[Federal Register Volume 87, Number 167 (Tuesday, August 30, 2022)]

[Rules and Regulations]

[Pages 53152-53300]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2022-18401]

 

[[Page 53151]]

Vol. 87

Tuesday,

No. 167

August 30, 2022

Part III

 

Department of Homeland Security

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8 CFR Parts 106, 236, and 274a

Deferred Action for Childhood Arrivals; Final Rule

Federal Register / Vol. 87 , No. 167 / Tuesday, August 30, 2022 /

Rules and Regulations

 

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DEPARTMENT OF HOMELAND SECURITY

 

8 CFR Parts 106, 236, and 274a

 

[CIS No. 2691-21; DHS Docket No. USCIS-2021-0006]

RIN 1615-AC64

 

Deferred Action for Childhood Arrivals

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

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SUMMARY: On September 28, 2021, the Department of Homeland Security

(DHS) published a notice of proposed rulemaking (NPRM or proposed rule)

that proposed to establish regulations to preserve and fortify the

Deferred Action for Childhood Arrivals (DACA) policy to defer removal

of certain noncitizens who years earlier came to the United States as

children, meet other criteria, and do not present other circumstances

that would warrant removal. After a careful review of the public

comments received, DHS is now issuing a final rule that implements the

proposed rule, with some amendments.

 

DATES: This rule is effective October 31, 2022.

 

FOR FURTHER INFORMATION CONTACT: Ren[aacute] Cutlip-Mason, Chief,

Office of Policy and Strategy, Division of Humanitarian Affairs, U.S.

Citizenship and Immigration Services, Department of Homeland Security,

5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone (240)

721-3000.

 

SUPPLEMENTARY INFORMATION:

 

Preamble Table of Contents

 

  1. Executive Summary
  2. Purpose of the Regulatory Action
  3. Summary of the 2021 Proposed Rule
  4. Summary of Changes From Proposed Rule to Final Rule
  5. Summary of Costs and Benefits
  6. Response to Public Comments on the Proposed Rule
  7. General Feedback on the Rule
  8. General Support for Rule
  9. General Opposition to Rule
  10. Impacts on DACA Recipients and Their Families
  11. Impacts on Other Populations, Including U.S. Workers and

Other Noncitizens

  1. Impacts on the Economy, Communities, and States
  2. Impacts on Businesses, Employers, and Educational

Institutions

  1. Impacts on Migration
  2. Other Impacts on the Federal Government
  3. Criminality, National Security Issues, and Other Safety

Concerns

  1. Creation of a ``Permanent'' Class of Individuals Without

Legal Status

  1. Pathway to Lawful Status or Citizenship
  2. Other General Reactions and Suggestions
  3. Background, Authority, and Purpose
  4. Statutory Authority
  5. Litigation and Legal Disputes
  6. Other Comments and Suggestions
  7. Comments on Proposed Provisions
  8. Deferred Action/Forbearance From Enforcement Action (Sec.

236.21(c)(1))

  1. Employment Authorization (Sec. Sec. 236.21(c)(2) and

274a.12(c)(33))

  1. General Comments on Employment Authorization
  2. Authority To Provide Employment Authorization to Deferred

Action Recipients

  1. Unbundled Process To Make Form I-765 Optional
  2. Automatic Termination of Work Authorization
  3. Lawfully Present (Sec.  236.21(c)(3)) and Unlawful Presence

(Sec.  236.21(c)(4))

  1. Discretionary Determination (Sec. 236.22)
  2. General Comments on Discretionary Determination
  3. Threshold Criteria

    (1) Arrival in United States Under the Age of 16

    (2) Continuous U.S. Residence From June 15, 2007

    (3) Physical Presence in United States

    (4) Lack of Lawful Immigration Status

    (5) Education

    (6) Criminal History, Public Safety, and National Security

    (7) Age at Time of Request

    (8) General Comments on Criteria and Comments on Multiple

Overlapping Criteria

  1. Procedures for Request, Terminations, and Restrictions on

Information Use (Sec.  236.23)

  1. Fees and Fee Waivers
  2. USCIS Jurisdiction (Including Comments on Inability To Grant

DACA to Someone in Immigration Detention)

  1. Grants and Denials of a Request for DACA (Including

Additional Evidence, 2-Year Period, Consultations, Notice of

Decision)

  1. Notice To Appear or Referral to ICE
  2. Appeals and Reconsideration
  3. Termination of a Grant of DACA (Including Comments on

Discretionary/Automatic Termination and Alternatives)

  1. Restrictions on Use of Information Provided by DACA

Requestors (Including Information Sharing and Privacy Concerns)

  1. Severability (Sec. 236.24)
  2. Advance Parole and Adjustment of Status
  3. Other Issues Relating to the Rule
  4. Public/Stakeholder Engagement (e.g., Requests To Extend the

Comment Period)

  1. Administrative Procedure Act and Rulemaking Requirements
  2. Processing Time Outlook (Including Comments on Backlogs)
  3. DACA FAQs
  4. Other Comments on Issues Relating to the Rule
  5. Statutory and Regulatory Requirements
  6. Impacts and Benefits (E.O. 12866 and E.O. 13563)
  7. Methodology and Adequacy of Cost-Benefit Analysis

    (1) Methodology of the RIA

    (2) Comments on Population Estimates and Assumptions

    (3) Comments on Wage Rages

  1. Benefits (No Action Baseline, Pre-Guidance Baseline, or

Unspecified)

  1. Regulatory Alternatives
  2. Regulatory Flexibility Act (Impact on Small Entities)
  3. Other Comments on Costs and Benefits
  4. Paperwork Reduction Act (Including Comments on Actual Forms/

Instructions, and Burden Estimates for Forms I-821D and I-765)

  1. Other Statutory and Regulatory Requirements (e.g., National

Environmental Policy Act)

  1. Out of Scope

III. Statutory and Regulatory Requirements

  1. Executive Orders 12866 (Regulatory Planning and Review) and

13563 (Improving Regulation and Regulatory Review)

  1. Summary of Major Provisions of the Regulatory Action
  2. Summary of Costs and Benefits of the Final Rule
  3. Background and Purpose of the Rule
  4. Cost-Benefit Analysis
  5. No Action Baseline

    (1) Population Estimates and Other Assumptions

    (2) Forms and Fees

    (3) Wage Assumptions

    (4) Time Burdens

    (5) Costs of the Final Regulatory Action

    (6) Benefits of the Final Regulatory Action

    (7) Transfers of the Final Regulatory Changes

  1. Pre-Guidance Baseline

    (1) Population Estimates and Other Assumptions

    (2) Forms and Fees

    (3) Wage Assumptions

    (4) Time Burdens

    (5) Costs of the Final Regulatory Action

    (6) Benefits of the Final Regulatory Action

    (7) Transfers of the Final Regulatory Changes

  1. Costs to the Federal Government
  2. Labor Market Impacts
  3. Fiscal Effects on State and Local Governments
  4. Reliance Interests and Other Regulatory Effects
  5. Discounted Direct Costs, Cost Savings, Transfers, and

Benefits of the Final Regulatory Changes

  1. Regulatory Alternatives
  2. Regulatory Flexibility Act
  3. Unfunded Mandates Reform Act of 1995
  4. Small Business Regulatory Enforcement Fairness Act of 1996
  5. Executive Order 13132: Federalism
  6. Executive Order 12988: Civil Justice Reform
  7. Paperwork Reduction Act--Collection of Information
  8. Family Assessment
  9. Executive Order 13175: Consultation and Coordination With

Indian Tribal Governments

  1. National Environmental Policy Act
  2. Executive Order 12630: Governmental Actions and Interference

With

 

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Constitutionally Protected Property Rights

  1. Executive Order 13045: Protection of Children From

Environmental Health Risks and Safety Risks

 

List of Abbreviations

 

ACA Affordable Care Act

APA Administrative Procedure Act

AST Autonomous Surveillance Tower

BIA Board of Immigration Appeals

BLS Bureau of Labor Statistics

CBP U.S. Customs and Border Protection

CEQ Council on Environmental Quality

CFR Code of Federal Regulations

CHIP Children's Health Insurance Program

CLAIMS Computer-Linked Application Information Management System

CMS Centers for Medicare & Medicaid Services

CPI-U Consumer Price Index for All Urban Consumers

DACA Deferred Action for Childhood Arrivals

DAPA Deferred Action for Parents of Americans and Lawful Permanent

Residents

DHS Department of Homeland Security

DOJ Department of Justice

DREAM Act Development, Relief, and Education for Alien Minors Act

DUI Driving under the influence

EAD Employment authorization document

ELIS Electronic Immigration System

E.O. Executive Order

EOIR Executive Office for Immigration Review

EPS Egregious public safety

EVD Extended voluntary departure

FAIR Federation for American Immigration Reform

FAQs Frequently Asked Questions

FLCRAA Farm Labor Contractor Registration Act Amendments of 1974

FR Federal Register

FY Fiscal Year

GED General Education Development

HHS Department of Health and Human Services

ICE U.S. Immigration and Customs Enforcement

IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act

of 1996

IMMACT 90 Immigration Act of 1990

INA Immigration and Nationality Act of 1952

INS Immigration and Naturalization Service

IOM International Organization for Migration

IRCA Immigration Reform and Control Act of 1986

LPR Lawful Permanent Resident

MPI Migration Policy Institute

NEPA National Environmental Policy Act

NOA Notice of action

NOIT Notice of intent to terminate

NTA Notice to appear

OCFO Office of the Chief Financial Officer

OI Operations Instructions

OIRA Office of Information and Regulatory Affairs

OIS Office of Immigration Statistics

OMB Office of Management and Budget

OPQ Office of Performance and Quality

PRA Paperwork Reduction Act of 1995

PRWORA Personal Responsibility and Work Opportunity Reconciliation

Act of 1996

Pub. L. Public Law

RFA Regulatory Flexibility Act

RIA Regulatory Impact Analysis

RIN Regulation Identifier Number

RTI Referral to ICE

SBREFA Small Business Regulatory Enforcement Fairness Act of 1996

Secretary Secretary of Homeland Security

SIJ Special Immigrant Juvenile Classification

SORN System of Record Notice

Stat. U.S. Statutes at Large

STEM Science, technology, engineering, and mathematics

TPS Temporary Protected Status

UMRA Unfunded Mandates Reform Act of 1995

USBP U.S. Border Patrol

U.S.C. United States Code

USCIS U.S. Citizenship and Immigration Services

VAWA Violence Against Women Act of 1994

VPC Volume Projection Committee

VTVPA Victims of Trafficking and Violence Protection Act of 2000

 

  1. Executive Summary

 

  1. Purpose of the Regulatory Action

 

    On June 15, 2012, then-Secretary of Homeland Security (Secretary)

Janet Napolitano issued a memorandum providing new guidance for the

exercise of prosecutorial discretion with respect to certain young

people who came to the United States years earlier as children, who

have no current lawful immigration status, and who were already

generally low enforcement priorities for removal.\1\ The Napolitano

Memorandum states that DHS will consider granting ``deferred action,''

on a case-by-case basis, for individuals who:

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    \1\ Memorandum from Janet Napolitano, Secretary, DHS, to David

  1. Aguilar, Acting Commissioner, U.S. Customs and Border Protection

(CBP), et al. (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf (hereinafter Napolitano Memorandum).

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  1. Came to the United States under the age of 16;
  2. Continuously resided in the United States for at least 5 years

preceding June 15, 2012, and were present in the United States on that

date;

  1. Are in school, have graduated from high school, have obtained a

General Education Development (GED) certificate, or are an honorably

discharged veteran of the Coast Guard or Armed Forces of the United

States;

  1. Have not been convicted of a felony offense, a significant

misdemeanor offense, or multiple misdemeanor offenses, or otherwise do

not pose a threat to national security or public safety; and

  1. Were not above the age of 30 on June 15, 2012.\2\

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    \2\ Id.

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    Individuals who request relief under this policy, meet the criteria

above, and pass a background check may be granted deferred action.\3\

Deferred action is a longstanding practice by which DHS and the former

Immigration and Naturalization Service (INS) have exercised their

discretion to forbear from or assign lower priority to removal action

in certain cases for humanitarian reasons, for reasons of

administrative convenience, or on the basis of other reasonable

considerations involving the exercise of prosecutorial discretion.\4\

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    \3\ Id.

    \4\ See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525

U.S. 471, 484 (1999) (AADC); 8 CFR 274a.12(c)(14).

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    In establishing this policy, known as DACA, then-Secretary

Napolitano emphasized that for the Department to use its limited

resources in a sensible manner, it necessarily must exercise

prosecutorial discretion. Then-Secretary Napolitano observed that these

``young people . . . were brought to this country as children and know

only this country as home'' and as a general matter ``lacked the intent

to violate the law.'' She reasoned that limited enforcement resources

should not be expended to ``remove productive young people to countries

where they may not have lived or even speak the language.'' \5\ The

Napolitano Memorandum also instructs that the individual circumstances

of each case must be considered, and that deferred action should be

granted only where justified in light of the specific circumstances of

each case.\6\

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    \5\ Napolitano Memorandum.

    \6\ Id.

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    Since 2012, more than 825,000 people have received deferred action

under the DACA policy.\7\ The mean year of arrival in the United States

for DACA recipients was 2001, and the average age at arrival was 6

years old.\8\ In addition, 38 percent of recipients arrived before the

age of 5.\9\ For many, this country is

 

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the only one they have known as home. In the 10 years since this policy

was announced, DACA recipients have grown into adulthood and built

lives for themselves and their loved ones in the United States. They

have gotten married and had U.S. citizen children. Over 250,000

children have been born in the United States with at least one parent

who is a DACA recipient, and about 1.5 million people in the United

States share a home with a DACA recipient.\10\ DACA recipients have

obtained driver's licenses and credit cards, bought cars, and opened

bank accounts.\11\ In reliance on DACA, its recipients have enrolled in

degree programs, started businesses, obtained professional licenses,

and purchased homes.\12\ Because of the health insurance that their

deferred action allowed them to obtain through employment or State-

sponsored government programs, many DACA recipients have received

improved access to health care and have sought treatment for long-term

health issues.\13\

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    \7\ See USCIS, Deferred Action for Childhood Arrivals (DACA)

Quarterly Report (Fiscal Year 2021, Q1) (Mar. 2021), https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf. As of the end of calendar year

2020, there were over 636,000 noncitizens in the United States with

a grant of deferred action under DACA currently in effect (``active

DACA recipients''). See USCIS, Count of Active DACA Recipients by

Month of Current DACA Expiration (Dec. 31, 2020), https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients%E2%80%93December31%2C2020.pdf.

    \8\ DHS, USCIS, Office of Performance and Quality (OPQ),

Electronic Immigration System (ELIS) and Computer-Linked Application

Information Management System (CLAIMS) 3 Consolidated (queried Mar.

2021).

    \9\ Id.

    \10\ Nicole Prchal Svajlenka and Philip E. Wolgin, What We Know

About the Demographic and Economic Impacts of DACA Recipients:

Spring 2020 Edition, Center for American Progress (Apr. 6, 2020),

https://www.americanprogress.org/issues/immigration/news/2020/04/06/482676/know-demographic-economic-impacts-daca-recipients-spring-2020-edition (hereinafter Svajlenka and Wolgin (2020)).

    \11\ See Roberto G. Gonzales and Angie M. Bautista-Chavez, Two

Years and Counting: Assessing the Growing Power of DACA, American

Immigration Council (June 2014); Zen[eacute]n Jaimes P[eacute]rez, A

Portrait of Deferred Action for Childhood Arrivals Recipients:

Challenges and Opportunities Three Years Later, United We Dream

(Oct. 2015), https://unitedwedream.org/wp-content/uploads/2017/10/DACA-report-final-1.pdf (hereinafter Jaimes P[eacute]rez (2015));

Tom K. Wong, et al., Results from Tom K. Wong et al., 2020 National

DACA Study, Center for American Progress, https://cdn.americanprogress.org/content/uploads/2020/10/02131657/DACA-Survey-20201.pdf (hereinafter Wong (2020)).

    \12\ See Roberto G. Gonzales, et al., The Long-Term Impact of

DACA: Forging Futures Despite DACA's Uncertainty, Immigration

Initiative at Harvard (2019), https://immigrationinitiative.harvard.edu/files/hii/files/final_daca_report.pdf (hereinafter Gonzales (2019)); Wong (2020).

    \13\ Gonzales (2019).

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    For DACA recipients and their family members, receiving deferred

action has increased DACA recipients' sense of acceptance and belonging

to a community, increased their sense of hope for the future, and has

given them the confidence to become more active members of their

communities and increase their civic engagement.\14\ The DACA policy

has also encouraged its recipients to make significant investments in

their careers and education. Many DACA recipients report that deferred

action--and the employment authorization that DACA permits them to

request--allowed them to obtain their first job or move to a higher

paying position more commensurate with their skills.\15\ DACA

recipients are employed in a wide range of occupations, including

management and business, education and training, sales, office and

administrative support, and food preparation; thousands more are self-

employed in their own businesses.\16\ Many have continued their

studies, and some have become doctors, lawyers, nurses, teachers, or

engineers.\17\ In 2017, 72 percent of the top 25 Fortune 500 companies

employed at least one DACA recipient.\18\ About 30,000 are healthcare

workers, many of whom have helped care for their communities on the

frontlines during the COVID-19 pandemic.\19\ DACA recipients who are

healthcare workers are helping to alleviate a shortage of healthcare

professionals in the United States, and they are more likely to work in

underserved communities where shortages are particularly dire.\20\

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    \14\ Gonzales (2019); Jaimes P[eacute]rez (2015); Wong (2020).

    \15\ Roberto G. Gonzales, et al., Becoming DACAmented: Assessing

the Short-Term Benefits of Deferred Action for Childhood Arrivals

(DACA), 58 a.m. Behav. Scientist 1852 (2014); Wong (2020); see also

Nolan G. Pope, The Effects of DACAmentation: The Impact of Deferred

Action for Childhood Arrivals on Unauthorized Immigrants, 143 J. of

Pub. Econ. 98 (2016), http://www.econweb.umd.edu/~pope/

daca_paper.pdf (hereinafter Pope (2016)) (finding that DACA

increased participation in the labor force for undocumented

immigrants).

    \16\ Nicole Prchal Svajlenka, What We Know About DACA Recipients

in the United States, Center for American Progress (Sept. 5, 2019),

https://www.americanprogress.org/issues/immigration/news/2019/09/05/474177/know-daca-recipients-united-states; Jie Zong, et al., A

Profile of Current DACA Recipients by Education, Industry, and

Occupation, Migration Policy Institute (Nov. 2017), https://www.migrationpolicy.org/sites/default/files/publications/DACA-Recipients-Work-Education-Nov2017-FS-FINAL.pdf (hereinafter Zong

(2017)).

    \17\ See Gonzales (2019); Nicole Prchal Svajlenka, A Demographic

Profile of DACA Recipients on the Frontlines of the Coronavirus

Response, Center for American Progress (Apr. 6, 2020), https://www.americanprogress.org/issues/immigration/news/2020/04/06/482708/demographic-profile-daca-recipients-frontlines-coronavirus-response

(hereinafter Svajlenka (2020)); Wong (2020); Zong (2017).

    \18\ Tom K. Wong, et al., DACA Recipients' Economic and

Educational Gains Continue to Grow, Center for American Progress

(Aug. 28, 2017), https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca-recipients-economic-educational-gains-continue-grow (hereinafter Wong (2017)).

    \19\ Svajlenka (2020).

    \20\ Angela Chen, et al., PreHealth Dreamers: Breaking More

Barriers Survey Report (Sept. 2019) (hereinafter Chen (2019)), at 27

(presenting survey data showing that 97 percent of undocumented

students pursuing health and health-science careers planned to work

in an underserved community); See also Andrea N. Garcia, et al.,

Factors Associated with Medical School Graduates' Intention to Work

with Underserved Populations: Policy Implications for Advancing

Workforce Diversity, Acad. Med. (Sept. 2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5743635 (hereinafter Garcia

(2017)) (finding that underrepresented minorities graduating from

medical school are nearly twice as likely as white students and

students of other minorities to report an intention to work with

underserved populations).

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    As a result of these educational and employment opportunities, DACA

recipients make substantial contributions in taxes and economic

activity.\21\ According to one estimate, as of 2020, DACA recipients

and their households pay about $5.6 billion in annual Federal taxes and

about $3.1 billion in annual State and local taxes.\22\ In addition,

through their employment, they make significant contributions to Social

Security and Medicare funds.\23\ Approximately two-thirds of recipients

purchased their first car after receiving DACA,\24\ and an estimated

56,000 DACA recipients own homes and are directly responsible for

$566.7 million in annual mortgage payments.\25\ DACA recipients also

are estimated to pay $2.3 billion in rental payments each year.\26\

Because of these contributions, the communities of DACA recipients--who

reside in all 50 States and the District of Columbia \27\--have grown

to rely on the economic contributions this policy facilitates.\28\ In

sum, despite the express limitations in the Napolitano Memorandum, over

the 10 years in

 

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which the DACA policy has been in effect, the good faith investments

recipients have made in both themselves and their communities, and the

investments that their communities have made in them, have been, in the

Department's judgment, substantial.

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    \21\ See the regulatory impact analysis (RIA) for this final

rule, which can be found in Section III.A. The RIA includes analysis

and estimates of the costs, benefits, and transfers that DHS expects

this rule to produce. Note that the estimates presented in the RIA

are based on the specific methodologies described therein. Figures

may differ from those presented in the sources discussed here.

    \22\ Svajlenka and Wolgin (2020). See also Misha E. Hill and Meg

Wiehe, State & Local Tax Contributions of Young Undocumented

Immigrants, Institute on Taxation and Economic Policy (Apr. 2017)

(hereinafter Hill and Wiehe (2017)) (analyzing the State and local

tax contributions of DACA-eligible noncitizens in 2017).

    \23\ Jose Maga[ntilde]a-Salgado and Tom K. Wong, Draining the

Trust Funds: Ending DACA and the Consequences to Social Security and

Medicare, Immigrant Legal Resource Center (Oct. 2017) (hereinafter

Maga[ntilde]a-Salgado and Wong (2017)); see also Jose Maga[ntilde]a-

Salgado, Money on the Table: The Economic Cost of Ending DACA,

Immigrant Legal Resource Center (Dec. 2016) (hereinafter

Maga[ntilde]a-Salgado (2016)) (analyzing the Social Security and

Medicare contributions of DACA recipients in 2016).

    \24\ Wong (2017).

    \25\ Svajlenka and Wolgin (2020).

    \26\ Id.

    \27\ USCIS, Deferred Action for Childhood Arrivals (DACA)

Quarterly Report (FY 2021, Q1) (Mar. 2021), https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf, at 6.

    \28\ Reasonable reliance on the existence of the DACA policy is

distinct from reliance on a grant of DACA to a particular person.

Individual DACA grants are discretionary and may be terminated at

any time, but communities, employers, educational institutions, and

State and local governments have come to rely on the existence of

the policy itself and its potential availability to those

individuals who qualify.

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    This rule responds to President Biden's memorandum on January 20,

2021, ``Preserving and Fortifying Deferred Action for Childhood

Arrivals (DACA),'' \29\ in which President Biden stated:

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    \29\ 86 FR 7053 (hereinafter Biden Memorandum).

 

    DACA reflects a judgment that these immigrants should not be a

priority for removal based on humanitarian concerns and other

considerations, and that work authorization will enable them to

support themselves and their families, and to contribute to our

economy, while they remain.\30\

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    \30\ Id.

 

    This rule embraces the consistent judgment that has been maintained

by the Department--and by three presidential administrations since the

policy first was announced--that DACA recipients should not be a

priority for removal.\31\ It is informed by the Department's experience

with the policy over the past 10 years and the ongoing litigation

concerning the policy's continued viability. It reflects the reality

that DACA supports the Department's efforts to more efficiently

allocate enforcement resources, by allowing DHS to focus its limited

enforcement resources on higher-priority noncitizens. It also is meant

to preserve legitimate reliance interests that have been engendered

through the continued implementation of the decade-long policy under

which deferred action requests will be considered, while emphasizing

that individual grants of deferred action are an act of enforcement

discretion to which recipients do not have a substantive right.

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    \31\ See id.; Sept. 5, 2017 Statement from President Donald J.

Trump, https://trumpwhitehouse.archives.gov/briefings-statements/statement-president-donald-j-trump-7 (``I have advised [DHS] that

DACA recipients are not enforcement priorities unless they are

criminals, are involved in criminal activity, or are members of a

gang.''); Napolitano Memorandum.

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    This rule recognizes that enforcement resources are limited, that

sensible priorities are vital to the effective use of those resources,

and that it is not generally the best use of those limited resources to

remove from the United States those who arrived here as young people,

have received or are pursuing an education or served in the military,

have no significant criminal history, do not pose a threat to national

security or public safety, and are valued members of our communities.

It recognizes that, as a general matter, DACA recipients, who came to

this country many years ago as children and may not even speak the

language of the country in which they were born, lacked the intent to

violate the law. It reflects the conclusion that, while they are in the

United States, they should have access to a process that, operating on

a case-by-case basis, may allow them to work to support themselves and

their families, and to contribute to the economy in multiple ways. This

rule also accounts for the momentous decisions DACA recipients have

made in ordering their lives in reliance on and as a result of this

policy, and it seeks to continue the benefits that have accrued to DACA

recipients, their families, their communities, their States, and the

Department itself that have been made possible by the policy. And as

discussed in detail elsewhere, this rule reflects DHS's continued

belief, supported by available data, that DACA does not have a

substantial effect on lawful or unlawful immigration into the United

States. DHS emphasizes that the DACA policy set forth in this rule is

not a permanent solution for the affected population, and legislative

efforts to find such a solution remain critical.

    DHS recognizes that this rule comes in the wake of prior attempts

to wind down and terminate the DACA policy.\32\ In rescission memoranda

issued, respectively, by then-Secretary Kirstjen Nielsen and then-

Acting Secretary Elaine Duke, DHS cited potential litigation risk as

one reason that winding down and terminating DACA was warranted. But

upon further consideration, it is DHS's view that those prior

statements failed fully to account for all the beneficial aspects of

the DACA policy for DHS as well as for many other persons and entities,

which in DHS's view outweigh the costs. The position taken in the Duke

and Nielsen Memoranda placed undue weight on litigation risk, failing

to account for all the positive tangible and intangible benefits of the

DACA policy, the economic and dignitary gains from that policy, the

length of time that DACA opponents waited to challenge the policy, and

the risk that rescinding DACA would itself expose DHS to legal

challenge--a risk that indeed materialized in the Regents

litigation.\33\ In short, proper consideration of all pertinent factors

on balance establishes that the DACA policy is well worth the agency

resources required to implement it and to defend it against subsequent

legal challenges.

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    \32\ Memorandum on Rescission of Deferred Action for Childhood

Arrivals (DACA) from Elaine Duke, Acting Secretary, DHS (Sept. 5,

2017), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca (hereinafter Duke Memorandum); Memorandum from Secretary

Kirstjen M. Nielsen, DHS (June 22, 2018), https://www.dhs.gov/sites/default/files/publications/18_0622_S1_Memorandum_DACA.pdf

(hereinafter Nielsen Memorandum), at 3 (``in setting DHS enforcement

policies and priorities, I concur with and decline to disturb Acting

Secretary Duke's decision to rescind the DACA policy'').

    \33\ See Dep't of Homeland Sec. v. Regents of the Univ. of Cal.,

140 S. Ct. 1891 (2020).

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    On July 16, 2021, the U.S. District Court for the Southern District

of Texas vacated the 2012 DACA policy, finding, among other things,

that it was contrary to the Immigration and Nationality Act of 1952

(INA).\34\ DHS has carefully and respectfully considered all aspects of

the analysis in that decision, including that decision's conclusions

about DACA's substantive legality. DHS also invited comments on its

conclusions in the proposed rule and discusses the comments received

herein.

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    \34\ Texas v. United States, 549 F. Supp. 3d 572 (S.D. Tex.

2021) (Texas July 16, 2021 memorandum and order).

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  1. Summary of the 2021 Proposed Rule

 

    The proposed rule set forth DHS's proposal to preserve and fortify

the DACA policy, which allows for the issuance of deferred action to

certain young people who came to the United States many years ago as

children, who have no current lawful immigration status, and who are

generally low enforcement priorities.\35\ The proposed rule included

the following provisions of the DACA policy from the Napolitano

Memorandum and longstanding USCIS practice:

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    \35\ The preamble discussion in the NPRM, including the detailed

presentation of the need to establish regulations implementing the

DACA policy to defer removal of certain noncitizens who years

earlier came to the United States as children, is generally adopted

by reference in this final rule, except to the extent specifically

noted in this final rule, or in the context of proposed regulatory

text that is not contained in this final rule. See 86 FR 53736-53816

(Sept. 28, 2021).

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     Deferred Action. The proposed rule provided a definition

of deferred action as a temporary forbearance from removal that does

not confer any right or entitlement to remain in or reenter the United

States, and that does not prevent DHS from initiating any criminal or

other enforcement action against the DACA recipient at any time.

     Threshold Criteria. The proposed rule included the

following longstanding threshold criteria: that the requestor must

have: (1) come to the United States under the age of 16; (2)

continuously resided in the United States from June 15, 2007, to the

time of filing of the request; (3) been

 

[[Page 53156]]

 

physically present in the United States on both June 15, 2012, and at

the time of filing of the DACA request; (4) not been in a lawful

immigration status on June 15, 2012, as well as at the time of request;

(5) graduated or obtained a certificate of completion from high school,

obtained a GED certificate, currently be enrolled in school, or be an

honorably discharged veteran of the Coast Guard or Armed Forces of the

United States; (6) not been convicted of a felony, a misdemeanor

described in the rule, or three or more other misdemeanors not

occurring on the same date and not arising out of the same act,

omission, or scheme of misconduct, or otherwise pose a threat to

national security or public safety; and (7) been born on or after June

16, 1981, and be at least 15 years of age at the time of filing, unless

the requestor is in removal proceedings, or has a final order of

removal or a voluntary departure order. The proposed rule also stated

that deferred action under DACA would be granted only if USCIS

determines in its sole discretion that the requestor meets the

threshold criteria and otherwise merits a favorable exercise of

discretion.

     Procedures for Request, Terminations, and Restrictions on

Information Use. The proposed rule set forth procedures for denial of a

request for DACA or termination of a grant of DACA, the circumstances

resulting in the issuance of a notice to appear (NTA) or referral to

U.S. Immigration and Customs Enforcement (ICE) (RTI), and restrictions

on use of information contained in a DACA request for the purpose of

initiating immigration enforcement proceedings.

    In addition to retaining these longstanding DACA policies and

procedures, the proposed rule proposed the following changes:

     Filing Requirements. The proposed rule proposed to modify

the existing filing process and fees for DACA by making the request for

employment authorization on Form I-765, Application for Employment

Authorization, optional and charging a filing fee of $85 for Form I-

821D, Consideration of Deferred Action for Childhood Arrivals. DHS

proposed to maintain the current total cost to DACA requestors who also

file Form I-765 of $495 ($85 for Form I-821D plus $410 for Form I-765).

As noted below, DHS has modified this approach in this final rule.

     Employment Authorization. The proposed rule proposed to

create a DACA-specific regulatory provision regarding eligibility for

employment authorization for DACA deferred action recipients in a new

paragraph designated at 8 CFR 274a.12(c)(33). The new paragraph did not

constitute any substantive change in current policy; it merely proposed

a DACA-specific provision in addition to the existing provision at 8

CFR 274a.12(c)(14) that provides discretionary employment authorization

to deferred action recipients more broadly. Like the provision at 8 CFR

274a.12(c)(14), 8 CFR 274a.12(c)(33) continued to specify that the

noncitizen \36\ must have been granted deferred action and must

establish an economic need to be eligible for employment authorization.

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    \36\ For purposes of this discussion, USCIS uses the term

``noncitizen'' to be synonymous with the term ``alien'' as it is

used in the INA.

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     Automatic Termination of Employment Authorization. The

proposed rule proposed automatically terminating employment

authorization granted under 8 CFR 274.12(c)(33) upon termination of a

grant of DACA.

     ``Lawful Presence.'' The proposed rule reiterated USCIS'

codification in 8 CFR 1.3(a)(4)(vi) of agency policy, implemented long

before DACA, that a noncitizen who has been granted deferred action is

considered ``lawfully present''--a specialized term of art that does

not in any way confer ``lawful status'' or authorization to remain in

the United States--for the discrete purpose of authorizing the receipt

of certain Social Security benefits consistent with 8 U.S.C.

1611(b)(2). The term ``lawful presence'' historically has been applied

to some persons who are subject to removal (and who may in fact have no

``lawful status''), and whose immigration status affords no protection

from removal, but whose temporary presence in the United States the

Government has chosen to tolerate for reasons of resource allocation,

administrability, humanitarian concern, agency convenience, and other

factors. Lawful presence also encompasses situations in which the

Secretary, pursuant to express statutory authorization, designates

certain categories of noncitizens as lawfully present for particular

statutory purposes, such as receipt of Social Security benefits. See 8

U.S.C. 1611(b)(2); 8 CFR 1.3(a)(4)(vi). The proposed rule also

reiterated longstanding policy that a noncitizen who has been granted

deferred action does not accrue ``unlawful presence'' for purposes of

INA sec. 212(a)(9), 8 U.S.C. 1182(a)(9)(B) (imposing certain

inadmissibility grounds on noncitizens who departed after having

accrued certain periods of unlawful presence in the United States and

again seek admission to the United States).

 

  1. Summary of Changes From Proposed Rule to Final Rule

 

    Following careful consideration of public comments received, DHS

has made modifications to the regulatory text proposed in the proposed

rule, as described below. The rationale for the proposed rule and the

reasoning provided in that rule remain valid, except as described in

this regulatory preamble. Section II of this preamble includes a

detailed summary and analysis of the comments. Comments may be reviewed

in the Federal Docket Management System at https://www.regulations.gov,

docket number USCIS-2021-0006.

     The NPRM proposed to codify at 8 CFR 236.23(a)(1) a

modification of the existing filing process and fees for DACA by making

it optional to submit a request for employment authorization on Form I-

765, Application for Employment Authorization (``unbundled process''),

and charging a fee of $85 for Form I-821D, Consideration of Deferred

Action for Childhood Arrivals. That proposal would have maintained the

current total cost to DACA requestors who also file Form I-765 of $495

($85 for Form I-821D plus $410 for Form I-765). Upon careful

consideration of comments received on this NPRM provision, DHS is

adopting the suggestion of a majority of commenters who addressed this

provision to retain the existing requirement that DACA requestors file

Form I-765 and Form I-765WS concurrently with the Form I-821D

(``bundled process''). However, in this rule DHS adopts the fee

structure proposed in the NPRM of an $85 filing fee for Form I-821D, as

well as a Form I-765 filing fee, currently set at $410. This change

codifies in regulation the process that has been in place since the

Napolitano Memorandum was implemented in 2012, while maintaining a

consistent overall current cost to requestors. See new 8 CFR

236.23(a)(1).

     The NPRM proposed to codify at 8 CFR 236.22(b)(6) the

longstanding criminal history, public safety, and national security

criteria found in the Napolitano Memorandum. Upon careful consideration

of comments received on this NPRM provision, DHS is revising it to

further clarify that, consistent with longstanding DACA policy,

expunged convictions, juvenile delinquency adjudications, and

immigration-related offenses characterized as felonies or misdemeanors

under State laws are not considered automatically disqualifying

 

[[Page 53157]]

 

convictions for purposes of this provision. See new 8 CFR 236.22(b)(6).

     The NPRM proposed to codify at 8 CFR 236.23(d)(1) and (2)

DHS's longstanding DACA termination policy, prior to the preliminary

injunction issued in Inland Empire-Immigrant Youth Collective v.

Nielsen, No. 17-2048, 2018 WL 1061408 (C.D. Cal. Feb. 26, 2018), with

some modifications. The NPRM proposed that USCIS could terminate DACA

at any time in its discretion with or without a Notice of Intent to

Terminate (NOIT). The NPRM also proposed that DACA would terminate

automatically upon departure from the United States without advance

parole or upon filing of an NTA with the Department of Justice (DOJ)

Executive Office for Immigration Review (EOIR) (a modification from

prior policy of automatic termination upon NTA issuance), but DACA

would not terminate automatically in the case of a USCIS-issued NTA

solely based on an asylum referral to EOIR. The NPRM raised four

alternative approaches and invited comment on these and other

alternatives for DACA termination. After careful consideration of the

comments on this provision and the alternatives suggested in the NPRM

and by commenters, DHS is maintaining in the final rule that USCIS may

terminate DACA at any time in its discretion. However, DHS is revising

this provision to provide that USCIS will provide DACA recipients with

a NOIT prior to termination of DACA, but maintains discretion to

terminate DACA without a NOIT if the individual is convicted of a

national security related offense involving conduct described in 8

U.S.C. 1182(a)(3)(B)(iii), 1182(a)(3)(B)(iv), or 1227(a)(4)(A)(i), or

an egregious public safety offense. DHS also is revising this provision

to provide that USCIS may terminate a grant of DACA, in its discretion

and following issuance of a Notice of Intent to Terminate, for those

recipients who depart from the United States without first obtaining an

advance parole document and subsequently enter the United States

without inspection. See new 8 CFR 236.23(d)(1) and (2).

     The NPRM proposed at 8 CFR 236.23(d)(3) that employment

authorization would terminate automatically upon termination of DACA.

This provision included a cross-reference to 8 CFR 274a.14(a)(1)(iv).

However, on February 8, 2022, 8 CFR 274a.14(a)(1)(iv) was vacated in

Asylumworks, et al. v. Mayorkas, et al., No. 20-cv-3815, 2022 WL 355213

(D.D.C. Feb. 7, 2022). As a result of the that vacatur, as well as

additional revisions to the DACA termination provisions to eliminate

automatic termination based on filing of an NTA, as described in this

preamble, DHS is modifying 8 CFR 236.23(d)(3) in this final rule to

remove the vacated cross-reference and clarify that employment

authorization terminates when DACA is terminated and not separately

when removal proceedings are instituted. See new 8 CFR 236.23(d)(3).

     In this final rule, DHS is clarifying at 8 CFR 236.21(d)

that this subpart rescinds and replaces the DACA guidance set forth in

the Napolitano Memorandum and from this point forward governs all

current and future DACA grants and requests. DHS also clarifies that

existing recipients need not request DACA anew under this new rule to

retain their current DACA grants. Historically, DHS has promulgated

rules without expressly rescinding prior guidance in the regulatory

text itself. However, DHS has chosen to depart from previous practice

in light of the various issues and concerns raised in ongoing

litigation challenging the Napolitano Memorandum. See new 8 CFR

236.21(d).

