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Deferred Action for Childhood Arrivals rule (2022)

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The Deferred Action for Childhood Arrivals rule is a significant rule issued by the U.S. Department of Homeland Security (DHS) effective October 31, 2022, that codifies the Deferred Action for Childhood Arrivals (DACA) program, which allows certain individuals brought to the United States without legal permission as minors to continue living and working in the country.[1]

HIGHLIGHTS
  • Name: Deferred Action for Childhood Arrivals
  • Code of Federal Regulations: 8 CFR Parts 106, 236, and 274a
  • Agency: U.S. Citizenship and Immigration Services, DHS.
  • Action: Final rule
  • Type of significant rule: Economically significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    Background

    The Obama administration in 2012 created DACA through a memo issued by then-DHS Secretary Janet Napolitano.[4]

    The Trump administration in 2017 sought to rescind DACA, but the U.S. Supreme Court on June 18, 2020, ruled 5-4 in Department of Homeland Security v. Regents of the University of California that DHS did not properly follow Administrative Procedure Act (APA) procedures when it attempted to end the program.[5]

    In an effort to support DACA against further legal challenges, President Joe Biden (D) on January 20, 2021, issued a presidential memorandum directing DHS to consult with the U.S. attorney general and take action to "preserve and fortify DACA, consistent with applicable law."[3]

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:

    "On September 28, 2021, the Department of Homeland Security (DHS) published a notice of proposed rulemaking (NPRM or proposed rule) that proposed to establish regulations to preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy to defer removal of certain noncitizens who years earlier came to the United States as children, meet other criteria, and do not present other circumstances that would warrant removal. After a careful review of the public comments received, DHS is now issuing a final rule that implements the proposed rule, with some amendments."[1]

    Summary of provisions

    The following is a summary of the provisions from the rule's entry in the Federal Register:[1]

    “ Summary of Major Provisions of the Regulatory Action


    This final rule will preserve and fortify DHS’s DACA policy for the issuance of deferred action to certain young people who came to the United States many years earlier as children, who have no current lawful immigration status, and who are generally low enforcement priorities. The final rule codifies the following provisions of the DACA policy from the Napolitano Memorandum and longstanding USCIS practice:

