September 28, 2021

The Department of Homeland Security (DHS) published a proposed rule regarding the Deferred Action for Childhood Arrivals (DACA) program to effectuate President Biden’s January 20, 2021 directive to DHS to take “all appropriate actions to preserve and fortify DACA, consistent with applicable law.” Comments on the proposed rule are due by November 29, 2021 and can be submitted here using Docket No. 2021-0006.

This proposed rule responds to a July 16, 2021, ruling of the U.S. District Court for the Southern District of Texas vacating the June 2012 memorandum that created the DACA program. The court enjoined DHS from “administering the DACA program” because the court concluded that the 2012 policy directive creating DACA was a legislative rule under the Administrative Procedure Act (APA) that had to be promulgated through notice-and-comment rulemaking. The DACA program has allowed approximately 825,000 people brought to the United States when they were children to remain in the U.S. and get work authorization. This proposed rule seeks to ground the DACA program in a formal notice-and-comment rulemaking to secure the status of these people that the court ruling threw into question. 

Proposed Rule

Generally, the proposed rule “embraces the consistent judgment that has been maintained by [DHS]—and by three presidential administrations since the policy first was announced—that DACA recipients should not be a priority for removal.” This policy is grounded in DHS’s experience with the policy over the past nine years and the ongoing litigation concerning the policy’s continued viability, and it is meant to preserve reliance interests DACA recipients, and their families have in the continued implementation of the deferred action policy.  DHS emphasizes that the DACA policy in the proposed rule operates on a case-by-case basis. DHS also notes that: “[T]he proposed DACA policy “is not a permanent solution for the affected population and does not provide lawful status or a path to citizenship for noncitizens who came to the United States many years ago as children. Legislative efforts to find such a solution remain critical.”

Criteria for Deferred Action Under the Proposed Rule

The proposed rule parallels, but is not identical to, the DACA policy from Secretary Napolitano’s June 2012 Memorandum. It defines “deferred action” as “a temporary forbearance from removal that does not confer any right or entitlement to remain in or re-enter the United States, and that does not prevent DHS from initiating any criminal or other enforcement action against the DACA recipient at any time.”

To be eligible for consideration for deferred action, the proposed rule requires applicants to have: (1) come to the United States under the age of 16; (2) continuously resided in the United States from June 15, 2007, to the time of filing of the request; (3) been physically present in the United States on both June 15, 2012, and at the time of filing of the DACA request; (4) not been in a lawful immigration status on June 15, 2012, as well as at the time of request; (5) graduated or obtained a certificate of completion from high school, obtained a GED certificate, currently be enrolled in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. To be considered currently enrolled in school as of the date of the request, the DACA requestor may be enrolled in a career training program including vocational training designed to lead to placement in postsecondary education, job training, or employment; (6) not been convicted of a felony (defined as a Federal, State, or local criminal offense punishable by imprisonment for a term exceeding 1 year), a misdemeanor described in the rule under § 236.22(b)(6) that is an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence; or is one for which the individual was sentenced to time to be served in custody of more than 90 days, or three or more other misdemeanors (a Federal, State, or local criminal offense for which the maximum term of imprisonment authorized is one year or less but greater than 5 days) not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety; and (7) been born on or after June 16, 1981, and be at least 15 years of age at the time of filing, unless the requestor is in removal proceedings, or has a final order of removal or a voluntary departure order.

DACA requestors would have the burden of establishing, by a preponderance of the evidence, that they meet these criteria. DHS would accept either primary or secondary evidence to determine whether the DACA requestor meets the threshold criteria. The proposed rule establishes that primary evidence is documentation, such as a birth certificate, that, “on its face, proves a fact.” Secondary evidence is described as “other documentation that is more circumstantial and could lead the reviewer to conclude that it is more likely than not that the fact sought to be proven is true.” Examples of secondary evidence include baptismal records issued by a church showing that the DACA requestor was born at a certain time or rental agreements in the name of the DACA requestor’s parents to demonstrate periods of residence in the United States. Secondary evidence may require corroboration with other evidence submitted by the requestor. The proposed rule also clarifies that “affidavits submitted in lieu of primary or secondary evidence would generally not be sufficient on their own to demonstrate that a requestor meets the DACA threshold criteria” except in specific circumstances set forth in the rule.

