Immigration News for Dreamers: Can This New Ruling Bring DACA Back?

It was a busy week in immigration, and we are here to cover some of the main news that happened.

In today’s article, I’m going to go over a new ruling proposed to help recreate DACA and start the fight against the decision that blocked it a few weeks ago.

I’m also going to talk about the DHS and a new memo that will go into effect, and that states their enforcement priorities.

Finally, I will discuss some big news for immigrants that travel around the country with a lawsuit and settlement made by Greyhound Lines.

DACA Updates

Ok, let’s begin with our first topic of the day, and that involves the news around DACA. 

On Monday, September 27 the Biden administration announced plans to create a rule that would recreate the Deferred Action for Childhood Arrivals policy, or as everyone knows it, DACA.

This is due to the decision taken by a Texan court that found the Obama-era program unlawful and suspended the ability of Dreamers to apply for protection.

This decision indicated that the program violated the Administrative Procedures Act. And even though the ruling left intact the program’s benefits for some 600,000 people, it blocked any future applications, leaving thousands of young immigrants in limbo.

When this ruling first came up a few weeks ago, it was a huge blow for dreamers, and I did some videos and even TV interviews talking about it, if you want to check them out, I’ll leave a link in the comments section. 

Under the announcement made by the Department of Homeland Security, it mentioned that this proposed rule would preserve and fortify the DACA program by seeking to address concerns over how it was implemented.

Alejandro Mayorkas, Secretary of the DHS mentioned that this is part of the efforts the Biden-Harris administration is taking to protect Dreamers and recognize their contributions to our country. 

Earlier this month the Biden administration appealed the decision, and now they seem to be taking the next step to bring DACA back, and this proposal was formally published, officially kicking off a 60-day public comment period. 

The proposed rule is particularly important after a bid by U.S. Senate Democrats to insert a path to citizenship for Dreamers in a budget bill hit a roadblock last week.

Let’s go into more detail about what this new proposal does and what doesn’t.

The New DHS Proposal

First, this proposal will start the process that could eventually allow it to accept new applicants into DACA, with or without congressional action.

The proposal from Biden is not an expansion of the program, which provides work authorization and deferral from deportation for its recipients. 

It keeps the dates first outlined under the Obama administration, requiring beneficiaries to have entered the United States in 2007 or before to have been present in 2012 when the program was created, and to have been born on or after June 16, 1981.

You could say that this proposal is importing the 2012 requirements of the program.  Which is unfortunate.  Biden had an opportunity to update the program, but he didn’t do it. This doesn’t help the hundreds of thousands of DREAMers who would be eligible if the program dates were updated to just the last 5 years, 2016 until now.  That way the program was initially created.  

Another thing that this new rule brings is that it allows potential beneficiaries to apply separately for deferral from deportation, paying only an $85 fee, or for both deferral and a work permit by paying the $495 fee that was previously in effect.

That aspect likely appeals to a prior decision from the Supreme Court challenging Trump’s rescission of DACA which suggested disentangling deportation relief from work authorization.

This could be of little appeal to potential beneficiaries, who would risk identifying themselves to the government as undocumented immigrants.

Still, the separation of deportation deferral and issuance of work permits is at the core of the debate over whether DACA is truly an exercise in prosecutorial discretion.

The DHS proposal goes deep into detail both into the economic benefits of the DACA program, and the Biden administration’s assertion that it is an exercise of prosecutorial discretion, rather than a government action creating new rights for beneficiaries.

But DACA under the new rule, if fully implemented, would not be substantially different from the original program.

By going through the full rulemaking process and inviting public comment, the Biden administration’s approach is more likely to survive any future court challenges, but it could be months before DHS starts enrolling new beneficiaries.

So, like I mentioned when the blocking of DACA first came up, it was a big hit for dreamers, but that decision was going to be appealed and for sure more actions will follow to try and keep DACA, or something similar in place, and this seems to be the first of those actions.

We’ll just need to see how this goes and what will this administration do next to bring DACA back.

DHS Enforcement Priorities

Our next subject for today involves the long-awaited guidance on prosecutorial discretion and civil enforcement priorities, or to call it simply the DHS enforcement priorities.

On September 30, DHS secretary Alejandro Mayorkas released a memo titled “Guidelines for the Enforcement of Civil Immigration Law”, the seven-page document is Department-wide and provides guidance for the apprehension and removal of noncitizens.