    • Deferred Action. The final rule codifies the definition of deferred action as a temporary forbearance from removal that does not confer any right or entitlement to remain in or reenter the United States and does not prevent DHS from initiating any criminal or other enforcement action against the DACA requestor at any time.
    • Threshold Criteria. The final rule codifies the longstanding threshold criteria where the requestor must have:
    (1) come to the United States under the age of 16;
    (2) continuously resided in the United States from June 15, 2007, to the time of filing of the request;
    (3) been physically present in the United States on both June 15, 2012, and at the time of filing of the DACA request;
    (4) not been in a lawful immigration status on June 15, 2012, as well as at the time of request;
    (5) graduated or obtained a certificate of completion from high school, obtained a GED certificate, currently be enrolled in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
    (6) not been convicted of a felony, a misdemeanor described in 8 CFR 236.22(b)(6) of the final rule, or three or more other misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety—with additional clarifications explained below; and
    (7) been born on or after June 16, 1981, and be at least 15 years of age at the time of filing, unless the requestor is in removal proceedings, has a final order of removal, or a voluntary departure order. The final rule also codifies that deferred action under DACA may be granted only if USCIS determines in its discretion that the requestor meets the threshold criteria and merits a favorable exercise of discretion.
    • Employment Authorization. The final rule codifies DACA-related employment authorization for deferred action recipients in a new paragraph designated at 8 CFR 274a.12(c)(33). The new paragraph does not constitute any substantive change in current policy and, therefore, the final rule will continue to specify that the noncitizen must have been granted deferred action and must establish economic need to be eligible for employment authorization.
    • 'Lawful Presence.' The final rule reiterates USCIS’ longstanding codification in 8 CFR 1.3(a)(4)(vi) of agency policy that a noncitizen who has been granted deferred action is considered ‘‘lawfully present’’—a term that does not confer authority to remain in the United States—for the discrete purpose of authorizing the receipt of certain benefits under that regulation. The final rule also reiterates longstanding policy that a noncitizen who has been granted deferred action does not accrue 'unlawful presence' for purposes of INA sec. 212(a)(9).
    • Procedures for Request and Restrictions on Information Use. The final rule codifies the procedures for denial of a request for DACA, the circumstances that would result in the issuance of an NTA or RTI, and the restrictions on use of information contained in a DACA request for the purpose of initiating immigration enforcement proceedings. In addition to the retention of longstanding DACA policy and procedure, the final rule includes the following changes in comparison to the NPRM:
    • Filing Requirements. The final rule codifies the longstanding bundled filing requirement, in which requestors must file Form I–765, Application for Employment Authorization, and Form I–765WS, concurrently with the Form I–821D Consideration of Deferred Action for Childhood Arrivals. See new 8 CFR 236.23(a)(1).
    • Criminal History, Public Safety, and National Security: The NPRM proposed to codify at 8 CFR 236.22(b)(6) the longstanding criminal history, public safety, and national security criteria for consideration of DACA. Upon careful consideration of comments received on this NPRM provision, DHS is revising this provision to additionally clarify that, consistent with longstanding DACA policy, expunged convictions, juvenile delinquency adjudications, and immigration-related offenses characterized as felonies or misdemeanors under State laws are not considered automatically disqualifying convictions for purposes of this provision. See new 8 CFR 236.22(b)(6).328
    • Termination of DACA: The NPRM proposed to codify at 8 CFR 236.23(d)(1) and (2) DHS’s longstanding DACA termination policy, as it existed prior to the preliminary injunction issued in Inland Empire-Immigrant Youth Collective v. Nielsen, No. 17–2048, 2018 WL 1061408 (C.D. Cal. Feb. 26, 2018), with some modifications. The rule proposed that USCIS could terminate DACA at any time in its discretion with or without a NOIT, and that DACA would terminate automatically upon departure from the United States without advance parole and upon filing of an NTA with EOIR (a modification from the prior policy of automatic termination upon NTA issuance), but DACA would not terminate automatically in the case of a USCISissued NTA solely based on an asylum referral to EOIR. The NPRM raised four alternative approaches and invited comment on these and other alternatives for DACA termination. After careful consideration of the comments on this provision and the alternatives suggested in the NPRM and by commenters, DHS is maintaining in the final rule that USCIS may terminate DACA at any time in its discretion. However, DHS is revising this provision to provide that USCIS will generally provide DACA recipients with a NOIT prior to termination of DACA, but maintains discretion to terminate DACA without a NOIT if the individual is convicted of a national security related offense involving conduct described in 8 U.S.C. 1182(a)(3)(B)(iii), (iv), or 1227(a)(4)(A)(i), or an egregious public safety offense. DHS is also revising this provision to provide that DACA recipients who depart the United States without advance parole, but who are nonetheless paroled back into the United States, will resume their DACA upon expiration of the period of parole. See new 8 CFR 236.23(d)(1) and (2).
    • Automatic Termination of Employment Authorization. The NPRM proposed at 8 CFR 236.23(d)(3) that employment authorization would terminate automatically upon termination of DACA. This provision included a cross reference to 8 CFR 274a.14(a)(1)(iv), however on February 8, 2022, 8 CFR 274a.14(a)(1)(iv) was vacated in Asylumworks, et al. v. Mayorkas, et al., civ. 20–cv–3815 (D.D.C. Feb. 7, 2022). As a result of the vacatur and additional revisions to the DACA terminations provisions to eliminate automatic termination based on filing of an NTA, as described in this preamble, DHS is modifying 8 CFR 236.23(d)(3) in this final rule to remove the vacated cross reference and clarify that employment authorization terminates when DACA is terminated and not separately when removal proceedings are instituted. See new 8 CFR 236.23(d)(3).
    • Provision Rescinding and Replacing the Napolitano Memorandum. In this final rule, DHS is clarifying at 8 CFR 236.21(d) that this subpart rescinds and replaces the DACA guidance set forth in the Napolitano Memorandum and from this point forward governs all current and future DACA grants and requests. DHS also clarifies that existing recipients need not request DACA anew under this new rule to retain their current DACA grants. Historically, DHS has promulgated rules without expressly rescinding prior guidance in the regulatory text itself. However, DHS has chosen to depart from previous practice in light of the various issues and concerns raised in ongoing litigation challenging the Napolitano Memorandum. See new 8 CFR 236.21(d).[6]
    		 ”

    Significant impact

    See also: Significant regulatory action

    An agency rule can be deemed a significant rule if it has had or might have a large impact on the economy, environment, public health, or state or local governments. The term was defined by Executive Order 12866, which was issued in 1993 by President Bill Clinton. The following is drawn from the rule to determine its classification as economically significant or significant for some other reason:[1]

    “ "This final rule is designated as a ‘significant regulatory action’ that is economically significant since it is estimated the rule will have an annual effect on the economy of $100 million or more, under section 3(f)(1) of E.O. 12866. Accordingly, OMB has reviewed this final regulation."[6] ”

