By:  Richard Hanus, Esq.

Published October 4, 2021

For the past decade, the Deferred Action for Childhood Arrivals (DACA) program has given more than 700,000 undocumented young adults a chance at a normal life, albeit only in renewable, 2 year increments.  Since its inception though, DACA has been the subject of contentious political feuding and dozens of federal court challenges.  In the past week, as Congress squabbles endlessly over pending infrastructure and budget bills (which include ambitious immigration proposals), the Biden Administration presented a new, regulation based, approach toward ensuring DACA applicants will continue to have a future in the U.S.

As a reminder, DACA was implemented by way of an Executive Order issued by President Barack Obama in 2012 and granting 2 year Employment Authorization Documents and a shield from deportation for undocumented foreign nationals who:

  • Arrived in the U.S. prior to their 16th birthday;
  • Resided in the U.S. continuously from June 15, 2007 and up to the time of their DACA filing;
  • Were physically present in the U.S. on June 15, 2007, and on their DACA filing date;
  • Enrolled in school, graduated from high school, awarded a GED, or honorably discharged from the U.S. military AND
  • Have no serious criminal background.

In addition to a long term fight to get legislation on the books to give DACA holders a path to U.S. citizenship, the Biden Administration recently put into motion a brand new approach toward extending DACA, one that will better protect the program from future court challenges.  The new initiative abandons the Executive Order vehicle and seeks to implement DACA via Executive Branch regulation/ administrative rule making, and involving a 60 day public comment period, and then likely several more months for final implementation.

The federal litigation launched in opposition to DACA has seen recent success, with a judge last month calling into question the legality of an extensive, life changing program like DACA being created by Presidential memorandum and rather than by our legislature.  As a result, the judge ruled that the applications of first time DACA applicants should no longer be accepted and processed.  Importantly, though, the ruling  kept in place the status quo while the case is further appealed, for current DACA holders who will still be allowed to maintain and extend their DACA status.

For certain, the lawsuits aimed at blocking DACA will not come to an end, even while it is premised on a new legal foundation.  Anti-DACA groups are undoubtedly primed to formulate creative ways to have the current initiative deemed just another unconstitutional short cut around our legislative branch.

In the meantime, our society will hopefully find a way to arrive at a just, practical and humane solution when it comes to the politically sensitive topics of DACA and pretty much anything else having to do with U.S. immigration.

PUBLISHED October 4, 2021– “IMMIGRATION LAW FORUM” Copyright © 2021, By Law Offices of Richard Hanus, Chicago, Illinois