Biden admin moves to strengthen Obama-era DACA program amid legal challenges

The Biden administration on Wednesday unveiled a regulation to strengthen the Obama-era Deferred Action for Childhood Arrivals (DACA) program — which granted protection from deportation for hundreds of thousands of illegal immigrants who came to the U.S. as minors – from legal challenges looming over the program.

The rule, which will take effect at the end of October, aims to “preserve and fortify” the program — which opponents have argued was illegal and outside the scope of executive authority.

President Barack Obama signed the order in 2012, which allows those who came to the country illegally as children to receive work permits and be shielded from deportation. More than 800,000 illegal immigrants have been shielded since its inception. Supporters have said that it protects those who came to the country through no fault of their own.

Applicants to the program are required to prove that they were in the U.S. by age 16 before June 2007.

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“Today, we are taking another step to do everything in our power to preserve and fortify DACA, an extraordinary program that has transformed the lives of so many Dreamers,” Secretary of Homeland Security Alejandro Mayorkas said in a statement. “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.”

The substance of DACA remains mostly the same in practice, but it is issued in response to a public comment period. The rule reaffirms the claim that DACA is not a form of lawful status like a visa, but views DACA recipients as “lawfully present” for certain purposes. The rule-making process means it is more likely to survive a legal challenge currently going through the courts.

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The Trump administration attempted to end the program, but was blocked by the Supreme Court in 2020 — which found it had moved to do so in a way that was unlawful. President Biden signed a memo after entering office to protect DACA, ordering DHS to take “all appropriate actions under the law” to preserve the program and calling on Congress to give a path to citizenship for recipients.

However, last year a Texas judge ruled the program was illegal. Judge Andrew Hanen, in a split ruling, found that the Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) in creating the policy. He found that the policy was implemented unlawfully and ordered DHS to stop approving DACA applications — although he said it could continue to accept applications. The ruling does not affect the status of any current DACA recipients. 

The judge found that the agency’s interpretation of statutes was “overly broad” and those laws did not carry the authority for the federal government to institute the program.

“DACA would grant lawful presence and work authorization to over a million people for whom Congress had made no provision and has consistently refused to make such a provision,” Hanen wrote.

The Biden administration is appealing the ruling in a case that could be ruled on by an appeals court in the coming weeks. The issuance of a final rule may protect it from the argument that it bypassed the rule-making requirements of the APA.

The Associated Press contributed to this report.