Biden Administration Moves to Bolster DACA After Court Loss

Biden Administration Moves to Bolster DACA After Court Loss

A proposal to re-create the program aims to address a federal court ruling that jeopardizes protections for some young immigrants

The Biden administration is taking steps to shore up an Obama-era initiative that provides temporary deportation protections to some young immigrants after a court ruling found the program unlawful this summer.

The Department of Homeland Security on Monday plans to issue a proposal re-creating the Deferred Action for Childhood Arrivals program, or DACA, through a formal regulation, according to a department official. The program, which shields 600,000 young immigrants, known as Dreamers, from deportation has been at the center of a yearslong legal battle focused in part on whether it was properly created.

In July, a federal judge in Texas ruled that Congress hadn’t given the government the necessary authority to create the program. The judge also said the program wasn’t properly implemented because the government didn’t elicit feedback from the public or adequately consider the effects of the program on states.

The department’s proposal seeks to address the judge’s concerns over how the program was implemented but likely wouldn’t resolve the issue over congressional authority. The Justice Department earlier this month appealed the court ruling.

Homeland Security Secretary Alejandro Mayorkas in a statement said the proposal was an important step in the administration’s efforts to preserve DACA. “However, only Congress can provide permanent protection,” he said, urging lawmakers to address the matter in pending spending legislation.

Democrats are unlikely to be able to help through legislation. They are unable to include a permanent solution for Dreamers—a path to citizenship for them and millions of other immigrants in the country illegally—in a $3.5 trillion spending proposal.

Texas and eight other Republican-led states filed the suit in 2018. They argued, among other things, that the program’s creators didn’t consider the impact it could have on states, including requiring them to issue driver’s licenses to the program’s recipients.

The Biden administration is expected to post the proposed regulation in the Federal Register on Monday morning, allowing for a 60-day public-comment period and an in-depth legal justification for the program’s existence.

The new DACA program would operate largely the same as the original created by the Obama administration in 2012. The program would carry the same eligibility criteria, which require that an immigrant in the country illegally arrived by 2007 and before he or she was 16 years old. The program would continue to grant two years of deportation protection and a two-year work permit for a $495 fee. And recipients could leave the country under a program known as advance parole, which gives them upfront permission to legally come back.

Under the proposal, DACA applicants could decide to pay a lower fee of $85 to receive only a shield from deportation without an accompanying work permit. DHS said the shield would lower the cost for high-school students or others for whom the $495 fee proved prohibitive.

The DHS analysis accompanying the proposal also attempts to address some of the concerns raised by the Texas federal court. It looks at potential costs of conferring DACA on state residents and concludes that the costs associated with the program are “unlikely to be significant, and it may well have a positive net effect.” The department is also seeking comment on several aspects of the program, including when the government should notify a DACA recipient that it intends to end the person’s deportation protections.

The Texas court ruling shut down the existing program to new recipients—new applicants also weren’t eligible for most of the Trump administration. At the time of the ruling more than 82,000 applications were pending.

President Biden has made bringing stability to the program a priority, directing the Department of Homeland Security to find ways to “preserve and fortify” DACA in an executive action on his first day in office.

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