 

  1. Summary of Costs and Benefits

 

    This rule will result in new costs, benefits, and transfers. To

provide a full understanding of the impacts of the DACA policy, DHS

considered the potential impacts of this rule relative to two

baselines. The No Action Baseline represents a state of the world under

the DACA policy; that is, the policy initiated by the guidance in the

Napolitano Memorandum in 2012 and prior to the July 16, 2021 Texas

decision. (The No Action Baseline does not directly account for the

Texas decision, as discussed further in the Population Estimates and

Other Assumptions section of the Regulatory Impact Analysis (RIA).) The

second baseline considered in the analysis is the Pre-Guidance

Baseline, which represents a state of the world before the issuance of

the Napolitano Memorandum, where the DACA policy does not exist and has

never existed. To better understand the effects of the DACA policy, we

focus on the Pre-Guidance Baseline as the most useful point of

reference.

    Table 1 provides a detailed summary of the provisions and their

estimated impacts relative to the No Action Baseline. Table 2 provides

a detailed summary of the provisions and their estimated impacts

relative to the Pre-Guidance Baseline.

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  1. Response to Public Comments on the Proposed Rule

 

  1. General Feedback on the Rule

 

    DHS received 16,361 public comments during the comment period for

the NPRM. The majority of comment submissions, excluding duplicates,

non-germane submissions, and a submission that contained only reference

material, originated from individual or anonymous commenters. The

remaining comments came from a range of entities, including advocacy

groups, schools and universities, legal services providers, religious

organizations, businesses, professional organizations, State and local

government, Federal and State elected officials, and unions. Many

comments expressed general support for the rule, with only 3 percent of

the total expressing generalized opposition. A large majority of the

comments indicated support for the proposal to preserve and fortify

DACA, while opposing or offering suggestions to change some provisions.

    Of the submissions expressing generalized opposition to the NPRM,

only one was from a government entity; all other government submissions

expressed generalized support or support for some provisions of the

rule while suggesting revisions or providing feedback for others. DHS

has reviewed all the public comments received, and below addresses the

comments related to the substance of the NPRM.

  1. General Support for Rule

    Comment: Many commenters expressed general support for DACA and the

rule for a variety of reasons. These commenters stated that DACA should

be protected and is beneficial not only to the youth impacted but also

to the United States; that childhood arrivals to the United States

should not be removed from the only home they know; and that the United

States has a

 

[[Page 53163]]

 

moral obligation as a nation to retain DACA and to lead by compassion,

honor, and respect. One commenter expressed strong support for deferred

action for DACA recipients as both appropriate and justified, stating

that certain young productive people should not be a priority for

deportation to countries where they have not lived and do not speak the

language. Some commenters agreed that DACA recipients should not be a

priority for removal as these individuals have no criminal history,

pose no threat to national security, contribute to the economy and

their communities, are blameless minors or are ``not morally

blameworthy,'' and have lived in the United States for nearly all their

lives. Several commenters stated that DACA recipients provide rich

cultural traditions, share unique cultural contributions, and create a

sense of community in the United States.

    Another commenter said that they were pleased that the rule

clarifies who is eligible for DACA. Another commenter remarked that the

proposed rule would affect government stakeholders or departments,

including DHS, ICE, CBP, EOIR, and State Departments of Motor Vehicles,

and that retaining DACA best respects the rights of these stakeholders.

    Response: DHS acknowledges these commenters' support for the rule

and agrees that the DACA policy has benefits that extend not just to

the recipients themselves, but also to their communities and the United

States more broadly. DHS also agrees that removing DACA recipients, who

came to the United States as children and may have only known this

country as their home, would cause significant hardship to DACA

recipients and their family members.

    Regarding the comment that retaining the DACA policy respects the

rights of impacted government stakeholders, DHS agrees that this rule

reflects the Department's strong interests in the effective and

judicious use of its limited enforcement resources. This preamble also

discusses comments submitted by a range of government entities and

officials.

  1. General Opposition to Rule

    Comment: Some commenters generally opposed the proposed rule. These

commenters stated that allowing undocumented noncitizens into the

United States harms U.S. citizens and must be stopped, that DACA should

be abolished, and that DACA requestors and undocumented noncitizens

claiming ``amnesty'' in the United States are ``illegal immigrants''

regardless of how they are characterized. Several commenters said that

the DACA policy was not a constructive way to handle the immigration

challenges that the country is facing and that the Government should

terminate DACA and implement new policies that protect borders and

encourage more legal immigration.

    Response: DHS respectfully acknowledges these commenters'

opposition to the rule. This rule reflects the consistent judgment of

DHS that DACA is an appropriate exercise of its prosecutorial

discretion given the realities of the limited resources available to

remove every noncitizen lacking lawful status from the United States.

This rule does not authorize new entrants to the United States; indeed,

it codifies, but does not expand, the threshold criteria for

consideration for deferred action under the DACA policy that have

existed since 2012. DHS has been attentive to all relevant reliance

interests. DHS discusses in greater detail the rule's alleged impact on

migration in Section II.A.7. However, as the rule does not confer

lawful status on DACA recipients or provide DACA recipients with

permanent protection from removal, DHS disagrees with the

characterization of DACA as an amnesty program; it does not give

amnesty to anyone. DHS also does not believe that this rule or the DACA

policy is in conflict with policies that promote maintaining an

orderly, secure, and well-managed border, which are high priorities for

DHS and for the Administration, and except as specifically related to

the DACA policy are generally beyond the scope of the rulemaking.\37\

DHS declines to make changes to the rule in response to these comments.

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    \37\ See, e.g., DHS, 2022 Priorities, https://www.dhs.gov/2022-priorities (last updated Mar. 17, 2022).

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  1. Impacts on DACA Recipients and Their Families

    Comment: Many commenters expressed support for the proposed rule,

noting the positive impacts of DACA on recipients and their families.

These commenters stated that the rule would provide the opportunity for

DACA recipients to meet their professional goals, such as obtaining a

college degree and pursuing a career, which would allow them to support

their families. Commenters similarly noted that the rule would improve

overall quality of life and provide opportunities to DACA recipients

and their families, reduce fear and anxiety among DACA recipients and

their families, and foster a sense of belonging to the United States,

which, they stated, DACA recipients consider as their home. In support

of these statements, many commenters shared anecdotes about the

positive impacts DACA has had on their or others' livelihoods, such as

earning degrees and entering the workforce, attributing these

opportunities to DACA.

    Some commenters stated that writing the DACA policy into Federal

regulations would be an essential step to fortifying DACA and

protecting recipients, especially considering the adverse rulings in

recent litigation. Other commenters expressed their concern that if

DACA were revoked, their lives in the United States would be uprooted

and their ability to pursue their goals would be hindered. They also

stated the positive traits of DACA recipients and referred to them as

kind and hardworking people. A commenter cited an article from a

Brookings Institution blog, Brookings Now, to emphasize the importance

of the policy in allowing children to remain with their families,

attend school, and earn money to support themselves.\38\ A group of

commenters, citing figures contained in the NPRM,\39\ stated that

ending DACA would cause harm to over 250,000 children born in the

United States to DACA recipients, the 1.5 million people in the United

States who share a home with DACA recipients, and other close

connections who would suffer from the loss of security and means for

support that the DACA policy provides to recipients. Another commenter

added that there are over 94,000 DACA and DACA-eligible students in

California alone, and that the policy has a direct impact on current

and future students.

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    \38\ Brennan Hoban, The reality of DACA, the Deferred Action for

Childhood Arrivals program, Brookings Now (Sept. 22, 2017), https://www.brookings.edu/blog/brookings-now/2017/09/22/the-reality-of-daca-the-deferred-action-for-childhood-arrivals-program.

    \39\ See 86 FR 53738.

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    Some commenters said that, because of DACA, recipients can obtain

driver's licenses, auto insurance, bank accounts, Social Security

numbers, and other benefits that are valuable to their daily lives. A

commenter stated some States offer benefits to DACA recipients that

they otherwise would be unable to obtain, such as in-state tuition and

access to REAL IDs. Several commenters said that many DACA recipients

financially support their families and children who also are living in

the United States.

    A commenter stated that DACA should not have to be reinstated by

each president, as the issue of immigration is

 

[[Page 53164]]

 

an ethical one and decisions should not be based on politics or

economics. The commenter cited historical examples of the United States

denying entry to immigrants to highlight the negative consequences

immigrants may face when forced to return to their birth countries. The

commenter went on to say that the DACA policy should continue to be in

place indefinitely. Another commenter stated it would be unethical to

send DACA recipients back to their birth countries, as they did nothing

more than travel with their parents at a young age to the United

States.

    Response: DHS acknowledges the commenters' support for the rule and

agrees with commenters that DACA has a positive impact on recipients'

ability to pursue employment and education, maintain family unity, and

make contributions to their communities. DHS further agrees that

removing DACA recipients, who have been determined to be a low priority

for enforcement, would cause significant hardship to DACA recipients

and their family members. DHS acknowledges commenters' views that it

would be unethical to remove childhood arrivals from the United States

and agrees that DACA is an appropriate framework for making case-by-

case determinations to defer the removal of certain eligible

noncitizens who arrived in the United States as children.

    Comment: Several commenters stated DACA has provided recipients

with educational opportunities and professional growth that they would

not have been able to pursue without the policy. Several commenters

pointed to research finding that DACA significantly increased high

school attendance and high school graduation rates, reducing the

citizen-noncitizen gap in graduation by 40 percent; and also finding

positive, though imprecise, impacts on college attendance.\40\

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    \40\ See Elira Kuka, et al., Do Human Capital Decisions Respond

to the Returns to Education? Evidence from DACA, 12 a.m. Econ. J.

293, 295-96 (2020) (``Our results imply that more than 49,000

additional Hispanic youth obtained a high school diploma because of

DACA'') (hereinafter Kuka (2020)); Victoria Ballerini and Miriam

Feldblum, Immigration Status and Postsecondary Opportunity: Barriers

to Affordability, Access, and Success for Undocumented Students, and

Policy Solutions, 80 a.m. J. Econ. and Soc., 165 (2021) (``The

advent of DACA and the extension of in-state tuition and financial

aid to undocumented students in a growing number of states have

increased college-going rates among undocumented students, yet these

students still complete college at lower rates than their peers'');

Wong (2020).

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    Multiple commenters provided statistics on the number of DACA

recipients who are enrolled in postsecondary educational programs. A

group of commenters representing multiple States estimated that up to

37,000 students in the California Community Colleges system are DACA-

eligible noncitizens, more than 19,000 post-secondary students are DACA

recipients in New York, approximately 9,000 post-secondary students in

New Jersey are DACA recipients or DACA-eligible, and that thousands

more DACA recipients are enrolled in public universities and colleges

in other States. The commenters described multiple State regimes under

which DACA recipients or DACA-like populations may qualify for in-state

tuition or other financial assistance. For instance, the commenters

wrote that Minnesota ``has invested in the education of individuals

receiving DACA by extending student childcare grants, teacher candidate

grants, and student loan programs to DACA recipients.''

    Similarly, a commenter stated DACA plays a major role in higher

education affordability, remarking that 83 percent of DACA recipients

attend public institutions, a fact that, according to the commenter,

makes accessibility to in-state tuition and financial aid a vitally

important issue. The commenter wrote that 8 States require undocumented

students to have DACA in order to access in-state tuition; 17

additional States and the District of Columbia allow the State's

eligible undocumented students, including DACA recipients, to access

in-state tuition and State financial aid; and 4 States allow their

State's undocumented students access to in-state tuition but not

financial aid. The same commenter stated that work authorization

enables DACA recipients to legally work, save, and pay for their higher

education expenses.

    A commenter stated the proposed rule would help numerous DACA

recipient students continue to receive the benefits of DACA such as an

employment authorization document to ease the financial burden of

pursuing higher education and the opportunity to obtain an advance

parole document. A commenter representing a higher education

institution expressed support for the proposed rule and commented that

many opportunities for young people to learn and develop skills are

employment-based, leaving students without employment authorization at

a significant disadvantage academically, professionally, and socially.

The commenter stated that students without employment authorization may

lack income, resume-building experiences, and opportunities to build

networks among peers, staff, and faculty, whereas DACA recipient

students can engage in on-campus jobs and employment-based research

opportunities, and cautiously plan for their futures.

    Response: DHS acknowledges that by applying a more formal

administrative framework to forbearance from enforcement with respect

to DACA recipients, DHS has enabled a range of additional benefits to

this population, including increased educational and professional

opportunities that benefit DACA recipients and society at large. DHS

agrees that members of the DACA population have achieved a

significantly higher level of educational attainment than would likely

have occurred without the DACA policy. DHS also appreciates commenters'

acknowledgement of how DACA has increased graduation rates and expanded

access to both earned income and, as a result of actions by certain

States, financial aid, which DACA recipients have used to fund

undergraduate, graduate, and professional degrees.

    Comment: Multiple commenters, with some citing studies, said the

rule would provide relief from legal uncertainty and offer a sense of

security, minimizing the anxiety and other physical and mental health

concerns related to the fear of deportation. One commenter referenced

multiple studies to support their assertion that immigrants who fear

deportation are much more vulnerable to deleterious health effects,

including ``heart disease, asthma, diabetes, depression, anxiety, and

post-traumatic stress disorder.'' \41\ Citing additional studies, the

commenter further stated that by removing or limiting the fear of

deportation, ``DHS may be able to directly impact and improve the

health of these individuals who are eligible for DACA, as well as their

families and communities.'' \42\ Another commenter cited a study

finding that DACA significantly reduced the odds of

 

[[Page 53165]]

 

individuals reporting moderate or worse psychological distress.\43\

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    \41\ Omar Martinez, et al., Evaluating the impact of immigration

policies on health status among undocumented immigrants: A

systematic review, J. of Immigrant and Minority Health, 17(3), 947-

70 (2015), https://doi.org/10.1007/s10903-013-9968-4; Brian Allen,

et al., The children left behind: The impact of parental deportation

on mental health, J. of Child and Fam. Stud., 24(2), 386-92 (2015);

Kalina M. Brabeck and Qingwen Xu, The impact of detention and

deportation on Latino immigrant children and families: A

quantitative exploration, Hisp. J. of Behav. Sci., 32(3), 341-61

(2010).

    \42\ Elizabeth Aranda, et al., The Spillover Consequences of an

Enforcement--First US Immigration Regime, Am. Behav. Scientist,

58(13), 1687-95 (2014); Samantha Sabo and Alison Elizabeth Lee, The

Spillover of US Immigration Policy on Citizens and Permanent

Residents of Mexican Descent: How Internalizing ``Illegality''

Impacts Public Health in the Borderlands, Frontiers in Pub. Health,

3, 155 (2015).

    \43\ Atheendar Venkataramani, et al., Health consequences of the

US Deferred Action for Childhood Arrivals (DACA) immigration

programme: a quasi-experimental study, The Lancet, Pub. Health,

2(4), 175-81 (2017).

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    Another commenter stated that DACA facilitates the healthy

development of recipients' children. The commenter remarked that DACA

helps families feel comfortable accessing public programs that support

their children and provides income that increases access to healthcare,

nutritious food, and upward mobility. Relatedly, a commenter stated the

DACA policy protects public health because DACA recipients are more

likely to have health insurance than similarly situated undocumented

noncitizens who do not have DACA. The commenter said DACA reduces the

overall burden on the healthcare system because individuals with lawful

status and health insurance are more likely to seek out preventive

care, rather than relying on more expensive, more intrusive, and often

less successful emergency-department care. According to the commenter,

this increased ability to access healthcare also makes it easier to

correctly monitor the public health of the population and respond to

public health issues effectively.

    Other commenters stated that DACA reduces noncitizens'

vulnerability to domestic and sexual violence and other exploitation by

helping to ensure they can live safely and be economically independent.

One commenter said that DACA promotes safety for survivors of domestic

violence, sexual assault, trafficking and other gender-based violence

by eliminating the fear that their abusers can contact immigration

authorities if they seek help or attempt to leave an abusive situation.

The commenter went on to say that access to work authorization through

DACA further strengthens survivors' ability to leave abusive or

exploitative situations by enabling them to support themselves and

their families.

    Response: DHS appreciates commenters' recognition of the measure of

assurance and stability DACA provides to recipients and their families.

DHS agrees that these benefits help DACA recipients, their families,

and communities. DHS also agrees that DACA facilitates the physical and

mental well-being of recipients and their families by providing, in

many cases, access to employer-sponsored health insurance and stable

income that allows recipients in turn to provide their families with

food, shelter, clothing, and adequate medical care. DHS also

appreciates that in States that have chosen to provide State-only

funded health care programs to DACA recipients, DACA may better protect

public health by expanding access to healthcare.

    In addition, DHS agrees that there are reports concluding that by

providing recipients with a measure of security with respect to

immigration matters, the DACA policy reduces psychological stress and

anxiety while also decreasing barriers to interacting with the

healthcare system, helping to promote early detection and treatment of

medical conditions before they worsen into serious conditions requiring

more extensive treatment. DHS also notes that studies have demonstrated

that uncertainty regarding one's immigration situation contributes to

increased levels of stress, and that DACA may reduce such stress for

its recipients.\44\

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    \44\ See, e.g., Luz M. Garcini, et al., Health-Related Quality

of Life Among Mexican-Origin Latinos: The Role of Immigration Legal

Status, 23 Ethnicity & Health 566, 578 (2018) (hereinafter Garcini

(2018)) (finding significant differences in health-related quality

of life across immigration legal status subgroups and noting that

increased stress was one factor that diminished well-being for

undocumented immigrants); Osea Giuntella, et al., Immigration Policy

and Immigrants' Sleep. Evidence from DACA, 182 J. Econ. Behav. &

Org. (2021) (hereinafter Giuntella (2021)).

---------------------------------------------------------------------------

 

    DHS also appreciates commenters stating that the DACA policy

supports safety for survivors of gender-based violence, trafficking,

and abuse by enabling economic self-sufficiency and minimizing fear of

an abuser reporting them to immigration authorities, thereby providing

recipients with more confidence to seek help or leave abusive or

exploitative circumstances. DHS notes the existence of multiple

additional immigration options specifically available to certain

victims of crimes.\45\

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    \45\ See DHS, Immigration Options for Victims of Crimes, https://www.dhs.gov/immigration-options-victims-crimes (last updated Jan.

30, 2022).

---------------------------------------------------------------------------

 

    Comment: One commenter, referencing evidence from a series of

federal district court cases from Texas regarding the Napolitano

Memorandum, cited a 2017 survey which found that roughly 22 percent of

DACA participants stated they would ``likely'' or ``very likely''

return to their country of origin or elsewhere if DACA were to end, if

they were not given permission to work in the United States, or if

deferred action were not granted. The commenter stated that these data

contradict the Department's rationale regarding the well-being of these

individuals if the proposed rule were not issued, and that ``[m]any if

not all will depart our country for their place of origin or

elsewhere.''

    Response: DHS acknowledges the data cited in connection with the

commenter's statement that ``many if not all'' DACA recipients would

leave the United States in the absence of the DACA policy. DHS notes

that approximately 22 percent of DACA recipients surveyed stated in

2017 that they would ``likely'' or ``very likely'' return to their

country of origin if they lost their work authorization or deferred

action or if they could not receive either in the first place. However,

DHS notes that this data is five years old, calls for some degree of

speculation by DACA recipients, and was collected in a particular time

and context. Even taking the results at face value, DHS notes that less

than a quarter of DACA recipients surveyed assessed that they would

``likely'' or ``very likely'' leave the country if DACA ended, whereas

approximately half reported that they were ``unlikely'' or ``very

unlikely'' to leave. DACA recipients necessarily came to the United

States at a very young age, and many have lived in the United States

for effectively their entire lives. For many DACA recipients, the

United States is their only home. Indeed, some DACA recipients do not

even speak the language of their parents' home country. Precisely for

these reasons, DACA recipients often would face significant barriers to

living self-sufficiently in their countries of origin if they lost

their grants of deferred action or work authorization.

    Comment: One commenter stated that because the policy was never

intended to be permanent, DACA recipients' reliance interests are very

weak, and ``can be remediated by other means such as grace period and/

or congressional actions.'' Another commenter said it is unclear what

kind of reliance interests DACA recipients have from a policy that did

not receive any public comments or consider any alternatives. Another

commenter stated that DHS made the wrong assumptions regarding existing

DACA recipients' reliance interests and that it is unclear what

reliance interests DACA recipients have when they request DACA when

DACA recipients should be aware of the possibility that the policy

could be terminated at any time.

    Response: DHS disagrees with commenters to the extent that they

suggest that DACA recipients lack reliance interests worthy of

meaningful consideration. As explained by the Supreme Court's Regents

decision, the method of DACA's original implementation--including the

Napolitano Memorandum's statement that it ``conferred no substantive

rights'' and the limitation to two-year grants--

 

[[Page 53166]]

 

did not ``automatically preclude reliance interests.'' \46\ At the same

time, the Court cautioned that such limitations ``are surely pertinent

in considering the strength of any reliance interests.'' \47\ In the

Court's view, before deciding to terminate the DACA policy,

notwithstanding the method of DACA's original implementation, DHS was

required to assess whether there were reliance interests, determine

whether they were significant, and weigh any such interests along with

``other interests and policy concerns.'' \48\

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    \46\ See Regents, 140 S. Ct. at 1913.

    \47\ See id. at 1913.

    \48\ See id. at 1909-15.

---------------------------------------------------------------------------

 

    DHS has evaluated the relevant reliance interests--and the policy

stakes more generally--with the Court's decision in mind. With respect

to reliance interests in particular, DHS recognizes, as the Court did,

that the expressly limited and discretionary nature of the deferred

action conferred upon individuals under the DACA policy (who are not

guaranteed a grant or renewal of DACA, whose DACA may be terminated in

USCIS' discretion, and who have no right or entitlement to remain in

the United States) is relevant to the assessment of reliance interests.

At the same time, DHS is aware of the real-world decisions that

approximately 825,000 DACA recipients and their families, employers,

schools, and communities have made over the course of more than 10

years of the policy being in place. While acknowledging and emphasizing

the absence of a legal right, DHS would hesitate to conclude that

reliance on DACA was ``unjustified'' or entitled to significantly

``diminished weight'' in light of the express limitations in the

Napolitano Memorandum.\49\ At the same time, DHS agrees that its

determination regarding the existence of ``serious'' reliance interests

does not dictate the outcome of this rulemaking proceeding, but is just

one factor to consider.\50\

---------------------------------------------------------------------------

 

    \49\ See id. at 1914.

    \50\ See id.

---------------------------------------------------------------------------

 

    DHS appreciates the recommendation for a grace period, and observes

that the Court discussed this possibility as well.\51\ DHS believes

that in many cases, a grace period (even a lengthy grace period) would

be insufficient to avoid the significant adverse consequences

associated with terminating the DACA policy, because the planned

termination of the policy on a broad scale (whether within months or

years) would ultimately prove far more harmful to DACA recipients and

their families, employers, schools, and communities than the policy

pursued in this final rule. It would also not meaningfully change the

number of people without lawful status in the United States. DHS notes

that in staying its 2021 vacatur in Texas with respect to renewal

requestors, the district court noted the ``hundreds of thousands of

DACA recipients and others who have relied upon this program for almost

a decade'' and that their ``reliance has not diminished and may, in

fact, have increased over time.'' \52\

---------------------------------------------------------------------------

 

    \51\ See id.

    \52\ 549 F. Supp. 3d at 624.

---------------------------------------------------------------------------

 

    DHS acknowledges that while new initial DACA requestors' reliance

interests may be less robust or clear as those of current DACA

recipients, it is also true that among prospective DACA requestors,

there are many who have not yet ``aged in'' to request deferred action

under DACA. These individuals and their families, schools, and

communities may have deferred or made choices in reliance upon their

future ability to request DACA, even as DHS's decision whether to

confer deferred action to a DACA requestor remains a fully

discretionary case-by-case decision, and even though deferred action

itself does not provide any right or entitlement to remain in the

United States.

  1. Impacts on Other Populations, Including U.S. Workers and Other

Noncitizens

Impacts on U.S. Workers and Wages

    Comment: A few commenters generally opposed the proposed rule based

upon its perceived impact on U.S. workers. Some of these commenters

said that U.S. citizens would lose jobs to DACA recipients, while

others stated more generally that DACA affects jobs and benefits for

U.S. citizens or those with lawful immigration status. Other commenters

stated that DACA recipients and other unauthorized noncitizens steal

jobs from U.S. citizens and depress wages, often for the benefit of

large corporations. One commenter said that DACA results in depressed

wages and a lower standard of living for low-income persons of color.

    One commenter stated that the proposed rule made an incorrect and

unfounded assumption that jobs held by DACA recipients cannot be

replaced by someone else. Instead, the commenter stated, terminating

the DACA policy or its employment authorization would provide more jobs

for U.S. workers, benefit communities, reduce unemployment rates, and

potentially increase the wages of U.S. workers. The commenter stated

that DHS's logic in analyzing the impacts of terminating the DACA

policy is flawed, because: (1) jobs currently held by DACA recipients

can be replaced by someone else and (2) the time businesses need to

find replacement workers does not differ from that involved in regular

worker turnover in a market economy and is not based on workers'

immigration status.

    Another commenter stated that DHS made a ``misleading and plainly

wrong claim'' that DACA recipients have been essential workers during

the COVID-19 pandemic, arguing that, while some may indeed be essential

workers, most are not. The commenter suggested that, if DHS wanted to

prioritize this population for deferred action, it could have

established additional requirements for DACA eligibility, such as

employer sponsorship or evidence of being an essential worker.

    In contrast, one commenter stated that DACA has a positive effect

on wages, as compared to a circumstance where unauthorized noncitizens

continue to work. The commenter wrote that according to the Department

of Labor's National Agricultural Worker Survey, more than two thirds of

farmworkers are foreign-born and a majority of those lack work

authorization.\53\ The commenter stated that DACA helps avoid a

circumstance where undocumented workers are easily exploitable, which

in turn depresses wages and working conditions for other farmworkers.

Citing their own studies, joint commenters also said their research

indicates that not only does the DACA policy not harm low-wage U.S.

citizen workers, but also that it actually boosts the wages and

employment of this population.\54\ The commenters stated that the

position that DACA harms citizens is based on the ``faulty premise''

that if the DACA policy were ended, the population of young

undocumented noncitizens would leave the United States. The commenter

said because many DACA recipients have spent most of their lives in the

United States, and some do not speak the language of their country of

 

[[Page 53167]]

 

citizenship, voluntary self-deportation is unlikely.

---------------------------------------------------------------------------

 

    \53\ See U.S. Department of Labor, Findings from the National

Agricultural Workers Survey (NAWS) 2017-2018 (2021), https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2014.pdf.

    \54\ Ike Brannon and M. Kevin McGee, Estimating the Economic

Impacts of DACA (July 5, 2019), https://ssrn.com/abstract=3420511 or

http://dx.doi.org/10.2139/ssrn.3420511 (hereinafter Brannon and

McGee (2019)). (``Eliminating DACA would merely increase the

competition for the kinds of jobs that tend to have an excess supply

of workers, while reducing the supply of employable skilled workers

in the areas where we have the most acute labor shortages. Overall,

we find that eliminating DACA is lose-lose-lose, benefiting

virtually no one while hurting pretty much everyone.'').

---------------------------------------------------------------------------

 

    Response: DHS acknowledges and shares commenters' desire to ensure

that U.S. workers are not harmed by the DACA policy. As an initial

matter, DHS notes that beginning in August 2021 and continuing into

2022, the U.S. economy experienced more job openings than available

workers.\55\ Nevertheless, DHS agrees, in principle, that jobs

currently held by DACA recipients might potentially be performed by

U.S. citizens or noncitizens with lawful immigration status if DACA

recipients lost their work authorization. However, myriad factors

influence employment rates in a market economy, including prevailing

conditions in specific labor markets and unique characteristics of

local economies, and importantly, these various factors are

interrelated and dynamic rather than independent and static. (In some

circumstances, for example, hiring DACA recipients might actually boost

employment of citizens and those with lawful immigration status, such

as where hiring DACA recipients increases the potential for business

expansion and thus leads to increased employment.) For these reasons,

it is overly simplistic to predict that elimination of employment

authorization for DACA recipients would result in a transfer of jobs

and their corresponding wages from DACA recipients to citizens or those

with lawful immigration status.

---------------------------------------------------------------------------

 

    \55\ Bureau of Labor Statistics data show that as of March 2022,

there were 0.5 unemployed persons per job opening. U.S. Department

of Labor, U.S. Bureau of Labor Statistics, Number of Unemployed

Persons per Job Opening, Seasonally Adjusted (March 2007 through

March 2022), https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm (last visited May 23, 2022).

---------------------------------------------------------------------------

 

    As discussed in further detail in Section II.A.5, DHS cannot

quantify the degree to which DACA recipients are substituted for other

workers in the U.S. economy since this depends on factors such as

industry characteristics as well as on the hiring practices and

preferences of employers, which depend on many factors, such as worker

skill levels, experience levels, education levels, and training needs,

and labor market regulations, among others. As noted, labor market

conditions are not static; the hiring of DACA workers might contribute

to expansion in business activity and potentially in increased hiring

of American workers.\56\ As discussed in further detail in Section

II.A.5, similar to the citizen population, noncitizens, including DACA

recipients, also pay taxes; stimulate the economy by consuming goods,

services, and entertainment; and take part in domestic tourism. Such

activities contribute to further growth of the economy and create

additional jobs and opportunities for both citizen and noncitizen

populations.\57\ The net effect on employment of citizens is difficult

to specify and might turn out to be positive. DHS believes that these

investments that DACA recipients have made in their communities and in

the country as a whole are substantial.

---------------------------------------------------------------------------

 

    \56\ NAS, The Economic and Fiscal Consequences of Immigration

(2017), https://www.nap.edu/catalog/23550/the-economic-and-fiscal-consequences-of-immigration (hereinafter 2017 NAS Report), at 195.

    \57\ 86 FR 53801.

---------------------------------------------------------------------------

 

    With regard to wage rates, DHS recognizes that, in general, any

increase in labor supply or improvement in labor supply competition may

potentially affect wages and, in turn, the welfare of other workers and

employers.\58\ But the magnitude and even the direction of the effect

are challenging to specify in the abstract. As with employment, so with

wages: Changes in wages depend on a range of factors and relevant

market forces, such as the type of occupation and industry, and overall

economic conditions. For example, in industries such as healthcare,

agriculture, food services, and software development, labor demand

might outpace labor supply. In such sectors, increases in the labor

supply might not be enough to satisfy labor demand, resulting in

increases in wages to attract qualified workers, thereby improving

welfare for all workers in these sectors. The opposite could happen for

industries or sectors where labor supply outpaces labor demand.\59\

---------------------------------------------------------------------------

 

    \58\ 86 FR 53800.

    \59\ 86 FR 53800.

---------------------------------------------------------------------------

 

    With respect to comments regarding the assumptions and methodology

for the labor market impact portion of the NPRM, the bases for DHS's

assumptions and estimates of labor market impacts was discussed

extensively in Section V.A.4.D. of the NPRM. This section included a

discussion of the 2017 National Academies of Sciences, Engineering, and

Medicine (NAS) Report, wherein an expert panel of immigration

economists examined the peer-reviewed literature on displacement and

wage effects of immigrants on native workers and attempted to describe

what consensus exists around decades of findings. To the extent that

this panel found research indicating that noncitizen workers displace

or negatively affect the wages of U.S. citizen workers, most of these

effects occur with the lowest wage jobs, potentially affecting teens

and individuals without a high school diploma.\60\ DHS acknowledged

this potential effect in the NPRM, and explained that the literature

consistently finds these less favorable labor-market effects were more

likely to occur to certain disadvantaged workers and recent prior

immigrants, resulting in ``very small'' impacts for citizens

overall.\61\ The NPRM also described studies discussed in the 2017 NAS

Report's survey of research indicating that highly skilled noncitizen

workers positively impact wages and employment of both college-educated

and non-college-educated citizens.\62\ This is a similar finding to

what commenters pointed to in their own studies.\63\ Additionally, as a

commenter noted, many current and potential DACA recipients would

remain in the United States even without deferred action or employment

authorization. A lack of access to employment authorization by these

individuals would give rise to greater potential for exploitation and

substandard wages, which in turn may have the effect of depressing

wages for some U.S. workers.

---------------------------------------------------------------------------

 

    \60\ 86 FR 53801.

    \61\ 86 FR 53801.

    \62\ 86 FR 53801.

    \63\ See Brannon and McGee (2019).

---------------------------------------------------------------------------

 

    Given the lack of additional evidence provided by the commenter on

the impact of DACA recipients participation in the labor force, DHS has

not substantially revised its analysis in response to this comment.

Impacts on Other Noncitizens

    Comment: A commenter stated that DHS never elicited public comment

or considered reliance interests when it proposed shifting costs from

ICE and CBP to fee-paying noncitizens. Some commenters stated that DHS

failed to sufficiently articulate why it prioritizes the DACA

population over other lawful, well-qualified noncitizens, including

international students, F-1 Optional Practical Training (OPT) students

with postgraduate degrees, dependents of H-1B highly skilled workers,

H-4 dependents, or EB-1 applicants. Commenters said that ``hundreds of

thousands'' of individuals in these other groups face the same mental

stress as DACA recipients when unable to work, secure employment

authorization or visa status, or faced with deportation.

    Response: As an initial matter, DHS did elicit public comments and

consider reliance interests related to DACA, and so it disagrees with

the claim that it did not do so. In the NPRM, DHS specifically and

explicitly requested ``comments on potential reliance

 

[[Page 53168]]

 

interests of all kinds, including any reliance interests established

prior to the issuance of the Napolitano Memorandum, and how DHS should

accommodate such asserted reliance interests in a final rule.'' \64\

DHS acknowledges commenters' concerns about the numerous other classes

of noncitizens who face stresses similar to those experienced by the

DACA population with respect to their immigration status, lack of work

authorization, and potential removal from the United States. DHS,

however, scoped the proposed rule to address DACA in particular. DHS

views the DACA-eligible population as particularly compelling

candidates for deferred action by virtue of their entry to the United

States as children, and by virtue of the substantial reliance interests

that have developed over a period of time among DACA recipients and

their families, schools, communities, and employers. DHS does not

disagree with the view that other populations share characteristics

that are compelling in their own way. But DHS has decided as a matter

of policy to focus this rule on preserving and fortifying DACA as

directed by the Biden Memorandum.

---------------------------------------------------------------------------

 

    \64\ 86 FR 53803.

---------------------------------------------------------------------------

 

    Comment: Some commenters stated that resources used on policies

such as DACA increase backlogs, delays, and otherwise bog down the

courts and enforcement agencies, which unfairly affects other

noncitizens. Commenters said that DACA diverts staff and resources away

from lawful immigration programs and increases the costs and delays for

legal immigrants to service the interests of unauthorized noncitizens.

Some commenters stated that DHS failed to consider the reliance

interests of lawful immigrants and nonimmigrants in USCIS expeditiously

adjudicating their petitions. One of these commenters opposed DACA

requests taking precedence over other immigration filings, such as

employment-based visas. The commenter objected that although many

applicants for other immigration benefits are facing long processing

delays due to the COVID-19 pandemic, USCIS shifted resources amid

insufficient staffing levels due to fiscal challenges, built new case

management system enhancements, and trained and reassigned officers to

process initial DACA filings. Other commenters stated that claiming

there is insufficient funding for Congress to enforce immigration laws

on DACA recipients is ``puzzling,'' as the proposed rule would cost the

Department ``millions of dollars'' by not charging the full cost of

processing DACA requests.

    Another commenter remarked that the $93 million allocated to DACA

adjudications would have been better spent upgrading USCIS' IT systems

and expanding online filing capabilities. Commenters also stated that

it is unfair to those seeking U.S. citizenship by following immigration

laws and that DACA would make things worse for those legally trying to

become citizens and easier for those who wish to use the United States

for their own benefit. Another commenter urged USCIS to devote its

limited resources to lawful immigration programs that Congress has

authorized instead of diverting manpower, office space, and agency

funds to ``amnesty programs'' benefiting undocumented individuals and

``those who profit off of continuous illegal immigration into the

United States.''

    Response: DHS acknowledges the interests of noncitizens seeking

immigrant or nonimmigrant status in the timely adjudication of their

petitions, and USCIS is strongly committed to reducing backlogs and

improving processing times.\65\ DHS notes as it did in the NPRM that

the costs of USCIS are generally funded by fees paid by those who file

immigration requests, and not by taxpayer dollars appropriated by

Congress.\66\ Funds spent on DACA adjudications do not take any

resources away from other workloads, which (with very few exceptions)

may be funded by other fees. Rather, DACA revenue provides USCIS with

the resources it needs to maintain the policy. Consistent with that

authority and USCIS' reliance on fees for its funding, and as discussed

in greater detail in Section II.C.5.a, this rule amends DHS regulations

to codify the existing requirement that requestors file Form I-765,

Application for Employment Authorization, with Form I-821D,

Consideration of Deferred Action for Childhood Arrivals, and re-

classifies the $85 biometrics fee as a Form I-821D filing fee, to fully

recover DACA adjudication costs.\67\

---------------------------------------------------------------------------

 

    \65\ See, e.g., USCIS, USCIS Announces New Actions to Reduce

Backlogs, Expand Premium Processing, and Provide Relief to Work

Permit Holders (Mar. 29, 2022), https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work.

    \66\ See INA sec. 286(m), 8 U.S.C. 1356(m).

    \67\ See new 8 CFR 236.23(a)(1).

---------------------------------------------------------------------------

 

    In the NPRM and related material,\68\ USCIS explained that the

proposed $85 fee for DACA would not recover the full costs for

individuals who did not request an EAD and pay the full costs of the

Form I-765.\69\ In codifying the requirement that requestors submit

both Forms I-765 and I-821D, USCIS is ensuring that all adjudicative

costs are fully recovered and no costs of DACA are passed on to other

fee-paying populations. As Tables 3 and 4 of the Supplemental Cost

Methodology Document make clear, charging the full cost of $332 for

each Form I-821D would be double-counting each requestor's fair share

of the same indirect costs on both their Form I-821D and Form I-765

given that the estimated additional cost of processing a Form I-821D

attached to a Form I-765 is negligible. Therefore, in light of the

changes made in the final rule, DHS disagrees with the suggestion that

this rule displaces resources, including staffing for other

noncitizens. To the contrary, ending DACA would reduce USCIS revenue

from DACA-related fees, which cover not only the direct costs of

staffing, systems, and other resources to process DACA requests, but

also contribute to recovering an appropriate portion of indirect costs

that USCIS would incur even in the absence of DACA. As explained in the

Supplemental Cost Methodology Document, the cost model proportionately

distributes the total estimated budget for USCIS across various

activities.\70\ Table 4 of the same document lists all of the

activities that contribute to the $332 cost estimate, including

indirect activities in the DACA cost model. For example, the cost model

includes the Management and Oversight activity which includes all

offices that provide broad, high-level operational support and

leadership necessary to deliver on the USCIS mission and achieve its

strategic goals.\71\ DACA's proportionate share of the activity cost is

$140 in Table 4 of the Supplemental Cost Methodology Document. In the

absence of DACA, USCIS would still incur costs for this activity. In

short, as it relates to fees in particular, the DACA policy works in

the interest of other immigrants and nonimmigrants by covering the full

cost of DACA policy without burdening other USCIS customers with

additional costs to fund DACA. Additionally, many investments in case

management system development, training, or previous adjudications are

sunk costs. In other words, ending DACA would not

 

[[Page 53169]]

 

recapture time or money invested in the past.