Procedures for Request, Terminations, and Restrictions on Information Use

The proposed rule sets forth procedures for denial of a request for DACA or termination of a grant of DACA, the circumstances that would result in the issuance of a notice to appear or referral to U.S. Immigration and Customs Enforcement (ICE), and the restrictions on use of information contained in a DACA request for the purpose of initiating immigration enforcement proceedings.

Under this proposed rule, USCIS has exclusive jurisdiction over requests for DACA for non-detained individuals. Individuals who are in immigration detention may request DACA but may not be approved for DACA unless they are released from detention by ICE prior to USCIS’ decision on the DACA request. A noncitizen in removal proceedings would be allowed to apply for deferred action regardless of whether those proceedings have been administratively closed. And a voluntary departure order or a final order of exclusion, deportation, or removal would not bar a noncitizen from requesting DACA.

Consistent with DHS’ current practices, if a DACA requestor’s case is denied, they will not be referred to ICE for purposes of removal proceedings unless their case involves a criminal offense, fraud, a threat to national security or public safety, or DHS determines there are exceptional circumstances. Also consistent with current policy, the proposed rule provides that information provided about the requestor and their family members and guardians is protected from disclosure to ICE and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria set forth in the existing 2011 USCIS policy memorandum. Also consistent with current policy, the proposed rule provides that the information in a DACA request may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.

Key Changes the Proposed Rule Makes to DACA

The proposed rule includes several clarifications of and changes to DHS’ existing DACA policy.

Filing Requirements

The proposed rule would modify the existing filing process and fees for DACA by making the request for employment authorization on Form I-765, Application for Employment Authorization optional and charging a fee of $85 for Form I-821D, Consideration of Deferred Action for Childhood Arrivals. DHS proposes to maintain the current total cost to DACA requestors who also file Form I-765 of $495 ($85 for Form I-821D plus $410 for Form I-765). 

It is also noteworthy that the proposed rule states that the provisions governing filings, evidence and processing, denials, appeals, precedent decisions, certifications, and motions to reopen and reconsider requests for immigration benefit requests under 8 CFR part 103 would not apply to requests for DACA under this proposed rule, except as specifically provided in the proposed rule. DHS says this is because a request for deferred action is a temporary forbearance from removal and is not a “benefit request.”

Employment Authorization

The proposed rule creates a DACA-specific provision on employment authorization for DACA recipients in new regulatory text at 8 CFR 274a.12(c)(33). DHS claims that the new paragraph would “not constitute any substantive change in current policy; it merely would create a DACA-specific provision in addition to the existing provision dealing with deferred action recipients more broadly.”  This new regulatory provision would continue the current requirements that applicants must have been granted deferred action and establish economic need for employment authorization. DHS is clear, however, that this provision represents its rejection of Texas v. United States, No. 1:18-cv-00068, 2021 WL 3025857 (S.D. Tex. July 16, 2021) (Texas II) finding that it is unlawful to provide employment authorization to persons who receive deferred action under DACA because DACA recipients are not in the categories of noncitizens whom Congress specifically has authorized to be employed, nor in the categories of noncitizens for whom Congress has allowed DHS to provide discretionary employment authorization.

“Lawful Presence” and Advance Parole

The proposed rule “reiterates” that a noncitizen who has been granted deferred action is considered “lawfully present” for purposes of authorizing the receipt of Social Security retirement and disability benefits, Medicare, and railroad retirement and disability benefits. The proposed rule also provides that a noncitizen who has been granted deferred action does not accrue “unlawful presence” for purposes of INA sec. 212(a)(9).

DHS distinguishes in detail the difference between the concepts of “lawful status” and “lawful presence,” stating only Congress can confer “lawful status.”  But DHS goes on to say that it feels the Court in Texas II failed to distinguish between these terms.  Moreover, DHS believes it is authorized to deem DACA recipients “lawfully present” both for purposes of certain public benefits and for purposes of determining if someone is accruing unlawful presence under the 3 and 10-year bars on reentry into the United States. DHS also states that it will continue to treat DACA recipients as having been granted advance parole into the U.S. that permits them to depart the country and then re-enter.

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