Biden administration trying to preserve, make DACA ‘bullet-proof’


New proposal is still vulnerable in court; only Congress can offer 'permanent' solution, migrant advocates say

FILE – In this Nov. 12, 2019, file photo people rally outside the Supreme Court as oral arguments are heard in the case of President Trump’s decision to end the Obama-era, Deferred Action for Childhood Arrivals program (DACA), at the Supreme Court in Washington. The Trump administration must accept new applications for the Deferred Action for Childhood Arrivals program that protects some young immigrants from deportation, a federal judge ruled Friday, Dec. 4, 2020 in vacating a memo from the acting Homeland Security secretary that had suspended it. (AP Photo/Jacquelyn Martin, File)

McALLEN, Texas (Border Report) — In an effort to preserve the Deferred Action for Childhood Arrivals policy, the Biden administration is proposing a new rule, but migrant advocates say it is in no way a permanent fix to help migrant children gain legal status.

On Monday, the Department of Homeland Security announced the new rule would “preserve and fortify” the DACA program by seeking to address concerns over how it was implemented in 2012.

“The Biden-Harris Administration continues to take action to protect Dreamers and recognize their contributions to this country,” Homeland Security Secretary Alejandro Mayorkas said in a statement Monday. “This notice of proposed rulemaking is an important step to achieve that goal.  However, only Congress can provide permanent protection. I support the inclusion of immigration reform in the reconciliation bill and urge Congress to act swiftly to provide Dreamers the legal status they need and deserve.”

The proposed rule will be published Tuesday and open to a 60-day public comment period. It “modifies and improves the existing filing process,” DHS said.

The announcement comes after a July ruling by a federal district judge in Texas that the 2012 DACA program violated the Administrative Procedures Act. The decision left intact the program’s benefits for some 600,000 people otherwise unable to obtain legal status after being brought to the United States as children. But, it blocked any future applications, leaving thousands of young immigrants in limbo, The Hill reported

To recreate the program, the agency plans to prove the program has been maintained by DHS through three presidential administrations since it was first begun in 2012 under the Obama administration as first announced in the 2012 Napolitano Memorandum.

Currently, the agency is prohibited by the court ruling from granting initial DACA requests but is allowed to accept and process DACA renewal requests.

The Biden administration has appealed the Texas court ruling. But, the program is still vulnerable in court.

Migrant advocates say only Congress can offer a permanent solution for Dreamers through immigration legislation.

“It’s good to see the administration recognize how critical DACA recipients are to our nation and take action to bolster protections for them,” said Ali Noorani, president and CEO of the National Immigration Forum. “A more formalized version of DACA will stabilize the lives of DACA-eligible Dreamers — but legislative action is still needed to fully solidify DACA recipients’ contributions, expand protections to other Dreamers and build a pathway to permanent legal status. Formalizing DACA is a positive step, but it’s not a permanent fix. This development is yet another reminder that Congress must act.”

“Formalizing DACA is a positive step, but it’s not a permanent fix. This development is yet another reminder that Congress must act.”

Ali Noorani, president and CEO of the National Immigration Forum

Cornell Law School immigration law professor Stephen Yale-Loehr says the new proposed rule does not make major changes.

“Instead, the 205-page rule is an effort to bullet-proof the existing program from litigation challenges,” he said.

“The proposed rule becomes more important now that the Senate parliamentarian has ruled that legalization provisions for DACA recipients can’t be included in the budget reconciliation bill. While Democrats will try to find other ways to provide a path to a green card for Dreamers, the proposed rule could be a temporary safety net for Dreamers if legislation fails.” Yale-Loehr said.

Sandra Sanchez can be reached at

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