DHS to propose DACA regulation, beginning formal notice-and-comment process

The Department of Homeland Security (DHS) plans to publish a proposed regulation tomorrow to “preserve and fortify” Deferred Action for Childhood Arrivals (DACA).

Key Points:

• The proposed regulation is scheduled to be published on Tuesday, Sept. 28.
• DHS will accept comments from the public for 60 days.
• This is the first step in the formal notice-and-comment process, and a final rule would not take effect for several months.
• The proposed rule would “preserve and fortify DHS’s DACA policy for the issuance of deferred action to certain young people who came to the United States many years ago as children, who have no current lawful immigration status, and who are generally low enforcement priorities.”
• In July, a federal judge in Texas ruled that the DACA program was unlawful and enjoined the agency from continuing to implement it for new applicants. The Justice Department appealed the ruling earlier this month.

Additional Information: In January, President Joe Biden issued a memorandum ordering DHS to take steps to protect DACA. Following this directive, Secretary of Homeland Security Alejandro N. Mayorkas announced that DHS would propose a regulation to preserve and fortify DACA. Secretary Mayorkas reaffirmed that while this action would be an important step in protecting the 640,000 people brought to the U.S. as children, Congress still needed to pass legislation to give Dreamers full protection and a path to citizenship. Since then, more than 100 employers and trade associations have called on Congress to protect DACA, stating that DACA recipients’ “work and commitment to our companies, their families and communities are critical to our nation’s strength, especially since there are tens of thousands of DACA recipients working as frontline doctors and nurses and in other critical industries fighting COVID-19.”

BAL Analysis: At this time, DHS continues to adjudicate only renewal applications for existing DACA recipients. DHS will accept comments from the public on the proposed rule for 60 days. The agency will need to review the comments before publishing a final regulation, and expected legal challenges could affect implementation. 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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