---------------------------------------------------------------------------

 

    \68\ See USCIS, DACA NPRM Supplemental Cost Methodology Docket

(Sept. 28, 2021), https://www.regulations.gov/document?D=USCIS-2021-0006-0008 (hereinafter Supplemental Cost Methodology Docket).

    \69\ See 86 FR 53764.

    \70\ Supplemental Cost Methodology Docket at 8-10.

    \71\ Id. at 6.

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  1. Impacts on the Economy, Communities, and States

Impacts on the Economy

    Comment: A number of commenters expressed support for the proposed

rule, stating that it would have positive economic effects at local,

State, and national levels. The commenters said that the proposed rule

would allow recipients to start, own, and contribute to businesses,

which could help create jobs for other Americans, and would spur

further economic activity. Commenters also noted the proposed rule

would allow DACA recipients to contribute to State and Federal tax

revenue, and to pursue education that would eventually help them work

in critical jobs, which would decrease labor shortages facing the

United States.

    Citing their own research, another commenter stated DACA's

implementation increased the education, employment, and wages of DACA

recipients while also boosting tax revenue and output. The commenter

cited its 2019 study that found that eliminating DACA would result in

the DACA population losing about $120 billion in income, the Federal

Government losing approximately $72 billion in tax revenue, and States

and local governments losing about $15 billion in tax revenue over the

2020-2029 decade.\72\ Likewise, a joint comment of 14 States' Attorneys

General stated that given the economic contributions of DACA

recipients, the effect of a full rollback of DACA would result in a

loss of an estimated $280 billion in national economic growth over the

course of a decade. Another commenter cited multiple studies indicating

that the DACA policy improves labor market prospects of DACA recipients

by expanding ``above the table'' work opportunities. The commenter

stated that in some studies this is captured in simple measures like

reduced unemployment and better wages, while other studies confirm that

DACA recipients find jobs that are experienced as a better ``fit'' and

more satisfactory even at similar wage levels.\73\

---------------------------------------------------------------------------

 

    \72\ Brannon and McGee (2019).

    \73\ Pope (2016); Wong (2020); Erin R. Hamilton, Caitlin Patler,

and Robin Savinar, Transition into liminal legality: DACA's mixed

impacts on education and employment among young adult immigrants in

California, Soc. Probs., 68(3), 675-95 (2021).

---------------------------------------------------------------------------

 

    In addition to comments noted above regarding potential

displacement of workers by DACA recipients, multiple commenters

suggested DACA recipients help to fill labor gaps amid labor shortages

in the United States, with a joint comment pointing to the 8.4 million

job seekers as compared to the 10 million job openings in the United

States as of September 2021. These commenters cited statistics that 46

percent of DACA recipients have a bachelor's degree or higher,\74\ and

as a group they tend to be younger, better educated, and more highly

paid than the typical immigrant.\75\ As a result, they are poised to

contribute to the worker pool for higher-skilled jobs that U.S.

employers have reported having difficulty filling with other

workers.\76\ Another joint comment cited a 2019 survey in which 64

percent of small businesses reported they had tried to hire workers,

but of those, 89 percent reported they found few or no qualified

applicants, and asserted that DACA recipients have helped to fill these

worker shortages, especially during the COVID-19 pandemic.\77\ Another

commenter wrote that DACA recipients who pursue higher education help

offset critical shortages of skilled labor in the United States and

become better positioned to support their families, communities, and

the U.S. economy. Some commenters stated that if the DACA policy were

terminated, then worker shortages would increase. For example, a

commenter stated that if DACA recipients were to lose their

protections, an estimated 30,000 front line healthcare workers would be

displaced. Additionally, a commenter stated that DACA recipients fill a

need in the United States for bilingual employees.

---------------------------------------------------------------------------

 

    \74\ Tom K. Wong, et al., DACA Recipients' Livelihoods,

Families, and Sense of Security Are at Stake This November, Center

for American Progress (Sept. 19, 2019), https://www.americanprogress.org/issues/immigration/news/2019/09/19/474636/daca-recipients-livelihoods-families-sense-security-stake-november.

    \75\ Ike Brannon and Logan Albright, The Economic and Fiscal

Impact of Repealing DACA, Cato at Liberty (Jan. 18, 2017), https://www.cato.org/blog/economic-fiscal-impact-repealing-daca (hereinafter

Brannon and Albright (2017)).

    \76\ William C. Dunkelberg and Holly Wade, Small Business

Economic Trends, Nat'l Fed'n of Indep. Bus. (Oct. 2021), https://www.nfib.com/surveys/small-business-economic-trends, at 1; Anneken

Tappe, Nearly half of American companies say they are short of

skilled workers, CNN (Oct. 25, 2021), https://www.cnn.com/2021/10/25/economy/business-conditions-worker-shortage/index.html.

    \77\ Nat'l Fed'n of Indep. Bus., Small Business Optimism Index

(Aug. 2019), https://www.nfib.com/surveys/small-business-economic-trends.

---------------------------------------------------------------------------

 

    Pointing to other labor market and economic benefits of DACA, a

commenter cited a large study showing that DACA recipients play a

critical role in the creation of jobs and increasing spending in local

economies.\78\ Commenters also said that the proposed rule would allow

recipients to contribute to innovation in the U.S. economy and mitigate

aging trends in the U.S. population.

---------------------------------------------------------------------------

 

    \78\ Tom K. Wong, et al., DACA Recipients' Economic and

Educational Gains Continue to Grow, Center for American Progress

(Aug. 28, 2017), https://www.americanprogress.org/article/daca-recipients-economic-educational-gains-continue-grow.

---------------------------------------------------------------------------

 

    Response: DHS acknowledges some commenters' support for the rule

and agrees that DACA recipients and their households have made

substantial economic contributions to their communities. The

communities in which DACA recipients live, and DACA recipients

themselves, have grown to rely on the economic contributions this

policy facilitates.\79\ As noted above, the Napolitano Memorandum

contains express limitations, but over the 10 years in which the DACA

policy has been in effect, DACA recipients have made major good faith

investments in both themselves and their communities, and their

communities have made major good faith investments in them. In the

Department's judgment, the investments, and the resulting benefits,

have been substantial and valuable.

---------------------------------------------------------------------------

 

    \79\ Reasonable reliance on the existence of the DACA policy is

distinct from reliance on a grant of DACA to a particular person.

Individual DACA grants are discretionary and may be terminated at

any time, but communities, employers, educational institutions, and

State and local governments have come to rely on the existence of

the policy itself and its potential availability to those

individuals who qualify.

---------------------------------------------------------------------------

 

    DHS also acknowledges some commenters' concerns regarding the

economic impact that terminating the DACA policy would have. DHS

appreciates the comments regarding the number of healthcare workers who

are DACA recipients and the role that DACA recipients play in job

creation and spending in local economies. DHS agrees that without DACA,

DACA recipients in the labor market would lose employment.

Additionally, beyond the immediate impact of job loss to DACA workers

and their employers, the impacts to the broader economy would depend on

factors such as the nature of the jobs being performed, the level of

substitutability with similarly skilled workers, and DACA recipients'

ability and willingness to find undocumented employment. Similarly, as

with any other population, DACA recipients participate in the local and

broader U.S. economy in various employment or consumer roles and thus

impact their communities and beyond.

    DHS has described the assumptions used in the labor market section

of the

 

[[Page 53170]]

 

RIA as well as in the estimated costs and benefits. There are many open

questions here. It cannot be said with certainty whether all jobs held

by DACA recipients are fully replaceable or irreplaceable by other

workers, and local labor market conditions can vary such as industry

characteristics and preferences for specific types of skills by

employers. For example, U.S. employers apply for employment-based

immigrant visas for foreign workers on an annual basis. These

employment-based immigrant visas are for jobs for which there are not

enough domestic workers, domestic workers with the required skills,

and/or domestic workers with the required level of education. In these

cases, domestic labor is not readily available as a substitute. For

example, the medical field exhibits shortages of workers such as

physicians, nurses, and other professionals, and nearly 30,000 DACA

recipients are employed in the medical field.\80\ Indeed, DACA

recipients who are healthcare workers are also helping to alleviate a

shortage of healthcare professionals in the United States, and they are

more likely to work in underserved communities where shortages are

particularly dire.\81\ Whether jobs that DACA recipients occupy can be

easily replaced by other authorized workers is a complex matter that

depends on factors such as the nature of the job, the industry, and the

employer, among others. Nevertheless, DHS considered evidence presented

by these commenters, as well as the empirical findings discussed in the

2017 NAS report. DHS has determined that, on balance, the various

positive economic impacts of DACA outweigh the potential adverse

impacts to the labor market.

---------------------------------------------------------------------------

 

    \80\ See, e.g., Xiaoming Zhang, et al., Physician workforce in

the United States of America: forecasting nationwide shortages,

Human Resources for Health, 18(1), 1-9 (2020); Svajlenka (2020).

    \81\ Chen (2019) presents survey data showing that 97 percent of

undocumented students pursuing health and health-science careers

planned to work in an underserved community.

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    Comment: Many commenters cited studies indicating DACA recipients

contribute to Federal, State, and local tax revenue, as well as

Medicare and Social Security. For example, numerous commenters wrote

that DACA recipients pay taxes--$5.6 billion in Federal taxes and $3.1

billion in State and local taxes annually according to one study using

2020 data--and contribute significantly to Social Security and

Medicare.\82\ Another commenter pointed to studies that in California

alone, DACA-eligible noncitizens make $905.4 million in Federal tax

contributions and $626.6 million in State and local tax

contributions,\83\ and that ``reversing'' the DACA policy would result

in a $351 billion loss for the U.S. economy and a $92.9 billion loss in

tax revenue.\84\ Another commenter, however, said that DHS could not

establish these estimates without the names and tax returns of the

affected populations.

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    \82\ See Svajlenka and Wolgin (2020). See also Hill and Wiehe

(2017) (analyzing the State and local tax contributions of DACA-

eligible noncitizens in 2017).

    \83\ Higher Ed Immigration Portal, California--Data on Immigrant

Students, https://www.higheredimmigrationportal.org/state/california

(last visited June 9, 2022).

    \84\ Logan Albright, et al., A New Estimate of the Cost of

Reversing DACA, Cato Inst. (Feb. 15, 2018), https://www.cato.org/publications/working-paper/new-estimate-cost-reversing-daca

(hereinafter Albright (2018)).

---------------------------------------------------------------------------

 

    Commenters identified other economic contributions of DACA

recipients beyond tax payments. Some commenters cited statistics that

DACA recipients hold $25.3 billion in spending power.\85\ Many

commenters also provided statistics and general information on other

ways DACA recipients contribute to the economy by increasing consumer

spending, purchasing homes and making $566.7 million in annual mortgage

payments, paying $2.3 billion in annual rental payments, buying cars,

applying for lines of credit, and opening businesses.\86\ Commenters

stated that recipients' purchasing power increases once they receive

DACA, citing surveys stating that a majority of DACA recipients

reported having purchased their first car after receiving DACA.\87\

---------------------------------------------------------------------------

 

    \85\ See Nicole Prchal Svajlenka and Trinh Q. Truong, The

Demographic and Economic Impacts of DACA Recipients: Fall 2021

Edition, Center for American Progress (Nov. 24, 2021), https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca-recipients-fall-2021-edition.

    \86\ See Svajlenka and Wolgin (2020).

    \87\ See Wong (2020).

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    Numerous commenters stated that many DACA recipients have been

employed in essential industries such as education, the military, and

healthcare during the COVID-19 pandemic. A commenter wrote that DACA

recipients form a critical, stable, and reliable workforce that enables

retailers to continue to provide goods and services throughout the

pandemic. Some commenters stated that DACA recipients are critical

members of unions and workforces across many sectors of the economy.

Several commenters cited studies stating that DACA recipients boost

wages and increase employment opportunities for all U.S. workers.\88\

Others wrote that there are significant business and economic reasons

to preserve DACA as its recipients drive innovation, create

breakthroughs in science, build new businesses, launch startups, and

spur job growth. Another commenter stated that more than two-thirds of

farmworkers are immigrants and most of them lack work authorization.

The commenters continued that DACA is therefore necessary to protect

immigrants from employer exploitation and abuse. The commenters further

stated that the presence of an easily exploitable workforce depresses

wages and working conditions for all farmworkers, including the

hundreds of thousands of U.S. citizens and lawful immigrants who work

in agriculture.

---------------------------------------------------------------------------

 

    \88\ See, e.g., Brannon and Albright (2017); Albright (2018);

Brannon and McGee (2019); Ike Brannon and M. Kevin McGee, Estimating

the Economic Impact of the 2021 Dream Act (June 6, 2021), https://ssrn.com/abstract=3861371 or http://dx.doi.org/10.2139/ssrn.3861371

(hereinafter Brannon and McGee (2021)); Martin Ruhs and Carlos

Vargas-Silva, The Labour Market Effects of Immigration, Migration

Observatory (Feb. 2021), https://migrationobservatory.ox.ac.uk/resources/briefings/the-labour-market-effects-of-immigration;

Matthew Denhart, America's Advantage: A Handbook on Immigration and

Economic Growth, George W. Bush Inst. 118-19 (3d ed. Sept. 2017),

http://gwbcenter.imgix.net/Resources/gwbi-americas-advantage-immigration-handbook-2017.pdf; Ryan D. Edwards and Mao-Mei Liu,

Recent Immigration Has Been Good for Native-Born Employment,

Bipartisan Pol'y Ctr. (June 2018), https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2019/03/Recent-Immigration-Has-Been-Good-for-Native-Born-Employment.pdf; Gretchen Frazee, 4 Myths

About How Immigrants Affect the U.S. Economy, PBS NewsHour (Nov. 2,

2018), https://www.pbs.org/newshour/economy/making-sense/4- myths-

about-how-immigrants-affect-the-u-s-economy; Alex Nowrasteh, Three

Reasons Why Immigrants Aren't Going to Take Your Job, Cato at

Liberty (Apr. 22, 2020), https://www.cato.org/blog/three-reasons-why-immigrants-arent-going-take-job.

---------------------------------------------------------------------------

 

    Response: DHS appreciates commenters' recognition of DACA

recipients' contributions, both prior and ongoing, tangible and

intangible, to the U.S. economy. DHS agrees members of the DACA

population carry substantial spending power, generate billions in tax

revenue, and fill vital roles across a broad array of industries. DHS

disagrees with the comment that DHS is not able to establish various

estimates without the names and tax returns of the affected

populations. To develop estimates of the quantified costs and benefits

presented in this rule, DHS did not need the names and tax returns of

individuals in the estimated population. Moreover, DHS's methodology

for the analysis is clearly presented in the RIA of this rulemaking.

    Commenters, in DHS's view, correctly note that the DACA policy and

DACA recipients improve economic conditions broadly in the United

States by driving innovation, starting businesses, and employing

themselves and others,

 

[[Page 53171]]

 

thereby reducing reliance on public assistance (to the extent that such

reliance is possible given eligibility restrictions) and pressure on

the job market for low-skilled workers. DHS also agrees that if members

of the DACA population stopped performing their work, labor shortages

could be exacerbated depending on the industry and employer.

    DHS appreciates commenters' concern for the well-being of

agricultural workers. DHS agrees that the ability to lawfully work

empowers employees in all sectors to leave dangerous employment

situations by decreasing fear that reporting exploitative or illegal

employment practices could potentially result in immigration

consequences. Additionally, as mentioned above, a lack of access to

employment authorization raises the potential for exploitation and

substandard wages, which in turn may have the effect of depressing

wages for some U.S. workers. Thus, making employment authorization

available to DACA recipients helps protect U.S. workers and employers

against the possible effects of unauthorized labor.

Other Impacts on Communities

    Comment: Some commenters described DACA recipients as law-abiding,

valued members of their communities. Commenters also supported the

proposed rule based on positive impacts on communities and society as a

whole. These commenters stated that the proposed rule would prevent

families and communities from being separated; encourage diversity; and

allow recipients to participate in military service, jobs, and

community service roles that keep communities safe. One commenter

expressed agreement with DHS's overall description of the substantial

reliance interests of communities on DACA recipients.

    Other commenters stated that DACA was a crucial part of

facilitating professional licensing eligibility, opening the door to

licensure for many professions, including as a lawyer, teacher, doctor,

nurse, social worker, or psychologist. These commenters further stated

that communities have benefited from the education, professional

expertise, and professional and economic contributions of DACA

recipients in those professions. One of these commenters further stated

that the increasing number of DACA recipients admitted to the Bar

Associations of their respective States has promoted diversity in the

legal profession while also helping to ensure all communities

understand the judicial process and have greater access to justice. A

joint comment by 14 States also identified examples of reliance

interests engendered by community and State-level investments in the

DACA population; for example, losing the benefits of investment into

the training of DACA recipients working in healthcare who have

committed to four years of post-graduation work in underserved Illinois

communities.

    Other commenters opposed the rule, stating that undocumented

noncitizens exacerbate affordable housing shortages and that U.S.

citizens should instead be prioritized.

    Response: DHS acknowledges some commenters' support of the rule and

agrees, as discussed in this rule, that there is strong evidence that

DACA has had a positive impact on communities in promoting family

unity, encouraging diversity, and opening pathways to military and

other community service roles. DHS also recognizes, as discussed by

commenters below, that the reduction of fear among DACA recipients

contributes to improved law enforcement and community relations, which

improves public safety.

    DHS acknowledges the commenter's support for DHS's description of

the substantial reliance interests of DACA recipients and communities.

DHS appreciates the additional reliance interests identified by the

commenter and agrees that some States have structured or amended their

professional licensing requirements in reliance on the existence of the

DACA policy, and therefore have reliance interests in the preservation

of the DACA policy, as do the DACA recipients who have established

careers dependent upon licensure by the State and the entities that

employ professionally licensed DACA recipients.

    DHS also acknowledges a commenter's concern that undocumented

noncitizens, including DACA recipients, exacerbate the affordable

housing shortage confronting some communities. Although some studies

have examined the impact of immigration on housing,\89\ the housing

market is influenced by many factors, and DHS is unable to quantify the

potential impact of the DACA policy itself on housing availability,

including affordable housing. It is important to distinguish the effect

of the DACA policy itself from the impact of current DACA recipients

and the DACA eligible population in the United States. Current and

potential DACA recipients have shown, through a course of years, that

many would remain in the United States even without deferred action or

employment authorization. The presence of these noncitizens affects

housing availability regardless of the DACA policy. Nonetheless, DHS

acknowledges that, as some DACA recipients have increased their earning

potential and incomes as a result of the DACA policy, this could

arguably affect the availability of housing for others in those

communities in which these DACA recipients reside. DHS is cognizant

that, like other community impacts of the DACA policy, the impact upon

housing availability can vary across communities. However, DHS has

determined that the many positive impacts of the DACA policy on

communities, as discussed throughout this section, outweigh the

possible impact of DACA recipients, as a subset of a larger

undocumented noncitizen population, on the availability of affordable

housing in some communities.

---------------------------------------------------------------------------

 

    \89\ See, e.g., Abeba Mussa, et al., Immigration and housing: A

spatial econometric analysis, J. of Housing Econ., 35, 13-25 (2017),

https://doi.org/10.1016/j.jhe.2017.01.002.

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Impacts on States

    Comment: Some commenters generally opposed the proposed rule based

on the use of public benefits programs, education resources, and other

costs to the government by noncitizens and DACA recipients. A commenter

stated that USCIS ignores the costs borne by local, State, and Federal

agencies for services provided to DACA recipients, such as Medicaid

services to pregnant women and bilingual education services provided to

students in local schools, which the commenter asserts also result in

higher taxes to U.S. citizens at the State and local levels. Commenters

also stated that U.S. citizens and States have reliance interests

weighing against promulgating this rule. These commenters stated that

the government should take care of U.S. citizens before spending money

on undocumented noncitizens or DACA recipients, that DACA recipients

generally divert limited resources from U.S. citizens, and that the

United States cannot financially or otherwise afford to support

undocumented noncitizens, including DACA recipients.

    Other commenters stated that DACA recipients should not be given

special privileges, benefits, or money at the expense of American

taxpayers. A commenter wrote, without accompanying citations or other

support, that DACA recipients ``use much more than their fair share of

social safety net programs especially in places

 

[[Page 53172]]

 

like [N]ew [Y]ork where very few questions are asked, fake names and

documentation is given and people without documentation are offered

services citizens are unable to use at times.'' Some commenters stated

that immigrants should prove that they can financially support

themselves and will not be dependent on the U.S. Government. One

commenter stated that in previous decades, DACA recipients have sent

millions of American dollars in remittances back to their countries of

origin with no repercussions.

    The Attorney General of Texas submitted the only comment from a

State expressing general opposition to the proposed rule. The comment

stated that DACA increases the State's expenditures associated with

education, healthcare, and law enforcement by incentivizing

unauthorized noncitizens to remain in the country. The comment stated

that Texas spends over $250 million each year in the provision of

social services to DACA recipients. The comment also stated that

unauthorized migration costs Texas taxpayers over $850 million each

year: between $579 million and $717 million each year for public

hospital districts to provide uncompensated care for undocumented

noncitizens; $152 million in annual costs for incarceration of

undocumented noncitizens in the penal system; between $62 million and

$90 million to include undocumented noncitizens in the State Emergency

Medicaid program; more than $1 million for The Family Violence Program

to provide services to undocumented noncitizens for one year; between

$30 million and $38 million per year on perinatal coverage for

undocumented noncitizens through the Children's Health Insurance

Program; and between $31 million and $63 million to educate

unaccompanied noncitizen children each year.

    In contrast, a joint comment submitted by the Attorneys General of

14 States \90\ that together represent approximately 61 percent of the

total DACA recipient population discussed how their States have adopted

laws, regulations, and programs in reliance on the existing DACA policy

and have a strong interest in preserving these frameworks and the

benefits they secure to the States, as well as in avoiding the costs

incurred upon adjusting or revoking these frameworks should DACA be

revoked. The Attorneys General said that DACA recipients are vital

members of and workers within their communities, including essential

workers and State government employees. To the extent that their States

employ DACA recipients, they stated that ending the DACA policy would

harm their States' reliance interests because they would lose the

critical skills of these employees and their investments in these

employees, while also incurring costs associated with terminating their

employment and the additional costs of recruiting, hiring, and training

their replacements. These States further noted that the increased

earning power of DACA recipients is economically beneficial to their

States, citing data that DACA recipients' estimated spending power is

approximately $24 billion. The 14 States jointly commented that because

the service sector represents approximately 80 percent of the U.S. GDP

and 86 percent of total employment, and the service sector relies on

consumer spending, this purchasing power is critical to the overall

economic health of their States. Additionally, they noted that due to

the economic stability and ability to make long-term plans provided by

a DACA-related grant of deferred action and employment authorization,

approximately a quarter of DACA recipients aged 25 and older have been

able to purchase homes, creating jobs and boosting spending in their

States, including California, where DACA recipients make yearly

mortgage payments totaling $184.4 million. These States added that

ending DACA, or limiting it to current active recipients, would result

in significant losses in tax revenue--$260 million in State and local

taxes over the next decade in California alone--and negatively impact

their States' residents. They also noted that ending DACA would result

in an estimated loss of $33.1 billion in Social Security contributions

and $7.7 billion in Medicare contributions--funds that are critical to

ensuring the financial health of these programs, upon which residents

of their States depend.

---------------------------------------------------------------------------

 

    \90\ The joint comment was submitted by the Attorneys General of

California, New Jersey, New York, Colorado, Connecticut, Delaware,

Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota,

and Washington, DC.

---------------------------------------------------------------------------

 

    These States also asserted that opponents of the DACA policy have

failed to demonstrate a single law enforcement cost attributable to the

policy, and cited an article in which numerous police chiefs,

prosecutors, and other law enforcement professionals advocated for the

continuation of DACA.\91\ They went on to identify that mistrust of

communities toward law enforcement is a significant challenge that

results in individuals being less likely to report being witnesses to

or victims of crime. The commenters cited one recent study finding that

in neighborhoods where 65 percent of residents are immigrants, there is

only a 5 percent chance that a victim will report a violent crime,

compared with a 48 percent chance in a neighborhood where only 10

percent of residents are born outside the United States (although the

relationship in general was nonlinear).\92\ Citing survey results that

59 percent of DACA recipients confirmed they would report crimes that

they would previously have not reported in the absence of DACA, these

States asserted that the benefits of such increasing cooperation far

outweighs any alleged ways in which DACA hinders law enforcement.

---------------------------------------------------------------------------

 

    \91\ Georgetown Law, Law Enforcement Leaders and Prosecutors

Defend DACA (Mar. 20, 2018), https://www.law.georgetown.edu/news/law-enforcement-leaders-and-prosecutors-defend-daca.

    \92\ See Min Xie and Eric P. Baumer, Neighborhood Immigrant

Concentration and Violent Crime Reporting to the Police: A

Multilevel Analysis of Data from the National Crime Victimization

Survey, 57 Criminology 237, 249 (2019), https://perma.cc/QS5RK867.

---------------------------------------------------------------------------

 

    The joint comment from these 14 States also disputed the notion

that DACA imposes significant healthcare costs on the States, and

stated that, to the extent there are costs, they do not outweigh the

strong benefits and healthcare cost savings of DACA. They stated that

DACA saves States money by allowing DACA recipients to receive

employer-sponsored health insurance or to purchase insurance directly

from carriers. Without DACA, they stated, those individuals would have

to rely more on emergency services, as opposed to preventative

services, in order to meet their healthcare needs, thereby increasing

the costs to both the States themselves and their healthcare systems.

The 14 States also stated that DACA reduces healthcare costs because

its positive population-level mental health consequences reduce, rather

than increase, State healthcare costs.

    The joint comment from the States also characterized as a ``false

premise'' the assumptions of opponents of the DACA policy that DACA

recipients would depart the United States if the policy ended. They

reasoned that, given the unlikelihood of large-scale departure of DACA

recipients in the event DACA were terminated, the need to reduce

healthcare expenses by making recipients eligible for insurance and by

improving health outcomes becomes paramount. The States went on to

explain that a number of States have structured healthcare access

programs in reliance on the existence of DACA, and would incur costs to

amend the programs were DACA limited or terminated. The commenters

wrote that for example, New York currently uses

 

[[Page 53173]]

 

State-only funds to provide full health coverage for deferred action

recipients (including DACA recipients, whom New York State considers to

be Permanently Residing Under Color of Law (PRUCOL)), while noncitizens

without DACA or another qualified immigration status only qualify for

emergency Medicaid coverage, which provides treatment of emergency

medical conditions. Were DACA to be terminated or limited, the States

explained, New York would incur the costs of seeking a State

legislative change to maintain coverage for DACA-eligible persons

(again, with State dollars only), or limit Medicaid coverage to

treatment of emergency conditions for some or all of these individuals.

    These 14 States also stated that DACA does not increase the States'

educational costs, and that opponents of the DACA policy have not

identified specific costs attributable to DACA, citing numerous other

States' declarations in the record in Texas. The joint commenters

stated that the assertion of educational costs attributable to DACA

rely on, as discussed above, a flawed assumption that in the absence of

DACA, recipients would depart the United States and thus reduce the

cost of providing legally required public K-12 education to DACA

recipients. Furthermore, the joint comment noted that the obligation

imposed by Plyler v. Doe requires States to educate students regardless

of their immigration status; thus, every State has the same

responsibility for educating DACA-eligible students regardless of

whether the DACA policy continues to exist. Rather than impose costs,

the 14 States asserted that DACA benefits State and local governments

by eliminating a major source of challenges for undocumented students

and those with mixed-status families, allowing them to thrive and

contribute to their communities and State economies, to the benefit of

the entire community and to the States themselves. The 14 States

pointed to research that DACA significantly increased both school

attendance and high school graduation rates, closing the gap between

citizen and noncitizen graduation rates by more than forty percent.\93\

---------------------------------------------------------------------------

 

    \93\ See, e.g., Kuka (2020). Moreover, deferred action actually

saves local governments money by increasing attendance and

preserving critical sources of funding to public school districts

across the United States. School districts in many States receive

funding based on primary and secondary school attendance; poor

attendance rates jeopardize that funding. Laura Baams, et al.,

Economic Costs of Bias-Based Bullying, 32 Sch. Psychol. Q. 422

(2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5578874;

Chandra Kring Villanueva, Texas Schools at Risk of Significant

Funding Cuts due to Pandemic-Related Attendance Loss, Every Texan

(Feb. 22, 2021), https://everytexan.org/2021/02/22/keeping-schools-whole-through-crisis. In California, for example, student

absenteeism costs public schools an estimated $1 billion per year.

See Laura Baams, et al., supra, at 3.

---------------------------------------------------------------------------

 

    Another joint comment stated that States lack any reliance interest

in the nonexistence of a DACA policy because States are not harmed by

how the Federal Government prioritizes and enforces its immigration

laws. The rule as proposed, the commenters stated, does not harm any

reliance interests on the part of States. The commenters stated that

the reliance interests thus weigh strongly in favor of DACA recipients

and of other individuals who benefit from a DACA policy and from other

policies that spring from the same statutory authority.

    Response: DHS acknowledges commenters' concerns about diversion of

resources to DACA recipients. After carefully considering each of the

concerns, DHS recognizes that while the final rule could result in some

indirect fiscal effects on State and local governments, the size and

even the direction of the effects is dependent on many factors, making

for a complex calculation of the ultimate fiscal impacts. Section

III.A.4.e of the RIA discusses fiscal impacts in more detail.

    DHS disagrees with a comment that it ignored possible fiscal

impacts at the local, State, and federal levels. The RIA specifically

addresses potential fiscal impacts, both positive and negative, at

various levels of government. As the commenter notes, a comprehensive

quantified accounting of local and State fiscal impacts specifically

due to DACA is not possible due to the lack of individual-level data on

DACA recipients who might use State and local programs or contribute in

a variety of ways to State and local budgets. In general, however, DACA

is not a qualifying immigration category for Medicaid eligibility and

does not affect access to public schools. DHS is aware that some State

and local jurisdictions have chosen to expand assistance to deferred

action recipients in certain contexts.

    Furthermore, the claim of a causal link between Texas fiscal

spending and the DACA policy relies to a significant extent on the

assumption that in the absence of DACA, a substantial portion of DACA

recipients who would otherwise impose a net fiscal burden on the States

would depart the United States. DHS welcomed comments on all aspects of

the NPRM, but received scant evidence in support of this

assumption.\94\ Even in 2012 when the DACA policy was first announced,

DACA-eligible persons would already have been residing in the United

States for five years, without deferred action. At this stage, an

additional ten years on, many DACA recipients have developed deep ties

to the United States and have children and close relations with family

and friends (and have also just entered their prime working years).

Many recipients know only the United States as home, and English is

their primary language. Leaving the country would mean leaving behind

children, parents, other family members, and close friends. In short,

DHS believes that DACA-eligible individuals generally would be unlikely

to leave the United States if the DACA policy were discontinued. DHS

thus does not believe that reliable evidence supports the conclusion

that a decision to terminate the DACA policy would result in a net

transfer to States. Although commenters provided some estimates of DACA

recipients' fiscal effects on States, it is worth noting that

commenters' concerns focus on the marginal effect of each DACA

recipient on State and local revenues as well as expenditures. While

some DACA recipients might leave the country if the program did not

exist, DHS has no basis to assume those individuals would cause

decreases in State expenditures that exceeded their contributions to

tax revenue. Again, in the RIA, DHS presents additional available

evidence and discusses possible labor market and fiscal impacts of the

DACA policy.

---------------------------------------------------------------------------

 

    \94\ In contrast, DHS is aware of a peer-reviewed study that

found no statistical causal link between the DACA policy and border

crossings. For details, see Catalina Amuedo[hyphen]Dorantes and

Thitima Puttitanun, DACA and the Surge in Unaccompanied Minors at

the U.S.-Mexico Border, International Migration, 54(4), 102-17

(2016) (hereinafter Amuedo[hyphen]Dorantes and Puttitanun (2016)).

---------------------------------------------------------------------------

 

    DHS also acknowledges the comment of 14 other States--including

multiple states in which large numbers of DACA recipients currently

reside--that DACA does not increase States' law enforcement,

healthcare, or education costs, and, if anything, reduces such costs.

With respect to law enforcement in particular, DHS agrees that DACA

mitigates a dilemma faced by those without lawful status; by virtue of

the measure of assurance provided by the DACA policy, DACA recipients

are more likely to proactively engage with law enforcement in ways that

promote public safety. With respect to health care and education, DHS

appreciates that some of these States, as well as some localities, have

enacted laws

 

[[Page 53174]]

 

making DACA recipients eligible for more benefits than they otherwise

would be eligible for without DACA, because DACA recipients are not

``qualified alien[s]'' as defined in the Personal Responsibility and

Work Opportunity Reconciliation Act of 1996 (PRWORA), 8 U.S.C. 1641(b),

and are, therefore, generally ineligible for public benefits at the

Federal, State, and local levels.\95\ These States have made a judgment

that providing such benefits to DACA recipients is beneficial to the

State in some way. Other States have made different judgments, and as a

consequence do not bear a substantially greater burden with respect to

healthcare or education than they would if DACA were terminated and its

current recipients remained in the United States regardless. In fact,

because the DACA policy permits DACA recipients to obtain lawful

employment, in many cases giving them access to private health

insurance and reducing their dependence on state-funded healthcare,

eliminating DACA could increase State and local healthcare

expenditures.

---------------------------------------------------------------------------

 

    \95\ See 8 U.S.C. 1641(b), 1611 (general ineligibility for

Federal public benefits), and 1621 (general ineligibility for State

public benefits).

---------------------------------------------------------------------------

 

    In connection with this discussion of fiscal burdens, DHS

reiterates its understanding that DACA recipients make substantial

contributions in taxes and economic activity.\96\ As discussed in the

NPRM and this rule, and as cited by numerous commenters, according to

one study, DACA recipients and their households pay approximately $5.6

billion in annual Federal taxes and approximately $3.1 billion in

annual State and local taxes.\97\ DHS notes that the estimates from

this study show that in 2020, the State and local tax contributions of

the 106,090 DACA recipients in Texas amounted to $409.9 million,\98\

exceeding the $250 million that the comment from the Attorney General

of Texas stated that Texas spends each year in the provision of social

services to DACA recipients. DACA recipients also make significant

contributions to Social Security and Medicare funds through their

employment.\99\ The governments and residents of States in which DACA

recipients reside benefit from increased tax revenue due to the

contributions of DACA recipients, and the States and their residents

have also benefited and come to rely on the broader economic

contributions this policy facilitates.

---------------------------------------------------------------------------

 

    \96\ 86 FR 53738 and 53802.

    \97\ Svajlenka and Wolgin (2020); see also Hill and Wiehe

(2017).

    \98\ Svajlenka and Wolgin (2020).

    \99\ Maga[ntilde]a-Salgado and Wong (2017); see also

Maga[ntilde]a-Salgado (2016).

---------------------------------------------------------------------------

 

    With respect to comments suggesting that DHS should consider a DACA

requestor's self-sufficiency, DHS does not believe it is necessary to

supplement the rule in this way, both because there is little evidence

that DACA results in a net fiscal burden on governments, and because

the DACA criteria (such as the criteria related to educational

attainment, age, and criminality) relate to the contributions DACA

recipients have made and will make in the future. Additionally, the

DACA policy allows its recipients to work lawfully in the United States

and has allowed them to significantly increase their earning power over

what they could earn without DACA.\100\ Finally, although DACA

recipients may have sent remittances abroad, DHS lacks data about the

amount of those remittances or about the effect the DACA policy has had

on this amount, and notes that many citizens and noncitizens both with

and without lawful immigration status or deferred action send a portion

of their income abroad.

---------------------------------------------------------------------------

 

    \100\ Wong (2017).

---------------------------------------------------------------------------

 

    As discussed in Section II.A.3, the DACA policy has encouraged its

recipients to make significant investments in their education and

careers. They have continued their studies, and some have become

doctors, lawyers, nurses, teachers, or engineers.\101\ About 30,000 are

healthcare workers, and many of them have helped care for their

communities on the frontlines during the COVID-19 pandemic.\102\ In

addition, DACA recipients have contributed substantially to the U.S.

economy through taxes and other economic activity. DHS believes these

benefits of the rule outweigh the potential negative impacts identified

by some commenters. DHS therefore declines to make any changes in

response to these comments.

---------------------------------------------------------------------------

 

    \101\ See Gonzales (2019); Svajlenka (2020); Wong (2020); Zong

(2017).

    \102\ Svajlenka (2020). DACA recipients who are healthcare

workers also are helping to alleviate a shortage of healthcare

professionals in the United States and they are more likely to work

in underserved communities where shortages are particularly dire.

Chen (2019); Garcia (2017).

---------------------------------------------------------------------------

 

    DHS also acknowledges the joint commenters' statement that States

have no reliance interests in the nonexistence of a DACA policy. To the

extent that any State may have reliance interests in the nonexistence

of DACA, DHS believes that those interests are significantly diminished

by the fact that the DACA policy has been in place for a decade. After

careful consideration, DHS agrees with these commenters that the

reliance interests weigh strongly in favor of recipients and others who

benefit from the DACA policy, including the States themselves, in

reliance on DACA as codified in this rule. After carefully considering

these comments, DHS therefore declines to make any changes in response

to them.

  1. Impacts on Businesses, Employers, and Educational Institutions

Impacts on Businesses and Employers

    Comment: A commenter said that businesses need DACA recipients'

continued contributions as they work to reinvigorate the U.S. economy,

and that failure to act would have a significant impact on businesses

that rely on DACA recipients as employees and customers. Several

commenters also stated that the proposed rule would provide a sense of

security to organizations that employ recipients of DACA.

    A group of commenters similarly said that the proposed rule would

protect the substantial reliance interests of their very large

companies in current and future employment relationships with DACA

recipients. These commenters noted that more than 75 percent of the top

25 Fortune 500 companies--together representing every major sector of

the U.S. economy and generating almost $3 trillion in annual revenue--

employ Dreamers.\103\ They further stated that DACA recipients have

helped keep the U.S. economy running, particularly during the COVID-19

pandemic, and help ameliorate labor shortages. The commenters stated

that ending DACA would cripple the nation's healthcare system and cost

small business employers over $6 billion in turnover costs from losing

investments in training DACA workers and having to recruit and train

potentially less productive, new workers. Noting that DACA allows

recipients to pursue careers that match their skills without the fear

of deportation, the commenters stated that the policy therefore makes

the economy more productive and decreases the extent to which

immigrants compete with American citizens for lower income jobs. The

commenters also identified businesses' reliance interests in DACA

because employed DACA recipients have increased purchasing power, and

that the rule, as proposed, would bring

 

[[Page 53175]]

 

stability to the DACA population, which has become an integral part of

the U.S. economy.

