The Biden administration has revised a program that protected from deportation hundreds of thousands of undocumented immigrants brought to the United States as children, in hopes of satisfying one of the arguments made by Republican-led states in federal courts that the program was not created properly.
Biden officials issued the new version of Deferred Action for Childhood Arrivals, also known as DACA, in late August, and it takes effect Monday. It went through a period of public comments as part of a formal rulemaking process to increase its odds of surviving an ongoing legal battle.
Those supporting the program say the new rule does not change anything from the 2012 memo issued under the Obama administration that created DACA. The program's future still lies in the hands of the courts after Monday, when DACA officially becomes a federal regulation.
“Through the codifying of DACA, the government tried to really resolve all that, [but] it doesn't take care of the issue of the other arguments that the states are making, which is that they're losing money,” Felix Villalobos, affirmative services unit director at RAICES, a nonprofit immigrant-rights group, told VOA.
In 2018, Texas and other Republican-led states sued the federal government, arguing that DACA had harmed states financially because they were spending resources on education, health care and other services on undocumented immigrants, who were allowed to remain in the country illegally.
They also argued that only Congress has the authority to grant immigration benefits.
Yet, on October 20, a coalition of dozens of influential corporations, including Apple, Amazon, Google and Microsoft, sent a letter to Republicans and Democrats in Congress urging a bipartisan solution for the almost 600,000 immigrants who are enrolled in DACA.
They said ending the program or not having a permanent solution for DACA recipients would harm communities and businesses that would lose people who have become productive members of the U.S. economy.
“When the last DACA recipient’s work permit expires, the U.S. will have lost more than 500,000 jobs, and the U.S. economy will lose as much as $11.7 billion annually — or roughly $1 billion monthly — in wages from previously employed DACA recipients. (To put this into perspective, in Texas alone, 400 health care workers and 300 teachers will be forced out of their jobs each month),” the letter says.
Analysis from the Washington-based independent think tank Migration Policy Institute found that DACA holders contribute nearly $42 billion to the U.S. gross domestic product each year and add $3.4 billion to the federal balance sheet.
According to immigration experts, the average DACA recipient has lived in the U.S. for more than 20 years. To meet the DACA program’s requirement, an applicant must be enrolled in high school, have a high school diploma or its equivalent, or have served in the U.S. military.
Those with criminal histories — a felony, a serious misdemeanor or three misdemeanors — are not eligible for DACA. They also must have been younger than 31 on June 15, 2012, have moved to the U.S. before they turned 16, and have lived continuously in the U.S. since June 15, 2007.
Current DACA recipients are still protected from deportation, are allowed to work and can renew their DACA requests every two years as U.S. Citizenship and Immigration Services (USCIS) continues to process requests for those who meet the original requirements and have not left the country since their last renewal.
Because of the current court order, USCIS is not accepting new applications.
Legal challenge
The U.S. Court of Appeals for the 5th Circuit ordered on October 5 that the lower court review Biden’s revisions to DACA.
The three judges upheld Texas-based U.S. District Judge Andrew Hanen's initial finding that DACA was illegal and agreed the program had not undergone public notice and comment periods required under the federal Administrative Procedures Act. Hanen left the program in place for those already benefiting from it, pending the appeal.
"A district court is in the best position to review the administrative record in the rulemaking proceeding," according to the opinion of 5th Circuit Chief Judge Priscilla Richman.
Hanen has the case back to look at the new version and make another decision. A new hearing has not been announced.
“And so, the case still remains alive,” Villalobos of RAICES said.
Texas Attorney General Ken Paxton, whose office filed the 2018 lawsuit, said in a statement that “this lawsuit was about the rule of law — not the reasoning behind any immigration policy. … The district court recognized that only Congress has the authority to write immigration laws, and the president is not free to disregard those duly enacted laws as he sees fit.”
Since 2001, about 11 versions of the Development, Relief and Education for Alien Minors (DREAM) Act have been introduced in Congress. The measure provides a pathway to legal status for undocumented people who came to the U.S. as minors.
Despite bipartisan support, every time the bill has been introduced, it has failed to become law.
“What everybody expects to happen is that this will continue to go until the Supreme Court. The Supreme Court has ruled very narrowly in the past and has been able to establish that the program should continue,” Erendira Rendon, from the Chicago-based Resurrection Project, told VOA. “And so, it is possible that DACA does end up being canceled altogether, including for people that already have DACA.”