    Text of the rule

    The full text of the rule is available below:[1]

    Noteworthy events

    Federal courts grapple with DACA (2022)

    A three-judge panel of the United States Court of Appeals for the Fifth Circuit on October 5, 2022, upheld a district court decision that found the Deferred Action for Childhood Arrivals (DACA) program, which allows certain individuals brought to the United States without legal permission as minors to continue living and working in the country, to be unlawful. The judges remanded the case to the district court for further review in light of the Biden administration’s recent effort to codify DACA through the rulemaking process.[5]

    A coalition of states in 2018 filed suit in Texas v. United States, arguing in part that the Obama administration unlawfully created DACA through a memo, rather than a rule. Judge Andrew Hanen of the United States District Court for the Southern District of Texas in July 2021 ruled in favor of the states and instituted a pause on new DACA applicants.[5]

    Fifth Circuit Judges Priscilla Richman, James C. Ho, and Kurt Engelhardt upheld the district court ruling but directed the court to reevaluate its holding in light of the Biden administration’s recent effort to codify DACA through the administrative rulemaking process, arguing that the “district court is in the best position to review the administrative record in the rulemaking proceeding.” The final rule, effective October 31, aims to “preserve and fortify” the program, according to U.S. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas.[5][7]

    Responses

    The following section provides a selection of responses to the rule issued by the DHS to codify the DACA program.

    Secretary of Homeland Security Alejandro Mayorkas issued a press release following the publication of the final rule:[8]

    “ Thanks to DACA, we have been enriched by young people who contribute so much to our communities and our country. Yet, we need Congress to pass legislation that provides an enduring solution for the young Dreamers who have known no country other than the United States as their own.[6] ”


    Representative Raul Ruiz (D-Calif.), the Congressional Hispanic Caucus Chair, released a statement calling for further action from Congress to pass legislation to protect individuals under the DACA program:[9]

    “ This step forward does not take away from the urgency for 10 Senate Republicans to join all Democrats to pass the House-passed bipartisan Dream and Promise Act and provide certainty and a pathway to citizenship for our hardworking Dreamers across the country.[6] ”


    Texas Attorney General Ken Paxton (R) filed a lawsuit against the DACA program, arguing that immigration laws must be written and enacted by Congress:[10]

    “ This lawsuit was about the rule of law – not the reasoning behind any immigration policy. The district court recognized that only Congress has the authority to write immigration laws, and the president is not free to disregard those duly-enacted laws as he sees fit.[6] ”


    Some Republican representatives, including Kevin McCarthy (R-Calif.), Jim Jordan (R-Ohio), and Ronny Jackson (R-Texas), announced an effort to impeach DHS Secretary Mayorkas over the administration’s overall handling of immigration policy. McCarthy called for Mayorkas to resign in a November 22, 2022 speech:[11]

    “ Our country may never recover from Secretary Mayorkas’ dereliction of duty… House Republicans will investigate every order, every action, and every failure will determine whether we can begin an impeachment inquiry.[6] ”

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 Federal Register, "Deferred Action for Childhood Arrivals," August 30, 2022
    2. ↑ Regulations.gov, "Deferred Action for Childhood Arrivals," August 30, 2022
    3. ↑ 3.0 3.1 The White House, "Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)," January 20, 2021
    4. ↑ U.S. Department of Homeland Security, "Exercising Proset¢orial Discretion with Respect to Individuals Who Came to the United States as Children," June 15, 2012
    5. ↑ 5.0 5.1 5.2 5.3 Supreme Court of the United States, "Department of Homeland Security v. Regents of the University of California," June 18, 2020 Cite error: Invalid <ref> tag; name "opinion" defined multiple times with different content
    6. ↑ 6.0 6.1 6.2 6.3 6.4 6.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    7. ↑ U.S. Department of Homeland Security, "DHS Issues Regulation to Preserve and Fortify DACA," August 24, 2022
    8. ↑ U.S. Department of Homeland Security, "DHS Issues Regulation to Preserve and Fortify DACA," August 24, 2022
    9. ↑ Bloomberg Law, "DACA Rule Release Aims to Bolster Program for 'Dreamers' (1)," August 24, 2022
    10. ↑ Ken Paxton Attorney General of Texas, "Paxton Victorious Against Obama's Unlawful DACA Program," July 19, 2021
    11. ↑ TIME, "Why House Republicans Want to Try to Impeach DHS Secretary Mayorkas," December 8, 2022
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