Final DACA regulation published, court weighs impact on litigation

The Biden administration published its final Deferred Action for Childhood Arrivals (DACA) regulation Tuesday as a U.S. federal appeals court weighed how the new regulation should affect ongoing litigation.

Key Points:

• The Department of Homeland Security (DHS) published the final DACA regulation in the Federal Register Tuesday after posting a pre-publication version last week. The regulation was designed to “preserve and fortify” DACA, which shields hundreds of thousands of individuals who were brought to the U.S. unlawfully as children from deportation and allows them to apply for work authorization. It is scheduled to take effect Oct. 31.
• DHS created DACA in 2012 via a memorandum but did not go through notice-and-comment rulemaking. The new regulation was crafted in part to shield DACA from legal challenges.
• Litigation over DACA will continue, however. The Fifth Circuit Court of Appeals, which heard arguments about the legality of the program in July, has now asked the U.S. Department of Justice and a group of states challenging the program to provide briefs on how the new regulation affects the case.
• Specifically, the court asked parties on both sides to address whether the court should rule on the legality of the regulation rather than the 2012 memo and whether it has jurisdiction to do so. The court asked for briefs from both sides by noon CT on Thursday, Sept. 1.

BAL Analysis: While the publication of the final DACA regulation is an important step in protecting the program, it does not immediately change the status quo. Currently, DHS continues to adjudicate only renewal applications (DACA and employment authorization) and advance parole requests for existing DACA recipients. Immigration advocates have stressed that litigation could delay the regulation’s Oct. 31 effective date and that individuals in need of renewals should submit applications as they normally would and as early as they are eligible, given the uncertainty around the litigation. BAL will continue to provide updates on important developments related to DACA.

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

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