CBS News reports that in issuing his ruling against the DACA program this past summer, Hanen “said the policy should have been enacted through a federal regulation open to comments from the public, not a Department of Homeland Security memo.” While the Biden administration’s proposed rule will open for public comment for a period of 60 days beginning Sept. 28 (I’ll follow up with a link when that’s up and running), immigration policy experts highlighted the overall “uncertainty” around the case.
“Judge Hanen ruled that, in essence, DACA is illegal—regulation or no,” tweeted American Immigration Council Policy Counsel Aaron Reichlin-Melnick. “But that’s on appeal, so DHS wants comments on ‘how, if [Hanen is] correct, those conclusions should affect this rulemaking.’” Additionally, civil rights litigator Karen Tumlin, among the legal advocates who fought in court to save the policy, said there are some concerning aspects to the proposed rule itself.
“I confess I haven’t made it through the 205 pages, but there are some concerning parts on an option to potentially sever work authorization from the program and allow DACA recipients to apply only for protection from deportation without work authorization,” she tweeted. “DHS is basically recognizing that the work permit portion of DACA could potentially be struck down, and saying that they think if that happens they may still be able to protect people with DACA from being arrested and deported,” Reichlin-Melnick noted.
Public comment gives an opportunity for both affected immigrants and allies to voice their full-throated support for the DACA program, which has allowed nearly 830,000 young immigrants to work legally and live freer from the threat of deportation. “DHS welcomes public comments on the proposed rule, including legal and policy considerations, and suggestions for alternative approaches,” DHS said. “Following the completion of the public comment period, DHS will review and carefully consider all properly submitted comments before issuing a final rule.”
But even Mayorkas acknowledged in his statement that permanent relief is ultimately up to legislators, and notably encouraged “the inclusion of immigration reform in the reconciliation bill and urge Congress to act swiftly to provide Dreamers the legal status they need and deserve.”
While Senate staffer and parliamentarian Elizabeth MacDonough’s nonbinding opinion earlier this month opposed the first plan put forward by congressional Democrats, legislators have said they have alternatives to present to her. Vox’s Nicole Narea reports one option “is to update the ‘immigration registry.’ Under the registry, if an immigrant has been living in the US since before a certain date, they are eligible to apply for permanent residence under federal law, regardless of whether they overstayed a visa or entered the US without authorization. But that date hasn’t been updated in decades. It’s currently January 1, 1972.”
Another option, advocates have also said, is for Senate Democrats to unite to overrule MacDonough’s nonbinding opinion. I mean, recall how Congressional Republicans united to vote against COVID-19 relief earlier this year. “Senators are free to run their chamber as they see fit. Elizabeth MacDonough is not their boss—it’s the other way around,” Daily Kos’ David Nir noted in July. Democrats must remember they have made a promise to millions of families—and they need to keep that promise.
“For a moment, there was like a sheet of light that shined through the dark times—and it was like, ‘OK, things are really going to get better now,'” DACA recipient Frida Adame told CNN following Hanen’s ruling. “But then with this ruling, the light that was going through just dimmed and now it’s dark again … We have absolutely no idea of what will happen next and that’s scary.” DACA recipient Ju Hong also told CNN at the time that “[w]e need the Biden administration and the Democratic Congress to come through on their promises to deliver citizenship for all, for everyone, so we don’t have to be in this limbo every two years. We’re tired of living like this—with this fear, anxiety and stress. I cannot wait any more. Enough is enough.”
“My family has lived in the U.S. for 17 years, not in the shadows, but unprotected,” Diana Bautista told Vice President Kamala Harris during a White House meeting following Hanen’s decision, ABC8 News reported. “We keep getting let down, again and again.” While she applied for DACA months before Hanen’s ruling, her applications became one of the tens of thousands of first-time forms blocked by the decision.