FederalImmigration & BorderIssuesBiden Administration Considering Rule to ‘Preserve and Fortify’ DACA, Amnesty for Illegal Childhood Arrivals

The Homeland Security Department is set on continuing the Obama administration’s policy on illegal childhood arrivals.
October 8, 2021
As conflict intensifies between many state governors and the federal government over its handling of illegal immigration, the Biden administration has sent several signals that indicate it fully intends to proceed with the president’s commitment to more lenient immigration policies.

The United States Department of Homeland Security (DHS) published a press statement on September 27 indicating that the department was formulating a plan to “preserve and fortify” protections for those covered under the Deferred Action for Childhood Arrivals (DACA) program.

Via an executive order, Secretary of Homeland Security Janet Napolitano implemented the DACA memorandum during the Obama administration on June 15, 2012.

The notice of proposed rulemaking (NPRM) to solidify the policy was officially distributed on September 28. Biden had foreshadowed the creation of the proposed rule after federal Judge Andrew Hanen in Brownsville barred DHS from accepting new DACA applications.

The department said last month that there would be a two-month public comment period for the NPRM and that DHS is still complying with Hanen’s ruling pending an appeal.

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“The Biden-Harris Administration continues to take action to protect Dreamers and recognize their contributions to this country,” Mayorkas said in the DHS press release.

“This notice of proposed rulemaking is an important step to achieve that goal. However, only Congress can provide permanent protection. I support 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.”

Opponents of programs such as DACA, including Senator Ted Cruz (R-TX), call it “executive amnesty” and consider it an unlawful memorandum. This year, Cruz and other senators have contended that failing to consistently enforce immigration laws incentivizes illegal crossings.

In a 5 to 4 decision in June 2020, the United States Supreme Court blocked the Trump administration from rescinding the program, a decision that Cruz called “lawless” and “contrary to the judicial oath” taken by justices. 

DHS believes the policy is rooted in “prosecutorial discretion” and that those who entered the country illegally as children should “not be a priority for removal.”

DACA is not the only policy change that has caused frustration among those who contend the White House is not doing enough to secure the border.

Days after the DACA announcement, Mayorkas also distributed new guidelines for the removal of illegal aliens that calls for “a break from a categorical approach to enforcement.”

In other words, the federal government will no longer deport individuals solely on the basis of their being in the country illegally, but will instead take into account “the totality of the facts and circumstances” upon an “assessment of the individual.”

“Enforcement priorities for apprehension and removal remain focused on noncitizens who are a threat to our national security, public safety, and border security,” DHS said September 30 when outlining the policy change.

Homeland Security is also continuing to seek the abolition of the remain in Mexico policy, despite a Supreme Court decision requiring them to reimplement it. DHS has said it is bringing back the policy in good faith while it drafts new language that the department hopes will be acceptable to the courts.


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Hayden Sparks

Hayden Sparks is a senior reporter for The Texan and a lifelong resident of the Lone Star State. He has coached competitive speech and debate and has been involved in politics since a young age. One of Hayden's favorite quotes is by Sam Houston: "Texas has yet to learn submission to any oppression, come from what source it may."