The Deferred Action for Childhood Arrivals and Its Failure to Protect Our Undocumented Communities

Charlene Echeverria Burciaga 

Associate Editor

Loyola University Chicago School of Law, J.D. 2023

U.S. Citizenship and Immigration Services (USCIS) has proposed new regulations regarding DACA and is accepting comments on the proposed rule. USCIS claims that the new regulations will preserve and fortify the Department of Homeland Security (DHS) policy. As well as respond to President Biden’s memorandum from January 20, 2021, where Biden states in support of DACA, that “these immigrants (DACA recipients) should not be a priority for removal based on humanitarian concerns, and that work authorization will enable them to support themselves, and contribute to our economy, while they remain(in the U.S.)” USCIS further claims that DACA has been economically and socially beneficial to undocumented communities. It reiterates their “consistent judgment” that DACA recipients should not be a priority for removal citing Secretary Napolitano’s 2012 memorandum that DACA recipients lacked the intent to violate the law as children. Further, “removing productive young people (unless justified)” is not a prudent way to spend border resources. The agency continues to provide that the proposed regulation does not provide lawful status or path to citizenship. Despite the use of language that speciously centers on DACA recipients, the proposed provisions are at best superficial and continue to leave undocumented young people in a state of uncertainty.

The History of DACA

The Deferred Action for Childhood Arrivals (DACA) is a program that solely offers employment authorization and protects recipients from deportation. To be considered for DACA, applicants are required to fall within strict eligibility requirements. President Obama commenced DACA in 2012 after the Development, Relief, and Education for Alien Minors Act (DREAM Act) failed to pass Congress. Unlike DACA, the DREAM Act offered a path to citizenship, but the law has failed to pass despite is being introduced fourteenth times , the last of which was in March of 2019.  Most recently, DREAM ACT 2021 passed the House of Representatives, and a hearing by the Senate occurred in June 2021, but there have been no further updates. Therefore, DACA is the only purported protection afforded to child arrivals. DACA, however, has continuously been threatened. As of July 20, 2021, a U.S. district court in Texas issued a decision and injunction in Texas v. the United States, holding that DACA is unlawful because it violates the Immigration and Nationality Act of 1952 (INA). However, it will allow current recipients to continue renewals and accept first-time DACA requests submitted prior to July 16, 2021. The federal government announced that it would appeal this decision to the Fifth Circuit of Appeals.

The New Proposed DACA Regulations

The significant provisions of the regulatory action include defining “Deferred Action” as a “temporary forbearance from removal that does not protect anyone from remaining or re-entering the U.S. and does not prevent DHS or any other enforcement from initiating any criminal action against DACA recipients.”  It also includes the current eligibility requirement and adds that USCIS has sole discretion in deciding whether the requestor meets the criteria. The new provisions also include limitations on the use of DACA information to initiate immigration enforcements and codify the procedures for denial or termination of DACA that will result in Notices to Appear (NTA) and Referrals to ICE (RTI). It will make the Employment Authorization form (Form I-765) optional and further codify employment authorization for DACA recipients. It has also included an automatic termination of Employment Authorization upon the termination of a grant of DACA. Lastly, it will limit the definition of “Lawful Presence” to provide that it does not mean a person has authority to remain in the U.S. but instead allows them certain benefits under DACA. Despite supposedly emanating from a humanitarian-centered ideology, the provisions have expanded government power and limited DACA recipients’ benefits. Under the new proposed regulations, DACA is merely beneficial for short-term protection from removal. Employment has become optional, meaning people will have to take an extra step to remember to include it in their application. Defining “Deferred action” and “Lawful Presence” further limits DACA benefits and expands government power to criminalize and remove DACA recipients more efficiently.

The proposed regulations fail even to attempt to provide substantive and meaningful adjustments. DACA recipients and undocumented people looking to apply for DACA still run the risk of removal, no long-term security, and are only left with regulations that superficially change DACA on its face. President Biden and USCIS’s statements continue to be empty flowery language at the expense of so many undocumented people who deserve to live without their lives constantly used as political battlegrounds.