President Biden and his administration is working on providing a more stable and secure position to those children brought to the United States before their 15th birthday who lived their childhood and adolescent lives in the United States, went to school in the United States, finished Highschool or achieved a GED certification, and do not have any criminal record.

These children are called a lot as DREAMERS.  And many of them are also now protected from deportation by Obama’s executive action Deferred Action for Childhood Arrivals (DACA).  Deferred action is an immigration status which the executive branch can grant to undocumented immigrants. This action does not give them legal status, but can delay their deportation (in some cases indefinitely).

It also gave DACA recipients ability to receive work authorization, driver licenses or driver permits (in some status), and ability to apply for and receive Social Security Number so they can work officially and receive salaries.  This also allowed some of them to even leave the United States to see their families abroad (sometimes grandparents, parents, and even siblings) they have not seen for many many years or not at all.

The DACA program was put in place by Obama administration in 2012 and allowed those who entered the United States before their 16th birthday and were younger than 31 on the day the program went in effect on June 15, 2012, to be eligible for a deferred action and a work authorization.  The deferred action is a discretionary, limited immigration benefit by the Department of Home Land Security (DHS).

Individuals who have deferred action are in the U.S. under color of law. However, there is no direct path from deferred action to lawful permanent residence or to citizenship. And, it can be revoked at any time. When the program first started, the individuals must have met the following criteria to apply for DACA:

  • Are under 31 years of age as of June 15, 2012;
  • Came to the U.S. while under the age of 16;
  • Have continuously resided in the U.S. from June 15, 2007 to the present. (For purposes of calculating this five-year period, brief absences from the United States for humanitarian reasons was not included);
  • Entered the U.S. without inspection or fell out of lawful visa status before June 15, 2012;
  • Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
  • Were currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;
  • Have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors of any kind; and
  • Did not pose a threat to national security or public safety.

 

Applicants were required to provide substantial documentary evidence of the above criteria. In addition, every applicant were required to complete and pass a biographic and biometric background check. When the original DACA was granted,  to individuals who have never been in removal proceedings, are currently in removal proceedings, or who have final orders of removal.  But later, people who were in removal proceedings were allowed to apply if they first can close their immigration court proceedings and then they would apply for DACA as well.

However, in 2017, under the Trump Administration, the program was rescinded, which led to a number of lawsuits across the country challenging the rescission. The Fourth and the Ninth Circuit Courts of Appeal, along with a number of district courts, ruled that the decision to rescind DACA was “arbitrary and capricious,” and therefore unlawful. The Ninth Circuit also upheld a nationwide preliminary injunction halting the repeal of DACA. The government petitioned the Supreme Court, which granted certiorari to hear the case. Oral arguments were heard by the Court on November 12, 2019.

On June 18, 2020, in Department of Homeland Security v. Regents of University of California, the U.S. Supreme Court struck down the Trump administration’s termination of the DACA program. Just as the lower courts, the Supreme Court held that the termination of DACA was “arbitrary and capricious” under the Administrative Procedures Act (APA). Notably, the Court did not rule on whether or not DACA itself is lawful, but merely held that the Trump administration did not follow the law when it tried to terminate the program. This decision was enforced a month later in Casa de Maryland v. U.S. Department of Homeland Security, in which a federal judge in the U.S. District Court of Maryland ordered DHS to reinstate the DACA program to its 2017, pre-termination status and to start accepting new applications.

Yet, on July 16, 2021, the U.S. District Court for the Southern District of Texas held that the DACA policy “is illegal.” The Court granted summary judgment on former President Trump’s (plaintiffs’) Administrative Procedure Act (APA) claims; vacated the June 15, 2012 DACA memorandum issued by former Secretary of Homeland Security Napolitano; remanded the memorandum to DHS  for further consideration; and issued a permanent injunction prohibiting the government’s continued administration of DACA and the reimplementation of DACA without compliance with the APA. The Court, however, temporarily stayed its order vacating the DACA memorandum and its injunction with regard to individuals who obtained DACA on or before July 16, 2021, including those with renewal requests.

Consistent with this, DHS stated that it will continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization. However, pursuant to the July 16, 2021 order from the Southern District of Texas, DHS is prohibited from granting any initial DACA requests and accompanying requests for employment authorization. But DHS stated that pursuant to the court order, it will continue to grant or deny renewal DACA requests, according to existing policy and will hold all the initial applications until such time when a final decision is made on the litigation.

Today, September 27, 2021, DHS announced a notice of proposed rulemaking (NPRM) that would preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy.  DHS will open a 60-day public comment period for the public to submit comments relevant to the proposed rule.

 

“The Biden-Harris Administration continues to take action to protect Dreamers and recognize their contributions to this country,” said Secretary Mayorkas today in his announcement.  “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. Secretary Mayorkas continued to say.

 

It is important that anyone who is in support of DACA and wants to see the children who were educated on US taxpayer dollars, brought up with U.S. values, and have been working and assisting the U.S. economy during the COVID Pandemic, speak up and comment on this policy stating their support for it.  Also, contact your Congressperson and stating your support for allowing DREAMER a safe and consistent pass to legal permanent residency now.  The wait should be over and all of those eligible DACA recipients should be allowed to remain in the United States and obtain legal status.