With a large focus of the immigration debate focused on ongoing legislative efforts to secure relief for DREAMers, TPS holders, farmworkers, and other essential workers, it would be easy to miss that the Biden administration put forth a proposed regulation which could have significant implications for the future of DACA.
On September 28, DHS announced a Notice of Proposed Rulemaking (NPRM)—DHS Docket No. USCIS-2021-0006—which proposes to codify DACA. This means that this regulation would strengthen the program in the face of the legal battles it’s encountered.
This commentary is designed to bring our communities up to speed on what has been happening with DACA in recent months, what’s at stake with the proposed DACA rule, and provide a few ways for our communities to engage on this important issue. Help us take action and comment here.
WHAT IS DACA? WHO ARE DREAMERS?
DACA was established in 2012 following failed efforts in Congress years earlier to enact into law the Development, Relief, and Education for Alien Minors (DREAM) Act. That legislation would have provided undocumented immigrant youth an earned path to citizenship. However, in the absence of legislative support, President Obama issued an executive order on June 15, 2012, to grant undocumented youth—also known as DREAMers—who had completed or enrolled in high school, and who had not committed serious offenses, work permits and temporary protection from deportation. Despite efforts in recent years to end DACA, the policy remains in effect, though, legal challenges that would weaken or outright end the policy persist.
As of June 2021, approximately 590,070 individuals had active DACA status. A sizable majority—roughly three-fourths (76%)—of them entered the United States in 2011 or earlier, a decade ago or longer. A common characteristic of these youth—sometimes referred to as “DREAMers”—is that they are young: the average DREAMer arrived in this country at the age of seven and is now 25 years old. Moreover, DREAMers enjoy high levels of employment participation with some 91% of them being currently employed. These figures alone give strong support for the proposition that these individuals have known no other country but the United States for most of their lives. Not surprisingly, their many contributions to the American fabric have been well-documented, despite the challenges of living with the threats of DACA ending and deportation.
The contributions of these youth have been acutely felt during the COVID-19 pandemic. Across the country, DACA recipients have worked in critical roles, accounting for 202,500 of essential workers. Whether in the health industry or in education, DREAMers are serving on the frontlines as physicians, nurses, hospital staff, and medical students, and teaching our nation’s youth as children struggle to learn remotely. In addition, DREAMers are also well-represented in food-related occupations and industries, including the 142,100 DACA recipients—more than a quarter of all employed DACA holders—who work in food production and distribution jobs, having helped to keep food on tables across America during the pandemic.
WHAT IS GOING ON WITH DACA AND THE COURTS?
During the Trump administration there were several efforts to end DACA, which were met with fierce opposition in the courts. These efforts thrusted nearly 800,000 predominantly Latino immigrant youths and their families into a state of legal limbo through 2020. Eventually, the primary challenges to Trump’s effort to end DACA were heard in the U.S. Supreme Court, with the court issuing a ruling that kept the program alive. While Trump’s DHS continued to try and weaken or get rid of DACA entirely, those pending legal challenges were set aside when President Biden and Vice President Harris assumed office in January 2021.
Nonetheless, another threat to DACA persisted. In July in Texas v. United States, U.S. District Court Judge Hanen found DACA to be unconstitutional. Judge Hanen’s decision, which is being appealed, blocks people who have never applied to DACA because they were too young to qualify from applying at all, but still allows current DACA holders to maintain and renew their status. As a result, even with the Supreme Court’s reinstatement of DACA in December of 2020, Judge Hanen’s most recent ruling places the nearly 600,000 DACA-eligible youth back into a state of legal limbo.
WHAT IS THE NEW DHS PROPOSED RULE ABOUT?
The most recent DACA proposed rule has been seen by many observers as an effort by the Biden administration to be responsive to the ruling issued by Judge Hanen, which, among other things, takes issues with how the Executive Branch went about creating DACA in the first place. By seeking to codify DACA via regulation, the administration could be in a better position to argue that it is complying with Judge Hanen’s ruling on process. At the same time, the Biden administration has framed this effort as consistent with its Presidential Memorandum 86 FR 7053, an early commitment the administration made to “protect and fortify DACA.”
WHAT WOULD THE PROPOSED RULE DO?
UnidosUS is still in the process of reviewing the proposed rule closely. At a high level, however, the proposed rule appears to contain provisions that offer a more concrete understanding of what DACA entails, including an official definition for “deferred action,” codifying the existing eligibility requirements for DACA, and describing the relationship between deferred action and employment authorization.
Additionally, this regulation has the aim of strengthening DACA in the face of legal challenges, which could make the program more stable for the nearly 600,000 DACA-eligible youth who have had to deal with so much uncertainty around their status.
ARE THERE OPPORTUNITIES TO STRENGTHEN DACA VIA THIS RULE?
As it prepares its comment, UnidosUS will be examining ways in which DACA could be improved. Some of the areas we will be exploring in our analysis include:
- Modernizing eligibility dates, such as the standing requirement that a DACA-eligible individual have continuously resided in the United States from June 15, 2007 to the present. This would ensure that more youth have the opportunity to be protected by the program.
- Decreasing the current $495 DACA application fee and making fees waivers more accessible to low-income and working-class applicants.
- Reducing the backlog on DACA applications at USCIS and ensuring that adjudication times do not threaten current DACA recipients’ work authorization and protection from removal.
HOW CAN I GET INVOLVED?
November 29 marks the deadline to submit public comments on DHS’s proposed rule. We urge you to join us by issuing your own comment to hold the Biden administration to its promise of to “preserve and fortify DACA.”
UnidosUS is preparing a comment letter in response to DHS’s new proposed rule on DACA, advocating for the program’s expansion to the rising generation of undocumented youth in our country. The personal experiences of communities across the country are critical to developing a more equitable DACA program. We ask that you support these efforts by submitting your own comment by November 29 and sharing how this rule would affect your community.
- Submit a comment about how DACA has impacted your life, the life of someone you know, or your community by visiting the page for the proposed regulation on regulations.gov and clicking on the blue “Comment” button.
- Through the remainder of November, we will be sharing comments from our Affiliate on social media. Please join us in amplifying their messages as well.
For a long time, recipients of DACA have been—and continue to be—integrated into our society. They are effectively Americans in every single way, except on paper. To be a society that fully embraces these Americans, we must ensure them permanent immigration protections. Although the fight for permanent relief is long, the Biden-Harris administration has the moral obligation to—in the interim—provide the most expansive and durable protections possible for them. This proposed rule presents an expeditious opportunity to do so, namely by advancing the eligibility dates to allow more undocumented youth to apply. It also presents an important opportunity for the Biden-Harris administration to follow through on the promise by President Biden and the Democrats to do better by our immigrant communities. For that reason, UnidosUS recommends that the Biden-Harris administration and DHS take this action, among the others detailed in this commentary, to create a better future for immigrant youth.