When President Bident took office, establishing a pathway to citizenship for DACA recipients was a priority of his administration. On his first day, he issued a memorandum directing the DHS Secretary and the Attorney General to take all actions necessary and consistent with applicable law to preserve and fortify the DACA program. While a federal judge had reinstated DACA in December 2020, DHS had not yet taken any action to begin accepting new applications by the time President Biden took office, prompting the memorandum. President Biden also swiftly introduced the Citizenship Act of 2021, in which he proposed that DACA holders receive immediate eligibility for Legal Permanent Resident status. But, unfortunately, the bill didn’t go anywhere.

Later, other measures were also introduced in Congress. In the Senate, a bill called the Dream Act of 2021 was introduced in February. In the House, a bill called the Dream and Promise Act of 2021 was introduced in March. While the House bill includes more leniency than the Senate bill, both would ultimately provide a pathway to citizenship for Dreamers so either would provide much-needed relief. Unfortunately, to date, neither bill has made much progress. The Senate bill has not yet passed the Senate, which is required in order for it to move on to the House. The House bill was introduced and successfully passed in the House, but has not yet passed the Senate. For the time being, both bills remain in limbo, much like those impacted by their provisions.

In another setback for the program, in July 2021, the U.S. District Court for the Southern District of Texas ruled that the Deferred Action for Childhood Arrivals program (DACA) is unlawful, finding it violates the Administrative Procedure Act. The court’s decision barred the U.S. government from approving new DACA applications but left DACA intact for those who are already a part of the program. This court action effectively nullified President Biden’s memorandum to DHS to begin accepting DACA applications again and relegated nearly 600,000 people with DACA status back to an uncertain future. When the decision was handed down, the Biden Administration vowed to appeal.

Last week, President Biden made good on that promise and the U.S. Justice Department filed an appeal challenging the Texas court’s ruling. The case will be heard by the Fifth Circuit Court of Appeals, which has a conservative reputation and previously struck down President Obama’s Deferred Action for Parents of Americans (DAPA) program. So the future of DACA again remains uncertain, a feeling all too familiar for those impacted who have had their status continuously challenged since DACA was first introduced in 2012.

Relief may be available through an alternative pathway, as Democrats look to include a citizenship provision for DACA in their upcoming $3.5-trillion social spending package, which they plan to pass using a special reconciliation process that circumvents a GOP filibuster. In order to do this, however, Democrats will have to show that the immigration policy directly relates to the federal budget. As the massive spending bill is already drawing many critics, only time will tell if this measure will prove more successful than the past attempts.

In the meantime, President Biden has continuously renewed calls for Congress to provide a path to citizenship for DACA. As he expressed in July when the original decision came down, “only Congress can ensure a permanent solution by granting a pathway to citizenship for Dreamers.” As has always been the case, Congress must act. Whether through a spending package using a special reconciliation process or a bipartisan bill, it has become increasingly clear that congressional action is the only way Dreamers will ever receive permanent relief from the uncertainty that has plagued this program for almost a decade.

ILBSG is carefully monitoring all DACA-related developments and will continue to update its clients on this issue. If you have questions about DACA, please reach out to an ILBSG attorney today. We are dedicated to helping our clients get the right advice.

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