---------------------------------------------------------------------------

 

    \103\ Use of the term ``Dreamers'' as a descriptor for young

undocumented immigrants who came to the United States as children

originated with the Development, Relief, and Education for Alien

Minors Act (DREAM Act), a legislative proposal first introduced in

2001 (S.1291, 107th Cong.) that, if passed, would have granted them

protection from removal, the right to work, and a path to

citizenship.

---------------------------------------------------------------------------

 

    A joint comment submitted by an educational institution and

corporation stated that they have considerable reliance interests in a

DACA policy because they have enrolled and employed DACA recipients who

have made significant contributions to their institutions. The

commenters further stated that DACA recipients contribute to the

educational institutions they attend, and that communities and

employers depend upon them and have invested significant time and money

in training them, such that hiring and training replacements would cost

employers $6.3 billion.

    Response: DHS agrees that employers, including businesses and

educational institutions, have relied upon the existence of the DACA

policy over the course of 10 years and that restricting DACA to

currently active recipients or ending the DACA policy altogether would

harm the reliance interests identified by these commenters, including

their reliance interests in the labor and spending contributions of

DACA recipients. For those employers that hire DACA recipients with

highly specialized skills and higher levels of education, if the DACA

policy were to end, some of these employers could face challenges and

higher costs in finding replacement labor for these highly specialized

workers, assuming all else remains constant. Regarding DACA recipients'

spending power, DHS agrees that the DACA policy does bring stability to

the DACA population with employment authorization that enables them to

earn compensation that, in turn, is spent, at least in part, in the

economy. The preamble details further the motivations for this rule and

the RIA the potential economic, labor, and fiscal impacts.

Impacts on Educational Institutions

    Comment: As discussed in greater detail in Section II.A.5, some

commenters opposed the proposed rule, stating that DACA recipients, and

undocumented students in general, displace citizens from schools and

cost localities and States to provide public primary and secondary

schooling to these students. One of these commenters pointed to a study

that found that, in 1994, lawful and unlawful immigration resulted in

$4.51 billion in primary and secondary education costs. Meanwhile, as

discussed above, another commenter stated that Texas spends between $31

million and $63 million to educate unaccompanied noncitizen children

each year. Another commenter also opposed the rule, saying that DACA

recipients get special scholarships.

    Response: DHS acknowledges these commenters' concerns that

undocumented noncitizen students, including DACA recipients, receive

education that is publicly funded. As discussed in greater detail in

Section II.A.5 and Section III.A.4.e in the RIA, DHS recognizes that

although the rule may result in some indirect fiscal effects on State

and local governments, the direction of effects is dependent on many

factors. DHS, however, notes that the Texas Attorney General cited the

cost to Texas of educating unaccompanied noncitizen children, not DACA

recipients specifically. Given the threshold criteria requiring that a

noncitizen have continuously resided in the United States since June

15, 2007, it is a reasonable assumption that most unaccompanied

children presently enrolled in Texas public schools are not potentially

DACA eligible. Indeed, two-thirds (61 percent) of active DACA

recipients are between the ages of 20 and 29, with most other

recipients between the ages of 30 and 45 (38 percent), and therefore

unlikely to be enrolled in a public K-12 school.\104\ As of June 2022,

the youngest noncitizens who meet DACA threshold criteria are generally

in the 10th grade. DHS recognizes that other noncitizens who are

enrolled in publicly funded K-12 schools may meet threshold criteria

but have not previously requested DACA; however, as discussed in the

RIA, retention of the existing threshold criteria means there is a

diminishing number of noncitizens who may make initial DACA requests

under this rule.

---------------------------------------------------------------------------

 

    \104\ DHS, USCIS, Office of Performance and Quality (OPQ),

Electronic Immigration System (ELIS) and Computer-Linked Application

Information Management System (CLAIMS) 3 Consolidated (queried Apr.

30, 2022).

---------------------------------------------------------------------------

 

    With respect to assertions that DACA recipients receive special

scholarships, DHS recognizes that some educational institutions and

States have established scholarships or other financial aid to support

undocumented students, including DACA recipients. DHS cannot determine

the degree to which, in the absence of a DACA policy, these underlying

resources would instead be directed toward U.S. citizens or other

students with lawful status. As for assertions that DACA recipients

displace U.S. citizens in schools or colleges or otherwise impact

educational resources, DHS generally agrees that educational resources

in primary and secondary education are also shared by those enrolled

DACA recipients as enrollment at these educational levels generally is

not dependent on immigration status. Enrollment in primary or secondary

education by undocumented noncitizens is not predicated on this rule.

Undocumented noncitizens without DACA can enroll in these institutions

regardless of this rule. The commenter's assertions also assume that

DACA recipients and/or their family members do not contribute

economically and fiscally to their local schools and communities, that

educational resources are fixed, and that local laws and regulations,

economic conditions, and demographics remain constant. Many factors can

impact local educational resources, including the level of local

immigration, and a static analysis cannot appropriately assess a

dynamic issue such as this. Assuming that DACA recipients only draw

down government resources without also analyzing their beneficial

contributions distorts realistic fiscal impacts, which are discussed in

more detail in Section III.A.4.e in the RIA. DHS further notes that

educational institutions (some of which accept undocumented students

without deferred action as well) expressed widespread support for the

proposed rule, as discussed below, which stands in contrast to some

commenters' views that the DACA policy imposes a substantial strain on

educational resources.

    Comment: Numerous universities and colleges commented that DACA and

DACA recipients positively impact their institutions, and that they

have reliance interests in the various benefits that DACA recipients

bring to their campuses. Commenters described DACA recipient students

as bright, dedicated, and resilient. They identified various missions

and core philosophies of their institutions, including diverse and

inclusive learning environments that prepare students for living and

working in an increasingly diverse workforce and society, social

justice, developing global citizens, and advancing research, and

commented that DACA recipient students make meaningful and important

contributions to those missions.

    Commenters also noted that the DACA policy enables them to hire

DACA recipient students as teaching assistants, tutors, and

researchers, among other on-campus work-study positions, benefiting the

DACA recipients themselves, other students, and the universities more

broadly. Commenters also stated that the availability of advance parole

has enabled DACA recipients to pursue study abroad, fellowships,

research, and other academic programs or related

 

[[Page 53176]]

 

employment opportunities that significantly enhance the intellectual

and professional development of individual students and increase their

contributions to their campuses.

    A comment jointly submitted by 14 States also identified the

reliance interests of public universities and colleges in their States,

which rely upon significant tuition revenue from DACA recipient

students, and have made significant investments in financial aid and

other programs to support DACA recipient students. These commenters

further stated that such investments are ``consistent with their

interests in ensuring diversity and nondiscrimination and in developing

a well-educated workforce that can contribute to the States' overall

economies.''

    Another commenter highlighted studies estimating that there are

approximately 9,000 DACA recipients working as teachers in the United

States. The commenter stated that teacher shortages have become more

strained during the COVID-19 pandemic, and the removal forbearance and

work authorization provisions of DACA are critical to ensure the

quality education of children in the United States. Similarly, a

university commented that expanding pathways to DACA would have an

immediate positive impact on the number of teachers its teacher

preparation program could produce, addressing needs in their State to

increase the number of teachers who reflect the State's diverse

demographics.

    Response: DHS acknowledges the commenters' discussion of specific

reliance interests that educational institutions have in the

preservation of the DACA policy as codified in this rule. DHS agrees

that educational institutions have relied upon the existence of the

DACA policy over the course of 10 years in the form of DACA recipients'

tuition payments and academic and research contributions; and in

preparing additional teachers to serve schools throughout the country.

DHS agrees that restricting DACA to currently active recipients or

ending the DACA policy altogether would harm the reliance interests

identified by these commenters, and that the benefits of DACA

identified by these institutions weigh in favor of promulgating this

rule.

  1. Impacts on Migration

    Comment: Some commenters stated that DACA encourages criminals to

enter the United States, rewards criminal activity, ``promotes chain

migration that the nation cannot afford,'' and incentivizes breaking

U.S. laws. Similarly, some commenters opposed the proposed rule on the

basis that the creation of DACA resulted in a ``pull factor'' for

additional migration to the United States, and stated that the United

States is currently apprehending large numbers of minors at the

Southwest border. The commenters stated the United States should not

continue to reward those who enter the country unlawfully, and that the

rule as proposed would incentivize unauthorized immigration. A

commenter also characterized DACA as an amnesty that opens the door to

the prospect of the executive branch exempting anyone from any law at

any time, simply by designating them as ``low-priority'' for

enforcement.

    One commenter pointed to CBP statistics showing that the number of

unaccompanied noncitizen children (UC) apprehended at the border had

increased from 15,949 in FY 2011 to 68,541 in FY 2014, which the

commenter asserted occurred when the U.S. Government, in their view,

began signaling an unwillingness to enforce immigration law against

this population. The commenter similarly stated that DACA encourages

unauthorized immigration and trafficking of children across the U.S.-

Mexico border, and that maintaining DACA and dismantling enforcement

against undocumented noncitizens resulted in record apprehensions by

CBP at the Southwest border, citing CBP statistics that Border Patrol

apprehended 1,659,206 noncitizens who crossed the Southwest border

without authorization in FY 2021. The commenter suggested that the

humanitarian crisis on the border continues threaten national security,

public health, wage levels, and employment security, and poses

unsustainable strains to DHS, DOJ, and HHS resources. This commenter

and others said that continuing the DACA policy sends the message that

unauthorized entry into the United States will be rewarded, and periods

of unlawful presence will be mooted by executive action. From their

perspective, promulgating a DACA regulation would only perpetuate a

widespread belief that immigration laws will not be enforced, therefore

incentivizing unlawful entry and unlawful presence by raising the hopes

of undocumented noncitizens of attaining DACA or an equivalent status

in the future. This, commenters asserted, will exacerbate the situation

at the border. One of the commenters similarly stated that continuing

DACA would give other undocumented noncitizens reason to risk their

lives and the lives of their children by making the journey to the

United States.

    Other commenters urged that no action should permit undocumented

immigrants to participate in, share, or otherwise obtain status and

benefits without first becoming a U.S. citizen, and that no ``lawful

status'' should be granted to those entering the country unlawfully.

Some commenters also raised concerns about open borders, stating that

DACA is not in the interest of the United States, and that the United

States must protect its sovereignty and rule of law. Other commenters

expressed concern about the migration of DACA recipients' relatives to

the United States and said that such migration should be restricted.

    Another commenter stated that DHS should supply additional evidence

for its claim that DACA has no substantial effect on lawful or unlawful

immigration to address the concerns of the Southern District of Texas,

including: (1) the effects of DACA on legal and illegal immigration;

(2) the secondary costs of DACA associated with any alleged increase in

illegal immigration; and (3) the effect of illegal immigration on human

trafficking activities. The commenter cited a 2021 Pew Research Center

study showing that the number of unauthorized noncitizens in the United

States steadily declined from 2007 to 2017.\105\ The commenter further

pointed to 2014 and 2017 studies showing that recent increases in

children crossing the border are driven by migration increases across

all age groups from Guatemala, Honduras, and El Salvador, which have

experienced higher rates of violence and economic instability.\106\ The

commenter suggested DHS add a more detailed discussion of global

immigration trends, which bolsters DHS's claim that DACA does not have

a significant impact on immigration rates.

---------------------------------------------------------------------------

 

    \105\ Mark Hugo Lopez, et al., Key Facts About the Changing U.S.

Unauthorized Immigrant Population, Pew Research Center (Apr. 13,

2021), https://www.pewresearch.org/fact-tank/2021/04/13/key-facts-about-the-changing-u-s-unauthorized-immigrant-population.

    \106\ See Tom K. Wong, Statistical Analysis Shows that Violence,

Not Deferred Action, Is Behind the Surge of Unaccompanied Children

Crossing the Border, Center for American Progress (July 8, 2014),

https://www.americanprogress.org/article/statistical-analysis-shows-that-violence-not-deferred-action-is-behind-the-surge-of-unaccompanied-children-crossing-the-border (hereinafter Wong

(2014)); see also David J. Bier, DACA Definitely Did Not Cause the

Child Migrant Crisis, Cato Institute (Jan. 9, 2017), https://www.cato.org/blog/daca-definitely-did-not-cause-child-migrant-crisis.

---------------------------------------------------------------------------

 

    Response: DHS acknowledges these commenters' concerns and agrees

that

 

[[Page 53177]]

 

the United States is a sovereign nation committed to the rule of law.

Maintaining an orderly, secure, and well-managed border, reducing

irregular migration, and combatting human trafficking are priorities

for DHS and for the Administration.\107\ DHS disagrees, however, with

the suggestion that this rule creates a pull factor for additional

irregular immigration. This rule reflects DHS's continued belief,

supported by available data, that a continuation of the DACA policy

does not have a substantial effect on volumes of lawful or unlawful

immigration into the United States. The final rule codifies without

material change the threshold criteria that have been in place for a

decade, further reinforcing DHS's clear policy and messaging since 2012

that DACA is not available to individuals who have not continuously

resided in the United States since at least June 15, 2007, and that

border security remains a high priority for the Department.

---------------------------------------------------------------------------

 

    \107\ See generally DHS, 2022 Priorities, https://www.dhs.gov/2022-priorities (last updated Mar. 17, 2022).

---------------------------------------------------------------------------

 

    Even as it relates to the DACA policy under the Napolitano

Memorandum, DHS respectfully disagrees with commenters'

characterization of the policy's effects. In the proposed rule, DHS

wrote that it does not ``perceive DACA as having a substantial effect

on volumes of lawful and unlawful immigration into the United States,''

and DHS is not aware of any evidence that, and does not believe that,

DACA ``has acted as a significant material `pull factor' (in light of

the wide range of factors that contribute to both lawful and unlawful

immigration into the United States).'' \108\ Although commenters

offered data on overall levels of irregular migration as well as

irregular migration by noncitizen minors, these data do not point to

DACA as a substantial causal factor in driving such migration or, as

some commenters asserted, trafficking of children across the southwest

border.

---------------------------------------------------------------------------

 

    \108\ 81 FR 53803 (quoting Amuedo[hyphen]Dorantes and Puttitanun

(2016), at 112 (``DACA does not appear to have a significant impact

on the observed increase in unaccompanied alien children in 2012 and

2013.'')).

---------------------------------------------------------------------------

 

    DHS acknowledges commenters' statements that the 2012-2014 increase

in the number of unaccompanied children apprehended at the border began

in the months preceding DACA's announcement in June 2012 (and peaked in

that fiscal year in March),\109\ and that overall border apprehensions

actually decreased in the months directly following DACA's

announcement.\110\ But DHS is also aware of seasonal patterns in

migration and other trends suggesting increasing levels of overall

migration by children and family units during parts of this time

period. DHS believes it would be unreasonable, on the basis of this

data alone, to draw or completely disavow a direct causal line between

apprehensions and a single policy. Such an approach would be

inconsistent with available studies, which indicate that increases in

migration of noncitizen children correlate closely with increased

levels of violence in their countries of nationality. In short, it is

likely that broader sociocultural factors drive youth migration much

more than migrants' perception of receiving favorable immigration

treatment in the United States.\111\

---------------------------------------------------------------------------

 

    \109\ U.S. Border Patrol, Total Unaccompanied Alien Children (0-

17 Years Old) Apprehensions By Month--FY 2010-FY 2014 (Jan. 2020),

https://www.cbp.gov/sites/default/files/assets/documents/2020-Jan/U.S.%20Border%20Patrol%20Total%20Monthly%20UAC%20Apprehensions%20by%20Sector%20%28FY%202010%20-%20FY%202019%29_0.pdf.

    \110\ U.S. Border Patrol, Total Illegal Alien Apprehensions By

Month--FY 2000-FY 2019 (Jan. 2020), https://www.cbp.gov/sites/default/files/assets/documents/2020-Jan/U.S.%20Border%20Patrol%20Monthly%20Apprehensions%20%28FY%202000%20-%20FY%202019%29_1.pdf.

    \111\ Wong (2014); see also Amelia Cheatham, Central America's

Turbulent Northern Triangle, Council on Foreign Relations (July 1,

2021), https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle.

---------------------------------------------------------------------------

 

    As DHS noted in the NPRM, Amuedo[hyphen]Dorantes and Puttitanun

(2016) investigated whether the DACA policy had an effect on the rate

of irregular migration by noncitizen minors using data from 2007-2013.

Their approaches employed multiple models to examine whether the DACA

policy had any effect on border apprehensions of unaccompanied minors.

These models accounted for additional factors beyond the DACA policy,

such as enactment of TVPRA 2008, economic and social conditions in the

United States and originating countries, and border conditions. The

authors found no evidence of causality between the DACA policy and the

number of border apprehensions of unaccompanied minors, and they

identified stronger associations between other factors (namely, the

economic and social conditions in the originating country and the

enactment of TVPRA 2008) and apprehensions of unaccompanied minors at

the U.S.-Mexico border. This finding suggests that even in the

immediate aftermath of the initial DACA policy, migration decisions

were the product of a range of factors, but not primarily a consequence

of the DACA policy.\112\

---------------------------------------------------------------------------

 

    \112\ There are reports and surveys that investigate some of

these factors. See, e.g., Ariel G. Ruiz Soto, et al., Charting a New

Regional Course of Action: The Complex Motivations and Costs of

Central American Migration, Migration Policy Institute (Nov. 2021),

https://www.migrationpolicy.org/research/motivations-costs-central-american-migration (hereinafter Ruiz Soto (2021)).

---------------------------------------------------------------------------

 

    Additionally, the overall FY 2021 apprehensions by CBP at the

southern border cited by a commenter represent total encounters, not

the number of unique individuals apprehended. Although the total number

of unique encounters did increase to record levels, DHS notes that a

portion of the increased encounters cited by the commenter is

attributable to noncitizens making multiple attempts to enter the

United States during the period in which the Centers for Disease

Control and Prevention (CDC) has exercised its Title 42 authority to

prohibit the introduction of certain noncitizens into the United

States. In FY 2019, prior to implementation of the CDC's Orders under

42 U.S.C. 265, 268 and 42 CFR 71.40, the rate of noncitizens

encountered by CBP who attempted to enter the United States more than

once in the same fiscal year was 7 percent. In FY2020, the recidivism

rate rose significantly to 26 percent, and in FY 2021 further increased

to 27 percent.\113\

---------------------------------------------------------------------------

 

    \113\ CBP, CBP Enforcement Statistics Fiscal Year 2022: U.S.

Border Patrol Recidivism Rates, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics (last modified June 15, 2022).

---------------------------------------------------------------------------

 

    As discussed above, there are many reasons why noncitizens decide

to emigrate from their countries, with some reports claiming economic

and social issues as primary reasons.\114\ Still, as noted by another

commenter, global migration trends are complex and multifaceted. The

International Organization for Migration (IOM) found in its World

Migration Report 2022 that recent years saw major migration and

displacement events that caused great hardship, trauma, and loss of

life. The IOM notes that the scale of international migration globally

has increased, although at a reduced rate due to COVID-19. Long-term

data on international migration, the IOM report states, demonstrate

that migration is not uniform across the world, but is shaped by

economic, geographic, demographic and other factors, resulting in

distinct migration patterns.\115\

---------------------------------------------------------------------------

 

    \114\ See, e.g., Ruiz Soto (2021).

    \115\ Marie McAuliffe and Anna Triandafyllidou, Report Overview:

Technological, Geopolitical and Environmental Transformations

Shaping Our Migration and Mobility Futures, in World Migration

Report 2022 (2021), IOM, Geneva.

---------------------------------------------------------------------------

 

    Beyond the complex factors underpinning migration patterns, the

 

[[Page 53178]]

 

core guidelines of the DACA policy itself--codified in this rule--

refute the idea that DACA serves as a significant material ``pull

factor'' for migration, as DHS has clearly messaged from the beginning

of the DACA policy that only individuals continuously residing in the

United States since June 15, 2007, can be considered for deferred

action under DACA. That DHS declines, after careful consideration, to

expand this or other criteria to permit other populations to request

DACA further rebuts the notion that the Department is sending a message

incentivizing unlawfully present noncitizens to remain in the United

States or prospective migrants to enter without authorization in hopes

of being granted lawful status. DHS further reiterates that DACA

recipients are considered lawfully present under prior guidance, and

now this rule, only for very limited purposes as described in this

preamble and at sections 236.21(c)(3) and (4), and that the DACA policy

does not confer ``lawful status'' to recipients.

    Nevertheless, DHS acknowledges that, as with any discourse on

immigration policy or legislation, some individual noncitizens might

misinterpret the policy's intent and applicability and hope that they

might benefit from the policy. DHS, however, is unaware of a

substantial body of evidence to support such a theory, and in any event

does not think it necessary or appropriate to terminate the DACA policy

to address such concerns, in light of DHS's interests in setting

appropriate enforcement priorities, as well as the significant reliance

interests at play.

    With respect to the suggestion that the DACA policy promotes

``chain migration,'' DHS understands the commenter to be referring to

family-sponsored immigration, one of the foundational principles of

U.S. immigration law,\116\ and notes that DACA recipients cannot

sponsor relatives for immigrant visas under 8 U.S.C. 1153, 1154. DHS

also refers the reader to the discussion of the DACA policy's economic

effects in the RIA below. DHS does not believe that DACA's effects are

``unaffordable'' or detrimental to U.S. citizens, and is issuing this

rule following detailed consideration of the policy's effects, as

discussed elsewhere in this preamble.

---------------------------------------------------------------------------

 

    \116\ See 8 U.S.C. 1153 (providing allocation of immigrant visas

among family-sponsored, employment-based, and diversity categories).

---------------------------------------------------------------------------

 

  1. Other Impacts on the Federal Government

    Comment: Multiple commenters stated that the proposed rule would

increase costs and negatively impact the Federal Government, urging

that although every undocumented individual cannot be deported, it is a

waste of resources to have law enforcement release a removable

individual who has already been apprehended. A commenter also stated

that the DACA policy is less efficient, less secure, and more costly

than prosecutorial discretion decisions made by ICE and CBP, especially

given what is necessary to review and perform background checks, review

travel history, interview requestors, and conduct biometrics. The

commenter further stated that because few DACA recipients would be

subject to removal even in the absence of this rule, the number of such

individuals ICE and CBP would need to process would be minimal, and

thus the enforcement resources savings engendered by DACA would be

minimal.

    Other commenters stated that it would be extremely costly, in the

billions of dollars, for the U.S. Government to remove the hundreds of

thousands of young people who qualify for DACA.

    Response: DHS respectfully acknowledges the commenters' concerns

regarding the potential for increased costs and negative impacts to the

Federal Government as a result of this rule. DHS acknowledges that, by

the very nature of identifying a segment of the population that is low

priority for enforcement, most noncitizens who meet the DACA threshold

criteria would continue to be a low priority for enforcement even in

the absence of the DACA policy. In the RIA, DHS addresses the potential

effects of the policy on the Federal Government, including cost savings

resulting from the DACA policy that are not easily quantified or

monetized; tax transfers; and other effects. However, the DACA policy

simplifies many encounters between DHS and certain noncitizens,

reducing the burden upon DHS of vetting, tracking, and potentially

removing DACA recipients.

    Indeed, the cost of apprehension is only one part of the process to

remove a noncitizen; the removal process includes other significant

costs to the Federal Government, including the costs of removal

proceedings before EOIR, detention, potential for related federal

litigation, and transportation. The DACA policy allows DHS, in line

with its particular expertise, to proactively identify noncitizens who

may be a low priority for removal should ICE or CBP encounter them in

the field and once a valid DACA recipient is confirmed, ICE or CBP may

be able to make a determination without necessitating further

investigation.\117\ DHS further notes that USCIS can directly access a

noncitizen's travel history from CBP databases, and that by virtue of

the use of the Form I-821D and Form I-765, USCIS is provided with

significant information and documentation relevant to a prosecutorial

discretion determination that CBP and ICE would not have related to the

noncitizen's residency, education, work history, criminal history, and

other positive and negative discretionary factors. Most noncitizens

would not have such information or documentation in their possession

when encountered by CBP or ICE. As to the commenter's concern regarding

the costs of interviews and biometric collection, interviews are very

rarely required by USCIS, and the cost of biometrics is covered by the

Form I-821D filing fees, which conserves resources for the Department.

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    \117\ 86 FR 53752.

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    Furthermore, under longstanding policy and procedure, in cases

where ICE grants deferred action, the noncitizen is eligible to

subsequently file Form I-765 to apply for work authorization. This

process requires ICE to issue a document to the noncitizen, who then

must include it in their work authorization application. USCIS

routinely must verify the information provided in these letters, which

requires time and uses USCIS and ICE personnel resources. It promotes

administrative efficiency and preserves resources and time for both

agencies to streamline the DACA-related processes within one DHS

agency. Furthermore, while USCIS recovers the costs of conducting

background checks via the DACA-related filing fees, ICE and CBP, which

are funded primarily through congressionally appropriated taxpayer

dollars, would not recover these costs from requestor fees unless they

established additional fees for that purpose.

    Comment: A commenter stated that DACA is a massive new government

program that would require significant government resources to

administer that will be placed on both the executive and judicial

branches, while the Federal agencies specifically entrusted to secure

the border continue to go understaffed and under-supported.

    Response: DHS respectfully disagrees with this commenter's

characterization of the DACA policy. This rule preserves and fortifies

in regulation a policy that has been in place for 10 years. The rule

does not establish a new program, nor does the policy require

administration by the judicial branch. To the extent

 

[[Page 53179]]

 

that any resource burden is placed on the judicial branch, that is the

result of outside parties who seek to challenge the DACA policy in

court and is not a burden on the judicial branch that is inherent in

the DACA policy itself.

    The final rule does not introduce new criteria for consideration,

expand the population eligible for consideration, change standards of

review, provide lawful immigration status, or alter the forbearance

from removal or employment authorization structure that has been in

place for a decade. As discussed elsewhere in this rule and in the

NPRM, the DACA policy reflects the reality that DHS must exercise

discretion in immigration enforcement, and that its limited resources

are best focused on noncitizens who pose a security threat, public

safety, or border security threat to the United States or are otherwise

a high priority for enforcement. Codification of the DACA policy in

this rule does not divert needed funds from CBP or ICE, and instead

supports their enforcement work by clearly identifying a subset of the

noncitizen population already determined not to be a priority for

enforcement.

  1. Criminality, National Security Issues, and Other Safety Concerns

    Comment: Some commenters expressed concerns about criminal or other

negative conduct by DACA recipients, along with national security

concerns. Some of these commenters stated that DACA recipients

generally do not respect the rule of law, and that too many noncitizens

without lawful status are present in the United States and commit

crimes against citizens. Some commenters described noncitizens without

lawful status as criminals because they entered the United States

without authorization, and asserted that those individuals would not

become law-abiding citizens.

    Some commenters characterized DACA recipients as ``invaders'' or

``parasites'' or used other pejorative terms, and stated that some DACA

recipients try to manipulate U.S. citizens into marriage for

immigration purposes. Other commenters stated that DACA is a threat to

the United States and its security, and that it creates avenues for

drug cartels to operate in the United States, enabling human

trafficking and drug trafficking.

    In contrast, multiple commenters stated that undocumented

immigrants are less likely to be convicted of crimes (e.g., crimes

involving drugs, violence, or property) compared to U.S.-born citizens.

Another commenter stated that the proposed rule could help DHS focus

enforcement resources on noncitizens who commit crimes rather than on

DACA recipients. Further, several commenters either cited data or

expressed the notion that DACA removes barriers for immigrants to

approach law enforcement and report crime. Referencing a 2020 survey,

one commenter stated that DACA recipients would be more than 30 percent

less likely to report a crime committed against them and almost 50

percent less likely to report wage theft without the protection of

DACA.\118\

---------------------------------------------------------------------------

 

    \118\ See Wong (2020).

---------------------------------------------------------------------------

 

    Response: DHS acknowledges the commenters' concerns about national

security, public safety, and crime in the United States, and as a

general matter, shares those concerns. At the same time, DHS is not

aware of any data suggesting that the DACA policy contributes to those

challenges, or that DACA recipients engage in criminal activity, commit

fraud, or pose national security concerns to any greater degree than

the general population. As an initial matter, data suggest that DACA

recipients are arrested at far lower levels than the general U.S. adult

population. As of February 1, 2018, 7.76 percent of approved DACA

requestors had an arrest.\119\ In contrast, a 2018 DOJ survey of State

records found that 49 States, the District of Columbia, and Guam

reported the total number of U.S. adults with criminal history records

indicating arrests and subsequent dispositions to be more than 112

million, amounting to as much as 40 percent of the U.S. adult

population.\120\ In addition, DHS notes that an arrest indicates the

individual was arrested or apprehended only; it does not mean the

individual was convicted of a crime. Further, individuals may not have

been charged with a crime resulting from the arrest, may have had their

charges reduced or dismissed entirely, or may have been acquitted of

any charges.\121\

---------------------------------------------------------------------------

 

    \119\ USCIS, DACA Requestors with an IDENT Response (June 5,

2018), https://www.uscis.gov/sites/default/files/document/data/DATA_DACA_CRIM.PDF (arrests include apprehensions for immigration-

related civil violations).

    \120\ DOJ, Office of Justice Programs, Bureau of Justice

Statistics, Survey of State Criminal History Information Systems,

2018 (Nov. 5, 2020), https://www.ojp.gov/pdffiles1/bjs/grants/255651.pdf. (``Readers should note that an individual offender may

have records in more than one state and that records of deceased

persons may be included in the counts provided by states. This means

the number of living persons in the United States with criminal

history records is less than the total number of subjects in state

criminal history files.'').

    \121\ USCIS, DACA Requestors with an IDENT Response (June 5,

2018), https://www.uscis.gov/sites/default/files/document/data/DATA_DACA_CRIM.PDF.

---------------------------------------------------------------------------

 

    As discussed in further detail in Section II.C.4.b.6, determining

whether someone poses a threat to national security or public safety is

at the heart of DHS's mission, and Congress has directed the Secretary

to prioritize national security, public safety, and border security.

Consistent with this mission, the rule at new 8 CFR 236.22(a)(6)

disqualifies from consideration for DACA individuals who have been

convicted of any felony; three or more misdemeanors not occurring on

the same date and not arising out of the same act, omission, or scheme

of misconduct; or who otherwise pose a threat to national security or

public safety. In addition, the rule disqualifies from consideration

for DACA any individual who is convicted of any misdemeanor, as defined

by Federal law, that meets the following criteria: (i) regardless of

the sentence imposed, is an offense of domestic violence; sexual abuse

or exploitation; burglary; unlawful possession or use of a firearm;

drug distribution or trafficking; or driving under the influence; or

(ii) if not one of these offenses, is one for which the individual was

sentenced to time in custody of more than 90 days. And even if an

individual requestor's background check shows a criminal history that

does not meet the above critieria, DHS may still decide not to grant

the DACA request as a matter of discretion. These criminal criteria are

also grounds for terminating DACA, as discussed in Section II.C.5.f

below, and because DHS conducts recurrent vetting on DACA recipients,

the Department can take action to terminate DACA as it becomes aware of

any evidence of such criminal criteria in a particular case.

    DHS also does not believe that it is accurate or helpful to

characterize DACA recipients or potential DACA requestors--who entered

the United States as children and have resided in this country for over

a decade--as ``invaders'' or to use other pejorative or inflammatory

terms to refer to DACA recipients, noncitizens, or any other group of

people who are, on the whole, peaceful and hardworking. With respect to

all comments submitted, DHS has focused on the merits of commenters'

inputs, rather than such characterizations.

    With respect to the comment regarding DACA recipients and marriage,

DHS notes that under 8 U.S.C. 1325(c), any individual who knowingly

enters into a marriage for the purpose of evading any provision of the

immigration laws shall be imprisoned for not more than 5 years, or

fined not more than $250,000, or both. Activity falling under 8 U.S.C.

1325(c) is a felony falling within the criminal

 

[[Page 53180]]

 

disqualifications described above. To whatever extent such activity

occurs among DACA recipients, DHS does not expect that a rescission of

the DACA policy would reduce the incidence of such activity.

    DHS does not believe that DACA creates avenues for drug cartels to

operate in the United States or enables human trafficking and drug

trafficking. Conviction for such offenses would result in termination

of DACA or denial of DACA renewal, and as discussed above, DACA

recipients receive work authorization that enables them to participate

in the legitimate economy, an option that would not be available to

them absent DACA. Human trafficking and drug trafficking are serious

crimes and top priorities for DHS.\122\ Again, DHS does not believe

that terminating DACA would meaningfully reduce the incidence of such

crimes or that DACA prevents DHS or other law enforcement officials

from fully investigating or prosecuting such crimes or removing

noncitizens involved in such activity.

---------------------------------------------------------------------------

 

    \122\ See DHS, DHS Efforts to Combat Human Trafficking (Jan. 25,

2022), https://www.dhs.gov/sites/default/files/2022-01/DHS%20Efforts%20to%20Combat%20Human%20Trafficking.pdf; The While

House, Executive Office of the President, Office of National Drug

Control Policy, National Drug Control Strategy (Apr. 18, 2022),

https://www.whitehouse.gov/wp-content/uploads/2022/04/National-Drug-Control-2022Strategy.pdf.

---------------------------------------------------------------------------

 

    With regard to concerns about public safety more broadly, as one

commenter noted, the DACA policy may increase recipients' willingness

to report crimes by deferring the possibility of immediate removal and

thereby ameliorating the risk that approaching law enforcement would

expose the recipient to an immigration enforcement action. DHS also

agrees with the commenter that this rule will enable the Department to

focus its enforcement resources on those that pose national security or

public safety concerns. After careful consideration, DHS thus

respectfully disagrees with commenters concerned that the DACA policy

promotes criminal activity or otherwise undermines national security or

public safety.

  1. Creation of a ``Permanent'' Class of Individuals Without Legal

Status

    Comment: A few commenters generally opposed the proposed rule on

the ground that it would create a ``permanent'' class of individuals

without legal immigration status. One commenter stated that DACA

recipients can renew their deferred action and employment authorization

indefinitely, resulting in ``de facto LPR [lawful permanent resident

status,'' which the commenter stated is distinct from other immigration

benefits and visa categories created by Congress that are limited in

their ability to renew.

    Another commenter stated that it is wrong to allow people to come

to the United States unlawfully and stay in the country long enough

until the Government decides they can become citizens. The commenter

stated that letting people enter and remain in the United States

unlawfully ``does not instill a sense of patriotism for the

recipient.'' Another commenter stated that the DACA policy lacked some

of the benefits of naturalization, because naturalization applicants

learn about the United States. The commenter stated that skipping this

step is an affront to naturalized citizens and that the United States

should end DACA and encourage prospective residents to naturalize

legally.

    Another commenter said that DACA is a ``made-up policy'' that holds

its recipients in a purgatory-like state waiting for the Government to

ultimately address the issue of lawful status, while another commenter

added that DACA recipients live in a state that experts call ``liminal

legality,'' which has health implications for many undocumented

individuals.

    Response: DHS agrees that the rule does not extend lawful

immigration status to DACA recipients and does not set a cap on the

number of times a DACA recipient may submit a renewal request, but

notes that even in the absence of DACA, DACA recipients generally would

be unlikely to depart the United States. DHS disagrees, however, that

the rule allows people to enter unlawfully and remain until they can

become citizens. As discussed in the NPRM and in this rule, this rule

applies to a specific class of individuals who entered the United

States as children over a decade and a half ago, and who have made

significant investments and contributions to their communities.

Although the DACA criteria were developed administratively, the program

is supported by longstanding administrative practice and precedent. DHS

and the former INS have a long history of issuing policies under which

groups of individuals without lawful status who are low enforcement

priorities may receive a discretionary, temporary, and nonguaranteed

reprieve from removal.\123\ Deferred action under the DACA policy is a

form of prosecutorial discretion well within the Executive's authority

to efficiently allocate limited enforcement resources.\124\ In

deferring removal under this rule, DHS is not creating a pathway to

U.S. citizenship for DACA recipients. DHS also disagrees that the rule

creates a ``de facto'' lawful permanent residence status. Unlike lawful

permanent residence, which can only be rescinded or result in

removability of the beneficiary in narrowly prescribed

circumstances,\125\ a grant of deferred action under DACA is by its

nature temporary, and it can be terminated at any time.

---------------------------------------------------------------------------

 

    \123\ See generally Ben Harrington, An Overview of Discretionary

Reprieves from Removal: Deferred Action, DACA, TPS, and Others,

Congressional Research Service, No. R45158 (Apr. 10, 2018)

(hereinafter CRS Report on Discretionary Reprieves from Removal).

See also American Immigration Council, Executive Grants of Temporary

Immigration Relief, 1956-Present (Oct. 2, 2014), https://www.americanimmigrationcouncil.org/research/executive-grants-temporary-immigration-relief-1956-present (hereinafter AIC Report on

Executive Grants of Temporary Immigration Relief) (identifying 39

examples of temporary immigration relief); Sharon Stephan, Extended

Voluntary Departure and Other Grants of Blanket Relief from

Deportation, Congressional Research Service, No. 85-599 EPW (Feb.

23, 1985) (hereinafter CRS Report on EVD).

    \124\ See Regents of the Univ. of Cal. v. DHS, 908 F.3d 476, 487

(9th Cir. 2018) (deferred action ``arises . . . from the Executive's

inherent authority to allocate resources and prioritize cases''),

aff'd, 140 S. Ct. 1891 (2020).

    \125\ See 8 U.S.C. 1256; 8 U.S.C. 1227.

---------------------------------------------------------------------------

 

    As to the commenters' concerns that the DACA policy does not

engender a sense of patriotism for recipients or that because there is

no pathway to naturalization, DACA recipients do not benefit from

learning about the United States as naturalization applicants do, DHS

notes that many commenters wrote of DACA recipients' ``dreams and

aspirations to help America,'' sharing that they are ``grateful for

this country'' and want to work hard to take advantage of the

opportunities they have in the United States. And while the DACA policy

has no U.S. history knowledge requirement, DHS notes that virtually all

recipients have been enrolled in or completed some form of secondary

education in the United States consistent with the education criteria

for DACA. Several DACA recipients stated in their comments that through

their studies, they knew more about American history than the history

of their countries of origin. As to the commenter's suggestion that DHS

terminate the DACA policy and encourage prospective residents to

naturalize legally, DHS notes that those eligible for DACA generally do

not have a pathway to lawful permanent status or naturalization, and as

discussed in Section II.A.11 below, establishing such pathways requires

Congressional action. However, DHS also notes, that nothing precludes a

DACA recipient from

 

[[Page 53181]]

 

becoming a citizen through the existing naturalization provisions of

the INA if they meet the preexisting eligibility requirements.\126\

---------------------------------------------------------------------------

 

    \126\ 8 U.S.C. 1421, et seq.

