DHS Publishes a Final DACA Regulation, Faces an Uphill Legal Battle

By Elizabeth Jacobs on August 25, 2022

On Wednesday, August 25, the U.S. Department of Homeland Security (DHS) announced that it will publish a final regulation in an attempt to legitimize the Deferred Action for Childhood Arrivals (DACA) program. The new regulation maintains nearly every aspect of the program originally created by the Obama administration through a memorandum, despite recent federal court decisions ruling that the DACA program violated substantive immigration law. Most recently, a federal court order required DHS to stop considering new DACA applications, but allowed existing beneficiaries to maintain their DACA benefits. The regulation will go into effect 60 days after its publication in the federal register, currently scheduled for August 30, 2022.

DACA provides immigration benefits, including lawful presence and employment authorization, as well as forbearance from deportation, to certain aliens who are in the United States illegally. In addition to other eligibility criteria, these aliens must have been under the age of 31 on or before June 15, 2012 and have entered United States prior to 2007, thus making the eligible population between the ages of 26 to 42 years old.

Since 2012, DHS reports that more than 825,000 aliens have participated in the program. DHS estimates that there will be 694,954 active DACA beneficiaries through 2022, and reports from the Migration Policy Institute estimate that there are 1.7 million DACA-eligible aliens in the United States, including the currently active population. Today, no DACA recipient or DACA-eligible alien is a minor.

The new regulation makes very few substantive changes to existing DACA policies. Notably, the regulation now requires U.S. Citizenship and Immigration Services (USCIS), with some exceptions, to provide DACA recipients with a “Notice of Intent to Terminate” (NOIT) prior to termination of their DACA status, similar to how other immigration benefit programs operate. Despite the programmatic features and associated benefits, DHS continues to insist in its public messaging, litigation, and rulemaking materials that DACA is merely designed to “defer the removal” of certain aliens with no lawful immigration status. Deferred action, like other prosecutorial discretion decisions, is typically made by U.S. Immigration and Customs Enforcement (ICE), not adjudicated by USCIS, the agency charged with implementing the United States’ legal immigration system.

As the Center of Immigration Studies explained in its comment on DHS’s regulatory proposal, the new regulation stands on rocky legal ground and faces an uphill battle in the courts. On July 16, 2021, the U.S. District Court for the Southern District of Texas ruled that DACA’s creation in 2012 via a three-page memorandum violated the notice-and-comment requirement under the Administrative Procedure Act (APA). The ruling went further, however, to hold that “DACA is an unreasonable interpretation of the law because it usurps the power of Congress to dictate a national scheme of immigration laws and is contrary to the INA.” The court explained, “While the law certainly grants some discretionary authority to the agency, it does not extend to include the power to institute a program that gives deferred action and lawful presence, and in turn, work authorization and multiple other benefits to 1.5 million individuals who are in the country illegally.” The new DACA regulation does not fix these flaws.

DACA is more than, as DHS purports, an exercise of prosecutorial discretion resulting from limited agency resources. By implementing DACA, DHS ignores statutorily mandated removal proceedings and goes further to provide immigration benefits to aliens with no lawful access to immigration benefits.

While the government may have satisfied some procedural requirements by engaging in notice-and-comment rulemaking, the new regulation suffers the same pitfalls as the 2012 DACA memorandum.