The U.S. Department of Homeland Security has issued a final rule codifying the Deferred Action for Childhood Arrivals (DACA) program in an attempt legally solidify the program due to ongoing litigation challenging its validity.
The rule issued on Wednesday does not alter the parameters of the initial DACA program, which was originated through a policy memo by the Obama administration in 2012. Notably, it does not change important dates that govern whether an individual is eligible for DACA. Individuals still must have entered the country before June 15, 2007 (five years before the original DACA was established) and have been under the age of 16 at that time. Many commenters in the rulemaking proceeding urged the administration to move that date up to five years before the new rule – or 2017 – making young people who entered the country in the intervening decade potentially DACA-eligible.
In its proposed rule issued last September, the administration suggested allowing DACA grantees to apply for DACA status and work authorization separately, rather than as a package. The final rule, however, maintains the status quo.
Response to court ruling
The administration’s main objective for this rule was to respond to a federal district court ruling that invalidated DACA, partly because the Obama administration did not follow proper procedures in establishing the program. The rule is an attempt to remedy that shortcoming.
However, that ruling also found that the Obama administration did not have the legal authority to implement DACA, regardless of any procedural deficiency. So this new rule does not address all the grounds on which the court struck down DACA.
On track for the Supreme Court
The 5th Circuit Court of Appeals heard oral arguments in this case last month and is expected to rule soon. The case will likely go to the Supreme Court. The Supreme Court previously struck down the Trump administration’s attempt to rescind the DACA program on procedural grounds.
Current DACA recipients can renew their status at the expiration of their three-year terms, but no new DACA applications are being approved. The new rule does not change that.
Advocates, including the American Association of Community Colleges, continue to urge Congress to pass legislation protecting Dreamers from deportation and putting them on a path to citizenship. This issue will likely rise on Congress’s agenda should the higher courts uphold the ruling invalidating DACA.