---------------------------------------------------------------------------

 

    DHS also acknowledges commenters' concerns that the legal

uncertainty of the DACA policy causes stress and negative health

outcomes for some DACA requestors. DHS reiterates that ameliorating

legal uncertainty for the DACA population, and preserving and

fortifying DACA as directed by the Biden Memorandum, are among the

purposes for promulgating this rule. DHS therefore declines to make any

changes in response to these comments.

  1. Pathway to Lawful Status or Citizenship

    Comment: Many commenters urged DHS to provide DACA recipients a

pathway to citizenship, such as by providing eligibility for lawful

permanent residency. Some commenters urged DHS to provide protections,

including a pathway to citizenship, for all persons who would have been

eligible for relief under prior versions of the DREAM Act, including

``Documented Dreamers.'' \127\

---------------------------------------------------------------------------

 

    \127\ ``Documented Dreamer'' is a term used to identify children

of long-term visa holders who have grown up in the United States

with derivative nonimmigrant visa status, and who have aged out or

are likely to age out of this status by virtue of turning 21 without

a pathway to lawful immigrant status. See Testimony of Pareen

Mhatre, Student Member of Improve the Dream, before the House

Judiciary Committee Subcommittee on Immigration and Citizenship

(Apr. 28, 2021), https://docs.house.gov/meetings/JU/JU01/20210428/112515/HHRG-117-JU01-Wstate-MhatreP-20210428.pdf.

---------------------------------------------------------------------------

 

    Some commenters acknowledged and appreciated the proposed rule's

discussion of the term of art ``lawfully present,'' and their joint

submission proposed, without substantial additional explanation, that

DHS interpret its ``lawful presence'' authority to allow a path to

citizenship, through naturalization, to DACA recipients. Others

suggested that DHS provide Temporary Protected Status (TPS), or some

other form of legal status, to DACA recipients.

    A commenter expressed concern that they may not be eligible for

future promotions due to restrictions on work authorization associated

with DACA, such as the program's prohibition on employment sponsorship.

Another commenter likewise remarked that many DACA recipients do not

have a path to employment-based permanent residence and, therefore, are

barred from adjusting status through filing Form I-601 waiver

applications. The commenter stated that continuing to extend DACA in

its current form or effectively making it a fixture of U.S. immigration

law with only minor changes would be a ``cruel joke'' for the numerous

individuals who are ineligible for both DACA and family-based

immigration. The commenter urged the inclusion of provisions to address

the gap in the treatment of DACA recipients to permit them to pursue

employment-based immigration options. The commenter stated the

provisions should include, at a minimum, the opportunity for DACA

recipients to file Form I-601 waiver or Form or I-601A provisional

waiver applications so that they can proceed with consular processing

for approved Form I-140 petitions. Commenters stated that such

solutions are preferable in light of the uncertainty, fear, and anxiety

surrounding the DACA request process, legal challenges to the policy,

and the complexity of the U.S. immigration system.

    Some commenters said that providing a pathway to permanent

residence or citizenship would provide much-needed stability and lift

the psychological and financial burden of biennial renewals. Some of

these commenters cited personal examples highlighting the negative

effects of uncertainty on existing or hopeful DACA recipients and their

families, including financial and psychological hardship. Expressing

concern that DACA recipients' livelihood could be destroyed if they

lost protections, a commenter remarked that citizenship would allow

DACA recipients to continue to reside in the United States without

assuming any further fees or expenses, reasoning that staying should

cost recipients nothing after they have established their residence and

livelihood here.

    Some commenters said that DACA recipients experience unique

disadvantages compared to other immigrants and those with a pathway to

citizenship in terms of finding adequate employment or obtaining

Federal employment, receiving Federal financial aid or grants,

obtaining a driver's license, joining the military, traveling overseas,

qualifying for State and Federal benefits and programs such as Premium

Tax Credits and Medicaid, or obtaining legal status through alternative

pathways such as employee sponsorship. Referencing various examples

above, several commenters suggested that DACA recipients are

``citizens'' or ``Americans'' in various contexts, only lacking this

status by law. Other commenters similarly said that children who grew

up in the United States inherently belong and deserve the same rights

as citizens who consider this country their home.

    Some commenters stated that a pathway to citizenship or permanent

residency would reinforce the humanitarian and legal principles

underlying DACA, the proposed rule, U.S. law, or U.S. values. One

commenter said that creating a pathway to citizenship would be the

right thing to do for human rights and society. The commenter further

reasoned that citizenship would recognize that the United States has

only benefitted from DACA recipients' contributions.

    A couple of commenters stated that providing a path to citizenship

would not only reduce uncertainty but would also ease the burden of the

administrative and judicial review processes for DACA cases, as well as

the costs of deportation. A couple of commenters also stated that, as

individuals who are compelled to maintain a ``spotless record'' to keep

their status, DACA recipients have earned their citizenship.

    In the absence of a pathway to citizenship, some commenters

suggested that, at a minimum, the rule could provide assurance to DACA

recipients that they are safe and will not be deported without just

cause. Similarly, several commenters stated the need for clear

messaging and guidelines around DACA protections.

    Response: Comments suggesting that DHS should provide a path to

citizenship or similar relief are outside the scope of the rulemaking.

DHS nonetheless agrees with commenters that DACA recipients make

substantial contributions to their communities and the U.S. economy.

DHS also acknowledges commenters' concerns about legal and political

uncertainty around the DACA policy. As discussed elsewhere in this rule

and in the NPRM, DHS emphasizes that while this rule represents the

agency's best efforts to preserve and fortify DACA, a legislative

solution would offer unique benefits for the DACA population, as

congressional action would be needed to extend a pathway to lawful

permanent residence or citizenship for DACA recipients. As it relates

to this rule, DHS emphasizes that the benefits of the rule for DACA

recipients are multifold. At its core, the DACA policy represents an

exercise of enforcement discretion, under which DHS indicates its

intention to forbear from enforcing the immigration laws against a DACA

recipient, and which the courts have generally not questioned. Other

features of the policy, including eligibility for employment

authorization, lawful presence as

 

[[Page 53182]]

 

defined in 8 CFR 1.3, and non-accrual of unlawful presence for the

purposes of INA sec. 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B), have been

the focus of litigation, but these features can be traced directly to

DHS's statutory authority over these topics, are consistent with

longstanding regulations and policy, and are, in DHS's view, broadly

beneficial to DACA recipients and their families, schools, communities,

and employers.

    Although DHS does not have legal authority to amend the rule to

provide a direct procedure for a DACA recipient to attain citizenship,

as recommended by some commenters, DHS notes that nothing precludes

DACA recipients from becoming LPRs or applying for naturalization

through the existing provisions of the INA if they meet the preexisting

eligibility requirements.\128\ For example, DACA recipients who qualify

to become LPRs through existing family or employment-based avenues may

be eligible to apply for naturalization after 3 or 5 years, depending

on their category of permanent resident status.\129\ Similarly, a DACA

recipient who is a member of the military or spouse of such a military

member may ultimately meet the requirements for military

naturalization.\130\

---------------------------------------------------------------------------

 

    \128\ 8 U.S.C. 1421 et seq.

    \129\ See 8 U.S.C. 1427(a).

    \130\ See 8 U.S.C. 1439 et seq.

---------------------------------------------------------------------------

 

    DHS also acknowledges the commenter's concerns about the

professional implications that lack of a permanent legal immigration

status may have on DACA recipients. DHS recognizes that some DACA

recipients may not meet the eligibility requirements for certain

employment-based nonimmigrant and immigrant visa categories. DHS notes,

however, that there is nothing in the DACA policy or this rule that

limits or prohibits a recipient from attaining such employment-based

status if a petitioning employer and the individual are able to meet

the requirements of the particular category. Certain restrictions that

exist on employment-based nonimmigrant and immigrant classifications,

moreover, as well as the waivable grounds of inadmissibility, are

statutory, and DHS lacks authority to change them through this

rulemaking. Solutions to statutory requirements must originate with

Congress in the form of legislation. And because DHS did not propose

modifications to regulatory requirements for immigrant and nonimmigrant

work-based avenues to lawful immigration status, modifying those

requirements in this final rule is outside the scope of this rule.

    DHS appreciates the commenter's concern over protecting DACA

recipients regardless of whether Congress passes an adjacent

legislative solution. DHS agrees with commenters, that regardless of

whether Congress acts to extend a pathway to lawful permanent residence

or citizenship for the DACA-eligible population, there is ample

justification to consider DACA recipients to generally be of a low

enforcement priority.

    Comment: A commenter suggested that DHS cooperate with the U.S.

Department of Education to create a process by which school-age DACA

recipients could take citizenship tests upon graduation of high school

to help them attain legal citizenship. Another commenter, stating that

DHS and the Federal Government need to end the uncertainty for DACA

recipients by creating a path to lawful permanent residency and

citizenship, suggested that the agency may need to enforce community

service requirements to offset the fact that these individuals came to

the United States without authorization.

    Response: As discussed above, DACA does not provide a pathway to

citizenship, and DHS cannot create such a pathway through this

rulemaking. Congressional action is required to extend a pathway to

lawful permanent residence or citizenship for DACA recipients.

Additionally, while DHS appreciates the commenters' suggestions,

creating such processes would be within the purview of entities

external to the Department and outside of the scope of this rulemaking.

DHS is unable to make any changes in response to this comment.

  1. Other General Reactions and Suggestions

Strengthening the Proposed Rule or DACA

    Comment: Many commenters commended USCIS for preserving and

fortifying DACA while adding that the proposed rule should go further

to benefit and provide assurance to recipients. Commenters reasoned

that, by maintaining the DACA framework, the proposed rule would

perpetuate a ``band-aid solution,'' reinforce the status quo, or fail

to address the root problems recipients face in the absence of

permanent protections against deportation or the loss of work

authorization. Other commenters recommended that the rule expand

eligibility for DACA by allowing those who entered the United States

more recently to apply, or by revising or removing the criminality

component of the adjudication.

    Another commenter expressed strong opposition to the proposed rule,

arguing that many of the proposed provisions conflict with DHS's stated

intent of preserving and strengthening DACA. According to the

commenter, the proposed rule would not do enough to preserve access to

DACA for its intended beneficiaries, expand access to individuals that

fall outside the Napolitano Memorandum's criteria, protect victims of

domestic and sexual violence, ensure fair and consistent application of

DACA, or protect DACA recipients and requestors from deportation.

    One commenter stated that the 2012 eligibility requirements

reiterated in the NPRM are overly narrow and now outdated. Furthermore,

the commenter stated, unlike many other issues it canvasses, the

proposed rule fails to suggest expanded alternatives to the core

feature of DACA: its coverage. As a result, according to the commenter,

this rule fails to provide ambitious protection for immigrant youth.

    Many commenters said that, while the proposed rule, or DACA

generally, would not provide a permanent solution for recipients, the

policies represent a necessary step in the absence of congressional

action or a better alternative. One commenter stated that DACA serves

both national and international interests amid flawed legal standards,

including for asylum, and policy gridlock. They stated that DACA, while

imperfect, should be preserved and expanded. Some commenters expressed

concern with legal or political uncertainty around DACA and the

potential loss of protections for recipients. One commenter said that

DACA is premised on Executive discretionary power and, therefore, is

ill-equipped to endure changes in administrations. Other commenters

provided examples highlighting the need to do more to address

uncertainty and legal limbo among DACA recipients.

    Describing the existing difficulties children and families face in

the U.S. immigration system, as well as the need for DACA protections,

commenters urged DHS to expand or improve efforts to protect, welcome,

and support DACA recipients or DACA-eligible individuals. Some

commenters alluded to a general need for a permanent solution or

relief, through DACA or otherwise, while others added that, beyond

protecting DACA, there also is a need for broad immigration reform.

 

[[Page 53183]]

 

    Response: DHS appreciates commenters' support for the rule and the

agency's work to preserve and fortify DACA, and DHS agrees with those

commenters who said that codifying the DACA policy is an appropriate

step in the absence of a permanent solution. DHS also acknowledges the

commenters' concern for the well-being of noncitizen survivors of

domestic and sexual violence and individuals brought to the United

States as children in general.

    DHS recognizes the rule's limited scope, but this scope is

consistent with the President's directive to focus efforts toward

preserving and fortifying DACA. A central goal of this rule is to

respect reliance interests. As discussed further in Section II.C, DHS

does not believe that it would be appropriate to expand the policy in

the final rule.

    DHS also acknowledges some commenters' desire to see ambitious

protections for immigrant youth written into law. DHS agrees that the

DACA policy as codified in this rule does not address the circumstances

of all immigrant youth, is not a permanent solution for affected

persons, and does not provide lawful immigration status or a path to

citizenship.

Other Feedback and Recommendations

    Comment: DHS received other general feedback and recommendations

from commenters regarding the DACA policy and DACA recipients more

generally. Some commenters requested that the agency consider allowing

DACA recipients to serve in the military. Another commenter stated that

the United States should cut military funding and use the money to

increase support for DACA recipients. Another commenter said that,

while DACA has granted certain privileges to recipients, they continue

to feel threatened by the Government while lacking access to the

democratic process. The commenter said that they would like the

privilege of voting in the only country they have known as home.

    Citing personal experiences, another commenter expressed concern

that DACA recipients are unable to obtain a Commercial Driver License

(CDL) and requested that recipients be allowed to have a CDL.

Considering the national driver shortage and opportunities for business

owners, the commenter reasoned that this change would allow DACA

recipients to serve their communities.

    Other commenters recommended that the agency implement more

safeguards for children coming to the United States, including through

background checks on DACA recipients' guardians or household members.

    Response: DHS acknowledges these commenters' feedback but notes

that their suggestions are outside of the purview of the Department and

beyond the scope of this rulemaking. DHS, therefore, is unable to make

any changes to the final rule in response to these comments.

    Comment: Another commenter said that they would support the rule if

it provided language stating that DACA would be ``a one-time thing.''

The commenter reasoned that there should not be an opportunity for

newly arrived individuals to participate in a policy created for those

``who have fought tirelessly to achieve it.''

    Response: As discussed in the NPRM and in this rule, DHS is acting

consistent with the direction of the President to preserve and fortify

the DACA policy, and in light of the particular contributions and

reliance interests of DACA recipients and related parties. In

accordance with the President's instruction and in recognition of the

significant reliance interests at stake, DHS is generally retaining the

threshold criteria from the Napolitano Memorandum and longstanding

policy as proposed in the NPRM, including the requirement that DACA

requestors be physically present as of June 15, 2012, and continuously

resided in the United States since June 15, 2007.\131\ Therefore,

consideration for deferred action under DACA will not be available to

recently arrived noncitizens under this rulemaking.

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    \131\ See new 8 CFR 236.22(b)(2) and (3).

---------------------------------------------------------------------------

 

    Comment: Some commenters stated that the proposed rule failed to

provide flexibility for the administration in terms of terminating the

DACA policy. A commenter objected that if, in the future, DHS does have

sufficient resources to remove DACA recipients, DHS could not simply

terminate this rule without notice. Another commenter described DACA as

outdated, urged it be abolished, and stated that the policy was

supposed to be temporary.

    Response: DHS and the former INS have a long history of issuing

policies under which groups of individuals without lawful status may

receive a discretionary, temporary, and nonguaranteed reprieve from

removal.\132\ Deferred action under DACA is a form of prosecutorial

discretion well within the Executive's authority to efficiently

allocate limited enforcement resources.\133\ This rule codifies an

existing and appropriate use of such prosecutorial discretion to defer

removal and does not expand upon or create new mechanisms by which the

executive branch could exempt anyone from the enforcement of any law.

DHS acknowledges that this rule codifies DACA, which reduces the

agency's flexibility with regard to terminating or changing certain

aspects of the policy, but reiterates the purpose of the rule is to

preserve and fortify DACA, a policy that has been in place for 10

years.

---------------------------------------------------------------------------

 

    \132\ See generally CRS Report on Discretionary Reprieves from

Removal. See also AIC Report on Executive Grants of Temporary

Immigration Relief; CRS Report on EVD.

    \133\ See Regents of the Univ. of Cal. v. DHS, 908 F.3d 476, 487

(9th Cir. 2018) (deferred action ``arises . . . from the Executive's

inherent authority to allocate resources and prioritize cases''),

aff'd, 140 S. Ct. 1891 (2020).

---------------------------------------------------------------------------

 

    Regarding a commenter's concern that DACA was intended to be a

temporary policy, DHS notes that the Napolitano Memorandum did not

impose temporal limits to the policy or otherwise indicate a temporary

intent. To the extent that the policy was described as a temporary

measure by President Barack Obama when he announced it in 2012, DHS

notes that President Obama also stated that, ``[i]n the absence of any

immigration action from Congress to fix our broken immigration system,

what we've tried to do is focus our immigration enforcement resources

in the right places,'' and that DACA is a measure ``that lets us focus

our resources wisely while giving a degree of relief and hope to

talented, driven, patriotic young people.'' \134\

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    \134\ White House Office of the Press Secretary, Remarks by the

President on Immigration (June 15, 2012), https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigration.

---------------------------------------------------------------------------

 

    As the DACA-eligible population remains a low priority for

enforcement; in recognition of the investments that DACA recipients

have made in their families, work, schools, and communities, and vice

versa; and in light of the litigation history associated with the DACA

policy, DHS has determined it is appropriate to codify the DACA policy

in regulation. DHS agrees, however, that in general, such codification

should not be necessary for policies guiding the case-by-case exercise

of enforcement discretion. In response to a commenter's concern that

promulgation of this rule restricts the flexibility of the Department

to terminate the DACA policy, for example, if there are sufficient

enforcement resources so as to not need to exercise prosecutorial

discretion, DHS declines to make changes to the rule. In the event that

DHS receives such a sustained infusion of resources,

 

[[Page 53184]]

 

Congress could invalidate this rule or DHS could rescind or modify it.

 

  1. Background, Authority, and Purpose

 

  1. Statutory Authority

Assertions That Proposed Rule Is Unlawful

    Comment: Many commenters stated, without providing an additional

substantive rationale, that the DACA policy is unlawful and illegal,

unconstitutional, or otherwise does not follow the law as enacted. Some

commenters said generally that neither DHS nor USCIS has legal

authority to issue the proposed rule. Other commenters stated the

matter is ``comprehensively'' covered by provisions of 8 U.S.C. 1325

pertaining to improper entry by a noncitizen. Other commenters said

neither of the two statutes that grant DHS authority broadly, 6 U.S.C.

202(5) and 8 U.S.C. 1103, nor any other statute grants authority for

DHS to issue the rule. Many commenters stated Congress has considered

legislation to protect a DACA-like population a number of times in the

past but declined to enact such legislation each time, even after the

issuance of the Napolitano Memorandum. Other commenters said the rule

bypasses Congress' role in the legislative process, and only Congress

has the authority to make and revise immigration law.

    Similarly, one commenter wrote that Congress has not enacted

legislation to authorize DHS to propose rules to implement the DACA

policy. The commenter referenced the various authorities that DHS cited

in proposing the rule, concluding that none of them permits DHS to

propose this rule. Specifically, the commenter cited sources that in

their view establish: (1) prosecutorial discretion does not permit DHS

to implement sweeping policy changes; (2) ``longstanding'' DHS policies

do not create authority for the proposed rule; and (3) court decisions

are inapplicable or explicitly foreclose DHS's interpretation of its

authority.

    The commenter went on to state that the courts, not DHS, determine

whether DHS has authority to implement DACA. The commenter wrote that

the courts have, in that respect, ``expressly concluded'' that DHS does

not have that authority. The commenter further stated that, because the

rule implements the same program that the courts reviewed, the

reasoning in those court decisions applies with equal force to the

proposed rule. The commenter characterized this rulemaking as

demonstrating DHS's opinion that certain court decisions concerning

DHS's authority do not apply to it. The commenter said DHS's policies,

even if longstanding, do not hold greater weight than legal

determinations by the judiciary, nor do they overcome the force of law

as determined by the courts.

    The commenter also stated that, throughout the NPRM, DHS cites a

series of agency policies that Congress later codified, presumably to

show authority for this rulemaking. The problem with these references,

in the commenter's view, is the referenced policies are

``distinguishable and unrelated'' to the current proposed rule. The

commenter wrote that in earlier instances of deferred action, DHS

implemented a policy that was: (1) not held by a court of law to be

outside the scope of DHS's authority; and (2) not relied on as

authority for a proposed rule. The commenter said that a history of DHS

policies, even where Congress ratified those policies, is not evidence

of authority for an agency to implement the DACA rules or any rule

because historical practice is not a duly enacted statute by Congress.

    The commenter also stated that DHS is not consistent in its

reliance on Congress' post-implementation treatment of DHS policy as

authority for these rules. For example, the commenter wrote that DHS

takes the position that Congress' inaction concerning the DREAM Act

should not lead to an inference concerning the Secretary's authority,

while simultaneously relying on Congress' inaction to support its

position that the Secretary has authority to confer ``lawful presence''

as part of DACA. The commenter stated that DHS's ``completely

subjective'' analysis illustrates why statutes, not Congress' action or

inaction after a policy is implemented, must authorize any agency

rulemaking endeavor.

    Another commenter likewise wrote that maintaining DACA through

rulemaking is both unlawful and bad immigration policy. The commenter

stated that Congress has not authorized DACA, and DACA therefore is

outside DHS's rulemaking authority. Citing the district court's 2021

decision in Texas, the commenter wrote that DHS bases the proposed rule

on an impermissible interpretation of the INA. The commenter stated

that DACA directly conflicts with Congress' legislative scheme to

regulate the employment of noncitizens, adjustment of status of

noncitizens who entered the United States without inspection, removal

of certain noncitizens from the United States, and reentry into the

United States by noncitizens who have accrued unlawful presence.

    The commenter wrote that DACA is more than an exercise of

prosecutorial discretion and instead goes further to ignore statutorily

mandated removal proceedings and unlawfully provide immigration

benefits to an ineligible population. The commenter also stated that

Congress has spoken on DACA's legality by consistently and expressly

rejecting legislation that would substantively enact the program or

otherwise legalize DACA's intended beneficiaries. The commenter wrote

that Congress has not implicitly ratified DACA, either. Citing case

law, the commenter stated ratification requires ``a systematic,

unbroken, executive practice, long pursued to the knowledge of the

Congress and never before questioned.'' The commenter wrote DACA

``falls short'' of satisfying this standard ``because prior instances

of Executive misconduct cannot be regarded as even a precedent, much

less an authority for the present misconduct.'' The commenter stated

that it disagrees with DHS's position that prior non-enforcement

policies justify the proposed rule. And the commenter further said

implementation of DACA would violate the Take Care Clause of the U.S.

Constitution because it ``dispens[es]'' with certain statutes.

    Multiple commenters stated that the rule cannot be issued as an

executive decision. These commenters said DACA is an example of

executive disregard of the Constitution and current law, and no

administration has the authority to decide which laws agencies get to

ignore. Many commenters stated the rule is in direct violation of U.S.

immigration law, which requires that people living in this country

illegally be apprehended and returned to their country. Some commenters

also said there is an established procedure for U.S. citizenship, and

DACA recipients should follow this path to legal citizenship the same

as any other immigrant.

    One commenter stated that, while previous administrations have

granted deferred action to limited groups of immigrants, DHS lacks

authority to provide ``unconditional and indefinite'' relief and

benefits to a large group (``more than half million'') of noncitizens

without lawful immigration status. Another commenter similarly remarked

that the main flaw in DHS pointing to prior deferred action programs as

justification for this rule is that ``none of them has the broad scope

and indefinite timeframe of the [DACA] program.'' The commenter stated

that ``a litmus test is whether the department created a program that

is narrowly scoped, and has a time restriction, either

 

[[Page 53185]]

 

in terms of max number of renewals, or restricted to a bridge-gap

measure before the applicant's next status take[s] effect.'' Providing

examples, the commenter concluded that, while ``all previous deferred

actions'' met these criteria, DACA does not. Another commenter asserted

that the rule would grant lawful presence and work authorization to

potentially hundreds of thousands of noncitizens by 2031 ``for whom

Congress has made no provision and has consistently refused to make

such a provision,'' and cited King v. Burwell, 576 U.S. 473, 474 (2015)

for the proposition that ``had Congress wished to assign [a question of

`deep economic and political significance'] to an agency, it surely

would have done so expressly.''

    Multiple commenters stated that the rule comes on the heels of the

Texas ruling, which struck down the DACA policy as unlawful. One

commenter said that DHS mischaracterizes the district court's ruling

throughout the NPRM in an apparent attempt to justify the NPRM as a

legitimate rulemaking endeavor, writing that the finding that the

Napolitano Memorandum violated the Administrative Procedure Act (APA)

was only part of the district court's decision, and the district court

also determined DHS could not cure DACA's underlying legal deficiencies

even by using notice-and-comment rulemaking. The commenter stated the

rule impermissibly substitutes DHS's own opinion in place of a legally

binding court order. The commenter further said the rule demonstrates

DHS's ``blatant disregard'' for the district court's ruling, exposing

DHS to potential liability for contempt of court and setting a

``dangerous precedent'' with respect to our government's system of

checks and balances. The commenter stated that regardless of whether

DHS ``agrees'' with the district court's ruling, it is nonetheless

bound by the ruling unless an appellate court overturns it. The

commenter also said pursuing this rulemaking while litigation continues

reflects a gross mismanagement of resources at DHS and USCIS. The

commenter concluded by addressing the statutory authority of USCIS

officers, stating DHS ``glosses over'' the distinct authorities

Congress delegated to each of the three immigration components within

DHS. Writing that USCIS is not an enforcement agency and, therefore,

lacks the ability to grant deferred action to any noncitizen, the

commenter stated the precise wording of the delegation in the Homeland

Security Act (HSA) irrefutably demonstrates that Congress intentionally

gave USCIS authority only to adjudicate immigration benefit requests,

not to take (or decline to take) enforcement actions against

nonimmigrants. Thus, the commenter said, even if DHS's pursuit of

rulemaking while simultaneously appealing the district court's ruling

in Texas were proper, USCIS lacks the authority to administer DACA,

making DACA inherently ultra vires and exposing DHS to significant

litigation risk.

    Response: DHS respectfully disagrees with commenters' statements

that this rulemaking is unlawful, illegal, unconstitutional, or

represents bad immigration policy. Both the INA and the HSA confer

clear authority on the Secretary to administer the immigration laws of

the United States, including authority to set ``national immigration

enforcement policies and priorities.'' \135\ DHS, the former INS, and

the U.S. Supreme Court all have long recognized the fundamental role

that prosecutorial discretion plays with respect to immigration

enforcement. As the U.S. Court of Appeals for the Ninth Circuit has

explained, ``[T]he INA explicitly authorizes the [Secretary] to

administer and enforce all laws relating to immigration and

naturalization. . . . As part of this authority, it is well settled

that the Secretary can exercise deferred action, a form of

prosecutorial discretion.'' \136\ Stated another way, ``[d]eferred

action is simply a decision . . . by DHS not to seek the removal of an

alien for a set period of time,'' \137\ a decision well within DHS's

discretion in light of competing policy objectives and scarce

resources. Deferred action thus is a well-established form of

prosecutorial discretion, acknowledging ``that those qualifying

individuals are the lowest priority for enforcement.'' \138\

---------------------------------------------------------------------------

 

    \135\ 6 U.S.C. 202(5).

    \136\ Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 967 (9th

Cir. 2017).

    \137\ Arpaio v. Obama, 27 F. Supp. 3d 185, 192-93 (D.D.C. 2014),

aff'd, 797 F.3d 11 (D.C. Cir. 2015).

    \138\ Id.; see also AADC, 525 U.S. at 484-85.

---------------------------------------------------------------------------

 

    DHS likewise disagrees with commenters' assertions that this

rulemaking fails to follow the law as established by Congress,

conflicts with Congress' legislative scheme to regulate the employment

of noncitizens, adjustment of status, removal, and reentry, or

otherwise violates the Executive's duty to ``take care that the Laws be

faithfully executed'' under Article II, Section 3 of the Constitution.

To the contrary, DHS strongly believes this rule is consistent with the

text of all relevant statutes and furthers Congress' goals in enacting

the INA and HSA. DHS acknowledges that the Constitution vests Congress

with the legislative power and, accordingly, the authority to make and

revise the immigration laws. The Department's prioritization of the

apprehension and removal of noncitizens who are a threat to national

security, border security, and public safety is entirely consistent

with the immigration laws, including provisions providing for mandatory

detention and expedited removal of certain categories of

individuals.\139\ Indeed, as noted in the NPRM, a mandate to prioritize

the removal of criminal offenders, taking into account the severity of

the crime, has been included in every annual DHS appropriations act

since 2009.\140\ This rule facilitates those objectives.

---------------------------------------------------------------------------

 

    \139\ See, e.g., INA sec. 235(b)(1), 8 U.S.C. 1225(b)(1)

(establishing ``expedited removal'' for certain noncitizens arriving

in the United States); INA sec. 236(c), 8 U.S.C. 1226(c) (providing

mandatory detention for certain criminal noncitizens); INA sec.

236A, 8 U.S.C. 1226a (providing mandatory detention of suspected

terrorists); see also, e.g., Public Law 114-113, 129 Stat. 2241,

2497 (providing that ``the Secretary . . . shall prioritize the

identification and removal of aliens convicted of a crime by the

severity of that crime''); DHS, Secretary Mayorkas Announces New

Immigration Enforcement Priorities (Sept. 30, 2021), https://www.dhs.gov/news/2021/09/30/secretary-mayorkas-announces-new-immigration-enforcement-priorities.

    \140\ See, e.g., Consolidated Appropriations Act, 2014, Public

Law 113-76, div. F, tit. II, 128 Stat. 5, 251.

---------------------------------------------------------------------------

 

    More than 11 million undocumented noncitizens currently live in the

United States,\141\ demonstrating an obvious need for DHS to allocate

its limited resources toward the removal of priority enforcement

targets. For example, in fiscal year 2021, when ICE operations were

dramatically impacted by the COVID-19 pandemic, ICE conducted a total

of 74,082 administrative arrests of noncitizens and removed 59,011

noncitizens.\142\ During fiscal years 2016-2020, ICE averaged 131,771

administrative arrests and 235,120 removals per year.\143\ It is clear

from

 

[[Page 53186]]

 

these numbers that even if each of the estimated 1.7 million

noncitizens who may be eligible to request initial or renewal deferred

action under DACA (which as discussed in the regulatory analysis below

is likely an overestimate) did so and were found to warrant deferred

action as codified in this rule as low enforcement priorities, DHS

would still lack adequate resources to pursue full enforcement actions

against the estimated 9 million other undocumented noncitizens present

in the United States. This rulemaking accordingly will allow DHS to

focus its enforcement resources on the removal of dangerous criminal

offenders and other noncitizens who threaten public safety and national

security.

---------------------------------------------------------------------------

 

    \141\ See DHS, Office of Immigration Statistics (OIS), Estimates

of the Unauthorized Immigrant Population Residing in the United

States: January 2015-January 2018 (Jan. 2021), https://www.dhs.gov/sites/default/files/publications/immigrationstatistics/Pop_Estimate/UnauthImmigrant/unauthorized_immigrant_population_estimates_2015_-_2018.pdf.

    \142\ ICE, ICE Annual Report Fiscal Year 2021 (Mar. 11, 2022),

https://www.ice.gov/features/2021-year-review.

    \143\ ICE, Fiscal Year 2016 ICE Enforcement and Removal

Operations Report, https://www.ice.gov/sites/default/files/documents/Report/2016/removal-stats-2016.pdf; ICE, Fiscal Year 2017

ICE Enforcement and Removal Operations Report, https://www.ice.gov/sites/default/files/documents/Report/2017/iceEndOfYearFY2017.pdf;

ICE, Fiscal Year 2018 ICE Enforcement and Removal Operations Report,

https://www.ice.gov/doclib/about/offices/ero/pdf/eroFY2018Report.pdf; ICE, Fiscal Year 2019 ICE Enforcement and

Removal Operations Report, https://www.ice.gov/sites/default/files/documents/Document/2019/eroReportFY2019.pdf; ICE, FY 2020 Annual

Report, https://www.ice.gov/doclib/news/library/reports/annual-report/iceReportFY2020.pdf.

---------------------------------------------------------------------------

 

    DHS shares commenters' recognition of and respect for the

Constitution's separation of powers framework. But DHS disagrees with

commenters' position that this rulemaking bypasses Congress' role in

the legislative process or otherwise fails to adhere to DHS's proper

place within the Government of the United States. DHS acknowledges that

the INA generally provides for the removal of noncitizens who are in

the United States without authorization. Never in the history of DHS or

the former INS, however, has either agency or a court taken the

position that the agency is obligated to seek the removal of every

removable noncitizen in the United States at any given time. And both

the long history of formal deferred action policies instituted both by

DHS and the former INS (some of which Congress went on to ratify) and

other forms of prosecutorial discretion that individual government

officials lawfully exercise on a case-by-case basis every day belie any

assertion to the contrary. DHS agrees that those prior policies are not

``authority'' for this rule. Rather, the authority for the rule lies in

a range of statutory authorities, including DHS's general rulemaking

authority under section 103 of the INA as well as DHS's power to

exercise enforcement discretion, which is inherent in the delegation of

authority over enforcement of the INA.\144\ The prior, related policies

discussed in the NPRM and by commenters are evidence of the Secretary's

authority, recognized by Congress when it ratified those policies in

later statutes without limiting INS's (and now DHS's) ability to create

similar enforcement discretion policies in the future. DHS also notes

that many of these policies also contained similar or the same

ancillary features, including employment authorization upon showing of

economic necessity, lawful presence for the limited purposes stated in

8 CFR 1.3, and nonaccrual of unlawful presence for the duration of the

period of deferred action. The lawfulness of these ancillary features

is addressed at length in the sections corresponding to each such

feature later in this preamble.

---------------------------------------------------------------------------

 

    \144\ See 6 U.S.C. 202(3), (5); 8 U.S.C. 1103(a)(1), (3); see

also Arizona, 567 U.S. at 396-97; AADC, 525 U.S. at 483-84.

---------------------------------------------------------------------------

 

    DHS disagrees with the commenter's assertion that a policy granting

lawful presence and work authorization to the DACA-eligible population

is a matter of such ``deep economic and political significance'' as to

constitute a ``major question,'' as recently described by the Supreme

Court in West Virginia v. EPA.\145\ While DHS expects that this rule

would carry significant benefits and would result in significant tax

transfers, this rule is not akin to the rule in West Virginia, where

the agency's ``own modeling concluded that the rule would entail

billions of dollars in compliance costs (to be paid in the form of

higher energy prices), require the retirement of dozens of coal-fired

plants, and eliminate tens of thousands of jobs across various

sectors.'' \146\ This rule involves DHS's enforcement posture towards a

population that is likely to remain in the United States regardless of

the existence of DACA; the costs imposed by this rule are borne by DACA

recipients themselves; and the rule's indirect effects are nowhere near

as vast as the effects described in West Virginia.

---------------------------------------------------------------------------

 

    \145\ 142 S. Ct. 2587 (2022).

    \146\ Id. at 2604.

---------------------------------------------------------------------------

 

    Even if the major questions doctrine did apply, there is clear

statutory authority and agency precedent for the rule. Unlike the

authority at issue in West Virginia, this final rule reflects ``the

longstanding practice of [DHS] in implementing the relevant statutory

authorities.'' \147\ Congress was well aware of the long history of

deferred action and similar enforcement discretion policies, as well as

the deferred action provisions in the employment authorization and

lawful presence rules, when Congress made the Secretary responsible for

``[e]stablishing national immigration enforcement policies and

priorities''; \148\ charged the Secretary with ``the administration and

enforcement of [the INA] and all other laws relating to the immigration

and naturalization of aliens''; \149\ and authorized the Secretary to

``establish such regulations; prescribe such forms of bond, reports,

entries, and other papers; issue such instructions; and perform such

other acts as he deems necessary for carrying out his authority under

the provisions of this chapter.'' \150\ Likewise, although the

Secretary inherited from the Attorney General his statutory authority

for determining which noncitizens should be authorized for employment,

that grant of power clearly endorsed a longstanding practice as

discussed in section II.C.2.b below.\151\ And as discussed in section

II.C.3 below, after the Department of Justice established the lawful

presence regulation pursuant to express statutory authority, Congress

in fact amended 8 U.S.C. 1611 to provide DHS additional authority.

These authorities have long provided the basis for the exercise of

prosecutorial discretion when making immigration enforcement decisions,

or described some of the consequences of those decisions. These are not

``ancillary provisions'' of the Act that are rarely used,\152\ but

rather are foundational powers used daily in the Secretary's routine

administration of the nation's immigration system. Nor is the exercise

of prosecutorial discretion as laid out in this rule a ``fundamental

revision'' of the statutory scheme; the exercise of prosecutorial

discretion is and has long been a consequence of a lack of resources to

enforce the terms of that scheme against each and every individual who

may violate it.\153\

---------------------------------------------------------------------------

 

    \147\ See Biden v. Missouri, 142 S. Ct. 647, 653 (2022).

    \148\ 6 U.S.C. 202(5).

    \149\ 8 U.S.C. 1103(a)(1).

    \150\ 8 U.S.C. 1103(a)(3).

    \151\ 8 U.S.C. 1324a(h)(3).

    \152\ 142 S.Ct. at 2610.

    \153\ Id. at 2612.

---------------------------------------------------------------------------

 

    As detailed below, these policies date as far back as 1956 and DHS

and its precursor agencies have ``routinely'' implemented prosecutorial

discretion policies of a similar scale and type as the DACA policy,

Biden v. Missouri, 142 S. Ct. 647, 653 (2022). There is no sense in

which this rule exercises a ``newfound power.'' And, although DHS

recognizes that Congress has, on occasion, considered legislation

concerning the population affected by this rule, such action does not

negate the authority previously provided to and historically exercised

by the Secretary in the same realm. As noted elsewhere in this

preamble, unlike the legislative actions considered by Congress, the

rule does not provide lawful status, a path to permanent residency or

citizenship, or any other type of permanent immigration solution for

the population, which the

 

[[Page 53187]]

 

Department agrees only Congress can enact.

