WASHINGTON — The Biden administration plans to publish a proposed rule on Tuesday in hopes of preserving Deferred Action for Childhood Arrivals, or DACA, a program that has protected hundreds of thousands of undocumented young adults from deportation and allowed them to legally work in the United States.
The proposal is especially important given a recent decision by the Senate parliamentarian to not allow immigration provisions to be included in a sprawling budget bill, which Democrats had hoped would put DACA recipients on a path to citizenship.
The new rule, to be published in The Federal Register, would go into effect after the administration considers public input during a 60-day comment period. It would protect some 700,000 undocumented people brought to the United States as children from being deported or losing their work permits, even if Congress does not pass comprehensive immigration reform.
For years, DACA beneficiaries, often called Dreamers, have been uncertain about their future as the program has been canceled, reinstated and partly rolled back by court rulings and administrative actions. The Trump administration tried to end it, and several states, led by Texas, have also challenged its legality.
The 205-page rule “basically is an effort to bulletproof the DACA program from litigation challenges,” said Stephen W. Yale-Loehr, an immigration law professor at Cornell Law School.
“While Democrats will try to find other ways to provide a path to a green card for Dreamers,” he added, “the proposed rule could be a temporary safety net for Dreamers if legislation fails.”
In July, a federal judge in Texas ruled that the program was unlawful and said that President Barack Obama had exceeded his authority when he created it by executive action in 2012. The judge’s decision said that the Obama administration had not taken the proper steps in establishing the program, running afoul of the Administrative Procedure Act.
The judge, Andrew S. Hanen of the United States District Court in Houston, wrote that current DACA recipients would not be immediately affected by his ruling, and that the federal government should not “take any immigration, deportation or criminal action” against them that it “would not otherwise take.” That gave the government time to address the issues with the program that he had raised.
Since the ruling, the Department of Homeland Security has continued to accept renewals but has not approved any new applications for the program.
Democrats had hoped to include a path to citizenship for the Dreamers and about 7 million other undocumented immigrants living in the United States in a $3.5-trillion budget bill. But after the Senate parliamentarian ruled last week that those measures did not belong in the bill, Democrats are preparing backup plans. One would update the immigration registry, a process for extending legal permanent residence to immigrants on the basis of their longstanding presence in the country. The measure would benefit many in the DACA program.
“The Biden-Harris administration continues to take action to protect Dreamers and recognize their contributions to this country,” Alejandro N. Mayorkas, the homeland security secretary, said in a statement.
“This notice of proposed rule-making is an important step to achieve that goal,” he added. “However, only Congress can provide permanent protection.”
The DACA program has enabled many recipients to attend college, build careers and buy homes. Polls have shown that Americans overwhelmingly support offering legal status to Dreamers.
“We know that DACA is not permanent — and it’s not enough,” said Bruna B. Sollod, a communications director for United We Dream, a national advocacy group. “Millions of immigrants continue to live in fear and in threat of detention and deportation, which is why we need Democrats to deliver citizenship through reconciliation this year.”
