DHS Announces Proposed Rule to Solidify DACA
On September 28, 2021, the U.S. Department of Homeland Security (DHS) published a notice of proposed rulemaking (NPRM) in the Federal Register on Deferred Action for Childhood Arrivals (DACA). DACA was a policy initiated in 2012 that deferred the removal of certain noncitizens who came to the United States as children, meet other criteria, and do not present certain issues that would warrant removal. Since then, more than 825,000 people have applied for and obtained DACA. The day before the NPRM, Secretary of Homeland Security Alejandro Mayorkas said in a statement that he “supports the inclusion of immigration reform in the reconciliation bill” and urged Congress to act swiftly to provide Dreamers the legal status they need and deserve." On July 16, 2021, the U.S. District Court for the Southern District of Texas issued an injunction that permanently barred DHS from “administering the DACA program and from reimplementing DACA without compliance with” the Administrative Procedure Act (APA). The district court temporarily stayed its injunction with respect to most individuals granted DACA on or before July 16, 2021, including their renewal requests. The court’s injunction was based, in part, on its conclusion that the June 2012 memorandum that created DACA announced a rule that required formal notice-and-comment rule making. The district court further remanded the “DACA program” to DHS for further consideration. DHS has appealed the district court’s decision. DHS proposed rule “would 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 ago as children, who have no current lawful immigration status, and who are generally low enforcement priorities.” It would borrow from the “longstanding threshold criteria” DACA has had since 2012. The requestor must have: Come to the United States under the age of 16; Continuously resided in the United States from June 15, 2007, to the time of filing of the request; Been physically present in the United States on both June 15, 2012, and at the time of filing of the DACA request; Not been in a lawful immigration status on June 15, 2012, as well as at the time of request; 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 Not been convicted of certain crimes or otherwise pose a threat to national security or public safety; and 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, or has a final order of removal or a voluntary departure order. According to the proposition, deferred action under DACA may be granted only if USCIS determines in its sole discretion that the requestor meets the threshold criteria and otherwise merits a favorable exercise of discretion. USCIS would assess on a case-by-case basis as part of a review of the totality of the circumstances. If USCIS observes negative factors in a DACA request, even if an individual meets all the guidelines, USCIS has discretion to deny the request. The rule would restate USCIS’s policy, implemented long before DACA, that a noncitizen who has been granted deferred action is considered “lawfully present.” This is a special term of art for the discrete purpose of authorizing the receipt of certain Social Security benefits. Being “lawfully present” does not in any way confer authorization to remain in the United States or confer some form of lawful immigration status. It also reiterates that a noncitizen who has been granted DACA does not accrue “unlawful presence” for immigration purposes. Finally, the rule would reiterate that USCIS will not issue deportation charges (a “Notice to Appear” or “NTA”) in most cases. Specifically, “USCIS would issue an NTA…for possible enforcement action against a DACA requestor under this proposed rule if the case involves a denial for fraud, a threat to national security, or public safety concerns.”
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