Comment Period for New DACA Regulation Closes November 29

The Department of Homeland Security (DHS) issued a new notice of proposed rulemaking (NPRM), “Deferred Action for Childhood Arrivals,” in late September and the comment deadline of November 29 is fast approaching. The NPRM seeks to codify the DACA policy originally laid out in a memo by then-Secretary of DHS Janet Napolitano in June 2012.

Readers of SayAhhh! are familiar with the DACA policy, but here’s a quick recap. The DACA policy grants “deferred action” – essentially exercising prosecutorial discretion to avoid removal proceedings – for certain young people who came to the US years earlier as children on a case-by-case basis. The criteria to qualify for DACA are: (1) came to the US under the age of 16; (2) continuously resided in the US for at least 5 years preceding June 15, 2012, and were present in the US on that date; (3) are in school, have graduated from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the US; (4) have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, or otherwise do not pose a threat to national security or public safety; and (5) were not above the age of 30 on June 15, 2012. Since 2012, more than 825,000 people have applied successfully for deferred action under the DACA policy.

Despite wide adoption of the policy and broad political support for DACA grantees, sometimes called “DREAMers” because of related legislation, the policy has been the subject of litigation over the years, leaving DACA grantees uncertain about their future. Early in his term, President Trump tried to revoke the DACA policy, but was ultimately stopped by the Supreme Court in June 2020. The Court ruled that then-Attorney General Jeff Sessions and acting Secretary of DHS Elaine Duke didn’t take the proper steps or provide the necessary justification for canceling DACA, making their decision arbitrary and capricious, a violation of the Administrative Procedures Act (APA).

The same day he was sworn in, President Biden directed DHS, in consultation with the Attorney General, to take all actions deemed appropriate to “preserve and fortify DACA.” But, about six months later, the DACA policy was once again the subject of litigation. The US District Court for the Southern District of Texas vacated the 2012 policy, ruling that the policy should have been subject to notice-and-comment rulemaking, and that skipping this process violated the APA. The Judge also stayed the vacatur, essentially allowing the policy to continue temporarily at least for current DACA grantees. DHS has appealed the district court’s decision.

Meanwhile, DHS also issued an NPRM outlining the DACA policy and comments are due soon. Immigration law is extraordinarily complex, but it is important for the public to weigh-in on the proposed rule in order to inform the final policy. You can read a short summary of the NPRM from CLINIC here. Do you think the rule preserves and fortifies DACA as President Biden directed? Let DHS know by November 29.

Kelly Whitener is an Associate Professor of the Practice at the Georgetown University McCourt School of Public Policy’s Center for Children and Families.