Biden administration makes DACA a formal federal rule—08-29-22
Immigration news, in context
This is the 135th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we analyze the Biden administration’s new DACA regulation.
In Under the Radar, we discuss the death of a 23-year-old migrant in ICE custody.
The Big Picture
The news: After a lengthy rule-making process with a notice-and-comment period, the administration has issued a new final rule that will codify the existing parameters of the Deferred Action for Childhood Arrivals (DACA) program into the formal regulatory scheme, finally moving it out of the shakier realm of agency memo. The rule is slated to be published on August 30.
What’s happening?
The thing about a stopgap is that if it becomes your solution for ten years, it’s no longer really a stopgap so much as it is your solution, at least as long as a more permanent solution remains out of reach. While the Biden administration and its allies in Congress certainly haven’t given up on the notion of a legislative path to residency and citizenship for the population broadly described as Dreamers—people who were brought illegally to the United States as children and who have grown up in the country—failed recent efforts (more on that below) and current political realities make it clear that for now, the executive DACA program is as good as it’s going to get.
Since its inception in 2012, DACA has been the subject of litigation and legal scrutiny of the sort that felled its companion program DAPA, which intended to protect the parents of U.S. citizens and permanent residents. The latest iteration is an ongoing lawsuit by Texas and eight other states seeking to have the program as a whole declared unlawful, an effort that proved largely successful last year when Texas District Judge Andrew Hanen, a George W. Bush appointee, agreed with the plaintiffs that the federal government had violated the law in its enactment of the program in the first place, nine years prior.
In a 77-page order and related injunction, Hanen vacated the DACA memorandum, issued by then-Homeland Security Secretary Janet Napolitano (to recipients including then-USCIS Director Alejandro Mayorkas), and remanded it back to the federal government for further consideration. However, the judge took the unusual step of staying the vacatur specifically for current enrollees, recognizing that doing so would instantly upend the lives of hundreds of thousands of people currently dependent on it, and acknowledging that the Supreme Court had separately ruled that the government had to consider DACA participants’ reliance interests and keep accepting applications in the case of Batalla Vidal v. Wolf. As a result, the administration could continue processing DACA renewals, but could not consider new applications.
The plaintiff states made a multitude of legal arguments, including that the Obama administration had superseded the will of Congress with DACA, a position with which Hanen broadly agreed, writing that “DACA was not and is not interstitial to an act of Congress. In fact, just the opposite situation exists. Although the Defendant-Intervenors argue that DACA is a means of waiting for congressional action, given the nine-year history of failed legislation in Congress, it is an inescapable conclusion that DACA is not interstitial to any congressional action.” He declined to rule on a separate constitutional allegation, that the administration was failing to observe the Take Care Clause (which compels the executive to enforce the laws of Congress) because the other legal arguments were enough to justify his vacatur.
The main grounds for vacating the memo are under the Administrative Procedure Act, the consistent bogeyman of both Trump and Biden when it comes to enacting immigration policy. In a nutshell, the law governs executive decision-making, and is supposed to ensure that agency rules, regulations, and policies are created through standard processes and not “arbitrary and capricious,” particularly when they can have massive implications. Multiple Trump policies, including that attempt to end DACA, were stopped by rulings of APA violations, and the same has happened to Biden, except often for attempts to end Trump-era policies, including Title 42.
As in prior lawsuits, Texas and the other states are contending that they were the subject of all sorts of harms from the federal government’s imposition of DACA, including additional spending on public safety and education. Hanen lays out a litany of other issues that are ostensibly unaddressed, including the impact of DACA on the encouragement of additional unauthorized immigration, and ultimately concludes that the Obama-era DHS officials who enacted it did not go through an appropriate process. This still left the window open for a new process by the current administration, as Hanen himself acknowledged in the injunction, writing that the government was enjoined from “reimplementing DACA without compliance with the APA.”
Coming into compliance is exactly what the Biden administration has tried to do now. Last September, after Hanen’s order, it issued a proposed rule that would essentially take the entire program as laid out in the Napolitano memo and make it part of formal federal regulation. After months of a notice and comment, the rule has been finalized, and is set to go into effect on October 31. It’s clear that the primary purpose of the rule is to prove that the government really went through an extensive process to establish the rule, which comes in at over 450 pages. It also really lays on thick the idea that Congress has given the executive wide latitude to decide if and how to go after people for immigration violations and to regulate immigration more generally, featuring the words “discretion” or “discretionary” over 300 times. Much of it is dedicated to addressing comments, both from people who claimed that it went too far and those who claim it didn’t go nearly far enough.
