DACA, or Deferred Action for Childhood Arrivals, has faced countless challenges since its initial passage in 2012. After a decade of uncertainty for DACA recipients, the Biden Administration appears to be following through on its promise to provide more stability for these Dreamers.
In July, a Texas district court judge ruled that DACA is illegal and ordered USCIS to halt processing new DACA applications; the Biden Administration appealed the ruling to the Fifth Circuit.
This week, the Biden Administration filed a motion for the Fifth Circuit Court of Appeals to suspend the appeal in light of the new Notice of Public Rulemaking (NPRM) published in September. The motion argues that the NPRM when completed, would result in a final rule largely eliminating the underlying concerns of the Texas court’s determination. As such, proceeding with the appeal now would be a waste of time and resources, and it would render the Texas ruling moot.
If successful, DHS’s final rule resulting from the new NPRM would insulate DACA from further legal challenges, but would not be a permanent solution – only Congress can turn DACA provisions into controlling legislation.
Background of DACA
In June of 2012, the Obama Administration issued its DACA policy memorandum. DACA gives individuals who fit a list of criteria, commonly referred to as “Dreamers,” temporary protections against deportation and provides the means for Dreamers to obtain work authorization. Dreamers are required to renew their DACA applications every two years.
Since 2012, more than 800,000 individuals have used DACA to remain in the U.S., get jobs, buy homes, and contribute to the U.S. economy. Today, more than 400,000 DACA recipients currently work in the U.S. – over half are essential workers, and more than 40,000 work in health care.
Beginning in 2017, The Trump Administration made repeated efforts to repeal DACA, all of which were ultimately tied up in litigation and did not pass. Still, several states like Texas continued to lead the charge to overturn DACA.
In January of 2021, President Biden signed an executive order to “preserve and fortify” DACA. The order stated that “DACA reflects a judgment that these immigrants should not be a priority for removal based on humanitarian concerns and other considerations and that work authorization will enable them to support themselves and their families, and to contribute to our economy, while they remain.”
In July, Judge Andrew S. Hanen of the United States District Court in Houston issued a ruling that dealt a huge blow to DACA and ordered USCIS not to grant any new DACA requests or employment authorizations. Judge Hanen’s order did not bar USCIS from receiving requests and specified that current DACA recipients could continue to renew their status and/or employment authorizations. The Biden Administration appealed to the United States Court of Appeals for the Fifth Circuit in New Orleans, Louisiana. For more information, see our earlier story.
In September, the Biden Administration, DHS, and USCIS issued the new NPRM that would replace the 2012 DACA Memo and would shield DACA from future legal challenges. The NPRM largely keeps the existing DACA program in place but makes some important changes. The period of public comment is open until November 29. For more information, see our earlier story.
Recent DACA Developments
On October 4, the Biden Administration issued a motion asking the Fifth Circuit Court of Appeals to grant an abeyance order, pausing the appeal until the new NPRM closes its period of public comment and DHS issues the final rule.
The motion states that “the district court and the Supreme Court have both recognized [that DACA] has engendered substantial reliance interests during [the past decade], not just on the part of DACA recipients themselves, but also on the part of their families, their employers, and their communities…If the operation of DACA were suspended or terminated during the pendency of the appeal, those reliance interests would be gravely endangered.”
The Fifth Circuit has not yet issued a decision regarding this motion.
If you have questions about DACA or any immigration-related issue, contact us at ILBSG. We are here to work with you to ensure you get the right advice.
Other Sources:
Feds Want DACA Appeal Paused Until New Rule is Finalized: https://www.law360.com/articles/1428343
Biden Admin. Unveils New DACA Rules for Migrants: https://www.law360.com/articles/1425381
Dems Weigh Options After Immigration Plan Hits Roadblock: https://www.law360.com/articles/1423302
Texas Judge Blocks Feds from Granting New DACA Requests: https://www.law360.com/articles/1072836
https://chicago.suntimes.com/2021/10/3/22696596/chicago-illinois-daca-renewal-delays-immigration
https://www.npr.org/2021/10/01/1042209258/new-rule-shields-daca-from-being-challenged-in-court
https://www.pri.org/stories/2021-10-01/biden-administration-takes-step-bulletproof-daca
https://www.nytimes.com/2021/09/27/us/politics/daca-biden.html
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