Biden administration wants to re-create DACA as a new rule

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The embattled Deferred Action for Childhood Arrivals program to shield thousands of “Dreamers” from deportation is entering an important new chapter, and you can help write it.

Launched by a memorandum from the Department of Homeland Security in 2012, the program suspended deportations and provided work permits for more than 825,000 immigrants who’d come to the United States as children and were living in the country without legal permission. These individuals weren’t eligible to become citizens or legal residents and faced a constant threat of deportation, even as they typically had little or no memory of the country of their birth.

The DACA protections are temporary — applicants renew every two years — and can be revoked at the government’s discretion.

And at the moment, DACA is in legal limbo. The Department of Homeland Security is trying to reestablish the program through a new rule, a process that typically takes several months. In the meantime, people previously admitted into DACA can apply to renew their protections, but no new applicants are being considered.

DACA’s legal troubles stem from a July ruling by a federal judge in Brownsville, Texas, who held that DHS had violated federal law by creating the program without formally notifying the public in advance and inviting people to comment. The judge also expressed skepticism about the department’s authority to create such a program on its own, rather than having Congress enact it into law.

The Biden administration is appealing the ruling, but it’s also seeking to “preserve and fortify” the program by going through the rulemaking process it had previously skipped.

On Sept. 28, DHS issued a 205-page proposal for a rule that would implement a new deferred deportation program that looks a lot like DACA, opening a 60-day period for comments from the public. That will give you an opportunity to weigh in on the program and the changes the department envisions. The most notable of these is the proposal to make it optional for DACA applicants to seek a work permit, rather than making the permit application part of the DACA process.

Here’s what you should know about what the proposed rule would keep from the current DACA program, what it would change and how you can get involved.

How did we get here?

The 2012 DACA memorandum grew out of the Obama administration’s frustration with Congress, which failed to pass a bill to give this group of immigrants a path to permanent residency — the DREAM Act — after a decade of negotiations, despite bipartisan support for the idea. But DACA drew stiff opposition from some Republicans, and in 2017 the Trump administration Justice Department announced that the program would be terminated.

That move ran into legal trouble too, and eventually the Supreme Court ruled that the Trump administration took an improper procedural shortcut when it revoked DACA. But the program’s troubles weren’t over — almost exactly one year later, U.S. District Judge Andrew S. Hanen in Texas ruled against the Obama administration’s DACA memorandum and sent the issue back to the Department of Homeland Security.

Significantly, Hanen found that even if the department had made all the right procedural moves, “Congress has not given DHS the power to implement DACA” — a comment that suggests that only Congress can rescue the program. Some legal experts agree, arguing that any such protections for such a large group of immigrants will have to come from Congress. And lawmakers have not provided them, despite versions of the DREAM Act being floated in every session since 2001.

With little hope for getting an immigration bill past a Republican filibuster in the Senate, some Democrats have sought to include protections for Dreamers and other immigrants in the country without permission in Biden’s $1.75-trillion budget reconciliation bill — a difficult task, given the statutory limits on what can be included in a budget measure.

What the rule wouldn’t change

The proposed rule wouldn’t change the eligibility requirements for protection. It would just formally adopt the ones the DHS laid out in 2012 and that the U.S. Customs and Immigration Service has been using ever since.

To be eligible for the program, a recipient must have:

  • come to the U.S. before turning 16;
  • continuously resided in the U.S. from June 15, 2007 to the present;
  • been physically present in the U.S. on both June 15, 2012, and at the time of filing the DACA application;
  • graduated or obtained a certificate of completion from high school, or be enrolled in school;
  • not been convicted of a disqualifying felony or misdemeanor; and
  • been born after June 16, 1981, and be at least 15 years of age at the time of filing the DACA request.

What it would change

The most notable change in the proposal is that it would make getting an employment authorization, or work permit, separate from being admitted into the DACA program.

Currently, when someone applies for and is granted entry into the program, the employment authorization automatically comes with it if they attest to an “economic need to work.” Under the proposed rule, filing the forms required to obtain a work permit would merely be optional for individuals seeking deferred action. (Work permits granted to previous DACA recipients would remain valid.)

People seeking both the DACA protections and a work permit would continue to pay a $495 fee — $85 for DACA and $410 for the work permit. But those applying solely to DACA would pay only $85.

DHS says the move “would not constitute any substantive change in current policy,” but would merely enable people to apply solely for DACA protections. Some applicants may not need a work permit, and others may want to see if they qualify for DACA before paying the extra fee to seek a permit, the DHS said. And like the original program, the department said, the new rule would make permits available only to DACA recipients in need.

Some advocates have pushed back, arguing that making work permits optional is a disservice to DACA recipients.

Other changes include:

  • An official definition for “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 requestor at any time”;
  • A policy for terminating a work permit upon termination of a DACA grant; and
  • A reiteration of the U.S. Citizenship and Immigration Services’ policy that a person who is considered lawfully present in the U.S. thanks to the DACA program doesn’t actually receive any kind of immigrant status.

For access to the rulemaking files, including background documents and submitted comments, visit the eRulemaking portal and search for DHS Docket No. USCIS-2021-0006.

How can you have your voice heard?

Under federal law, DHS will have to consider and acknowledge all relevant comments it receives from the public, although it is not required to abide by the public’s sentiments.

You can submit your views on the proposed rule by visiting the federal eRulemaking portal and following the instructions for submitting public comments.

When submitting a comment, include the agency name and DHS Docket No. — in this case its U.S. Citizenship and Immigration Services (USCIS) and the DHS Docket No.USCIS-2021-0006

Comments that are submitted via email or letter or delivered by hand will not be accepted.

If you cannot submit your comment by using the portal, contact Samantha Deshommes, chief of regulatory coordination for USCIS and DHS, at (240) 721-3000 for alternate instructions.

Meanwhile, if you want to urge your representatives in Congress to take action, you can call their offices through the U.S. Capitol Switchboard: (202) 225-3121. To email a member of the House of Representatives, consult the House directory. And to email your senator, consult the Senate directory.

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