It maintains the exact same standards as the existing DACA program, meaning that applicants would have to have arrived in the U.S. before age 16, been continuously residing here since June 15, 2007, been physically present on June 15, 2012 and at the time of filing, had no immigration status at those times, not been convicted of certain crimes, and have completed or be in high school or equivalency program, or been honorably discharged from the military. While in some of the legislative efforts to codify DACA the criteria for Dreamers would have been expanded, the administration here decided to keep things simple.
Some tweaks have been made to the proposed rule, most notably one guaranteeing that enrollees will have the chance to respond to a notice of intent to terminate before status is discretionarily ended, but it is largely the same as last year’s draft. The fact that the administration has enacted a new rule does not in and of itself mean that the DACA program is back and that the vacatur is lifted. The government still cannot issue the status to new applicants, but it has put itself in much better legal footing to preserve the policy.
How we got here
DACA was a policy of last resort. The Obama administration created it in 2012 after the DREAM Act failed to pass in the Senate for the third time in five years.
The legislative history of the DREAM Act is an instructive look at how polarized the immigration debate became in a relatively quick period of time. Its first iteration, the Immigrant Children’s Educational Advancement and Dropout Prevention Act, was introduced in the spring of 2001 by Rep. Luis Gutiérrez; the text of that bill was later adapted into the Development, Relief, and Education for Alien Minors Act, which was introduced in the Senate by Dick Durbin and Orrin Hatch in August 2001. That bill would have granted permanent residency to undocumented immigrants who were at least 12 years old when it was signed into law and who applied for adjustment of status before turning 21, so long as they met certain requirements. Applicants had to have a high school degree or equivalent, have lived in the U.S. for at least five years before the bill went into effect, exhibit “good moral character,” and could not be inadmissible or deportable under criminal or national security grounds.
After September 11, Congressional focus shifted to counterterrorism and national security. Congress voted to establish the Department of Homeland Security in 2002, establishing a new link between immigration enforcement and counterterrorism. For the next few years, the focus was on enforcement, not reform. That changed with the Comprehensive Immigration Reform Act of 2006, a bipartisan piece of legislation that included the text of the DREAM Act and would have also expanded the guest worker program and granted immigration status to people who came to the U.S. as adults. Its cosponsors included John McCain and Lindsey Graham. The bill was reintroduced again in 2007.
Both times, the bill failed to get enough support from conservatives. The opposition was driven largely by the Federation for American Immigration Reform, an anti-immigration group founded by John Tanton, and its two spinoff organizations, the Center for Immigration Studies and Numbers USA. The groups “lit up the switchboard for weeks,” Mitch McConnell told the New York Times years later. At the time, immigration reform was a bipartisan effort. President George W. Bush supported the bill, and many Republicans acknowledged that having a permanent underclass of easily exploitable workers was less than ideal.
The DREAM Act was reintroduced as a standalone bill in 2009 and 2011 and failed both times. Each year, it had less and less Republican support: some of the Republicans who voted for earlier iterations of the bill voted against the 2011 version, as did some conservative Democrats. By that point, undocumented youth had been fighting for protection for a decade.
DACA emerged as a temporary solution to these legislative failures. Then-DHS secretary Janet Napolitano issued a memo creating the program, which would allow applicants who met certain requirements to obtain work permits and be shielded from deportation. It was not a path to permanent residency or citizenship. A group of 10 ICE agents sued the administration in an effort to stop DACA from going into effect, but a federal judge in Texas dismissed the suit.
The Obama administration expanded DACA in 2014, and also introduced a new program called Deferred Actions for Parents of Americans. Both were quickly challenged in court. A group of 26 Republican governors led by Texas sued the administration over DAPA and the DACA expansion, and a federal judge issued an injunction in 2015 blocking them from going into effect. The Supreme Court upheld the injunction, and DAPA never came to fruition.
