On August 30, 2022, the Department of Homeland Security will issue a new regulation that formally establishes the Deferred Action for Childhood Arrivals (DACA) policy. The text was posted on Wednesday, August 24th. This is an effort from the Biden Administration to strengthen the policy, but this rule does not make any changes to who is eligible for DACA, and will not protect DACA from ongoing or future legal challenges.
Ultimately, the final rule mostly reiterates the DACA policy as it already exists. The rule does not reopen DACA for first-time applicants, nor does it change the eligibility requirements. Moreover, unfortunately, the rule is very unlikely to remove the urgent and existential threat to DACA that currently exists in the court.
The rule does not go into effect right away, so DACA recipients should understand that nothing changes for them right now. Not only is there a 60-day period before enactment, but it is entirely possible—if not likely—that there will be efforts to stop enactment via new or existing litigation.
The Deferred Action for Childhood Arrivals final rule contains the following:
The rule does not make any significant changes to DACA eligibility, protections, or the application process. Current DACA recipients can continue to renew if they are eligible, but the government is still barred under court order from processing new, first-time applications.
This rule is scheduled to go into effect on October 31, 2022, 60 days after the final rule is published. However, the new rule could face legal challenges. Therefore, at this time, it is unknown when this rule will actually be implemented.
DACA has faced multiple legal challenges. One part of Judge Hanen’s ruling said that the government should have allowed for more public comment when creating the policy. The Biden Administration has gone through a formal rulemaking process to strengthen DACA, but this will not address every issue questioned in the court ruling against DACA.
Legal experts continue to believe that the Fifth Circuit Court of Appeals is likely to rule that DACA is not legal, and that this rule is unlikely to fundamentally shift the legal outcomes enough to protect DACA.
As noted above, one of the reasons Judge Hanen initially ruled that DACA is unlawful was because the government did not go through a full public comment process when it first issued the policy. However, the Fifth Circuit is also considering whether the government had the statutory authority under the law to create the DACA policy in the first place. While we absolutely believe DACA is legal, we want to make sure people are prepared for a likely and negative ruling, albeit one we hope does not happen and with which we very strongly disagree.
While the DACA final rule responds to the procedural argument about public comment, it does not fundamentally shift the arguments regarding the issue of statutory authority to implement the policy. This question of statutory authority was partly why the Fifth Circuit ruled against the Deferred Action for Parents of Americans (DAPA) policy in 2014, increasing the possibility of a negative decision in the current DACA case from the same court—again albeit a decision with which we would strongly object.
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