DACA regulation under White House review as 5th Circuit hears appeal

The Department of Homeland Security (DHS) has submitted its final Deferred Action for Childhood Arrivals (DACA) regulation to the White House Office of Management and Budget (OMB).

The regulation is designed to “preserve and fortify” DACA. The text of the rule is not yet available, but OMB review is the final step in the rulemaking process before publication.

DACA Regulation Key Points:

• DHS is targeting August to publish the final rule.
• The agency will post the text of the regulation for public inspection at least one day before publishing it in the Federal Register.
• The rule will likely have a 60-day delayed effective date.
• DHS proposed the regulation in September 2021 and received more than 16,000 comments on the proposal in a two-month period last fall.

Litigation Update: DACA has been the subject of extensive litigation even as it is broadly popular and enjoys strong support from the business community.

With dozens of DACA beneficiaries in attendance, a three-judge panel with the Fifth Circuit Court of Appeals heard arguments Wednesday in the U.S. Justice Department’s appeal of a July district court ruling that DHS did not follow proper procedures when establishing DACA in 2012. The questioning Wednesday focused largely on the Justice Department’s argument that Texas and other states lacked standing to challenge DACA.

In a separate case, a group of plaintiffs whose first-time DACA applications were pending when the July ruling was issued have asked a federal court in New York for interim relief while the Fifth Circuit litigation plays out. A hearing in the New York case is scheduled for 2:30 p.m. ET tomorrow, Thursday, July 7.

The DHS regulation was crafted in part to protect the program from legal challenges, though additional litigation is likely after the regulation is published.

BAL Analysis: The Biden administration aims to publish the final regulation to “preserve and fortify” DACA in August. For now, DHS is adjudicating only renewal applications and advance parole requests for existing DACA recipients. BAL continues to monitor developments related to DACA and will provide updates as information becomes available. For more information, please visit BAL’s DACA Resource Center here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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