    DHS disagrees with commenters who stated that prior instances of

deferred action or similar enforcement discretion policies referenced

in the NPRM are materially different from deferred action under the

DACA policy. In essence, commenters said that the validity of prior

policies such as EVD, Family Fairness, and deferred enforced departure

turned on those programs' ``interstitial'' nature. Those programs, in

the commenters' view, simply provided a stopgap measure intended to

serve only as a temporary solution while Congress legislated a

permanent fix. That may have been the ultimate result for the affected

populations, but it was by no means assured that Congress would act

when legacy-INS implemented those policies. The INS relied not on an

assurance of future Congressional ratification, but on its authority to

exercise enforcement discretion when implementing those policies, with

the possibility that Congress might one day act. DACA in this respect

is no different from the earlier programs. Congress is actively

considering legislation to provide substantive immigration benefits to

a DACA-like population. Thus, to the extent commenters characterized

prior instances of deferred action as ``interstitial'' simply because

they occupied the space between an agency seeking to implement a

certain policy and Congress providing an adjacent legislative solution,

DACA occupies an identical space. And also like DACA, the

administrative enforcement discretion policies practiced by the INS did

not provide beneficiaries with lawful immigration status, protection

from removal, or a pathway to citizenship until Congress made a change

in law.\154\

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    \154\ See Alan C. Nelson, Commissioner, INS, Legalization and

Family Fairness--An Analysis (Oct. 21, 1987), reprinted in 64 No. 41

Interpreter Releases 1191, App. I (Oct. 26, 1987); Memorandum to INS

Regional Commissioners from Gene McNary, Commissioner, INS, Re:

Family Fairness: Guidelines for Voluntary Departure under 8 CFR

242.5 for the Ineligible Spouses and Children of Legalized Aliens

(Feb. 2, 1990); IMMACT 90, Public Law 101-649, sec. 301(g), 104

Stat. 4978, 5030 (1990).

---------------------------------------------------------------------------

 

    DHS further disagrees with commenters who stated that Congress'

consistent failure to enact DACA-like legislation is evidence that this

rule exceeds DHS's authority. For one thing, many of the bills the

commenters point to differ greatly from DACA in substance. Both the

DREAM Act and the American Dream and Promise Act differ dramatically

from DACA in the protections and substantive benefits that they would

offer to their respective target populations, the most notable being

lawful immigration status and a pathway to citizenship. DACA, by

contrast, as preserved and fortified by this rule, does not and could

not provide a blanket grant of lawful immigration status, conditional

or permanent residence, or a pathway to citizenship because DHS lacks

authority to do so without a change in law. For another, inaction is

not legislation, and Congress does not legislate by failing to

legislate. Congress' past inaction on any given topic is not a law.

Congressional inaction may occur for any number of reasons, and it does

not enact the status quo, or come with an account of Congress' reasons

for declining to take action. In DHS's view, inaction as such has no

bearing on the legality of an adjacent rulemaking. For example, the

former INS instituted Family Fairness in the wake of Congress' express

rejection of legislation that would have provided immigration benefits

to spouses and children ineligible for such relief under the

Immigration Reform and Control Act of 1986 (IRCA). Legislation stalls

in Congress for myriad reasons, not the least of which include

competing priorities of national and international importance and the

sheer volume of business to which Congress must attend.

    One more point bears mentioning with respect to congressional

inaction in this space. While commenters drew much attention to

Congress perennially declining to enact DACA-like legislation,

commenters largely ignored Congress' comparable failure to

legislatively override the DACA policy even though it has now existed

for years. There is no basis to conclude that Congress has rejected a

longstanding deferred action policy for the DACA population from its

failure to enact more comprehensive legislation governing a similar

population.

    With respect to a commenter's statement that, setting aside the

Secretary's authority to exercise prosecutorial discretion in favor of

this rulemaking's target population, DHS cannot implement sweeping

policy changes under the guise of prosecutorial discretion: DACA is no

such sweeping change. As the NPRM makes clear, there is nothing new

about a policy deferring enforcement action for nonviolent individuals

who are low priorities for enforcement, nor is there anything new about

the ancillary policies, regulations, and statutes associated with such

forbearance, including according employment authorization to such

individuals upon a showing of economic necessity, or deeming such

individuals to be lawfully present for certain purposes or not

unlawfully present for the duration of the deferred action. Indeed, as

it relates to the core of the policy (i.e., its forbearance element),

the former INS first implemented the EVD program in 1956, which

provided relief to certain immigrant professionals whose lawful

immigration status lapsed simply by virtue of constraints on visa

availability.\155\ This program continued until 1990 and was joined

along the way by a variety of other deferred action policies all geared

toward making the most efficient use of the former INS's limited

enforcement resources.\156\ DHS also reiterates the prior deferred

action policies in favor of (1) ``nonpriority'' cases identified in the

former INS's 1959 Operations Instructions (OI); (2) spouses and

children of noncitizens granted benefits under IRCA; (3) Violence

Against Women Act of 1994 (VAWA) self-petitioners; (4) children

eligible for benefits under the Victims of Trafficking and Violence

Protection Act of 2000 (VTVPA); (5) T visa applicants; (6) U visa

petitioners; and (7) former F-1 students who lost their status due to

intervening natural disasters.\157\ Each of these populations by their

nature possess characteristics that make them low enforcement

priorities. DHS views the DACA population as prime candidates for

deferred action for similar reasons.

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    \155\ See United States ex rel. Parco v. Morris, 426 F. Supp.

976, 979-80 (E.D. Pa. 1977).

    \156\ See Adam B. Cox and Cristina M. Rodriguez, The President

and Immigration Law Redux, 125 Yale L.J. 104, 122-24 (2015)

(discussing the origins and various applications of EVD).

    \157\ See 86 FR 53747-53748.

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    The same commenter wrote that the ``longstanding'' nature of the

above policies nevertheless does not excuse the absence of express

statutory authority to engage in this rulemaking. DHS first disagrees

with the commenter's premise that DHS lacks express statutory authority

to issue this rule. To the contrary, as explained earlier, both the INA

and the HSA vest the Secretary with authority to issue this rule by

virtue of statutory directives that he administer and enforce the

immigration laws of the United States, set ``national immigration

enforcement policies and priorities,'' and ``establish such

regulations; prescribe such forms of bond, reports, entries, and other

papers; issue such instructions; and perform such other acts as he

deems necessary for carrying out his authority'' under the INA.\158\

This rulemaking is a lawful exercise of that authority, facilitating

DHS's immigration enforcement priorities through a thoughtful exercise

of prosecutorial

 

[[Page 53188]]

 

discretion. Because deferred action under the proposed rule would

constitute a lawful exercise of prosecutorial discretion in line with

over 60 years of similar policies (some of which, as discussed

elsewhere in this preamble, came with grants of work authorization so

recipients could support themselves and their families while in the

United States without resorting to informal employment, which has the

possibility of lowering wages and employment standards for some

workers), DHS finds the commenter's arguments to the contrary

unpersuasive.

---------------------------------------------------------------------------

 

    \158\ See 6 U.S.C. 112, 202; 8 U.S.C. 1103(a)(1), (3).

---------------------------------------------------------------------------

 

    DHS disagrees with multiple commenters' characterization of DHS's

view of the July 2021 ruling of the United States District Court for

the Southern District of Texas in the Texas litigation. Contrary to

commenters' assertions, DHS respects the courts' role in this nation's

government under the separation of powers framework. DHS has carefully

and respectfully considered the court's ruling on all procedural and

substantive issues involved in that litigation and is pursuing an

appeal to vindicate its position on DACA's legality. In the meantime,

DHS has complied with the district court's injunction, to the extent

that the injunction has not been stayed, and will continue to do so as

long as the injunction is in effect.

    In any event, this rulemaking should not be construed as indicating

that DHS doubts DACA's procedural or substantive legality. DHS elected

to undertake this rulemaking for a variety of reasons, including to

affirm administrative practices that help the Department to allocate

its enforcement resources efficiently; accommodate the substantial

reliance interests that have developed in connection with the DACA

policy; implement the President's directive to preserve and fortify

DACA; and facilitate compelling humanitarian objectives.

    Last, DHS disagrees with the commenter's statement that USCIS lacks

authority to administer DACA because it is not an enforcement agency.

The authority to administer the immigration laws and set immigration

enforcement priorities ultimately rests with the Secretary.\159\ This

rule is issued under these and other broad authorities; as a

consequence, there is no basis to distinguish between USCIS and other

immigration components as the commenter proposes. And in any event,

USCIS has historically been delegated and has exercised a range of

functions that would fall under the rubric of ``enforcement'' as

described by the commenter.\160\ DHS has determined that USCIS has the

expertise and administrative infrastructure to assess on a case-by-case

basis whether a DACA requestor has met the threshold criteria and

warrants a favorable exercise of discretion. Housing administration of

the DACA policy within USCIS also furthers DHS's interest in

encouraging candidates for deferred action under DACA to come forward

and identify themselves to the Federal Government. Proactively

identifying noncitizens eligible for and deserving of deferred action

under the DACA policy will ultimately conserve department resources by

helping ICE and CBP identify noncitizens who are low priorities for

removal should those components encounter them in the field, as

discussed in Section II.A.8, and utilizes existing structures for

collecting fees from DACA requestors to cover the costs of such

adjudication.\161\

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    \159\ See, e.g., 6 U.S.C. 112(a)(3) (``All functions of all

officers, employees, and organizational units of the Department are

vested in the Secretary''); 8 U.S.C. 1103(a)(1) (``The Secretary . .

. shall be charged with the administration and enforcement of this

chapter and all other laws relating to the immigration and

naturalization of aliens . . . .''), 1103(a)(3) (``He shall

establish such regulations; prescribe such forms of bond, reports,

entries, and other papers; issue such instructions; and perform such

other acts as he deems necessary for carrying out his authority

under the provisions of this chapter.''), 1103(a)(4) (``He may

require or authorize any employee of the Service or the Department .

. . to perform or exercise any of the powers, privileges, or duties

conferred or imposed by this chapter or regulations issued

thereunder upon any other employee of the Service.'').

    \160\ See, e.g., DHS Del. No. 0150.1 (June 5, 2003) (delegating

to USCIS the authority to place noncitizens in removal proceedings,

to cancel a notice to appear before jurisdiction vests with DOJ, and

to grant voluntary departure and deferred action, among other

things); Memorandum from Secretary John Kelly to the heads of CBP,

ICE, and USCIS, et al., Enforcement of the Immigration Laws to Serve

the National Interest (Feb. 20, 2017) (``The exercise of

prosecutorial discretion with regard to any alien who is subject to

arrest, criminal prosecution, or removal in accordance with law

shall be made on a case-by-case basis in consultation with the head

of the field office component, where appropriate, of CBP, ICE, or

USCIS that initiated or will initiate the enforcement action,

regardless of which entity actually files any applicable charging

documents . . . .'' (emphasis added)).

    \161\ See 86 FR 53764.

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Assertions That DACA/the Proposed Rule Is Lawful

    Comment: Multiple commenters stated the DACA policy and its

implementation are constitutional, lawful, and within the authority of

DHS and the executive branch. Some commenters stated that DHS has

authority to fortify, update, and expand the DACA policy. Another

commenter stated that DACA is legal and within DHS's authority, and

that both Congress and the Federal courts have recognized that

protecting the well-being of children is in the public interest. Citing

sources, the commenter said the legislative history of the INA

indicates Congress ``intended to provide for a liberal treatment of

children'' and sought to keep mixed-status families together.\162\ A

different commenter stated that DACA is constitutional because ``it

transformed the lives of many individuals who came to the United States

improperly as youngsters and because the court decision that resulted

would provide Dreamers broader access to American citizenship.''

Quoting from the NPRM, a joint comment wrote that Congress' failure to

pass the DREAM Act or any of the other similar acts identified by the

district court in Texas does not limit DHS's ability to make a rule

similar to the DACA policy first set forth in the Napolitano

Memorandum.

---------------------------------------------------------------------------

 

    \162\ See INS v. Errico, 385 U.S. 214, 220 n.9 (1966) (``The

legislative history of the [INA] clearly indicates that the Congress

intended to provide for a liberal treatment of children and was

concerned with the problem of keeping families of United States

citizens and immigrants united.'' (internal quotation marks

omitted)).

---------------------------------------------------------------------------

 

    A commenter stated that the DACA policy is a lawful exercise of the

Secretary's authority, even without notice-and-comment rulemaking. A

different commenter stated that DACA has a strong legal foundation and

agreed with DHS that the proposed rule ``should not be interpreted as

suggesting that DHS itself doubts the legality of the 2012 DACA

policy.'' Another commenter stated that, like DOJ and DHS, they

strongly disagreed rulemaking is necessary for DACA. However, the

commenter said, because litigation has challenged the legality of the

policy and prompted DHS to engage in formal rulemaking, DHS taking the

additional step to ``preserve and fortify'' the policy through the

rulemaking process not only strengthens the legal foundation for the

policy, but also provides DHS with the opportunity to expand and

modernize it.

    Referencing the proposed language at 8 CFR 236.21 set forth in the

NPRM, a group of commenters characterized this section of the proposed

rule as a ``clarification (for the courts)'' of DHS's authority to

regulate in this space. The commenters stated they hoped the agency

would keep this section as clear as possible given the likelihood of

litigation.

    One commenter said the proposed rule provides a ``rigorous'' review

of the legal precedent and broad executive authority, all of which

provides a ``strong'' justification for DACA's

 

[[Page 53189]]

 

establishment of national immigration policies and priorities and

places the rule on strong legal footing. Another commenter stated that

the historical examples of prior deferred action policies explain well

why DACA is lawful as a subregulatory program fully within the

Secretary's authority under the INA.

    Response: DHS agrees with commenters that the proposed rule is a

lawful exercise of DHS's authority under the INA. DHS agrees with

commenters that the proposed rule is constitutional and that it

furthers compelling humanitarian, public safety, and other policy

objectives. Additionally, as discussed above, DHS agrees with

commenters that Congress' failure to pass legislation to protect a

DACA-like population does not implicate DHS's authority to engage in

this rulemaking.

    DHS agrees with commenters that the DACA policy has stood on strong

legal footing since first set forth in the Napolitano Memorandum, even

without engaging in full notice-and-comment rulemaking. DHS appreciates

commenters' recognition of DHS's efforts to preserve and fortify DACA

through this rulemaking. DHS agrees that 8 CFR 236.21 clearly

articulates DACA's limited scope and DHS's authority for deferring

action for the DACA population. DHS likewise agrees with commenters

that DACA respects Congress' legislative scheme to regulate noncitizens

present in the United States without authorization and eligibility for

lawful immigration status, while providing stability to recipients

through a lawful exercise of DHS's prosecutorial discretion.

    DHS appreciates the commenter's concern about DACA recipients'

current lack of ability to adjust status, but DHS disagrees with

commenters to the extent they suggest the rule does or should provide a

pathway to lawful immigration status, legal permanent residence, or

U.S. citizenship. DHS appreciates commenters' concern about the current

lack of a permanent immigration status for the DACA population. DHS

reiterates its discussion in Section II.A.11 that it lacks the

authority to provide legal immigration status through rulemaking. DHS

nevertheless ultimately agrees with commenters that this rulemaking is

a lawful exercise of its statutory authority.

Prosecutorial Discretion and Deferred Action Authority

    Comment: Numerous commenters stated that DACA is a lawful

application of DHS's broad authority to exercise prosecutorial

discretion and defer enforcement action for certain noncitizen youth.

    Multiple commenters referenced 8 U.S.C. 1103(a) in stating that

Congress empowered the Secretary with broad authority to administer and

enforce immigration laws, with one commenter stating that such

authority must include the ability to set enforcement priorities for an

agency with limited resources. Also citing 6 U.S.C. 202(5), commenters

wrote that Congress has broadly authorized DHS to establish national

immigration enforcement policies and priorities. One of these

commenters said that, as a purely practical matter, the Executive must

be able to set priorities for administrative agencies with limited

resources, and it may do so by choosing to defer action in certain

areas. The commenter stated both the Supreme Court and Congress have

recognized this authority, as Congress has enacted statutes expressly

recognizing the legal authority to grant deferred action, and the

Supreme Court has acknowledged the ``regular practice'' of ``deferred

action.'' Another commenter similarly stated that as a purely practical

matter, the Executive must be able to set priorities for administrative

agencies with limited resources, and it may do so by choosing to defer

action in certain areas. The commenter stated both the Supreme Court

and Congress have recognized this authority, as Congress has enacted

statutes expressly recognizing the legal authority to grant deferred

action and the Supreme Court has acknowledged the ``regular practice''

of ``deferred action.''

    A commenter wrote that the president and executive agencies have

the power to carry out legislation, interpret ambiguous provisions, and

make decisions about how best to allocate scarce agency resources.

Another commenter stated the Supreme Court on numerous occasions has

reaffirmed the wide latitude agencies enjoy in deciding whether or when

``to prosecute or enforce'' laws within their purview. As recently as

2020, the commenter wrote, the Supreme Court affirmed the key part of

deferred action when it stated in Regents that ``[t]he defining feature

of deferred action is the decision to defer removal.'' These commenters

and others stated that, as existing 8 CFR 1.3(a)(4)(vi) makes clear,

this rulemaking fits within the deferred action framework because it

does not confer legal status, but instead merely exempts individuals

from accumulating ``unlawful presence.'' Similarly, a commenter agreed

with USCIS that DACA is consistent with the INA because it is limited

in scope and nature, conferring only ``lawful presence,'' not ``lawful

status,'' which does not create a legally enforceable right for

undocumented immigrants able to avail themselves of the DACA policy.

    A commenter added that for decades the Federal Government has

implemented deferred action as a discretionary forbearance of removal.

The commenter reasoned that this policy of deferring removal of

noncitizens who came to this country as youth did not then (and does

not now) create new rights for those individuals; rather, it is merely

a recognition that as an agency, DHS (through USCIS), just as every

other law enforcement agency, must exercise enforcement discretion. The

commenter, writing that the proposed rule rightfully sets forth the

position that people who otherwise qualify for DACA are not a priority

for removal, urged DHS to maintain this policy in the final rule and

use its discretion accordingly. A commenter stated that deportations

are a discretionary duty of the executive branch as established by

Regents, Trump v. Hawaii, and other cases establishing executive branch

authority to regulate immigration policy.

    A commenter stated that Congress, which has the ability to prohibit

DHS from granting deferred action and work and travel authorization,

through funding or through legislation, has not done so, implying the

policy does not fall outside of congressional intent.

    A commenter stated the DACA policy has been in place for a decade,

and no State filed suit to challenge the legality of the Napolitano

Memorandum until 2018--more than 5 years after the memorandum was

issued. But beginning long before 2012, the commenter remarked, DHS and

INS routinely exercised prosecutorial discretion to deprioritize

categories of individuals for enforcement and to provide these

individuals with adjacent, necessary privileges, such as work

authorization. The commenter stated that the proposed rule, like the

Napolitano Memorandum, therefore does not constitute a deviation from

established practice, nor does the proposed rule constitute abandonment

of the Executive's duty to enforce the immigration laws. Rather, the

commenter stated, it represents the Executive's educated judgment about

the best and most efficient way to enforce the immigration laws.

Another commenter said this history refutes the Department's prior

assertion in the Duke Memorandum that deferred action programs should

be initiated by Congress. In fact, the commenter wrote, Congress later

clarified, expanded, or adopted through statute many of the

 

[[Page 53190]]

 

deferred action programs that originated with INS or DHS. The commenter

stated that, rather than refute DHS's assertion of authority to make

such exceptions, Congress used them as a ``legislative springboard,''

which the commenter said implies not only the legality of those

programs, but also their political wisdom. The commenter concluded that

DHS should thus use this long history of creating deferred action

programs to rebut its prior assertion that only Congress should adopt

deferred action policies as a matter of policy.

    Commenters further stated that previous executive action bears out

the Government's authority to exercise discretion in enforcing

immigration laws, saying that, since 1956, immigration agencies have

issued policies granting individuals temporary and discretionary relief

from deportation and, in many cases, work authorization, without

opposition from Congress or the courts. A commenter stated that these

prosecutorial discretion policies have allowed the executive branch to

balance competing domestic policy objectives, foreign policy concerns,

and humanitarian considerations. Multiple commenters wrote that

existing areas of humanitarian relief, such as VAWA self-petitions, U

nonimmigrant status, and TPS, demonstrate the well-established

character and practice of granting deferred action for sympathetic,

nonpriority populations. Another commenter pointed to 17 deferred

action policies other than DACA that were enacted without being

judicially challenged. In particular, the commenter wrote, President

Reagan's ``Family Fairness'' program often draws comparison with DACA,

as it provided deferred action for the children of parents eligible for

legal status and, like DACA, provided an opportunity for employment

authorization.

    Another commenter stated that even the detractors of DACA

acknowledge its legality amid their challenges by recognizing DHS has

the authority to defer enforcement against migrants. Subjected to

scrutiny and rulemaking, the commenter said, DACA has been and remains

a lawful vehicle for protecting migrants brought to the United States

as young children. The commenter concluded that, just as the Napolitano

Memorandum emphasizes not only the legality, but also the necessity, of

exercising prosecutorial discretion on a case-by-case basis, so too

does the proposed rule both meet and exceed the threshold requirements

of the APA and INA. A commenter wrote that Congress and the courts have

recognized the importance of child well-being and family unity as a

basis for humanitarian considerations in immigration law and the

executive branch's authority to exercise its discretion.\163\ The

commenter concluded that ``it clearly follows'' that it is well within

DHS's authority to use the powers given to it by Congress to grant

deferred action to immigrants who are not and should not be a priority

for deportation--immigrants who came to the United States as children--

and preserve the family unity and well-being of these immigrants'

children. Commenters thus stated DACA is a lawful and appropriate use

of the Executive's longstanding deferred action authority, unless and

until Congress passes a permanent solution to address the problems of

undocumented youth.

---------------------------------------------------------------------------

 

    \163\ The commenter cited Prince v. Massachusetts, 321 U.S. 158,

165 (1944) (noting ``the interests of society to protect the welfare

of children''); Moore v. East Cleveland, 431 U.S. 494, 503-04 (1977)

(``Our [substantive due process] decisions establish that the

Constitution protects the sanctity of the family precisely because

the institution of the family is deeply rooted in this Nation's

history and tradition.''); INS v. Errico, 385 U.S. 214, 220 n.9

(1966) (`` `The legislative history of the Immigration and

Nationality Act clearly indicates that the Congress intended to

provide for a liberal treatment of children and was concerned with

the problem of keeping families of United States citizens and

immigrants united.' '' (quoting H.R. Rep. No. 85-1199, at 7

(1957))).

---------------------------------------------------------------------------

 

    A commenter stated that DHS's decision to undertake full notice-

and-comment rulemaking in this instance does not reflect a requirement

to do so when implementing deferred action policies or exercising other

forms of prosecutorial discretion in the future. Citing DOJ's Justice

Manual and Supreme Court caselaw on prosecutorial discretion,\164\ the

commenter said that DACA and other forms of prosecutorial discretion

lie within the executive branch's power to determine ``when, whom, how,

and even whether to prosecute,'' a power that applies across criminal,

civil, and administrative contexts. The commenter stated Congress and

the Supreme Court have affirmed that prosecutorial discretion,

including through deferred action, applies in the immigration context,

and Congress also has given the executive branch the authority to

establish national immigration enforcement policies and priorities.

---------------------------------------------------------------------------

 

    \164\ The commenter cited DOJ, Justice Manual, Sec.  9-27.110

(Comment), https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-27.001; Bordenkircher v. Hayes, 434 U.S. 357, 364

(1978); Heckler v. Chaney, 470 U.S. 821, 831-32 (1985); and Arizona

  1. United States, 567 U.S. 387, 396 (2012).

---------------------------------------------------------------------------

 

    Response: DHS agrees that deferring enforcement action for the DACA

population on a case-by-case basis is a lawful exercise of DHS's broad

prosecutorial discretion, which both Congress and the courts have

recognized for decades. DHS also agrees that the DACA policy furthers

compelling humanitarian and law enforcement objectives by allowing DHS

to focus limited agency resources on priority targets and deferring

action on the cases of certain noncitizens who entered the United

States as children. DHS recognizes that Congress' inaction with respect

to the DACA population has been taken by commenters to cut both ways;

regardless of that inaction, DHS agrees with commenters that Congress

has vested the Secretary with clear authority to administer and enforce

the immigration laws and to establish national immigration policies,

objectives, and priorities. DHS agrees with commenters that DACA

facilitates a prudent set of immigration enforcement priorities,

allowing DHS to utilize its limited resources efficiently by targeting

high-priority cases, such as those that pose a threat to public safety,

national security, or border security. DHS likewise agrees with

commenters that the proposed rule comfortably fits within the deferred

action framework that DHS and INS before it have utilized for decades.

    DHS also agrees the extensive use of deferred action in the past by

both INS and DHS to facilitate enforcement priorities further indicates

the lawfulness of this rule. Although VAWA self-petitions, U-visas, and

TPS are statutory forms of substantive immigration benefits (and

therefore distinguishable from the DACA policy, which constitutes only

an exercise of prosecutorial discretion to defer enforcement action

against removable noncitizens), DHS accordingly nevertheless agrees

with commenters that the long history of deferred action immigration

policies originating with INS or DHS rebuts any assertion that such

policies must always originate in Congress with a law specific to the

particular population at issue.

    DHS appreciates commenters' recognition of the numerous

similarities between DACA and prior instances of deferred action and

agrees the DACA population shares a number of sympathetic

characteristics with the target populations of prior deferred action

policies, making members of the DACA population prime candidates for

deferred action themselves. DHS agrees that DACA is another in a long

line of deferred action policies that have facilitated the necessary

prioritization of enforcement resources by granting forbearance to

sympathetic populations of noncitizens in the United States. DHS agrees

that such populations have

 

[[Page 53191]]

 

included certain pending U nonimmigrant petitioners before they have

attained lawful status and certain VAWA self-petitioners prior to their

final approvals to adjust to permanent resident status, among many

other compelling population groups that have received deferred action

and that are discussed in detail in the preamble to the proposed

rule.\165\ DHS disagrees, however, that TPS beneficiaries, who are in a

lawful temporary status, are an example of noncitizens with deferred

action as that is not accurate.

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    \165\ See 53736 FR 53746-53749 (discussing the history of at

least 60 years of prosecutorial discretion policies that have

provided various sympathetic groups protection from removal action).

DHS does note with respect to the examples of the pending U

nonimmigrant petitioners and the VAWA self-petitioners that once

they are granted U nonimmigrant status or permanent resident status,

these individuals are not like DACA recipients because they are in a

lawful status and no longer subject to the prosecutorial discretion

afforded by deferred action.

---------------------------------------------------------------------------

 

    DHS shares commenters' view that in addition to DHS's authority to

forbear from pursuing the removal of DACA recipients, DHS has authority

to allow such DACA recipients to work during their time in the United

States, and that work authorization is just as necessary and

appropriate for the DACA population as it was, for example, for the

population that received deferred action under the Family Fairness

policy. DHS addresses comments related to work authorization, lawful

presence, and non-accrual of unlawful presence more fully later in this

preamble.

  1. Litigation and Legal Disputes

    Comment: Multiple commenters stated that the rule adequately

addressed the concerns raised by the district court in Texas, which

held DACA to be unlawful. One commenter said the rule responds to

prolonged litigation over the policy's legality. Another commenter

summarized the litigation involving DACA. Citing legal memoranda and

court cases, the commenter stated the core components of DACA are

legally and historically well-established, including deferred action, a

well-established form of prosecutorial discretion under which the

Federal Government forbears removal action against an individual for a

designated period of time; employment authorization; and nonaccrual of

unlawful presence. Another commenter wrote that the Texas district

court was wrong in concluding notice-and-comment rulemaking was

necessary to create the DACA policy, as well as in its concerns about

the policy's substantive legality. A couple of commenters noted that

the Supreme Court's June 23, 2016 affirmance without opinion of the

Fifth Circuit's preliminary injunction blocking Deferred Action for

Parents of Americans and Lawful Permanent Residents (DAPA) and expanded

DACA is not precedential and does not bind DHS, and further noted that

the Court's 2020 Regents decision does not restrict DHS from expanding

DACA. The commenters said other courts have and would likely again

grapple with similar questions. DHS therefore is, in the commenters'

view, ``completely justified'' in continuing to litigate the district

court's decision until a single, final disposition emerges.

    A commenter stated that DACA does not violate the INA and is a

lawful exercise of executive discretion conferred by Congress, contrary

to the district court's 2021 decision in Texas. The commenter cited 8

U.S.C. 1103 in discussing DHS's authority and went on to say the

Supreme Court recognized this authority with respect to immigration

enforcement and removals in Arizona v. United States when it

underscored that executive officials have ``broad discretion'' in

deciding ``whether to pursue removal at all.'' \166\ The commenter

reasoned that the case-by-case consideration of DACA requests is not

the automatic conferral of a benefit as some detractors have

characterized it, but rather an exercise of discretion in deciding

whether to invest limited enforcement resources into the removal of

low-priority individuals. The commenter stated that, while the court in

Texas held DACA violates the INA by making statutorily ``removable''

individuals unremovable, DACA does not make any individual unremovable

because the agency may initiate removal proceedings against the

individual at any time.

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    \166\ 567 U.S. 387, 388 (2012); see also id. at 396

(``Discretion in the enforcement of immigration law embraces

immediate human concerns. Unauthorized workers trying to support

their families, for example, likely pose less danger than alien

smugglers or aliens who commit a serious crime. The equities of an

individual case may turn on many factors, including whether the

alien has children born in the United States, long ties to the

community, or a record of distinguished military service. Some

discretionary decisions involve policy choices that bear on this

Nation's international relations.'').

---------------------------------------------------------------------------

 

    A commenter stated that it was ``unclear'' whether the rulemaking

would be deemed legal if the litigation begun in 2018 is upheld by the

Supreme Court but remarked that their research disputes that any

irreparable harm or additional costs to States would be caused by the

proposed rule.\167\

---------------------------------------------------------------------------

 

    \167\ The commenter cited Brannon and Albright (2017), Albright

(2018), Brannon and McGee (2019), and Brannon and McGee (2021).

---------------------------------------------------------------------------

 

    Citing Regents and another source, a commenter stated that, in

response to litigation surrounding the Trump administration's efforts

to rescind DACA, the Supreme Court held that DHS failed to properly

rescind DACA procedurally, but the Court did not issue a finding that

DACA was illegal. Regardless of how the Fifth Circuit decides DHS's

appeal in Texas, the commenter remarked, it appears inevitable that the

Supreme Court ultimately will have to make a determination as to the

legality of the DACA policy. A university characterized the evidentiary

record of Regents as a tool in this rulemaking, as it outlines the many

benefits of DACA to the university and society, including expert

testimony and studies about the value of DACA. A few commenters noted

that they are participating or have participated in ongoing litigation

to support the DACA policy.

    Response: DHS agrees that undertaking notice and comment through

the proposed rule puts DACA on stronger legal footing in light of the

district court's decision in Texas and other pertinent litigation. DHS

continues to believe that notice-and-comment rulemaking is not

necessary to implement in the exercise of prosecutorial discretion a

deferred action policy for the DACA population. Nevertheless, DHS

agrees that the notice-and-comment process has significant value, as a

means of obtaining a variety of input on proposed rules (including this

one), and it also agrees with commenters that the proposed rule

addresses the district court's procedural concerns and plays an

important role in DHS's vindication of its position on DACA's legality.

    DHS has given careful consideration to the district court's

reasoning regarding the substantive legality of the DACA policy and the

court's conclusion that the policy is not authorized by the INA. For

reasons set forth above and below, in the preamble to the proposed

rule,\168\ and also reflected in the government's publicly available

briefs in the appeal from the district court's decision, DHS

respectfully disagrees with the district court's reasoning and

conclusion regarding the policy's substantive legality. Notwithstanding

that disagreement, DHS recognizes that it is currently subject to an

injunction and that it is obligated to comply with that injunction to

the extent that the injunction is not stayed. Nothing in this

 

[[Page 53192]]

 

preamble or in the final rule itself is intended to suggest otherwise.

---------------------------------------------------------------------------

 

    \168\ See 86 FR at 53753 n.145, 53756 n.178, 53759-61, 53761 at

n.235.

---------------------------------------------------------------------------

 

    Additionally, DHS is clarifying at new 8 CFR 236.21(d) that this

rule rescinds and replaces the DACA guidance set forth in the

Napolitano Memorandum and governs all current and future DACA grants

and requests from this point forward. It further clarifies that

existing recipients need not request DACA anew under this new rule to

retain their current DACA grants. Although incorporating such a

provision into regulatory text is a departure from previous practice,

in light of the various issues and concerns raised in ongoing

litigation challenging the Napolitano Memorandum, DHS has determined

that doing so is appropriate in this context.\169\

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    \169\ See new 8 CFR 236.21(d).

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  1. Other Comments and Suggestions

    Comment: One commenter suggested that DHS more thoroughly address

several arguments that it previously offered against DACA in the Duke

and Nielsen rescission memoranda. On this point, the commenter stated,

in the Duke Memorandum, Nielsen Memorandum, and subsequent court

filings, DHS cited the risk of litigation as one basis for rescinding

DACA, focusing on the risk of DACA being struck down as unlawful or

enjoined to justify the position that DACA was too legally vulnerable

to continue without properly balancing competing positive factors. The

commenter said DHS's prior stance that DACA was bad policy because of

litigation risk is inconsistent with the proposed rule, which finds

that the benefits of the rule would exceed its costs. To address this

inconsistency and give a ``reasoned explanation'' for ``facts and

circumstances'' in the rescission, the commenter stated, DHS should

address the risk of litigation in the final rule. The commenter

recommended DHS: (1) explain how the prior rescission incorrectly

analyzed litigation risk; or (2) conclude that the rule is justified

even when litigation risk is properly accounted for. The commenter

provided suggestions on how DHS may address these issues, citing an

article that analyzed litigation risk in the context of DACA's

rescission and identified four key factors for DHS to consider. The

commenter stated that DHS should incorporate in the final rule an

explanation for why its previous assertions about litigation risk are

not dispositive here. In particular, the commenter added, DHS should

explain how its previous attempt to rescind DACA failed to analyze

properly the risks of litigation and put forth a more rational

framework to analyze DACA's litigation risk.

    A couple of commenters understood the proposed rule as indicating

that the forthcoming final rule would displace the Napolitano

Memorandum and establish a new and independent basis through which

existing DACA recipients can maintain their deferred action. The

commenters agreed with that approach and suggested the final rule state

even more clearly that it supplants the Napolitano Memorandum, which

the commenters said would benefit current DACA recipients by providing

them with additional certainty. In addition, the commenters stated that

this clarification would provide broader certainty by making even

clearer that the pending litigation over the Napolitano Memorandum is

moot because that memorandum no longer has any independent legal

effect.

    A commenter urged the administration to make all reasonable efforts

to preserve and strengthen DACA, including ensuring that DHS is

authorized to promulgate future policy and operational guidance for the

policy, consistent with the objectives of the 2012 policy.

    A commenter wrote that a policy such as DACA should be a law

written by Congress and not made as an agency rule change. However, the

commenter stated, given the current partisan nature of Congress and the

low likelihood of Congress settling the issue of DACA anytime soon, the

proposed rule allowing DACA to continue is ``perhaps the best we can

hope for.''

    Response: As indicated in the NPRM, the prior memoranda referenced

by the commenter have been vacated or deemed inoperative by various

courts.\170\ DHS acknowledges that such memoranda assigned more

significant weight to the risks associated with adverse litigation

against the DACA policy, but as noted earlier in this preamble,

litigation materialized as a consequence of attempts to rescind DACA as

well, and DHS believes that the significant costs associated with DACA

rescission would not be justified by the benefits identified in those

memoranda, including the asserted litigation risk benefit which, as

evidenced by the Regents litigation and other cases, did not fully

materialize. DHS agrees with commenters that codifying DACA will

provide recipients and their families, schools, communities, and

employers with additional certainty. DHS also will utilize appropriate

messaging to ensure DACA recipients are aware that the new DACA

regulation, not the Napolitano Memorandum, governs the DACA policy

going forward. DHS, however, will not be in a position to advise DACA

recipients that pending litigation concerning the Napolitano Memorandum

is moot unless and until a court issues a judgment of dismissal on

mootness grounds.

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    \170\ 86 FR 53749-53751.

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    DHS appreciates the comment concerning DHS's efforts to protect

DACA recipients. DHS assures all interested parties that it is taking

all available action to preserve and fortify DACA consistent with the

President's directive. DHS likewise appreciates the commenter's

statements concerning the desirability of Congress enacting legislation

to protect the DACA population. In the absence of such action, DHS

believes that DACA is a viable approach that accommodates the relevant

reliance interests while preserving DHS's discretion on a case-by-case

basis.

 

  1. Comments on Proposed Provisions

 

  1. Deferred Action/Forbearance From Enforcement Action (Sec.

236.21(c)(1))

    Comment: Several commenters expressed general support for DHS's

provision of an official definition of ``deferred action'' and for the

definition proposed. A few commenters expressed concern with the

proposed definition of ``deferred action.'' One stated that the

definition does not guarantee the ability to permanently reside in the

United States, which affects the ability to resettle, work, and thrive

in the United States successfully and forces DACA recipients to ``live

on the precipice of fearing deportation and being able to successfully

contribute to the community in which they choose to reside.'' Another

said that providing a definition creates safeguards but expressed

concern regarding the provision stating that deferred action does not

prevent DHS from initiating any criminal or other enforcement action

against the DACA recipient at any time. One commenter specifically

recommended removing the following language from proposed 8 CFR

236.21(c)(1): ``[a] grant of deferred action under this section does

not preclude DHS from commencing removal proceedings at any time.''

    One commenter stated that the rule should directly address DHS's

prior statements that

 

    DHS should enforce the policies reflected in the laws adopted by

Congress and should not adopt public policies of non-enforcement of

those laws for broad classes and categories of aliens under the

guise of prosecutorial discretion--particularly a class that

Congress

 

[[Page 53193]]

 

has repeatedly considered but declined to protect. Even if a policy

such as DACA could be implemented lawfully through the exercise of

prosecutorial discretion, it would necessarily lack the permanence

and detail of statutory law. DACA recipients continue to be

illegally present, unless and until Congress gives them permanent

status.\171\

---------------------------------------------------------------------------

 

    \171\ See Nielsen Memorandum at 2.

 

    The commenter stated that DHS should explicitly recognize the

merits and benefits of a broader approach, which enables the

development of enforcement priorities under limited resources, reduces

the need for further investigation by officers, and streamlines an

enforcement officer's review of whether a DACA recipient should be an

enforcement priority. According to the commenter, these benefits, which

are inherent to a broad scope and the ease with which DACA can be

applied, refute DHS's previous assertions that DACA is unwisely broad.

    One commenter expressed strong support for the aspects of the

proposed rule that would maintain forbearance from removal. Another

stated that temporary forbearance of removal would not carry the same

protections as a more permanent forbearance, and that identifying DACA

recipients as generally a low priority for enforcement action does not

assuage fears that removal actions will nonetheless be taken as anxiety

and reservation remains about the lack of stability. While recognizing

that USCIS may not be able to address this directly, since permanent

congressional action is needed to at least in part address this

barrier, the commenter said that USCIS ``tak[ing] all measures

possible'' to expand the protections and rights of DACA recipients to

the extent permitted is in the best interests of USCIS resources;

local, State, and Federal economies; the well-being of U.S.

communities; and the individuals themselves.

