Federal district judge Andrew Hanen ruled last month that President Obama’s executive amnesty program known as Deferred Action for Childhood Arrivals (DACA) is illegal. In striking down DACA, Judge Hanen made clear that not only did former Department of Homeland Security (DHS) Secretary Janet Napolitano’s three-page memo creating DACA violate the Administrative Procedure Act’s (APA) notice-and-comment requirement, but that DACA itself violates substantive immigration law. On this latter point, Judge Hanen wrote: “The decision to award deferred action, with all of the associated benefits of DACA status, is outside the purview of prosecutorial discretion.” He continued, “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.”
By finding that DACA violates substantive immigration law, Judge Hanen’s ruling curtails the Biden administration’s ability to re-institute the amnesty-lite program through rulemaking. Prior to Judge Hanen’s ruling, the Biden administration published the Spring 2021 Unified Agenda, a database that informs the public of the regulatory actions the Executive Branch is actively pursuing. The DHS list included an entry for a notice of proposed rulemaking (NPRM) titled, "Preserving and Fortifying Deferred Action for Childhood Arrivals". The description of this proposed rule, which is typically vague, said in part, “On January 20, 2021, President Biden signed a Presidential Memorandum, Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA), requiring DHS, in consultation with the Attorney General, to take all appropriate action to preserve and fortify DACA, consistent with applicable law. Consistent with the Presidential Memorandum, DHS intends to engage in notice-and-comment rulemaking to preserve and fortify DACA.”
From my perspective, this entry in the Unified Agenda signaled that the Biden administration expected DACA to be struck down for violating the notice and comment requirement under the APA and this regulation would be the attempt to correct that. The Biden administration must not have expected Judge Hanen to additionally rule that DACA violates substantive immigration law, meaning that the same policy, even implemented through the regulatory process, is legally deficient.
In light of Judge Hanen’s ruling, which the Biden administration vowed to appeal, it came as a surprise to see that DHS submitted an NPRM on DACA to the Office of Information and Regulatory Affairs (OIRA) for review earlier this week. OIRA functions as the Executive Branch’s regulatory clearing house and is the final step in the process before the (proposed) rule is signed by the department secretary (or his delegate) and published in the Federal Register. The Hanen ruling makes clear that the regulatory process will not cure the legal flaws of DACA, so the NPRM raises the question of whether DHS is yet again violating Judge Hanen’s order. For a rule like this to make it to OIRA, it would have to be signed off on by the U.S. Citizenship and Immigration Services (USCIS) chief of the Office of Policy and Strategy (a political appointee), the chief counsel (a political appointee), the director (either former Acting Director Tracy Renaud or recently confirmed Ur Jaddou, depending on timing), as well as the DHS general counsel (a political appointee), chief of staff (a political appointee), and Secretary Mayorkas (a political appointee).
Unless and until a proposed rule is published in the Federal Register, the public does not know the specifics of the NPRM but can use the Unified Agenda entry as a guide. Interestingly, the NPRM under OIRA review is titled “Deferred Action for Childhood Arrivals”, meaning DHS has dropped the “preserving and fortifying” qualifier. Perhaps nothing nefarious is going on here and DHS is using the NPRM to make a general statement about its support of the concept of DACA. This seems unlikely as it would be a significant waste of resources to accomplish what could be said in a press release. If, on the other hand, the Biden administration is attempting to ram through the regulatory equivalent of DACA, I suspect the administration will promptly be hauled before Judge Hanen and subject to sanctions.
While a rule is under OIRA review, the general public has an opportunity to voice its thoughts on the subject ahead of the comment period. Requesting a meeting with OIRA is very easy: you go to this page and provide the “RIN” for the regulation you wish to meet on. The DACA rule's RIN is 1615-AC64.