By Jenny Smulson, Vice President of Government Relations, AJCU
In late September, the Biden Administration issued a notice of proposed rulemaking on the Deferred Action for Childhood Arrivals (DACA) program. This notice seeks comments from the public on a rule to be implemented and enforced by the U.S. Citizenship and Immigration Services at the U.S. Department of Homeland Security (DHS). It formalizes the current DACA program with the inclusion of several proposed changes.
DACA is a policy that allows for “prosecutorial discretion” with respect to young people who came to the United States as children; who do not have immigration status; and who are low enforcement priorities for removal from the United States. The policy was first outlined in a 2012 memo prepared at the direction of President Obama by then U.S. Secretary of Homeland Security, Janet Napolitano. It set out specific criteria for when DHS could grant “deferred action” for children:
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Arrived in the U.S. before the age of 16;
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Have resided in the U.S. continuously since 2007;
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Have been in school, obtained a GED, are currently in school, or were honorably discharged as veterans from U.S. Armed Forces;
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Have not been convicted of a felony, significant misdemeanor, multiple offenses, or are not considered a threat to national security or public safety;
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As of June 2012, were under the age of 31.
DACA does not create a pathway toward citizenship, nor does it grant any special status. But it does allow for young people to remain in the U.S. without fear of deportation and provide them with a way to work and earn income. Any individual meeting the criteria listed above could request and apply for DACA.
For DACA recipients, these past nine years have been tenuous and rocky because of legal and executive challenges to the policy that protects them from deportation. Early in the Trump Administration, the President used an executive order to eliminate DACA and its protections. This action resulted in a number of court cases (including one that went to the Supreme Court) that have left DACA on unsolid footing. While the Supreme Court maintained the program by rejecting President Trump’s attempt to dismantle it, it did so by calling that action “arbitrary and capricious.” The Court did not say that a presidential administration could not end the program, though if it did, it must follow legal rules.
In a separate case on DACA, Judge Andrew Scott Hanen of the Southern District Court of Texas ruled the program illegal beyond executive authority, and created without notice and comment in violation of the Administrative Procedures Act. That decision has been appealed. For DACA recipients, attacks on the program have created significant uncertainty in their ability to remain in the U.S., leaving them with fear of what might come next.
In response to these challenges, the Biden Administration is seeking to “fortify and strengthen” DACA using the established rulemaking process. While not a long-term solution for individuals seeking clarity on their status and, ultimately, a pathway toward citizenship, it is intended to restore protections that will pass muster in a court of law. The proposed rule reasserts the current criteria for DACA but allows for an individual to apply for it without work authorization (work authorization can be applied for separately). This was likely done to protect the underlying DACA program from new court challenges, but it is not without controversy, as the unintended consequences of separating DACA and work authorization could create new problems for those with DACA status.
While issuing a new proposed rule is a step forward, the Biden Administration acknowledges that more must be done. In order to fully protect DACA recipients, Dreamers, and other populations in the United States without legal status, Congress must pass legislation to codify the policy with the goal of creating a pathway toward citizenship.
House and Senate Democrats sought to include immigration provisions as part of their reconciliation bill known as the Build Back Better plan (budget reconciliation allows lawmakers to advance a bill with a simple majority, but has strict rules for what is included). But the Senate Parliamentarian (the person charged with determining if policies meet the rules of budget reconciliation) ruled that the immigration legislation could not be included as part of this evolving legislative package.
Legislation has been introduced in the House and the Senate (S.264 and HR6) to authorize the DACA program and protect Dreamers, as the House legislation also provides a pathway toward citizenship for other populations. But there are not enough votes in the Senate to overcome a filibuster and advance the legislation. The House passed HR6 in March 2021.
AJCU has a long history of engagement on immigration, specifically advocating for protections for Dreamers and advancing a legislative solution that would provide U.S. citizenship for this particular population. AJCU presidents have taken public stands, offered strong statements, and engaged in direct advocacy in recognition of the extraordinary ways that Dreamers contribute to our campus communities, neighborhoods, and nation. AJCU staff have also marched in solidarity with Dreamers to express support for them and the program.
There are approximately 600,000 individuals in the U.S. who currently have DACA status, about 33% of whom fall in an “essential critical infrastructure worker“ category (a DHS defined term), e.g., teachers, healthcare providers, food service workers, etc. The September 2021 notice of proposed rulemaking is an invitation to learn more about DACA and individual Dreamers, and to become engaged in this important policy discussion. AJCU will submit comments, as will many of our Jesuit colleges and universities. Please visit the websites below for more information about the DACA program and explore ways that you can ensure it will continue!