In late September 2021, the Biden Administration announced a proposal that would make the Deferred Action for Childhood Arrivals (DACA) program a formal policy.
Here, Thomas O’Boyle Adjunct Professor of Law Fernando Chang-Muy explains the provisions of the new DACA proposal and why it is significant. He also discusses potential challenges the proposal could face as well as other possible future measures.
At the University of Pennsylvania Carey Law School, Chang-Muy teaches “Refugee Law and Policy.” At the Graduate School of Social Policy and Practice, he lectures on Immigration and Social Work, and on Organizational Effectiveness in the Executive Education Program, with a focus on strategic planning, board governance, staff communications, and resource development.
Chang-Muy is former Assistant Dean and Equal Opportunity Officer at Swarthmore College, where he also taught International Human Rights.
Q: What does the Biden Administration’s new DACA proposal do?
A: DACA is a policy implemented by the U.S. Department of Homeland Security (DHS) through a memorandum in 2012 that allowed certain noncitizens who met certain criteria to remain in the U.S., e.g., entered the United States before the age of sixteen, and who met educational, residential, and other requirements. That Memo allowed these young people to request a form of prosecutorial discretion called “deferred action.” DACA recipients received a two-year period of protection and could apply for work authorization. More than 800,000 people have received deferred action under DACA.
The Biden Administration’s proposal is in the form of executive branch process called “Notice & Comment.” When an agency, in this case Department of Homeland Security, wants to pass a rule or regulation, it issues a public notice indicating that it is considering adopting a new or modifying an existing regulation on a particular subject and seeks the public’s comment. The agency then considers the comments received in developing final rules.
Q: Why is this proposal significant?
A: The proposed rule would basically codify the DACA 2012 policy. The language of the proposed regulation is similar to DACA 2012 Memo and proposes the following requirements as to eligibility:
The applicant —
- came to the United States under the age of 16;
- continuously resided in the United States from June 15, 2007, to the time of filing;
- is physically present in the United States on both June 15, 2012, and at the time of filing the DACA request;
- has unlawful immigration status on June 15, 2012, as well as at the time of request;
- graduated or obtained a certificate of completion from high school, obtained a GED certificate, currently be enrolled in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- has not been convicted of a felony, a misdemeanor described in the rule, or three or more other misdemeanors, or otherwise pose a threat to national security or public safety; and
- was born on or after June 16, 1981, and at least 15 years of age at the time of filing, with some exceptions
Q: What challenges could the DACA proposal face?
A: In July, a federal judge in Texas declared DACA unlawful, finding that it was government “overreach” and barred the government from adjudicating applications filed by first-time applicants. In addition to questioning DACA’s broader legality, U.S. District Court Judge Andrew Hanen said the policy should have been enacted through a federal regulation open to comments from the public, not through a Department of Homeland Security memo.
Hence, President Biden is following the Judge’s decision to avoid future challenges and to show that all is being done “by the book.”
Q: What are the next steps beyond this proposal for more permanent measures?
A: As President Obama stated during his administration, Congress should pass a law that protects young people who dream of a better future for themselves. Given that Congress did not act, President Obama issued an Executive Order and the Dept of Homeland Security issued a Memo to its offices around the country to start processing applications.
So, a more permanent solution would be legislative fix: Congress could pass a law, and then the Executive Branch can do what it is supposed to do — execute the law and develop forms, processes, where, when, and how the law will play out.
Since its founding in 2006, the Law School’s Transnational Law Clinic has allowed students to represent individuals seeking asylum and other forms of immigration relief from across the globe.
Under the guidance of founder and director Practice Professor of Law Sarah Paoletti, Transnational Clinic students have worked alongside and on behalf of international human rights and community-based organizations before regional and international human rights mechanisms on a range of rights-based issues, particularly as they relate to migrants and internally-displaced persons.