The 11th anniversary of the Obama administration's creation of DACA will be next week, and the issue of whether DACA recipients are “lawfully present” in the United States is still a matter of confusion and debate. If DACA beneficiaries are lawfully present, as the federal government in many contexts says they are, then many may be surprised to learn that they are ineligible to receive almost all state and local benefits, including in-state tuition and professional licenses, under federal law. This is because under current policies, an alien could be “lawfully present” in the United States without having any lawful immigration status.
While several federal statutes draw distinctions between aliens who are lawfully present in the United States and aliens who are have no lawful presence, the Immigration and Nationality Act (INA) does not provide a general definition for what it means to be “lawfully present”. (Somewhat confusingly, the INA does provide a definition for “unlawful presence” at 8 U.S.C. § 1182(a)(9)(B)(ii). Congress, however, expressly chose to limit that definition for the purpose of applying the three- and 10-year bars, which prohibit officers from admitting aliens who have been unlawfully present in the United States in excess of 180 days or one year, respectively.)
Since 2021, however, the Biden administration has engaged in rule-making to define DACA beneficiaries as lawfully present in certain contexts. On August 30, 2022, the U.S. Department of Homeland Security (DHS) issued a final rule titled “Deferred Action for Childhood Arrivals” that, among other things, reiterated DHS’s position that DACA recipients be “not considered ‘unlawfully present’” for the purpose of inadmissibility under 8 U.S.C. § 1182(a)(9)(B) (governing application of the three- and 10-year bars), as well as deemed “lawfully present” for the purpose of 8 C.F.R. § 1.3(a)(4)(vi) (governing Social Security benefit eligibility).
Last month, in a step further, the U.S. Department of Health and Human Services (HHS) proposed a new rule titled “Clarifying Eligibility for a Qualified Health Plan Through an Exchange, Advance Payments of the Premium Tax Credit, Cost-Sharing Reductions, a Basic Health Program, and for Some Medicaid and Children's Health Insurance Programs”. The proposal would amend current Affordable Care Act (ACA) regulations to define lawful presence to include DACA beneficiaries, thereby extending eligibility to ACA benefits. Here, too, the Biden administration was careful to clarify that this regulatory change would not define what it means to be lawfully present in all circumstances.
In both rule-makings, the Biden administration described lawful presence as a “specialized term of art” that is distinct from “lawful status”, which refers to an immigration status granted pursuant to a provision of the INA. DHS explained lawful presence as generally encompassing “situations in which the executive branch tolerates an individual being present in the United States at a certain, limited time or for a particular, well-defined period. The term is reasonably understood to include someone who is legally subject to removal ... but whose temporary presence in the United States the Government has chosen to tolerate, including for reasons of resource allocation, administrability, humanitarian concern, agency convenience, and other factors.”
What Does “Lawful Presence” Have To Do with State and Local Benefits Eligibility? Federal law at 8 U.S.C. § 1621(a) defines which aliens are eligible to receive state and local public benefits, and this provision does not include any deferred action recipients, including DACA beneficiaries. State and local benefits include things such as grants, loans, professional licenses, in-state tuition, retirement benefits, health benefits, assisted housing, unemployment benefits, or any other similar benefit.
States are able to get around this restriction by complying with § 1621(d), which authorizes states to extend eligibility to aliens who are “not lawfully present” in the United States through enactment of a law that “affirmatively” provides for such eligibility.
Accordingly, aliens who are not eligible under § 1621(a) (i.e., are not qualified aliens (as defined in 8 U.S.C. § 1641), aliens in a nonimmigrant status provided in 8 U.S.C. 1101 et seq., or parolees) are considered “lawfully present”, but are ineligible for all state and local public benefits unless the benefit falls under an exception like short-term, in-kind emergency disaster relief. Accordingly, if DACA beneficiaries are, in fact, "lawfully present", then states are preempted by federal law from granting DACA beneficiaries eligibility.
Why Is This Important? Many states do currently give DACA beneficiaries access to state and local benefits. For example, at least 27 states passed laws to grant in-state tuition benefits to students who are in the United States illegally, including DACA beneficiaries. An additional seven states extend in-state tuition benefits to DACA beneficiaries only and restrict them from other aliens in the United States both lawfully and unlawfully. If DACA beneficiaries are lawfully present, then nearly all of the state laws that have been enacted since 2012 to grant DACA eligibility to covered public benefits would be preempted by federal law and invalid.
How Would the Biden Administration Likely Respond to This? The Biden administration, in both the DACA final rule and HHS proposal, explained that it interprets “lawful presence” as context-dependent, stating that “there is no express definition of ‘lawfully present’ or ‘unlawfully present’ for all purposes” and that the federal government’s “interpretation does not mean, that in a broad sense, deferred action recipients, such as those with DACA are lawfully in the United States for all purposes”. Accordingly, the administration would likely argue that DACA beneficiaries are not lawfully present for the purpose of 8 U.S.C. § 1621, thus allowing them public benefits if states’ choose (through enactment of a law) to extend public benefits to them, while arguing that they are lawfully present for purposes of other types of public benefits, such as Social Security and benefits under the ACA.
The problem here, still, is that if Congress wanted to include the DACA-eligible population for program eligibility, it could have done so and maintains the ability to do so today. But it hasn’t. DACA is a program that gives deferral from removal to aliens illegally in the United States that was designed entirely by the executive branch and has never been recognized by Congress, which has plenary authority over immigration. As the Fifth Circuit Court of Appeals held in 2022, the DACA program is substantively invalid under the Administrative Procedure Act (APA) precisely because the policy contravened Congress’ scheme for allocating “lawful presence” by broadening the “categories of aliens who are entitled to lawful presence in the United States”, among other reasons.