    One commenter, by contrast, suggested that individuals should only

be considered for forbearance when apprehended. The commenter stated

that this would not only release the pressure on USCIS' ``already

stressed system'' but also provide ``a more consistent application of

law and allow[ ] DHS to propose rules to guide ICE and CBP on

enforcement priorities.'' Another commenter stated that the proposed

rule prevents the removal of DACA recipients despite Congress having

dictated their eligibility for removal. This commenter also stated that

the proposed rule is not simply a ``non-enforcement policy'' or

prosecutorial discretion, but instead creates standardized proceedings

by which DHS solicits and reviews requests from eligible aliens,

effectively engaging in adjudications where the result is (likely) an

affirmative act of approval. Another commenter opposing the rule stated

there is a difference between forbearance from enforcement and actively

granting the benefits of employment authorization, travel permission,

and lawful presence. The commenter said that the logic that forbearance

from enforcement action requires grants of immigration benefits through

USCIS is flawed and unexplained.

    Similarly, a commenter stated that the proposal to charge separate

fees for the deferred action request did not adequately address the

Texas ruling, which provided the agency an opportunity to modify the

policy only to include temporary deportation forbearance. The commenter

based this statement on concerns that DACA was housed within USCIS to

give noncitizens ``permission to work lawfully in the country despite

lacking a lawful immigration status.'' The commenter concluded that,

instead of exploring a ``true `forbearance' policy within one of the

enforcement components'' in accordance with the court's order, DHS's

proposal was ``not a good faith effort'' to adhere to the Federal

district court's ruling and would ``continue the inappropriate practice

of giving USCIS adjudicators . . . decision-making authority they do

not have under the law.'' One commenter questioned why ICE would agree

to continue, administratively close, or dismiss a DACA recipient's

removal proceeding without prejudice, stating: ``Clearly any removal

order or case logged against DACA recipients shall not be dismissed

without prejudice because unless the case is based on wrong facts, DACA

recipients did break immigration laws and it should be on their

records, not without prejudice.''

    Some commenters suggested that additional policies should be

adopted for coordination among DHS subagencies to prevent the erosion

of DACA protections for recipients related to removal proceedings,

including:

     Not issuing NTAs against DACA recipients or DACA-eligible

individuals unless and until USCIS terminates their DACA.

     Exercising favorable prosecutorial discretion by joining

motions by DACA recipients or DACA-eligible individuals to reopen,

terminate, dismiss, or administratively close removal proceedings. The

commenter stated that these protections would be in line with May 2021

guidance issued by the ICE Office of the Principal Legal Advisor

recognizing the dismissal of cases of noncitizens likely to be granted

temporary or permanent relief or who present compelling humanitarian

factors, as well as recent decisions recognizing immigration judges'

authority to administratively close and terminate removal proceedings.

     Adopting provisions to provide for cooperation among

components with respect to removal proceedings, ensuring consistent and

fair DACA decisions.

    A commenter stated that it is costly for ICE to litigate removal

proceedings against DACA recipients and DACA-eligible individuals,

adding that the cost savings referenced at 86 FR 53794 would be

nullified if individual ICE officers issue NTAs or oppose, for example,

motions to administratively close removal proceedings for DACA

recipients and DACA-eligible individuals, and stating that the proposed

rule erroneously assumes ICE acts in a manner consistent with DACA

protections. Conversely, the commenter said, past practice demonstrated

that ICE and CBP have issued NTAs to DACA recipients who, per DACA

guidance and established definitions, are not enforcement priorities.

The commenter concluded that, without regulatory language directing DHS

components to act according to USCIS' DACA request determinations and

eligibility guidelines, recipients would continue to be subject to ICE

officers' de facto veto power over a DACA grant.

    Another commenter stated that such additional policies would reduce

mental health harms to recipients facing uncertainty while promoting

efficiency and cost savings. The commenter said that the decreased

likelihood of mental health problems would allow DACA recipients to

flourish as members of society and of the U.S. workforce. Furthermore,

the commenter stated that future administrations could alter ICE

enforcement priorities without first going through notice-and-comment

rulemaking, thus leaving DACA recipients vulnerable to termination of

DACA with no due process protections. The commenter recommended that

DHS codify the above additional protections to promote efficiency and

due process and to adhere to the administration's directive to

``preserve and fortify'' DACA.

    Response: DHS acknowledges the variety of views expressed, from

support for providing an official definition of deferred action, to

specific support for the definition proposed, to concern that the

specific definition is insufficient,

 

[[Page 53194]]

 

and to general opposition to forbearance from removal for DACA

recipients.

    DHS agrees with commenters that the proposed deferred action

definition is consistent with longstanding legal and historical

practice. DHS acknowledges commenters' concern with the temporary

aspect of the definition of deferred action, but notes that DHS does

not have the authority to provide a permanent solution absent action by

Congress. DHS further acknowledges commenters' concern that the

definition of deferred action does not prohibit DHS from initiating

enforcement action; however, the purpose of deferred action is to

identify a person as a low priority for removal, rather than to

eliminate all possibility of enforcement action. DHS therefore intends

to maintain the ability to determine that an individual is no longer a

low priority for removal.

    DHS disagrees with the suggestion that individuals should only be

considered for forbearance when apprehended, as this merely shifts

resource burdens within DHS, does not enable DHS to realize the full

potential of resource savings, as discussed in Section II.A.8, and

could create a perverse incentive for individuals to seek out

immigration encounters. As explained in the proposed rule at 86 FR

53752, the proposed framework would enable DHS to continue to realize

the efficiency benefits of the DACA policy. USCIS' determination that

an individual meets the DACA guidelines and merits a favorable exercise

of discretion assists law enforcement activities in several areas by

streamlining the review required when officers encounter a DACA

recipient.

    DHS further disagrees that utilizing a standard process to consider

requests for deferred action transforms DACA into more than

prosecutorial discretion. As noted by the commenter who encouraged DHS

to speak to the benefits of the approach taken here, this rule

structures the exercise of prosecutorial discretion in a proactive,

organized, and efficient manner. This approach allows for the exercise

of the Secretary's authority while providing for case-by-case

consideration and collection of fees to cover the cost of determining

whether the noncitizen is a high or low enforcement priority. Such a

structure has certain benefits, but does not make this rule any less of

an exercise in enforcement discretion.

    DHS disagrees with the suggestion that the rule ``requires grants

of immigration benefits.'' Nothing in the Napolitano Memorandum, the

proposed rule, or this final rule requires DHS to grant immigration

benefits to recipients of deferred action. Rather, DHS, in the exercise

of its discretion and pursuant to underlying statutory authority, may

indicate its intention to forbear from removing certain individuals who

are low priorities for enforcement. Separately, DHS also may grant

ancillary benefits such as employment authorization, as well as provide

for limited circumstances in which DACA recipients will be considered

lawfully present, as explained more fully elsewhere in this rule. DHS

further incorporates here its points in the preamble to the NPRM at 86

FR 53756-53762 regarding DHS's view that employment authorization,

advance parole, and lawful presence may be provided in conjunction with

DACA's forbearance of removal. But DHS reiterates its view that

deferred action provides for temporary forbearance from removal without

``requir[ing]'' the conferral of other benefits.

    DHS also disagrees with a commenter's characterization of the NPRM

as it relates to the Texas ruling. As DHS explained in the NPRM, DHS

proposed to unbundle the requests for deferred action and employment

authorization to provide flexibility and reduce cost barriers to

noncitizens who sought forbearance protections but did not need, want,

or prioritize employment authorization. Upon consideration of comments,

DHS has made changes to the rule to retain the existing requirement of

bundled deferred action and employment authorization requests, as

discussed in greater detail in Section II.C.2.c. DHS nonetheless

considers those elements to be severable from each other, in the event

that a court of competent jurisdiction disagrees with DHS and concludes

that any aspect of this rule is unlawful. DHS also disagrees with the

commenter's characterization of the rationale for vesting jurisdiction

to administer DACA within USCIS. To the contrary, in addition to the

reasons discussed in Section II.A.8, vesting jurisdiction within USCIS

fortifies DHS's prioritized approach to immigration and border

enforcement by allowing DHS to continue to realize the efficiency

benefits of the DACA policy, as discussed in this rule. Additionally,

in vesting jurisdiction with USCIS to exercise prosecutorial discretion

in the form of DACA, DHS also retains streamlined procedures for

terminating an individual's DACA and EAD, because the same agency that

exercised prosecutorial discretion as an initial matter would be

determining whether to terminate it, in consultation with immigration

enforcement components when necessary.\172\ USCIS also plays a crucial

role in safeguarding the lawful immigration system of the United

States, including by issuing Form I-862, Notice to Appear, to commence

removal proceedings in some circumstances.\173\

---------------------------------------------------------------------------

 

    \172\ See 86 FR 53752.

    \173\ See, e.g., 8 CFR 239.1(a)(18) through (20) (authorizing

``Supervisory immigration services officers,'' ``Supervisory

immigration officers,'' and ``Supervisory asylum officers,''

respectively, to issue NTAs).

---------------------------------------------------------------------------

 

    DHS acknowledges commenters' suggestions that the rule include

provisions relating to other DHS immigration components' enforcement

actions with respect to DACA recipients or individuals who meet the

DACA criteria. However, DHS believes that direction for CBP and ICE

with respect to their handling of DACA recipients, beyond that which

was contained in the NPRM, is most appropriately left for subregulatory

guidance. Finally, DHS notes that the commenter suggesting that DACA

recipients' removal proceedings should not be continued,

administratively closed, or dismissed ``without prejudice''

misunderstands the meaning of ``without prejudice.'' In the removal

proceedings context, an action taken ``without prejudice'' means

without prejudice to further action (i.e., that the recommencement of

removal proceedings in the future will not be barred by the judicial

doctrines of res judicata or collateral estoppel).

    Accordingly, DHS will not be making any changes to 8 CFR

236.21(c)(1) in response to public comments.

  1. Employment Authorization (Sec. Sec. 236.21(c)(2) and

274a.12(c)(33))

  1. General Comments on Employment Authorization

General Support for Work Authorization for DACA Recipients

    Comment: Some commenters expressed support for strengthening and

protecting employment authorization as a key part of the DACA policy.

Multiple commenters discussed the benefits of employment authorization

including self-reliance; access to health insurance, education,

housing, and living needs; career advancement; safe working conditions;

fair wages and narrowing of the wage gap between employment-authorized

workers and workers without employment authorization; ability to obtain

forms of identification; and the development, as well as the retention,

of skilled workers in the community, especially frontline workers

during the COVID-19 pandemic. (One study found more than 200,000 DACA

recipients working in occupations deemed by DHS as ``essential critical

 

[[Page 53195]]

 

infrastructure workers.'') \174\ Commenters cited a 2020 survey of DACA

recipients that found that nearly 90 percent of DACA recipients

surveyed were employed; 83.7 percent of respondents reported that

having work authorization related to DACA helped them become

financially independent; and 86.4 percent reported that their increased

earnings helped pay for tuition.\175\

---------------------------------------------------------------------------

 

    \174\ See Svajlenka (2020).

    \175\ See Wong (2020).

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    Considering such personal and societal benefits, a commenter stated

that it had significant interests in preventing the disruption of the

employment relationship with its DACA-recipient personnel. The

commenter stated that it employs 500 DACA beneficiaries across every

division in the company, across 38 States, and in all regions of the

country. Many commenters urged DHS to ensure that deferred action and

employment authorization remain connected in the rule, and that DACA

recipients' ability to request EADs is protected. Other commenters

expressed support for including employment authorization in the

proposed rule but commented that the proposed disaggregation of other

benefits from enforcement forbearance would not make it any less

important. Some commenters stated that DACA-eligible individuals should

be granted work authorization, or the opportunity to work, because they

deserve the opportunity to support themselves financially, and because

they want to make, and are capable of making, important economic and

labor contributions to society. A commenter stated that more should be

done to minimize barriers to employment authorization. Another

commenter recommended that DHS and the Federal Government continue to

strongly defend the ability of DACA recipients to apply for work

authorization and to reach their full potential. A commenter stressed

that the proposed rule allows local communities to continue to benefit

from the important contributions of the DACA workforce, including in

frontline healthcare, law enforcement, social services, land-use

planning, teaching, and road repair.

    Response: DHS agrees employment authorization is an important

component of the DACA policy with myriad positive impacts on

recipients' families and communities. For one, employment authorization

enables DACA recipients to exit the shadow economy of unauthorized

employment, dramatically reducing the risk of exploitation by

unscrupulous employers. Maintaining DACA recipients' ability to work

lawfully while in the United States is an important component of DHS's

broader initiative to preserve and fortify the DACA policy. DHS

appreciates and agrees with commenters' recognition of DACA recipients'

contributions to their communities. DHS agrees, as stated elsewhere in

the NPRM and this preamble, that DACA recipients, on balance,

overwhelmingly make positive contributions to this nation. DHS also

agrees that DACA recipients' ability lawfully to work while in the

United States is beneficial to their economic and psychological well-

being.

    In this regard, DHS emphasizes that self-reliance is beneficial not

only to the social and economic prosperity of recipients of deferred

action under the DACA policy, but also to the well-being of those

individuals' families and communities, and to the workforce more

broadly. Work authorization enables DACA recipients lawfully to support

themselves and their families instead of risking potential exploitation

in the shadow economy. As a commenter pointed out, companies have

invested substantial resources in their DACA-recipient employees, and

DHS agrees DACA recipients are not the only population that benefits

from this rule; this rule also serves businesses' substantial reliance

interest in the continued employment of employees in whom they have

made significant tangible and intangible investments. Furthermore, a

2020 survey indicates that employment authorization for DACA recipients

supports business creation, indicating that 6.1 percent of DACA

recipients surveyed reported that they started their own businesses

after receiving DACA, and that among respondents 25 years old and

older, this increased to 7 percent.\176\ Moreover, work authorization

allows individuals to leave the shadow economy and work on the books to

provide for their families, thereby reducing the risk of exploitation

by unscrupulous employers and distortion in our labor markets. Work

authorization addresses practical concerns that could otherwise result

from a decision solely to grant temporary forbearance from removal, and

DHS therefore believes that it is appropriate to allow DACA recipients

to work in conformity with its authority at INA sec. 274a(h)(3), 8

U.S.C. 1324a(h)(3).

---------------------------------------------------------------------------

 

    \176\ Wong, et al., New DHS Policy Threatens to Undo Gains Made

by DACA Recipients, Center for American Progress (Oct. 5, 2020),

https://www.americanprogress.org/issues/immigration/news/2020/10/05/491017/new-dhs-policy-threatens-undo-gains-made-daca-recipients.

---------------------------------------------------------------------------

 

    Employment authorization for DACA recipients also helps to prevent

their need for public assistance to the extent such limited assistance

is available to them. Although DACA recipients do not constitute

``qualified alien[s]'' for purposes of eligibility for most Federal

public benefits under PRWORA,\177\ certain excepted emergency, in-kind,

and other public benefits do remain available to them.\178\ In

addition, a State may affirmatively provide State and local public

benefits to noncitizens who are not lawfully present in the United

States if the State passes such a law after August 22, 1996.\179\

Several States have enacted such laws.\180\ Therefore, if DACA

recipients were to lack a means to earn their own living, they would be

more likely to utilize the limited forms of public assistance available

to them.

---------------------------------------------------------------------------

 

    \177\ See 8 U.S.C. 1611(a) et seq.; 8 U.S.C. 1641(b) (providing

definition of ``qualified alien'').

    \178\ See 8 U.S.C. 1611(b)(B) (providing for ``[s]hort-term,

non-cash, in-kind emergency disaster relief'' to non-qualified

aliens); 8 U.S.C. 1611(b)(1)(D) (providing non-qualified aliens with

access to ``[p]rograms, services, or assistance (such as soup

kitchens, crisis counseling and intervention, and short-term

shelter)'' that ``deliver in-kind services at the community level,

including through public or private nonprofit agencies''; ``do not

condition the provision of assistance, the amount of assistance

provided, or the cost of assistance provided on the individual

recipient's income or resources''; and ``are necessary for the

protection of life or safety'').

    \179\ See 8 U.S.C. 1621(d). In addition, the general limitations

PRWORA places on noncitizens' eligibility for State and local public

benefits do not apply to certain emergency, in-kind, immunization,

and other assistance. See 8 U.S.C. 1621(b).

    \180\ See, e.g., Cal. Welf. & Inst. Code Sec.  14007.8(a)(1);

130 Mass. Reg. 505.006(B); NY Soc. Serv. L. Sec.  122; Or. Rev.

Stat. Sec.  414.231; Wash. Admin. Code 182-503-0535(2)(e); DC Code

Sec.  1-307.03.

---------------------------------------------------------------------------

 

    DHS appreciates one commenter's desire to see even more done to

minimize barriers to DACA recipients' employment. This commenter

advocated that DHS lower the application fees, shorten the application

processing backlog, guarantee work authorization, and extend the

duration of work authorization. However, as set forth elsewhere in this

rule, DHS believes the current application fees are appropriate for the

time being. DHS also reiterates the limits of this rulemaking, which,

as discussed elsewhere in this preamble in more detail, focuses on

preserving and fortifying the policy as set forth in the Napolitano

Memorandum.

Positive Impacts on Universities and Healthcare Systems

    Comment: Citing research, several commenters described DACA

recipients' positive impact on their universities and

 

[[Page 53196]]

 

communities. Commenters stated that work authorization is critical to

DACA recipients' ability to make such positive contributions. A

university described the academic contributions of DACA recipients. The

university also cited the proposed rule's statement on the number of

DACA recipients in healthcare to underscore the need for the rule and

work authorization. The commenter further remarked that work

authorization for DACA recipients allows them to engage more deeply

with their university's curriculum, campus, and community. Noting the

successful academic and professional careers of DACA recipient alumni,

a commenter stated that work authorization is critical to DACA

recipients' ability to contribute on and off campus, warning that the

lack of work authorization often discourages individuals from pursuing

educational growth. The commenter also remarked that it relies on DACA

to retain valuable employees, noting its university system employs

around 466 non-student DACA recipients. A group of commenters similarly

pointed out DACA recipients' impact on institutions of higher

education, citing several sources to support their position that DACA

recipients enrich school environments. The commenters stated employment

authorization granted after a DACA grant allows students to pursue

higher education and other improved educational and economic outcomes.

The commenters added that many DACA recipients have gone on to work and

provide valuable services (such as serving in educational positions or

healthcare posts) in the communities associated with their educational

institutions, noting DACA recipients possess valuable skills--like

foreign language fluency--that benefit employers.

    Citing references, a commenter discussed in detail the current and

future need for medical physicians and how DACA work permits allow

medical schools to accept these noncitizens, enabling the number of

matriculants with DACA to steadily grow since 2013. This commenter

stated that over the course of one year, DACA-recipient physicians will

collectively care for 700,000 to 2.1 million patients, totaling more

than 5.1 million U.S. patients over the course of their careers. The

commenter concluded that the administration should take action to

expand eligibility for Federal student aid and education loans to DACA

recipients to enable these individuals to pay for the incredibly high

costs of medical education. Another commenter stated that the current

healthcare staffing gaps associated with the COVID-19 pandemic could be

filled by DACA recipients. The commenter cited research stating that

8,600 healthcare workers in California have DACA. The commenter

concluded that DACA and work authorization would help to adequately

address the current healthcare staffing shortage, which the commenter

warned could last until 2026.

    Response: DHS appreciates the commenters' recognition of DACA

recipients' academic and professional contributions to their

institutions and communities at large. DHS agrees that work

authorization is critical to DACA recipients unlocking their full

potential. By helping to lessen the financial burden of pursing higher

education, DHS agrees that work authorization makes available to DACA

recipients many educational and professional opportunities that

otherwise would have remained out of reach.

    DHS appreciates the comment citing statistics about the volume of

care provided by DACA-recipient physicians. DHS deeply appreciates

these contributions. DHS recognizes that DACA recipients fill critical

roles in the healthcare field and the high cost of entry into this

field, especially for physicians. At the same time, DHS lacks authority

to alter DACA recipients' statutory ineligibility for Federal student

aid through rulemaking. Comments concerning DACA recipients'

eligibility for benefits not administered by DHS are also addressed

elsewhere in this preamble. Still, DHS remains committed to preserving

and fortifying the policies upon which DACA recipients and their

families, employers, schools, and communities have come to rely.

``Economic Necessity'' and Work Authorization

    Comment: A commenter stated that the proposed requirement to prove

economic need appeared intentionally vague and could leave thousands of

undocumented students without a form of income. Some commenters

requested that the regulation provide clear guidelines and suggested

that DHS limit discretion in the determination of ``economic

necessity'' for all applicants. A commenter warned that ``economic

necessity'' does not negate a student's expenses of pursuing an

education (e.g., tuition, living costs, groceries, textbooks, caring

for family members) and said the term must acknowledge that higher

education is vital for community and economic health. A commenter asked

DHS to clarify that students' circumstances will be taken into account

in determining ``economic necessity,'' citing education-related

expenses such as internet and computers required during the COVID-19

pandemic. Another commenter likewise suggested DHS should further

clarify the definition of economic necessity in the DACA context while

providing language that acknowledges the ``reality'' that most DACA

requestors have an economic necessity to work. The commenter reasoned

work authorization is critical to DACA recipients' entry into the labor

market and their ability to support themselves and their families. A

commenter similarly suggested DHS establish a rebuttable presumption

that DACA recipients have an economic necessity to work, stating such a

presumption would simplify the application and adjudication process

because the need to work to support oneself is very often self-evident.

    A commenter expressed opposition to the proposal's provision

granting work authorization to DACA recipients who establish an

arbitrary economic need and suggested instead that all DACA recipients

receive work authorization under the proposal. A few other commenters

likewise opposed the economic need requirement for employment

authorization. A commenter stated that requiring economic need imposes

assumptions and limitations on DACA recipients' choices and growth. A

commenter recommended the statement of economic need be eliminated, as

EADs often are used as a primary form of identification for

noncitizens, aside from their intended purpose. Without an EAD, the

commenter stated, a noncitizen cannot obtain a Social Security number

or State identification, which are necessary to conduct activities of

daily life.

    One commenter went further, saying DHS should prioritize a DACA

framework that automatically grants work permit benefits alongside

``deportation protection.'' A commenter likewise recommended work

authorization ``continue to be granted automatically and coincide with

granting DACA.'' Other commenters similarly suggested automatic,

permanent, or guaranteed work authorization grants alongside deferred

action.

    Numerous commenters added that USCIS verifies underlying status

with a Form I-821D approval, which could be sufficient for I-9

authorization. They concluded the I-765 adjudication is an unnecessary

use of the agency's time and resources that creates significant

 

[[Page 53197]]

 

repercussions due to delays in adjudication.

    Response: DHS thanks commenters for their input on the economic

necessity component of this rulemaking. Some commenters characterized

the requirement to prove economic need as a new component of a DACA

request. However, the economic need requirement is not new to DACA or

to employment authorization for deferred action recipients more

broadly. It has been part of the DACA policy since 2012 and the

deferred action employment authorization regulation since 1987.\181\

DACA recipients, like all other deferred action recipients, fall within

the categories of noncitizens for whom employment authorization is

discretionary, not mandatory as it is for certain categories where

Congress has made employment authorization incident to the noncitizen's

lawful immigration status.\182\ The rule makes no change to that

longstanding policy for deferred action recipients, including for DACA

recipients.\183\ As explained in the NPRM, 8 CFR 274a.12(c)(14) has,

for decades, authorized deferred action recipients to apply for and

receive an EAD if they establish economic necessity. The NPRM also

explains that this rule does not change the eligibility of DACA

recipients to apply for work authorization or alter the existing

general rule that they must establish economic necessity.

---------------------------------------------------------------------------

 

    \181\ Control of Employment of Aliens, 52 FR 16216, 16228 (May

1, 1987). See also Instructions to Form I-765, Application for

Employment Authorization (revised Jan. 19, 2011), at 5 (instructions

for form version in use at time DACA implemented and including

requirement for deferred action recipients to file Form I-765 with

authorization of deferred action and evidence of economic necessity

for EAD); ICR Reference No. 201208-1615-002, Instructions to Form I-

765, Application for Employment Authorization (revised Aug. 6,

2014), at 5 (continuing requirement for economic necessity for EAD

for deferred action recipients, including specific reference to DACA

recipients, and requiring revised financial worksheet, Form I-765WS

(Form I-765 Worksheet) (Aug. 6, 2014)). Proof of economic necessity

for an EAD has continued to date for deferred action recipients,

including for those with DACA. See Instructions to Form I-765,

Application for Employment Authorization (revised Aug. 25, 2020), at

16-17.

    \182\ See 8 CFR 274a.12(c) (categories of noncitizens for whom

employment authorization may be provided in DHS's discretion,

including for deferred action recipients under paragraph (c)(14)).

But see 8 CFR 274a.12(a) (categories of noncitizens for whom

employment authorization is ``incident to status,'' such as asylees,

refugees, certain nonimmigrants, and others).

    \183\ As explained both in the NPRM and in this rule, the

Attorney General and later the Secretary, have for decades

interpreted their statutory authority to ``establish such

regulations . . . and perform such other acts as he deems

necessary'' for administering the INA (now vested in the Secretary)

as allowing that officer to grant discretionary work authorization

to recipients of deferred action. See 86 FR 53757. Congress

confirmed this authority in INA sec. 274a(h)(3), 8 U.S.C.

1324a(h)(3), which expressly contemplates a framework in which the

Attorney General (now the Secretary) may authorize certain classes

of noncitizens for employment. This interpretation has stood

undisturbed for over 30 years.

---------------------------------------------------------------------------

 

    DHS acknowledges some commenters' calls for DHS to eliminate the

economic necessity requirement altogether, along with other commenters'

suggestion to automatically grant employment authorization to DACA

recipients alongside deferred action. DHS appreciates commenters'

concern about DACA recipients' continued access to employment

authorization under this rule. DACA is a discretionary policy, however,

and DHS has determined that, as such, employment authorization also

should remain discretionary and require a showing of economic need as

has been the case since the beginning of the DACA policy in 2012, and

in keeping with pre-existing regulatory requirements for deferred

action recipients seeking employment authorization. To automatically

grant employment authorization to every DACA recipient would mean that

such authorization would effectively be ``incident to status,'' as it

is for certain types of lawful immigration status, such as refugee,

asylum, and TPS.\184\ As previously discussed, DACA is fundamentally

not a lawful immigration status; thus, DHS believes that making

employment authorization effectively automatic upon a DACA approval

would not be appropriate. Moreover, DHS believes that the general rule

requiring DACA recipients to show economic need before they may receive

discretionary employment authorization has proved workable in the past

and remains workable today. It also bears noting that most recipients

of deferred action under the DACA policy also have been approved for

employment authorization based on economic need. At this time, DHS

declines to change the requirement for DACA recipients relative to the

general rule for other deferred action recipients or to otherwise

disturb the longstanding rule.

---------------------------------------------------------------------------

 

    \184\ See 8 CFR 274a12(a)(3), (8), and (12).

---------------------------------------------------------------------------

 

    DHS thanks commenters for their suggestions pertaining to expanding

on the concept of economic necessity in the final rule to expressly

recognize the costs of pursuing higher education. However, DHS declines

to write such granularity into the final rule. This rule continues

historical practice by basing the economic necessity inquiry on the

Federal Poverty Guidelines and existing regulations at 8 CFR

274a.12(e). That regulation broadly provides an applicant's assets,

income, and expenses all may constitute evidence of economic need to

work. DHS believes that this regulation--particularly its provision for

consideration of expenses--provides adjudicators with sufficient leeway

to consider the costs attendant to pursuing higher education when

determining an applicant's economic need to work. And while it may be

true that DACA requestors' economic necessity to work is often obvious,

DHS maintains its position that the current employment authorization

framework is sufficient to capture all the types of costs and expenses,

including those for higher education, that DACA requestors and

recipients may have and that may support their economic need to work.

    Moreover, DHS's decision whether to grant discretionary employment

authorization entails more than verifying the requestor's identity

through adjudication of the Form I-821D. As explained above, requestors

must establish economic necessity to work. DHS therefore disagrees with

the commenter that adjudicating the Form I-765 and accompanying Form I-

765WS is an unnecessary use of DHS's time and resources. Rather, those

adjudications ensure applicants establish the requisite economic need

to work. Because the current framework on economic necessity and work

authorization has not proven unworkable over DACA's 10-year lifespan,

DHS elects to maintain the status quo on this point.

Employment Authorization for DACA Recipients Versus Visa Categories

    Comment: A commenter suggested that instead of spending time

pursuing a rule for DACA, DHS should have drafted rules governing

employment authorization for F-1 OPT students waiting for H-1B visas or

establishing an improved process to ensure H-1B visas are used within a

fiscal year. Another commenter similarly stated that DHS should

prioritize action for F-1 students who do not win the H-1B lottery or

H-4 dependents who wish to support their families, critiquing the

proposal for failing to explain why DACA recipients deserve employment

authorization.

    Response: DHS acknowledges that members of the DACA population are

not the only category of noncitizens with pressing matters in need of

agency attention and resources. However, the DACA policy has

distinctive functions and serves distinctive needs (including

protection of reliance interests). In addition, the President has

expressly directed DHS to preserve and fortify the DACA policy, and

that is the subject of this rulemaking. Because DACA recipients

necessarily came to the

 

[[Page 53198]]

 

United States as children, and because of the substantial reliance

interests that have developed over a period of time, DACA recipients

occupy a unique space in the world of noncitizens in need of work

authorization. To be sure, DHS acknowledges the circumstances of the

populations that the commenter identifies and is taking steps to

address them where appropriate, lawful, and feasible.

Other Comments on Work Authorization

    Comment: Expressing support for DACA, a commenter remarked that

recipients with more qualifications should receive better benefits,

such as a stronger work permit. Similarly, a commenter suggested that

DHS should recommend that the Department of Labor place DACA recipients

with science, technology, engineering, and mathematics (STEM) degrees

onto Schedule A so that highly educated DACA recipients may self-

petition for permanent residence by filing a Form I-140.

    A commenter stated that, should DACA recipients receive the ability

to seek relief through a future longer term but nonrenewable work

permit program, their ability to re-request deferred action under DACA

should be protected. The commenter further reasoned, if a recipient

obtained alternate relief through a longer-term work permit in the

future, and Congress failed to pass a pathway to citizenship during the

relief period, it would be important for those who did not renew their

DACA request in that period to be allowed to request DACA again.

    Response: Employment authorization for a DACA recipient is based

upon the DACA recipient's eligibility for deferred action and

demonstrating an economic necessity, as it is for all other deferred

action recipients, and not on any other status or authorization to be

in the United States. There is no ``stronger work permit'' that DHS

could offer to DACA recipients solely based on their deferred action.

Rather, when a DACA recipient is granted employment authorization, the

DACA recipient is then generally eligible for employment anywhere in

the United States and with any legal employer for the duration of the

validity period of the employment authorization document without

additional restriction.\185\ DHS also does not have the authority to

place DACA recipients on the Department of Labor's Schedule A. Thus,

while some DACA recipients may have different skill sets, levels of

education, or technical training, it is ultimately DACA recipients'

eligibility for deferred action and economic necessity that make them

eligible for employment authorization, and for the reasons explained

and discussed throughout this preamble DHS is not changing the

eligibility requirements for consideration for deferred action under

DACA.

---------------------------------------------------------------------------

 

    \185\ See INA sec. 212(n)(4)(E), 8 U.S.C. 1182(n)(4)(E); 8 CFR

274a.12(c).

---------------------------------------------------------------------------

 

  1. Authority To Provide Employment Authorization To Deferred Action

Recipients

DHS Lacks Authority To Grant Work Authorization

    Comment: A commenter stated, ``DHS does not have the authority to

grant employment authorization documents . . . to aliens [for] whom the

INA does not provide such benefits or for whom the INA does not

expressly grant the Secretary discretionary authority, such as is the

case with asylum-based EADs.'' The commenter stated Congress has

established an extensive scheme for the admission of immigrant and

nonimmigrant foreign workers into the United States. The commenter went

on to write that Congress has not authorized DHS to create employment

eligibility for classes of noncitizens not already provided by law,

reasoning that designating new classes of employment-eligible

populations undermines the deliberate scheme created by Congress, which

contemplates intricate social, economic, and foreign policy

considerations beyond the scope of DHS's interests and mission. The

commenter stated INA sec. 274a(h)(3), 8 U.S.C. 1324a(h)(3) does not

provide the authority that DHS claims because that section is ``merely

definitional'' and does not itself grant the Secretary any authority.

Citing the COVID-19 pandemic and inflation, the commenter wrote the

U.S. Government has both a moral and legal obligation to ensure that

U.S. workers of all backgrounds are first in line for jobs as the

economy reopens and are not further harmed by unfair competition and

wage suppression.

    A commenter remarked that the proposal violates the provision at

INA sec. 236(a)(3), 8 U.S.C. 1226(a)(3), prohibiting DHS from providing

work authorization to an ``alien,'' citing the statutory language. The

commenter further stated that the interpretation cited in the proposed

rule, 86 FR 53758, does not reflect the actual meaning of the statute,

and that any examination of legislative history is irrelevant when the

statutory language is clear. Ultimately, the commenter opposed the

proposed rule, stating that it is inconsistent with the ``INA's

unambiguously specific and intricate provisions'' regarding immigration

status and work authorization.

    Response: DHS disagrees with commenters' position that DHS lacks

authority to grant employment authorization to DACA recipients. The

text of the relevant statute, understood in light of the relevant

historical context, confers that authority on DHS. As the NPRM explains

in detail, since at least the 1970s, the INS and later DHS have made

employment authorization available for noncitizens without lawful

immigration status but who receive deferred action or certain other

forms of forbearance from removal.\186\ As noted in the NPRM, INA sec.

274a(h)(3), 8 U.S.C. 1324a(h)(3), enacted in 1986 in IRCA, defines an

``unauthorized alien'' for purposes of employment authorization as a

noncitizen who ``is not at that time either . . . an alien lawfully

admitted for permanent residence, or . . . authorized to be so employed

by this chapter or by the Attorney General'' (now the Secretary of

Homeland Security). This provision plainly recognizes that the

Secretary may authorize employers to employ certain removable persons,

endorsing the longstanding, pre-IRCA agency practice. And even before

Congress enacted section 274a(h)(3), INS and Congress had consistently

interpreted the broad authority in INA sec. 103(a), 8 U.S.C. 1103(a),

to allow the Secretary to grant work authorization. That section

charges the Attorney General and, since 2003, the Secretary, with ``the

administration and enforcement of this chapter and all other laws

relating to the immigration and naturalization of aliens,'' and

authorizes the Secretary to ``establish such regulations; prescribe

such forms of bond, reports, entries, and other papers; issue such

instructions; and perform such other acts as he deems necessary for

carrying out'' the Secretary's authority under the INA. That provision

also plainly allows for the granting of discretionary employment

authorization to certain noncitizens even when no additional statute

expressly so provides.\187\

---------------------------------------------------------------------------

 

    \186\ See 86 FR 53737-53760.

    \187\ See also id. at 53757 and n.190.

---------------------------------------------------------------------------

 

    DHS finds the commenters' arguments to the contrary unpersuasive.

One commenter disagreed with DHS's interpretation that INA sec.

274a(h)(3), 8 U.S.C. 1324a(h)(3), which defines an ``unauthorized

alien'' for purposes of employment authorization as a noncitizen who

``is not at that time either (A) an alien lawfully admitted for

permanent residence, or (B) authorized to be so employed by this

chapter or by

 

[[Page 53199]]

 

the Attorney General.'' DHS has pointed out that this definition

demonstrates that Congress recognized and accepted the former INS's

long history of providing employment authorization to individuals under

the general section 103 authority in the INA. The commenter stated that

the section is ``merely definitional.'' But the commenter's reading of

that provision fails to account for the importance of the definition of

``unauthorized alien'' in the statutory scheme and its extensive

regulatory and legislative history.

    In the decades leading up to IRCA, the INS frequently stated its

view of its authority to grant work authorization to certain classes of

noncitizens, or restrict the work authorization of the same.\188\ The

INS and later DHS have also regularly exercised that authority without

congressional intervention.\189\ In fact, Congress expressly

acknowledged the Attorney General's--and now the Secretary's--authority

to grant employment authorization to certain classes of noncitizens in

1974 when it passed the Farm Labor Contractor Registration Act

Amendments, which in pertinent part made it unlawful for farm labor

contractors knowingly to employ any ``alien not lawfully admitted for

permanent residence, or who has not been authorized by the Attorney

General to accept employment.'' \190\ INS sought to codify its work

authorization practice in a 1981 final rule permitting discretionary

work authorization for certain noncitizens without lawful status, such

as those who (1) had pending applications for asylum, adjustment of

status, or suspension of deportation; (2) had been granted voluntary

departure; or (3) had been recommended for deferred action.\191\ In the

proposed rule that preceded these changes, the INS explained that

``[t]he Attorney General's authority to grant employment authorization

stems from section 103(a) of the Immigration and [Nationality] Act[,]

which authorizes him to establish regulations, issue instructions, and

perform any actions necessary for the implementation and administration

of the Act.'' \192\

---------------------------------------------------------------------------

 

    \188\ See, e.g., Aliens and Nationality, 17 FR 11469, 11489

(Dec. 19, 1952) (codified at 8 CFR 214.2(c) (1952)) (prohibiting a

nonimmigrant in the United States from engaging in ``any employment

or activity inconsistent with and not essential to the status under

which he is in the United States unless such employment or activity

has first been authorized by the district director or the officer in

charge having administrative jurisdiction over the alien's place of

temporary residence in the United States.'' (emphasis added));

Aliens and Nationality, 22 FR 9765, 9782 (Dec. 6, 1957) (codified at

8 CFR 214.2(c) (1957)) (same). See also generally Sam Bernsen,

Employment Rights of Aliens Under the Immigration Laws, In Defense

of the Alien, Vol. 2 (1979), at 21, 32-33 (collecting former INS

Operating Instructions (OI) on employment authorization), reprinted

in https://www.jstor.org/stable/23142996; Geoffrey Heeren, The

Immigrant Right to Work, 31 Georgetown Immigr. L. J. 243 (2017). In

addition, as noted in the NPRM, the former INS's OI in 1969 allowed

for discretionary employment authorization to be issued to

individuals who were provided voluntary departure, which permitted

certain deportable noncitizens to remain in the United States until

an agreed-upon date at which point they had to leave at their own

expense but without the INS needing to obtain an order of removal.

See INS OI 242.10(b) (Jan. 29, 1969).

    \189\ See, e.g., 17 FR 11469; Matter of S-, 8 I&N Dec. 574, 575

(BIA 1960) (noting that ``the Immigration Service has issued printed

material putting nonimmigrant aliens on notice that they may not

engage in employment without permission of the Immigration Service

Form I-358, which is routinely given to all entering nonimmigrant

aliens.'' (cleaned up)).

    \190\ See Public Law 93-518 (Dec. 7, 1974).

    \191\ See Employment Authorization to Aliens in the United

States, 46 FR 25079 (May 5, 1981).

