Biden Administration Issues Final Rule on DACA Program

The Biden Administration has published a final rule to codify the Deferred Action for Childhood Arrivals (DACA) program as a regulation. The DACA program provides certain temporary protections and benefits to qualifying undocumented immigrants who were brought to the United States as minors. The rule was proposed in response to litigation challenging the legitimacy of the program’s creation via executive order in 2012 by the Obama Administration. This final rule is scheduled to go into effect on October 31, 2022.

Final Rule Implementing DACA as a Regulation

The final rule’s qualifying criteria for DACA remain unchanged. The applicant must meet ALL of these requirements:

• Entered the United States prior to reaching the age of 16
• Continuously resided in the U.S. from 15.Jun.2007, through the date the DACA application is filed
• Not have been in legal status both on 15.Jun.2007 and at the time of filing
• Have been physically present in the U.S. on both 15.Jun.2012, and on the date the DACA request is filed
• Graduated or obtained a certificate of completion from high school, obtained a GED certificate, be currently enrolled in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.
• Not have been convicted of a felony, a misdemeanor described in the rule, or three or more other misdemeanors not occurring on the same date and not arising out of the same act, or otherwise pose a threat to national security or public safety
• Have been born on or after 16.Jun.1981

Differences in the Final Rule

While the program largely remains unchanged, there are some differences and clarifications included in the final rule:

• To clarify what is NOT a disqualifying felony and misdemeanor for DACA purposes, the regulation states, “expunged convictions, juvenile delinquency adjudications, and immigration-related offenses characterized as felonies or misdemeanors under State laws are not considered automatically disqualifying convictions for purposes of this provision.”
• DHS must now provide a DACA recipient with a notice of intent to terminate (NOIT) before termination. USCIS may still terminate DACA without issuance of an NOIT if revocation involves a crime regarding national security or a serious public safety issue.
• Employment authorization connected with DACA does not terminate with the initiation of removal proceedings. However, once termination of a grant of DACA occurs, employment authorization also terminates.
• Current DACA recipients need not reapply for the program if their benefit is still valid.
• The rule rescinds previous rules regarding the program and establishes the regulation as the governing law surrounding the program.

Formal Rulemaking Process Better Protects DACA from Legal Challenges

In 2020, a federal judge in Texas halted processing of new DACA applications. One key reason cited by the judge for invalidating DACA was that the Obama Administration had enacted the program without first going through the formal regulatory process. By implementing DACA as a formal regulation, the Biden Administration aims to address this purported deficiency in how the program was implemented.

Conclusion

While DACA remains largely unchanged, it is now a codified regulation. Although the future of the program remains uncertain, the Biden Administration’s codification of the program as a regulation provides a stronger backbone for the program to stand up to legal challenges.

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