More than 700,000 people were enrolled in DACA by the time Trump was elected president. Nine months into Trump’s term in office, Politico reported that his administration was terminating the program. White House officials told Politico that there had been discussions of giving Congress a six-month window to codify DACA—something they likely knew would never happen. Then-DHS secretary Elaine Duke issued a memo terminating DACA in early September 2017. Per the memo, a group of state attorneys general sent the Justice Department a letter claiming that DACA was unlawful earlier that year; in that memo, they said they’d amend the DAPA lawsuit to legally challenge DACA unless the administration terminated the program by September 5.
The University of California sued the Trump administration in response; 15 states and Washington, DC filed a separate lawsuit. Both lawsuits argued that the administration’s effort to end DACA violated the Administrative Procedure Act, and in 2020 the Supreme Court ruled that the administration had in fact violated the APA. The court didn’t rule that the administration couldn’t terminate DACA, but rather that it had not followed the appropriate procedural steps in its effort to do so.
U.S. Citizenship and Immigration Services wasn’t processing new DACA applications while the program’s termination was being argued in court. Even after the Supreme Court ruled that the administration’s attempt to end DACA was unlawful, USCIS denied new DACA applications, signaling it would attempt to end the program again.
Shortly after Biden took office, his administration sent a draft of a comprehensive immigration reform bill to Congress. The first section of the bill focused on an “Earned Path to Citizenship” for undocumented immigrants who met certain requirements. People eligible for the status adjustment would be able to obtain “lawful prospective immigrant status” and would be able to apply for permanent residency after five years. People with DACA, meanwhile, would immediately qualify for permanent residency, as would agricultural workers. The bill pretty much went nowhere.
Meanwhile, Democrats tried to include immigration reform, including specific protections for DREAMers, farmworkers, and other groups, in the budget reconciliation process. Ultimately, they were stymied by the Senate parliamentarian—who, it’s worth noting, previously worked as an immigration prosecutor for the now-defunct Immigration and Naturalization Service—who they chose to listen to even though they don’t technically have to.
What’s next?
The administration is appealing the vacatur to the Fifth Circuit, and there are decent odds that the whole thing may end up before the Supreme Court yet again. The formalization of the rule doesn’t guarantee a legal victory, but it goes a long way towards neutralizing the APA-based arguments, which are the predominant reason that the injunction, vacatur, and remand were ordered. The main danger now is that a court will find DACA unlawful on separate grounds, including the constitutional argument surrounding the Take Care Clause.
In the meantime, there won’t be significant changes for current DACA recipients, who will continue to be able to renew their status unless and until there is additional court action. The rule itself signals that the current administration intends to do whatever is its power to continue to offer protections to this population, which is an approach that is broadly popular across American society and which is supported by coalitions from big business to labor.
Still, no matter the added formality, this remains a stopgap. Only a legislative solution could provide a fundamental and permanent solution for Dreamers. On that front, things are looking less than ideal, with Democrats being unable to actually pass legislation either standalone or as part of the reconciliation process despite unified control of Congress and the White House. As the midterm elections near, their prospects have improved slightly over expectations from a few months ago, but most analysts agree that they are likely to lose the Senate and potentially the House. For the time being, a fortified DACA might not be the best solution, but it does seem like the most feasible.
Under the Radar
23-year-old man dies in New Mexico ICE facility
A 23-year-old Brazilian migrant died at the Torrance County Detention Facility in New Mexico, the Albuquerque Journal reports. Advocates told the publication that the man, Kelsey Vial, was found unresponsive in his cell after what appears to be a suicide attempt; people detained in the facility told the group he hung himself. Vial died at the University of New Mexico hospital.
Vial was apprehended by Border Patrol agents in April, after which he was transferred to ICE custody while his immigration case was pending. He is at least the third person to die in ICE custody during the 2022 fiscal year, which began last October. (Vial is not yet included on ICE’s list of in-custody deaths.)
A report published by the ACLU of New Mexico just weeks before Vial’s death included interviews with several detained who alleged substandard treatment and poor conditions at the Torrance facility. Earlier this year, DHS’s Office of the Inspector General published a report detailing unsanitary conditions and a lack of staff at the detention center, which is owned and operated by the private prison giant CoreCivic.