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IMMIGRATION SEPTEMBER 02, 2022 | The Indian Eye 40
The Legal Basis for DACA as
Expressed in the Final Rule
CYRUS D. MEHTA sider deferred action for in- fenses, or otherwise do not from some legal challenges, but obtaining employment. Most im-
dividuals who met the follow- pose a threat to national se- not all. If litigation asserts that portant, a clarification of lawful
KAITLYN BOX*
ing criteria pursuant to the curity or public safety; and 5) the program is not authorized presence not being legal status
DACA program: 1) came to were not above the age of 30 under the INA, the fact that it could potentially nudge a court
n August 24, 2022, the United States under the on June 15, 2012. was established through notice to uphold DACA rather than
the Department of
The new final rule takes
OHomeland Securi- age of 16; 2) continuously effect on October 31, 2022, is and comment rulemaking will find it unlawful.
resided in the United States
It remains to be seen how
not provide a defense.
ty (DHS) issued a final rule for at least 5 years preced- expected to be published in the The final rule’s definition DACA fares in the ongoing lit-
aimed at “preserving and ing June 15, 2012, and were Federal Register on August 30, of “lawful presence” is also a igation, particularly in light of
fortifying” the Deferred Ac- present in the United States 2022. It retains the same cri- significant provision. The final the current composition of the
tion for Childhood Arriv- on that date; 3) are in school, teria for DACA eligibility that rule points to 8 CFR § 1.3(a)(4) Supreme Court. While the U.S.
als (DACA) program. The have graduated from high were laid out in the Napolitano (vi), which defines “an alien who Supreme Court allowed DACA
DACA program was initiated school, have obtained a Gen- Memo and preserves the existing is lawfully present in the United to survive in Department of
by a 2012 memo from then- eral Education Development process for DACA recipients to States” as “an alien who belongs Homeland Security v. Regents
DHS secretary Janet Napol- (GED) certificate, or are an request work authorization. The to one of the following classes of the University of California in
itano (“Napolitano Memo”) honorably discharged veteran final rule also affirms USCIS’ of aliens permitted to remain in 2020, the majority’s opinion was
and has been subjected to of the Coast Guard or Armed longstanding policy that DACA the United States because DHS based on the improper proce-
numerous legal challenges Forces of the United States; recipient are considered “lawful- has decided for humanitarian or dure used by the Trump admin-
since. Many of our previous 4) have not been convicted ly present”. other public policy reasons not istration in its attempt to rescind
blogs discuss the DACA pro- of a felony offense, a signif- It is plain that the new fi- to initiate removal proceedings DACA in 2017 in violation of
gram. The Napolitano Memo icant misdemeanor offense, nal rule is aimed at insulating or enforce departure” includ- the APA. The Court in Regents
stated that DHS would con-
or multiple misdemeanor of- the DACA program from being ing “aliens currently in deferred did not reach the question of
invalidated by future litiga- action status”. As this provision whether DACA itself was legal.
tion. In a July 16, 2021 de- makes clear, all recipients of The Supreme Court in Regents
cision, Judge Hanen of the deferred action, not DACA re- also faulted the then Trump ad-
U.S. District Court for the cipients alone, are considered ministration for not factoring in
Southern District of Texas lawfully present for certain pur- reliance interests under Encino
held that the DHS violated poses. Lawful presence does not Motorcars, LLC v. Navarro, 579
the Administrative Proce- confer any immigration status in U. S. ___ (2016) when rescinding
dure Act (APA) as it was the United States, a distinction DACA. Justice Roberts writing
not established through no- that has long been misunder- for the majority observed that
tice and comment rulemak- stood. In a 2017 decision that up- DACA recipients have enrolled
ing.. Judge Hanen further held a challenge to DAPA by the in degree programs, embarked
reasoned that DHS did not state of Texas, the Fifth Circuit on careers, started business-
have the inherent authority viewed a grant of deferred action es, purchased homes, and even
to enact the program, and as something akin to an immi- married and had children, all in
held that DACA conflicts gration status. Judge Hanen in reliance on the DACA program.
with sections of the INA 2021, too, seemed to conflate The consequences of the rescis-
that describe which indi- lawful presence with a legal im- sion would “radiate outward”
viduals are removable and migration status. Rather, lawful to DACA recipients’ families,
lay out a statutory scheme presence renders individuals including their 200,000 US cit-
for work authorization. Be- who have been granted deferred izen children, to the schools
cause Congress had already action eligible for certain federal where DACA recipients study
clearly articulated rules benefits and ensures that they do and teach, and to the employ-
m of surrounding removal, law- not accrue unlawful presence for ers who have invested time and
CYRUS D. MEHTA & PARTNERS PLLC ful presence, and work au- inadmissibility purposes, which money in training them. Justice
thorization, Judge Hanen could render them subject to the Roberts also cited a Brief for
held that DACA failed the 3- and 10- year bars. Moreover, 143 Businesses as Amici Curiae,
first step of the Chevron since they are considered law- which estimated that hiring and
test and violates the APA. fully present, DACA recipients training replacements would cost
Prosecutorial discretion, of will be eligible for Social Secu- employers $6.3 billion. In addi-
which DACA is a variant, is rity benefits, including a Social tion, excluding DACA recipients
an established doctrine that Security number itself when they from the lawful labor force may
does not need to be codi- apply for EADs, which assists result in the loss of $215 billion
fied. Promulgating a regu- individuals in filing taxes, ob- in economic activity and an asso-
2 6th Floor
lation may protect DACA taining identification cards, and ciated $60 billion in federal tax
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