Some of the highlights of this memo are: 

Foundation. This memo begins with naming prosecutorial discretion as a foundational principle in immigration. 

Consistent with earlier guidance, this new memo notes the limited resources of the agency the impossibility of enforcing the immigration laws against every undocumented or otherwise removable noncitizen.

It states that the fact of being removable should not alone be a basis for immigration enforcement.

The next important thing is the priorities, and the memo lists the following three civil immigration enforcement priorities:

• Threat to National Security
• Threat to Public Safety
• Threat to Border Security.

Whereas earlier guidance had defined Threats to Public Safety to include those who committed an aggravated felony, the new memorandum is more nuanced, and considers the individual aggravating and mitigating factors of the individual, requiring an assessment of the individual and the totality of factors and circumstances.

Some of the mitigation factors included in this memo are: 

• Advanced (older) or tender (younger) age
• Lengthy presence in the United States
• A mental condition that would have contributed to criminal conduct
• The impact of removal on family in the United States, and 
• Military service

This is an important change as it provides officers with more flexibility to consider each case individually.

The memo also addresses civil rights and civil liberties. It states that a noncitizen’s race, religion, gender, sexual orientation or gender identity, national origin, or political associations, as well as First Amendment activity, shall never be factored in deciding to take enforcement action.

It offers a more inclusive language and is an important step towards improving racial disparities in immigration enforcement.

Finally, this new memo leaves the exercise of prosecutorial discretion to the judgment of personnel and identifies extensive training, a review of enforcement decisions in the first 90 days of implementation, and assurance that decision making is consistent across the agency and Department. 

This is an important change given the historical lack of transparency or consistency in how prosecutorial discretion decisions are applied.

This new memo will be effective on November 29, 2021. After this date, the previously issued interim guidelines will be rescinded.

Greyhound Announcement on Immigration Sweeps

My final topic of the day is a statement made by Greyhound Lines, the largest intercity bus company in the country. 

I have created a few videos talking about traveling in the country for undocumented immigrants, and it’s a question that I often receive in the comments.

This statement is related to that, and what Greyhound announced is that it will stop letting immigration agents conduct warrantless sweeps of its buses and stations in Washinton state.

Along with that, they will pay $2.2 million in legal fees and restitution under a lawsuit settlement with the state of Washington.

Back in February 2020, due to public pressure, they announced they will stop allowing the sweeps, but under this new settlement, it is required that they take specific steps and document their efforts to do so in Washington. 

Under the Trump administration reports of immigration sweeps on buses by Border Patrol agents around the country increased, after Customs and Border Protection, the agency that oversees the Border Patrol reversed an Obama-era decision to restrict approval for those operations.

The bulk of the sweeps occurred near the northern border. In Washington state, where this lawsuit was presented, those searches were concentrated at the bus station in Spokane, the largest city on the eastern side of the state.

Under immigration law, agents can search vehicles without a warrant within a reasonable distance from any external boundary of the United States, which CBP interprets as within 100 miles of any international border. 

That massive zone encompasses more than half of the U.S. population, including New England and Florida and most of New York state.

Bus checks have resulted in the apprehension of people in the country illegally. But agents have also questioned citizens, green card holders, and DACA recipients, in some cases detaining legal immigrants. 

The searches led to a wave of lawsuits against the Border Patrol from civil rights and advocacy groups. 

In Washington, the state attorney general also sued Greyhound, arguing the company did not have to allow officers on its property, and endangered customers’ liberty by doing so.

The suit was filed after Greyhound had already pledged to make changes, but Washington said that despite public statements Greyhound has still not updated its public-facing policies.

A few months before Ferguson filed suit in 2020, a CBP memo was leaked to the media stating that bus companies do not have to allow agents on buses to conduct routine checks for immigrants in the country illegally.

That was contrary to Greyhound’s public stance that it had no choice but to do so. The bus carrier announced it would no longer allow the searches days after the memo was reported.

While this announcement is made only for the state of Washington, it will place an important precedent and could lead to a nationwide decision that could impact immigrants traveling all over the country, so this is good news.

Talk to a New Jersey Immigration Attorney

Remember, if you have questions or comments or would like me to talk about a specific subject, please leave us a comment below.

We love to hear from you, solve your doubts, and help in any way we can. Or if you want to talk about your case or your situation, please reach out to us, our NJ immigration attorneys will discuss the best path for you.

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As always, stay healthy and be well.