previous one, which includes arriving in the United States before age 16 and continuing to reside in the United States ever since. It also requires that you arrive in the United States on or after June 15, 2012.
More than 825,000 immigrants have signed up for DACA since 2012.