DHS Codifies DACA As A Federal Regulation
Immigration rights activists take part in a rally in front of the US Supreme Court in Washington, DC on November 12, 2019.
MANDEL NGAN/AFP via Getty Images

The Department of Homeland Security has officially codified the Deferred Action for Childhood Arrivals (DACA) policy into federal regulation, nearly 10 years after it was established.

In a press release Wednesday, DHS Secretary Alejandro Mayorkas announced that the department had established a final rule placing DACA into the federal register. The rule codifies the policies instituted by the Obama administration in a 2012 policy memorandum from then-DHS Secretary Janet Napolitano. The rule has been maintained in some form by the Obama, Trump, and Biden administrations.

“Today, we are taking another step to do everything in our power to preserve and fortify DACA, an extraordinary program that has transformed the lives of so many Dreamers,” Mayorkas said in the Department’s press release Wednesday. “Thanks to DACA, we have been enriched by young people who contribute so much to our communities and our country. Yet, we need Congress to pass legislation that provides an enduring solution for the young Dreamers who have known no country other than the United States as their own.”

“DACA has transformed the lives of its recipients and has made us better and stronger as a nation,” U.S. Citizenship and Immigration Services Director Ur M. Jaddou added. “USCIS is proud to play an important role in implementing the DACA final rule and is committed to ensuring DACA recipients can continue to remain a vital part of their communities and contribute to this country that is their home.”

The DACA regulation applies to certain eligible individuals who illegally immigrated to the U.S. when they were children, deferring their deportation and allowing them the opportunity to receive a renewable two-year work visa. The regulation maintains the existing threshold criteria to qualify for DACA, as well as the existing process for DACA recipients to seek work authorization; it also “[a]ffirms the longstanding policy that DACA is not a form of lawful status but that DACA recipients, like other deferred action recipients, are considered ‘lawfully present’ for certain purposes.”

“Since its inception in 2012, DACA has allowed over 800,000 young people to remain in the only country many of them have ever known, with their families,” DHS said in its press release. “Across the country, DACA recipients are doctors and nurses, working to ensure the health and safety of Americans; they are teachers, striving to give back to younger generations; they are members of our military serving to protect our country; they are our neighbors, friends, and family.”

The final rule goes into effect on October 31. However, it cannot fully go into effect because of an outstanding legal challenge in the Southern District of Texas.

Judge Andrew S. Hanen issued an injunction in July 2021, arguing that the Obama administration overstepped its authority and failed to follow legal requirements in creating the policy. The judge thus ruled that DACA was unlawful, as The Daily Wire reported at the time.

“D.H.S. failed to engage in the statutorily mandated process, so DACA never gained status as a legally binding policy that could impose duties or obligations,” Hanen wrote in his ruling. The Fifth Circuit Court of Appeals held a hearing in July, and is expected to issue a ruling on the case later this year, CBS News reported Wednesday, adding that the Court is expected to uphold the lower court ruling.

Until the outstanding legal challenges are settled, DHS is prohibited from granting initial DACA requests and work authorizations under the final rule. But because the injunction has been stayed in part, the Department can grant DACA renewals under it.

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