The Biden administration on Friday announced it will issue a rule to protect an Obama-era deportation relief program from a court challenge that threatens the legal protections of hundreds of thousands of undocumented immigrants brought to the U.S. as children.
Citing instructions in an executive order signed by President Biden on Inauguration Day, Homeland Security Secretary Alejandro Mayorkas said his department will publish a proposed rule to "preserve and fortify" the Deferred Action for Childhood Arrivals (DACA) policy.
While the DACA program withstood a years-long Trump administration effort to end it, it is currently facing its most imminent and potent legal test yet. U.S. District Court Judge Andrew Hanen is set to issue a ruling in a lawsuit filed by Texas' Republican attorney general, who is seeking to have the Obama-era program declared unlawful and gradually terminated.
The rule appears to be designed to address concerns raised by Hanen, who concluded in 2018 that the Obama administration should have implemented DACA through the regulatory process and allowed the public to weigh in on the policy before it was enacted. By placing a notice in the federal register, the Biden administration will allow the public to submit comments before the policy changes become binding.
Hanen, who has previously said he believes DACA is likely unlawful, was notified of the expected regulation earlier Friday. Last week, Hanen scheduled a hearing on the case for this Tuesday, citing a bill passed by the Democratic-led House that would place DACA recipients and other immigrants who came to the U.S. as minors on a pathway to U.S. citizenship.
"We are taking action to preserve and fortify DACA," Mayorkas said in a statement. "This is in keeping with the President's memorandum. It is an important step, but only the passage of legislation can give full protection and a path to citizenship to the Dreamers who know the U.S. as their home."
More than 640,000 immigrants known as "Dreamers" are currently enrolled in the DACA program, which shields them from deportation and allows them to work legally in the U.S. DACA was created in 2012 during the Obama administration through a department memo issued by then-DHS secretary Janet Napolitano.
In the case overseen by Hanen, Texas Attorney Ken Paxton has argued that DACA is unlawful, in part because the Obama administration did not implement the program through the federal government's rule-making process or allow the public to comment on the policy.
In August 2018, Hanen ruled in Paxton's favor, saying DACA likely violated federal immigration law and that the program should "at least undergo the formalities of notice and comment." Hanen, however, did not order an end to DACA, saying Texas waited too long, nearly six years, to challenge the Obama-era program in court.
Though the specific contents of the rule announced on Friday remain unknown, the regulation likely represents the Biden administration's attempt to undermine Texas' legal argument. It is unclear, however, whether the rule will influence Hanen's ultimate decision in the case, which could be appealed.
"I, like many, believe the DACA policy was a legal policy that was within the authority of the Department of Homeland Security and an appropriate exercise of prosecutorial discretion," León Rodríguez, who oversaw DACA as President Obama's second U.S. Citizenship and Immigration Services director, told CBS News. "But in terms of eliminating one potentially significant area of challenge, a regulation would eliminate that avenue of challenge."
Karen Tumlin, a lawyer representing DACA recipients in a separate federal court case, applauded Friday's announcement, saying it showed the Biden administration is committed to safeguarding the program.
"This is the Department of Justice and the Department of Homeland Security saying 'we're moving this into a more solid sphere, into a regulatory sphere by issuing formal rule-making,'" Tumlin, who founded the Justice Action Center, told CBS News. "That's putting your arms around and hugging the DACA program because you believe it is here to stay."
DACA recipients and their allies have garnered significant legal victories in recent years, convincing multiple federal judges and the Supreme Court to rule that the Trump administration violated federal administrative law when it moved to end the Obama-era initiative in September 2017.
Last December, Tumlin and other lawyers convinced a federal judge in New York to order the outgoing Trump administration to end the 2017 suspension of the DACA program, which had banned new, initial applications. It is estimated that at least 300,000 immigrants living in the U.S. without legal permission qualify for DACA status.
The prerequisites for DACA eligibility include having no serious criminal convictions, arriving in the U.S before the age 16, living in the country since at least 2007 and earning an American high school diploma, a GED or serving honorably in the military. DACA does not allow its beneficiaries to adjust their status and obtain lawful permanent residency.
The American Dream and Promise Act passed by the Democratic-controlled House with some Republican support last week would allow DACA beneficiaries and other undocumented immigrants brought to the country before age 18 to apply for a 10-year period of conditional permanent residence if they satisfy several requirements.
Mr. Biden has said he would sign the proposal into law, but it is unclear whether the bill, which would also legalize hundreds of thousands of immigrants with Temporary Protected Status, can muster enough support in the evenly-divided Senate, where most legislation requires 60 votes to pass.
Rodríguez, the former USCIS director, said the lingering Texas federal court case should serve as a reminder that Dreamers will never have certainty about their immigration status unless Congress votes to legalize them.
"We're going to keep turning ourselves inside out as a country over this and we just need to accept the reality that our only way out of this, the only real resolution to this issue, is a pathway to citizenship, not just for the Dreamers, but for much of the long-standing undocumented population in the U.S.," Rodríguez said.