On august 24, 2022, Homeland Security Secretary Alejandro N. Mayorkas today announced that the Department has issued a final rule that will preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children, deferring their removal and allowing them an opportunity to access a renewable, two-year work permit.
What is DACA?
The Deferred Action for Childhood Arrivals (DACA) is a policy put in place in 2012 by the Obama administration. It aims at deferring actions toward those who for any reason found themselves in the U.S. unlawfully because they were brought into the country while they were still a child. The DACA which is based on a simple memo defers the deportation of those individuals also called dreamers allowing them to apply for a renewable two years work permit.
The DACA in a difficult situation
Since the end of the Obama administration, several anti-immigrants had attacked the DACA intending to strike it down. This brought the Trump administration to put an end to it. The Supreme Court overturned that termination on June 18th, 2021 on the ground that it was done in an appropriate manner. The court estimated that the Trump administration, by terminating the DACA, violated the Administration Procedure Act.
This meant that the Dreamers who previously had DACA could continue applying for a renewal. Also, the other happy people were first-time applicants who from then on could now apply for DACA.
However, voices are continuously being raised against the DACA. Republicans are more prone to striking it down while Democrats are striving for it to be maintained.
The DHS’s decision to fortify and secure DACA
Referred to as the Final Rule, the 450 – pages document issued by the Department of Homeland Security will become effective on October 31st, 2022. It expresses the effort of the Biden administration to strengthen the DACA in order to reinforce the protection of the so-called Dreamers.
Though it does not allow new DACA applications, the document does protect the over 600,000 people enrolled in the program. President Biden even clearly states that the Final Rule is part of his administration’s will to strengthen DACA in order to offer more protections such as work authorization in order for them to live more freely and contribute to the development of their communities in the United States.
Since the creation of that program by president Obama’s administration, at least 800,000 people had benefited from it because not only they were not deported but they are allowed to apply for work permits.
If today the dreamers can rejoice in this milestone reached, anything can still happen before October 31st. Neither the current legal challenges nor those which may come up before the due date can be mitigated by the Final Rule. It is also to be noticed that even if the rule enters into effect, the court can still overturn it as unlawful.
Moreover, if it is not stricken down and President Biden fails to be reelected in 2024, the republican can still take it down but they will have to go through the perilous national rulemaking procedure. Unless the program ends up in federal laws nothing is one hundred percent sure as anti-immigrants can still attack it and try to rule it over.
According to the executive director of the National Immigration Law Center, Mrs. Marielena Hincapié, strengthening DACA that way is a step towards the ultimate goal which is “congressional action”.
The Final Rule is meant to replace the policy guidance in the memo known as the legal basis for DACA since 2012. It confirms the eligibility criteria and the process for applicants to get work permits, and considers Dreamers as “lawfully present” on the U.S. territory. On that ground, they will not be prioritized for deportation.