Immigration Law

Proposed rule is intended to preserve DACA program protecting some immigrants from deportation

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The U.S. Department of Homeland Security on Monday announced a proposed rule to “preserve and fortify” the program that protects immigrants brought to the country illegally as children from deportation.

The proposed rule is intended to preserve the Deferred Action for Childhood Arrivals program, which defers deportation and grants work permits for some immigrants who arrived here before age 16. To qualify for the DACA program, immigrants must have clean criminal records and meet other educational or military service requirements.

CNN, USA Today and Law360 are among the publications with coverage. A press release is here.

According to USA Today, the proposed rule would “re-create the DACA policy as it was announced in the memorandum issued in 2012 by then-Homeland Security Secretary Janet Napolitano.”

The announcement follows a July ruling by U.S. District Judge Andrew Hanen of the Southern District of Texas, who said the DACA program is unlawful partly because the Obama administration failed to use a formal notice-and-comment procedure required by the Administrative Procedure Act before adopting it. He also said Congress has not granted authority to the Department of Homeland Security to implement the program.

Hanen said he was vacating the DACA program, but the ruling was temporarily stayed as to current DACA recipients pending further action by himself or higher courts. Hanen allowed the DHS to continue accepting applications for renewals and for new DACA applicants but said the DHS can’t grant any new DACA applications.

The Biden administration is appealing Hanen’s ruling.

Law360 spoke with Steve Yale-Loehr, an immigration law professor at Cornell Law School, who said the proposed rule addresses procedural issues underpinning Hanen’s decision. But the rule “will not stop Texas and other conservative states from challenging the program on the merits—saying the DACA program is really a legislative function and really can only be done through Congress,” Yale-Loehr said.

He also said the rule is likely to receive many public comments, and it could be at least six months before a final rule is issued.

In the DHS press release, Homeland Security Secretary Alejandro Mayorkas called on Congress to provide permanent protection to immigrants protected by the DACA program.

The U.S. House of Representatives has passed legislation to give DACA recipients a path to citizenship. But proponents suffered a setback when the U.S. Senate parliamentarian refused to include the proposal in a $3.5 trillion reconciliation package.

Only a simple majority would have been needed to approve the immigration program with the budget bill. As separate legislation, it would need 60 votes to avoid a filibuster, Law360 explains.

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