    \192\ 45 FR 19563 (Mar. 26, 1980). The INS also stated that the

Attorney General's authority to authorize employment of aliens in

the United States was ``a necessary incident of his authority to

administer the Act'' and had recently been ``specifically recognized

by the Congress in the enactment of section 6 of [Pub. L. 94-571].''

Id. As described by the INS, that provision ``amended section 245(c)

of the Act to bar from adjustment of status any alien (other than an

immediate relative of a United States citizen) who after January 1,

1977 engages in unauthorized employment prior to filing an

application for adjustment of status.'' Id.

---------------------------------------------------------------------------

 

    Congress then passed IRCA in 1986, making it unlawful for the first

time for employers knowingly to hire an ``unauthorized alien (as

defined in subsection (h)(3))'' for employment. 8 U.S.C. 1324a(a).

Subsection (h)(3) defines an ``unauthorized alien'' in part as an

individual whom the Attorney General has not authorized for employment.

Thus, even though INA sec. 274a(h)(3) is ``definitional'' as one

commenter observes, it is not meaningless or unimportant. To the

contrary, that definition is part of IRCA and defines the scope of

IRCA's core substantive provision that makes it unlawful to hire ``an

unauthorized alien (as defined in subsection (h)(3)).'' 8 U.S.C.

1324a(a) (emphasis added). As INS explained in IRCA's implementing

regulations:

 

    [T]he only logical way to interpret this phrase is that

Congress, being fully aware of the Attorney General's authority to

promulgate regulations, and approving of the manner in which he has

exercised that authority in this matter, defined ``unauthorized

alien'' in such fashion as to exclude aliens who have been

authorized employment by the Attorney General through the regulatory

process, in addition to those who are authorized employment by

statute.\193\

---------------------------------------------------------------------------

 

    \193\ Employment Authorization; Classes of Aliens Eligible, 52

FR 46093 (Dec. 4, 1987).

 

    In other words, Congress was well aware of INS's view of its

authority to grant work authorization when it passed IRCA, and chose

expressly to acknowledge INS's practice on this point, ratifying it in

the most comprehensive immigration legislation in a generation.

    For this same reason, DHS disagrees with the commenter's assertion

that Congress' expressly authorizing certain classes of noncitizens for

employment in the years since IRCA's enactment negatively implicates

DHS's ancillary and longstanding authority to grant discretionary work

authorization. This assertion depends on a misuse of the ``expressio

unius est exclusio alterius'' canon. The express authorization was

supplemental to the general authority that already existed, and not in

derogation of it or contradictory to it. As explained above, Congress

has had ample opportunity for input through legislation on INS's

authority to grant work authorization over the years. But in enacting

IRCA Congress ratified the Attorney General's (now the Secretary's)

authority to grant work authorization to various classes of

noncitizens. Nor did Congress disturb this text or alter this authority

in any way in other watershed immigration legislation since that time,

including the Immigration Act of 1990, the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, or the REAL ID Act of 2005.

    DHS acknowledges that in prior litigation, the agency took the

position that INA sec. 274a(h)(3), 8 U.S.C. 1324a(h)(3) did not

authorize the Secretary to grant work authorization to recipients of

deferred action under the DACA policy.\194\ However, after careful

consideration, DHS now disagrees with that position. For the reasons

explained throughout this preamble and the NPRM, Congress clearly

ratified the Attorney General's longstanding authority to authorize

classes of noncitizens for employment through the enactment of INA sec.

274a(h)(3), 8 U.S.C. 1324a(h)(3). DHS accordingly disagrees with the

commenter that it lacks authority to provide EADs to recipients of

deferred action under the DACA policy who establish an economic need to

work.

---------------------------------------------------------------------------

 

    \194\ See Reply Br. for Pet'r at 19, U.S. Dep't of Homeland

Security, et al. v. Regents of the Univ. of Cal., 140 S. Ct. 1891

(2020) (No. 18-587).

---------------------------------------------------------------------------

 

    DHS acknowledges the commenter's concern for citizen workers during

this period of particular economic uncertainty, but DHS disagrees that

this rule would result in material adverse effects on such workers. As

explained in greater detail elsewhere in this rule,

 

[[Page 53200]]

 

including the RIA at Section III.A.4.d, the relationship between DACA

recipients and U.S. workers is more complicated. For instance, the data

consistently indicate that introducing skilled noncitizen workers to

the workforce positively impacts the wages and employment of both

college-educated and non-college-educated citizens, suggesting that

DACA recipient workers falling into this category would generally be

complementary to, rather than competitive with, U.S. citizen workers.

    DHS likewise disagrees with the other commenter's position that INA

sec. 236(a)(3), 8 U.S.C. 1226(a)(3), prohibits DHS from granting work

authorization. DHS first notes INA sec. 236 governs the apprehension

and detention of noncitizens pending removal proceedings. The commenter

seeks to overextend that statute's reach, for there is no indication

that Congress intended it to apply beyond the context of removal

proceedings. In any event, as explained in the NPRM, DHS interprets the

clause of INA sec. 236(a)(3) stating that DHS may not provide work

authorization to a noncitizen in removal proceedings ``unless the alien

. . . otherwise would (without regard to removal proceedings) be

provided such authorization'' to represent Congress' further

recognition that noncitizens who are not also permanent residents may

nevertheless receive work authorization.\195\ That clause (added in

1996) preserves the Secretary's authority to grant work authorization

to deferred action recipients, as the Secretary had done pursuant to

preexisting regulation, 8 CFR 274a.12(c)(14) (1995). DHS maintains its

position that because Congress expressly referenced situations in which

a noncitizen ``otherwise'' would receive work authorization, Congress

preserved DHS's authority to grant work authorization to categories of

noncitizens other than lawful permanent residents, including to

deferred action recipients, consistent with DHS's longstanding

interpretation of its statutory authority. Any other reading renders

that statutory text superfluous.

---------------------------------------------------------------------------

 

    \195\ 86 FR 53759.

---------------------------------------------------------------------------

 

    DHS has further considered the district and appellate court

opinions questioning DHS's authority to provide employment

authorizations to DAPA or DACA recipients, and respectfully disagrees

with those decisions for the reasons explained in the proposed

rule.\196\

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    \196\ 86 FR 53759-53760.

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DHS Has Authority To Grant Work Authorization

    Comment: Many commenters stated that the Department's statutory

authority to provide work authorization to DACA recipients is clear,

citing longstanding regulations and law to support their claim: INA

sec. 103(a), INA sec. 274a(h)(3), and 8 CFR 274a.12(c)(9), (10), and

(14). Citing INA sec. 274a(h)(3), one commenter stated that Congress

delegated authority to DHS to administer and enforce the INA, saying

the proposed rule is consistent with DHS's legal authority to grant

work authorization to those ``who benefit from prosecutorial

discretion.'' Other commenters similarly agreed that granting work

authorization does not ``undermine'' the INA or IRCA, contrary to the

district court's recent holding in Texas. A commenter also reasoned

that if the agency did not provide employment authorization, then the

agency's action would be arbitrary and capricious for failing to

consider the third parties impacted by the loss of employment

authorization. Citing INA sec. 274a(h)(3), a commenter warned

``undercutting'' the clear statutory and regulatory authority the

Department has to grant employment authorization would have far-

reaching impacts beyond DACA to many other vulnerable groups of

migrants. Another commenter likewise applauded DHS's ``thorough''

explanation of its discretionary authority to grant deferred action and

work authorization to certain individuals. Several commenters urged the

Department to add a DACA-specific provision to longstanding work

authorization regulations to clarify and reinforce the policy for DACA

recipients.

    Several other commenters expressed concern with the separation of

work authorization and deferred action, writing that access to deferred

action and work authorization are not separate in their view. The

commenters stated that the ability for DACA recipients to live with

their families and communities without fear of deportation is

synonymous with their ability to work legally and contribute to their

families' and communities' economic well-being. The commenters

acknowledged State legislators cannot grant work authorization to DACA

recipients and instead must rely on DHS's discretion to do so.

    Response: DHS agrees with commenters that it has authority to grant

work authorization to DACA recipients attendant to their grant of

deferred action. DHS agrees the pertinent regulatory and legislative

context indicates Congress' consistent recognition and ratification of

this authority.\197\ With respect to the comment suggesting that

eliminating employment authorization for DACA recipients would be

arbitrary and capricious, DHS takes the commenter's point regarding the

benefits of employment authorization and existing reliance interests,

but notes that DHS has not eliminated employment authorization from the

policy. DHS agrees with commenters that DACA recipients and their

communities would be negatively affected if discretionary employment

authorization upon demonstration of economic necessity were eliminated

from the DACA policy. To this end, DHS has included a DACA-specific EAD

provision in this rule at new 8 CFR 274a.12(c)(33).

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    \197\ See the preamble to the NPRM at 86 FR 53756-53760.

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  1. Unbundled Process To Make Form I-765 Optional

Support for Unbundled Process That Makes Form I-765 Optional

Financial Benefits to Applicants

    Comment: Some commenters expressing support for the unbundled

process stated that the provision would allow requestors to secure

deferred action before applying for employment authorization,

preventing them from losing the $410 Form I-765 filing fee upon a

denial of deferred action. Other commenters said the unbundled process

would provide flexibility and ease the financial burden for applicants

who do not need employment authorization, such as some university

students and those who are unable to work. Commenters said that the

181,000 DACA-eligible students in higher education would benefit from

the ability to financially prioritize the separate requests, as many of

these students may not need or want employment authorization during

their enrollment in higher education. Another commenter reasoned that

the $410 filing fee for Form I-765 is significant and a potential

barrier for many requestors.

    Response: DHS acknowledges these commenters' support for the

proposed provision and agrees that an unbundled process would provide

additional flexibility and reduce financial barriers to deferred action

requests for some DACA requestors, including those who do not want to

or cannot currently work. DHS agrees that the proposed unbundled

process would provide DACA requestors with the ability to prioritize

requests for forbearance from removal over employment authorization

 

[[Page 53201]]

 

or to wait until they know their DACA request is approved before filing

and paying the fees for an EAD, as needed. DHS has weighed these

important interests carefully against countervailing considerations

discussed below and, as discussed in greater detail in this section,

has modified the proposed rule to codify the existing bundled process.

Protect the Integrity of DACA Against Future Litigation

    Comment: Other commenters supporting the provision stated that

unbundling the requests for employment authorization and deferred

action would protect DACA recipients from the results of future

litigation and possible deportation. A commenter agreed with what they

perceived as DHS's rationale for the proposed change, namely that if

employment authorization requests were optional, there would be a

greater likelihood that the deferred action component of the policy

and, thus, relief from deportation would be upheld if a court

invalidated employment authorization for DACA recipients. Other

commenters stated that while it was within the Executive's immigration

authority to grant both deferred action and employment authorization,

an unbundled process would bolster the continued existence of DACA in

whole or in part.

    A commenter stated that the proposed change would strengthen DACA's

designation as an executive exercise of prosecutorial discretion

because it would align DACA with other forms of prosecutorial

discretion that grant employment authorization based on economic need.

The commenter concluded that placing the program on firm ground with

regard to prosecutorial discretion while providing financial relief and

flexibility to DACA recipients would be essential ``until there is a

permanent congressional solution.''

    Response: DHS acknowledges commenters who reasoned that the

proposed unbundled process would align DACA with other DHS exercises of

deferred action and could fortify the forbearance component of the DACA

policy in the event of ongoing or future DACA litigation. However, DHS

disagrees that unbundling these forms is necessary to preserve and

fortify the forbearance from removal component of the DACA policy. DHS

therefore disagrees with commenters to the extent they characterize

DHS's rationale for proposing the unbundled process as a necessary

means to insulate the policy from litigation. Rather, DHS's primary

reason for proposing the unbundled approach was to provide applicants

with greater flexibility and to reduce cost barriers to eligible

noncitizens who sought forbearance but did not want, prioritize, or

have economic need for employment authorization. And as discussed

throughout the NPRM and this rule, DHS strongly believes it is legally

authorized to implement the DACA policy, including to grant recipients

discretionary work authorization. DHS accordingly disagrees with

commenters' position that unbundling forbearance from removal and work

authorization is necessary to place DACA on stronger legal footing.

This rule, moreover, includes both a DACA-specific EAD provision at new

8 CFR 274a.12(c)(33) and a severability provision at new 8 CFR 236.24.

Thus, even if a court were to hold that DHS lacked authority to grant

discretionary work authorization to DACA recipients, DHS maintains that

the court should sever the work authorization provision from the rest

of the regulation, leaving DACA's forbearance component intact. As

unbundling the filing of the DACA request from the employment

authorization application is not legally required to preserve the

forbearance component of DACA, and as discussed in greater detail

below, despite the greater financial and other flexibility it would

offer DACA requestors, DHS has decided to modify the proposed rule to

maintain the status quo policy that requires all DACA requestors to

file Form I-765, Application for Employment Authorization, and Form I-

765WS concurrently with their form I-821D, Consideration of Deferred

Action for Childhood Arrivals.

Mixed Feedback on the Provision

    Comment: Some commenters provided mixed feedback on the proposed

unbundled process without opposing or supporting the proposal. These

commenters acknowledged, as discussed above, that an unbundled process

would provide greater flexibility, reduce cost barriers to requestors,

and that unbundling the forms could better protect deferred action

should a court strike down access to employment authorization. A

commenter, however, questioned the purpose of DACA if recipients could

not legally work and obtain Social Security numbers and expressed

concern that the change would cause confusion for DACA recipients.

Commenters expressed concerns about delays that would result in

misaligned validity dates for deferred action and work authorization.

Citing USCIS historical processing times data that DACA initial

requests were taking on average nearly 6 months and DACA-related

employment authorization requests were taking on average nearly 2

months to be processed, a commenter stated that unbundling Forms I-821D

and I-765 could lead to additional delays in EAD adjudications, causing

disruptions for U.S. employers and harming DACA recipients and their

families. Likewise, a commenter stated that the rule, as proposed,

could not guarantee the timely adjudication of employment authorization

applications.

    Without clearly supporting or opposing the proposed unbundled

process, other commenters urged DHS to proceed with caution and

suggested ways to ameliorate concerns with the proposed provision,

including: clearly and carefully communicating the change to the DACA

population, ensuring DACA recipients who work without authorization do

not face penalties, maintaining a procedure that would not confuse or

cause backlogs in applications due to the extended process, and adding

language to the rule that DACA and EAD applications USCIS receives

concurrently are adjudicated together and have the same validity dates.

    Expressing support for this provision, a commenter raised concerns

that the optional form would effectively change the cost of DACA and

questioned whether the reduced cost would result in substantially lower

revenue for USCIS.

    Response: DHS acknowledges these comments on the proposed unbundled

process. DHS agrees that the proposal would have provided additional

flexibility to requestors regarding whether or when to request

employment authorization in connection with their deferred action

requests under the DACA policy. DHS, as discussed elsewhere in this

rule, disagrees that unbundling these requests is necessary to

strengthen the legal footing of the DACA policy or this rule. DHS also

acknowledges these commenters' concerns that the proposed provision

could introduce confusion among the DACA-eligible population and cause

other unintended consequences, such as lengthier processing times,

backlogs, and EAD validity dates that do not match the full 2-year

period of deferred action for requestors who do not bundle their

requests. USCIS has made important strides in reducing backlogs and

ensuring efficient processing times for DACA-related requests. Of note,

median processing times for DACA renewal requests and related

employment authorization applications have decreased to half a month in

Fiscal Year (FY) 2022 to date. As discussed above, since July 16, 2021,

the Texas

 

[[Page 53202]]

 

district court order has prohibited USCIS from granting initial DACA

requests and related employment authorization applications.

Nevertheless, DHS agrees that an unbundled option could result in DACA

recipients who receive EADs with validity periods of less than 2 years

because the expiration date would necessarily be the end date of the

deferred action period, while the EAD validity date would depend on the

date of adjudication. DHS agrees with the commenter who suggested

unbundling these forms could result in diminished cost recovery if a

significant number of DACA requestors chose not to file Form I-765. In

the NPRM, DHS considered carefully this concern and, based on

projections, estimated that USCIS would charge, on average,

approximately $93,736,500 less than the estimated full cost of

adjudication for Form I-821D annually in FY 2022 and FY 2023 in the

unbundled scenario.\198\ Nevertheless, in the NPRM, DHS decided to hold

the fee for Form I-821D below the approximately $332 estimated full

cost of adjudicating that form alone and to propose the unbundled

process to offer greater flexibility to DACA requestors, finding this

framework to be in the public interest. In the NPRM, DHS explained its

view that the proposed Form I-821D fee of $85 balances the need to

recover some of the costs of reviewing DACA requests filed without Form

I-765, including the costs of biometric services, with the humanitarian

needs of the DACA requestor population and the benefits of expanding

DACA to DHS and to communities at large. Many DACA recipients are young

adults who are vulnerable because of their lack of immigration status

and may have little to no means to pay the fee for the request for

deferred action. However, DHS has considered these comments and, as

further discussed elsewhere in this rule, has decided to instead codify

the existing bundled process in this rule.

---------------------------------------------------------------------------

 

    \198\ 86 FR 53764.

---------------------------------------------------------------------------

 

Opposition to the Optional Form I-765

    Most commenters who provided feedback on this provision expressed

concern about the consequences it would have for DACA recipients, the

application process, program benefits, or the integrity of the program

overall. Many of these commenters urged DHS to instead retain the

existing bundled process that has been in place since 2012, with some

stating the proposed unbundled process undermined DACA.

Recognition of the Rationale Behind the Provision

    Comment: Many commenters opposed the proposal while also

recognizing the financial and flexibility benefits the proposal would

have provided to some requestors, as discussed in more detail above.

Other commenters who expressed concern with the provision stated that

they appreciated the absence of any substantive alterations to EAD

adjudications or filing fees. One commenter noted that the requirement

for the DACA request to be submitted with the employment authorization

application is clearer, forces people to be ``all in or all out on the

Employment Authorization,'' and provides a greater understanding of

DACA and its benefits to requestors.

    Response: DHS appreciates these commenters' recognition that the

proposed unbundled process would have benefitted some DACA requestors

by reducing cost barriers and expanding choice and flexibility for

these individuals. However, the Department accepts that these

commenters nevertheless preferred the bundled process, which is the

longstanding status quo practice since 2012 of requiring both the DACA

request and the employment authorization application to be filed

simultaneously. DHS addresses these commenters' opposition to the

proposal in this section, and, for the reasons discussed, has modified

this rule to codify the existing and longstanding bundled process.

Litigation and Loss of Employment Authorization

    Comment: Many commenters remarked that strengthening the legal

position of deferred action through the proposed unbundled process

would create an opportunity for the courts or future administrations to

invalidate employment authorization for DACA recipients altogether.

    A commenter stated that this change would be legally unnecessary,

citing DHS's recognition that deferred action has never created an

entitlement to employment authorization and that DACA recipients must

show an economic necessity to obtain such authorization. The commenter

concluded that the existing bundled process has promoted access to an

important benefit while minimizing costs to requestors and DHS.

    Another commenter remarked that an unbundled process could leave

the program vulnerable to political attacks labeling DACA recipients as

unproductive members of society, which could weaken support for DACA

and leave the program open to future litigation. Similarly, another

commenter noted that that the proposed unbundling could create an

opportunity for individuals who are not motivated to work with

authorization to forgo the Form I-765 filing fee.

    Response: DHS disagrees that unbundling the deferred action and

employment authorization requests would create any greater likelihood

that the employment authorization for DACA recipients would be

invalidated altogether. This rule again codifies an exercise of DHS's

authority to grant employment authorization to DACA recipients and

thereby serves to preserve and fortify DACA. This rule includes a DACA-

specific EAD provision at new 8 CFR 274a.12(c)(33). Thus, DHS would

need to engage in additional notice-and-comment rulemaking to remove

the regulatory text and the ability for DACA requestors to request

employment authorization. DHS agrees with commenters' assertion that

the proposed change is not legally necessary to fortify the

Department's authority to grant employment authorization to DACA

recipients. As explained in detail in the NPRM and elsewhere in this

rule, since at least the 1970s, the INS and later DHS have made

employment authorization available for noncitizens without lawful

immigration status but who receive deferred action or certain other

forms of prosecutorial discretion.\199\ In response to these comments,

and for additional reasons explained elsewhere in this preamble, DHS is

modifying the rule to adopt the existing bundled process instead of

adopting the unbundled process as proposed in the NPRM. Finally, DHS

notes that comments regarding political descriptions of DACA recipients

are outside the scope of this rule and declines to respond to these

comments.

---------------------------------------------------------------------------

 

    \199\ 86 FR 53757.

---------------------------------------------------------------------------

 

DHS's Rationale Regarding the Need for Work Authorization

    Comment: A few commenters critiqued DHS's rationale that some DACA

requestors may not need employment authorization and questioned how

likely it would be that DACA recipients would choose not to apply for

an EAD. Similarly, a legal services provider stated that employment

authorization is not an add-on benefit to DACA and that it would not

expect any of its clients to request deferred action under the DACA

policy without employment authorization. Echoing these arguments, a

commenter further reasoned that it is

 

[[Page 53203]]

 

difficult to see work authorization and deferred action as two separate

issues, adding that a deferred action-only DACA policy would have

little to no value to individuals. A commenter reasoned that, as the

only individuals who fit within the DACA policy under the Texas ruling

and partial stay are seeking to renew DACA and have always requested

deferred action alongside employment authorization, they would continue

to request these protections jointly and would not require the

additional flexibility. This commenter said that it would be important

for recipients to have assurance that they would not have any lapses in

employment authorization because of this change.

    A commenter stated that the NPRM's projection that 30 percent of

DACA requestors would opt out of requesting employment authorization

was at odds with rapidly changing individual circumstances and the

importance of having the ability to work even if it is not continually

exercised. The commenter concluded the vast majority afforded the

opportunity to request work authorization will do so.

    Response: DHS agrees with these commenters that most DACA

requestors likely will request employment authorization but reiterates

that the unbundled process proposed in the NPRM was intended to not

only offer options to requestors about whether to request employment

authorization, but also when to request this authorization. DHS

acknowledges some commenters' position that employment authorization is

not an ``add-on'' benefit of deferred action, but DHS disagrees.

Certainly, as discussed in the NPRM and elsewhere in this rule, policy

considerations weigh heavily in favor of authorizing employment for

individuals with deferred action. Nonetheless, as discussed throughout

this rule, DACA is an exercise of prosecutorial discretion in the form

of deferred action, upon which determination DHS has authority to

confer employment authorization. Indeed, as other comments have

indicated, there is likely to be a subset of the DACA population that

does not want or need an EAD at a given time and, therefore, may

benefit from the option to delay or defer requesting employment

authorization. DHS also reiterates that although the Texas court order

currently enjoins DHS from granting DACA to initial requestors, this

rule addresses the threshold criteria and process for both initial DACA

requests and renewal requests. DHS has carefully considered these

comments, weighing the unbundled process's potential benefits to a

subset of DACA requestors against the complications posed to the larger

population of DACA requestors. Upon careful consideration, as explained

below, DHS agrees that the benefits of the proposed unbundled process

do not outweigh the potential negative impacts raised by commenters as

discussed in this rule. DHS therefore has decided to modify the

proposed rule and instead to codify the longstanding bundled process

that requires requestors to simultaneously file Form I-765, Application

for Employment Authorization, and Form I-765WS along with their Form I-

821D, Consideration of Deferred Action for Childhood Arrivals.

Administrative Burdens on Applicants, Confusion, and Impacts on Pro Se

Applicants

    Comment: Many commenters stated that the proposed unbundled process

would create unnecessary burdens for current DACA recipients who are

accustomed to the bundled process and those who may unknowingly opt out

of work authorization due to financial necessity, confusion, or a lack

of legal assistance. Another commenter said that any confusion

resulting from this change could deprive DACA recipients of access to

or ability to work, which the commenter stated is necessary to

establish their families' safety and security in the United States.

    A commenter stated that, in its experience with the administration

of and access to public benefit programs, duplicative applications

create unnecessary barriers to participation, while increasing the

administrative burden on requestors and the granting agencies.

Similarly, commenters stated this change could increase time and

resources spent on legal fees to submit additional paperwork or to

navigate the new process. In addition to compounding burdens for

requestors, agencies, and legal services providers, a commenter

suggested that confusion related to this provision would overwhelm

under-resourced organizations that assist DACA requestors.

    A commenter said that many requestors with financial limitations

may fail to understand the benefits of concurrently filing Forms I-821D

and I-765. Other requestors, commenters remarked, may erroneously

believe they can apply for deferred action and automatically receive

employment authorization, or inadvertently fail to opt into applying

for employment authorization, leading to further delays and the

potential loss of employment opportunities.

    Many commenters stated that the burden of this change could fall

largely on pro se requestors, making the policy less accessible for

those lacking proper guidance to navigate complex, evolving processes.

A commenter said this provision would create an acute risk that pro se

requestors would not understand that they must apply separately for an

EAD under the new process, and that there would be a ``skeletal track''

resulting in deferred action alone. This confusion, the commenter

warned, could result in EAD applications lagging behind DACA requests

and subsequent losses in the work authorization period, despite paying

the full fee for an EAD. Other commenters stated that these challenges

would largely fall on first-generation noncitizens and requestors with

limited resources.

    Response: DHS acknowledges these commenters' concerns and

recognizes the need for clarity regarding the process to request

consideration for deferred action and employment authorization under

the DACA policy. DHS has carefully considered these concerns and agrees

that the population of DACA requestors is accustomed to the well-

established bundled process that has been in place since 2012. DHS

recognizes that diverging from this longstanding process could cause

confusion and agrees that requestors without the assistance of

attorneys or accredited representatives could be disproportionately and

adversely impacted by the proposed change. DHS also recognizes that

codifying the unbundled process could strain resources among nonprofit

legal services providers because it could result in more requestors

seeking assistance from these providers and introduce more procedural

options to consider, causing legal services providers to spend

additional time and resources explaining the change, counseling

requestors, and preparing and filing unbundled forms. DHS also

acknowledges commenters' concerns that while the proposed change could

reduce cost barriers to forbearance from removal, those DACA requestors

with acute economic distress such that they could not afford the filing

fee under a bundled process also likely would be among those

individuals with the most economic need for employment authorization.

DHS also agrees that it is important that DACA recipients who pay the

Form I-765 filing fee receive an EAD with a validity period that

matches the full deferred action period, and that those who have

limited resources may be disproportionately impacted by

 

[[Page 53204]]

 

delaying filing the Form I-765 due to inability to pay. Because DHS has

decided to maintain the 2-year DACA deferred action validity period set

forth in the Napolitano Memorandum, the Department declines to make

changes to this rule that would extend employment authorization

validity periods beyond that timeframe. However, after careful

consideration of these concerns raised by commenters, and having

carefully weighed the potential benefits against the unintended

negative consequences raised by the proposal, DHS agrees to make

changes in the rule to codify the existing bundled approach, rather

than offering requestors the option of an unbundled process.

Delays in Adjudication and Gaps in Employment Authorization

    Comment: Several commenters expressed concern that unbundling

requests for employment authorization and deferred action would

increase administrative burdens for USCIS and lead to delays that could

harm DACA recipients' ability to meet economic needs through work. A

commenter stated that an unbundled process would magnify delays in

grants of deferred action or work authorization, leading to incomplete

protection and increased uncertainty. Citing current USCIS backlogs, a

commenter similarly expressed concern that an unbundled process would

compound bureaucratic delays in an agency already experiencing backlogs

in adjudicatory functions, including EAD processing. Commenters stated

that an unbundled process not only would lead to delays but also could

result in the improper denial of work authorization requests. A

commenter added that employment authorization gaps heighten the delays

employers already experience with noncitizen employees amid labor

shortages. Other commenters stated that the unbundled process would

result in misaligned validity dates for DACA and employment

authorization, leading to the potential loss of a full term of

employment authorization and uncertainty for employers and recipients.

    Response: DHS recognizes that DACA recipients and employers have

significant reliance interests in the DACA policy this rule aims to

preserve and fortify. DHS acknowledges these commenters' concerns

regarding processing delays and bureaucratic complications arising from

an unbundled process. DHS agrees that DACA requestors and their

employers have an interest in efficiently processed DACA-related

employment authorization requests and in EAD validity dates that align

with the authorized deferred action period. DHS notes that the median

processing time for a DACA-related Form I-765 is 0.5 months in FY 2022,

as of May 31, 2022,\200\ reflecting important measures USCIS has taken

to ensure properly filed requests are swiftly adjudicated.

Nevertheless, DHS acknowledges it would require additional resources to

operationalize an unbundled approach that results in multiple

configurations of requests and an increased likelihood of ``second

touch'' processing, whereby a requestor files a Form I-765 at some

point after submitting their deferred action request. DHS has carefully

weighed the intended benefits of additional flexibility for requestors

and the potential unintended consequences of increased confusion,

uncertainty, and bureaucratic delay, and agrees with these commenters

that the flexibility benefits do not outweigh these potential negative

impacts. DHS therefore agrees to adopt the suggestion of these

commenters to codify the rule at new 8 CFR 236.23(a)(1) to require that

a request for DACA also must contain a request for employment

authorization filed pursuant to 8 CFR 274a.12(c)(33) and 274a.13.

---------------------------------------------------------------------------

 

    \200\ USCIS, Historical National Median Processing Time (in

Months) for All USCIS Offices for Select Forms By Fiscal Year,

Fiscal Year 2017 to 2022 (up to May 31, 2022), https://egov.uscis.gov/processing-times/historic-pt (last visited June 29,

2022).

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Two-Tiered System and Unauthorized Employment

    Comment: Many commenters stated that confusion, delays, or denial

of work authorization under an unbundled process would create ``unequal

DACA tiers'' between recipients with and without EADs. A few commenters

expressed concern that unbundling deferred action and work

authorization could create an opportunity for individuals who are not

motivated to work with authorization to forgo the I-765 filing fee or

for DACA recipients to avoid work at taxpayers' expense.

    Most commenters who raised concerns about a two-tiered system

discussed the adverse impact on unauthorized workers, workplace safety,

and labor rights. A commenter stated that unbundling deferred action

and work authorization would lead to persons opting out of paying the

Form I-765 fee for reasons of poverty, suggesting that the choice to

delay entry into the workforce would not be done freely. Another

commenter said the proposed change to the application process would

result in some DACA recipients being granted DACA and not employment

authorization.

    A commenter remarked that this provision would make work

authorization more difficult to obtain, ``forcing'' some individuals

into precarious situations where they pursue unauthorized employment.

This outcome, the commenter stated, would run counter to the agency's

intention of using its power to protect wages, facilitate workplace

safety, and enforce other labor and employment standards. Another

commenter noted that, whether due to fear, confusion, or cost,

requestors may be deterred from accessing work authorization under an

unbundled process, which would open the possibility of a new ``second

class'' of DACA recipients without work authorization. These DACA

recipients who lack employment authorization, commenters stated, would

open the door for increased unauthorized employment and empower

unscrupulous employers to take advantage of unauthorized labor,

including lower pay and exploitative, even hazardous work conditions. A

commenter added that unscrupulous employers often exploit the lack of

employment authorization to chill workers' efforts to organize, protest

substandard working conditions, and enforce wage, safety, and

discrimination laws, and also interfere with collective bargaining

rights, suggesting that the proposed change could cause irreversible

harm to many individuals by forcing them into informal employment.

Citing studies, a commenter stated that the economic consequences of

this change and possible involvement in abusive work situations would

be particularly acute for populations that are disproportionately

harmed by systemic inequalities, including LGBTQ populations, racial

minorities, and people with disabilities.

    A commenter expressed concern that a reduced population of work-

authorized DACA recipients would lead to the DACA population's

increased reliance on nonprofits, community organizations, and city or

State funding for daily needs.

    Response: DHS acknowledges these commenters' concerns about the

proposed unbundled process. DHS agrees that, to the extent that some

DACA requestors would forgo employment authorization under the

unbundled process, two groups of DACA recipients would result, those

with and those without employment authorization. As discussed in the

NPRM, DHS recognizes that, if offered the option to forgo employment

authorization, some DACA recipients would opt out due to a financial

 

[[Page 53205]]

 

inability to pay the Form I-765 filing fee. However, DHS disagrees with

the commenter that an unbundled process would force some DACA

requestors into unauthorized employment, although DHS acknowledges that

such unauthorized employment may be more likely to occur. While DHS

acknowledges commenters' point that an unbundled process could result

in confusion or uncertainty among DACA requestors, DHS reiterates that

it proposed the unbundled process as a mechanism to offer more

flexibility and make forbearance from removal more accessible to

individuals who might otherwise forgo DACA altogether due to an

inability to pay filing fees for employment authorization.

Nevertheless, DHS recognizes and agrees with commenters that there are

strong policy reasons to make employment authorization requests

accessible for those to whom DHS has extended deferred action. As

discussed above, self-reliance of community members is critical not

only to social and economic prosperity, but also to individuals'

personal well-being. While the DACA policy, even without employment

authorization, has substantial value, DHS recognizes that without

employment authorization, DACA recipients would be unable to engage in

lawful employment to support themselves and their families, potentially

exposing them to exploitation and crime. DHS has carefully weighed the

benefits of increased flexibility offered by the proposed unbundled

process against these unintended negative consequences and agrees to

modify the rule to codify the existing bundled process instead of the

proposed unbundled process.

The Provision Would Undermine the Purpose and Benefits of DACA

    Comment: Some commenters warned that the proposed unbundled process

would, as a result of other residual consequences of the provision,

frustrate the main purpose of DACA, to provide both protection from

deportation and the ability to work in the United States. A commenter

reasoned that the decision to make employment authorization ``more

challenging for DACA recipients belies [the] recognition of the pivotal

role of employment authorization to the proper operation'' of DACA.

Several commenters similarly said that the provision would undermine

the rationale behind DACA. A commenter stated that separating

forbearance from deportation and work authorization would have negative

effects on its city economy, arguing that DACA without work

authorization would mean an increase in poverty (including mixed-status

families), a loss of desperately needed essential workers, and a

significant loss to their city's economy and revenues. The commenter

estimated that DACA-eligible New Yorkers contribute over $3 billion

annually to New York City's GDP.

    Commenters reasoned that deferred action and work authorization are

not separate, as the ability for Dreamers to freely live with their

families and communities is synonymous with their ability to legally

work. A commenter said that DHS could not fortify DACA with a

regulation that separates deferred action from employment

authorization. In addition to stating the potential impacts of this

change on the request process, the commenter added that the proposed

change would weaken the purpose of DACA by undermining the worth and

agency of childhood arrivals.

    Many commenters noted that, if this provision led to any recipients

losing their employment authorization, recipients also could lose the

other benefits an EAD provides beyond the ability to work. Commenters

said that the EAD functions as a foundational form of identification

for many DACA recipients, who may find this new process confusing and,

therefore, fail to reapply for this benefit. They reasoned that an EAD

is often the only acceptable form of identification for obtaining a

driver's license while providing access to a Social Security number,

health insurance and preventative care, entrance to Federal buildings,

social benefits, school registration for children, long-term

educational opportunities, bank loans, and home utilities. Other

commenters added that, without an EAD, DACA recipients have no way of

demonstrating ``lawful presence,'' which is the criterion that some

States have chosen to use for eligibility for a State identification

card, which could in turn affect their right to domestic travel when

full enforcement of REAL ID requirements begins. A commenter similarly

stated that, even among those who do not require work authorization, an

EAD is valuable for obtaining these additional benefits. Considering

the loss of benefits for individuals only granted deferred action under

this change, commenters suggested that recipients should be allowed to

receive an alternative form of identification with their approved DACA

request, including a Social Security number and Federal identification.

    Response: DHS acknowledges these commenters' concerns. DHS agrees

that the ability to request employment authorization has been an

important component of the DACA policy since it was implemented in

  1. Although DHS reiterates that employment authorization is not

incident to receipt of deferred action--which is an act of

prosecutorial discretion--as it is incident to certain forms of lawful

immigration status, such as TPS and asylum, DHS agrees that employment

authorization is important to most DACA recipients. DHS also agrees

with and is persuaded by comments that point to the many reasons beyond

employment that DACA recipients may want or need an EAD to facilitate

important aspects of daily living while they have deferred action. DHS

acknowledges that DACA recipients may require an EAD for identification

or to access a variety of State and local benefits, programs, or

services. DHS agrees that the proposed unbundled process raises the

prospect that some DACA recipients may unwittingly forgo or be deterred

from applying for an important identity document or restrict their

access to these benefits, programs, or services by virtue of forgoing

an employment authorization request for any number of reasons discussed

above. Although it is generally the purview of States and

municipalities to make policies regarding eligibility of DACA

recipients for these benefits, programs, and services, DHS has a strong

interest in ensuring that individuals who have been granted DACA are

not deterred from requesting an EAD to establish their identity and

DACA forbearance. DHS appreciates the commenter's suggestion that DHS

furnish individuals who request only deferred action under an unbundled

process with an alternative identity document. However, DHS declines to

adopt this suggestion as it would impose additional operational costs,

could introduce confusion among States and localities, and would result

in DACA recipients receiving an identity document not available to

recipients of deferred action under other policies or processes.

Instead, upon careful consideration of the important concerns raised by

these commenters, DHS agrees to modify the final rule at new 8 CFR

236.23(a)(1) to require that a request for DACA also must contain a

request for employment authorization filed pursuant to 8 CFR

274a.12(c)(33) and 274a.13.

Fee Waivers as an Alternative to the Unbundled Process

    Comment: Commenters expressed concern that the proposed provision

would have made filing Form I-765 optional while maintaining the

existing fee structure. Recognizing that the provision would reduce

fees for

 

[[Page 53206]]

 

applicants with financial hardship or not needing employment

authorization, some commenters requested DHS consider other

alternatives for making the application affordable or more accessible,

including through fee waivers. A commenter also stated that, although

separating the two forms and their fees could alleviate the financial

burden of requesting DACA for some, it would not eliminate that burden

entirely. Other commenters said that the only benefit of the unbundled

process would be to offer a lower cost option, but stated that

providing a fee waiver was a better alternative than restricting the

application to a limited benefit for some. A commenter further

expressed concern that DACA is one of the few immigration requests for

which requestors are prohibited from requesting a fee waiver, while

another commenter urged implementation of a fee waiver option, stating

that the current fee exemption process for DACA requestors is

cumbersome and further delays beneficiary status. Another commenter

said that USCIS is authorized to carry out fee waivers under 8 CFR

106.3(b). To this end, a commenter recommended that USCIS allocate

additional funds to waive the fee associated with Form I-765 to reduce

the burden on DACA-eligible students.

    Response: DHS agrees with commenters that policy interests favor

making DACA accessible to those who meet the criteria and merit a

favorable exercise of discretion and, as such, is not increasing the

DACA-related fees in this rule. As discussed in greater detail

elsewhere in this rule, DHS has carefully considered the suggestion to

make fee waivers available to DACA requestors and weighed the benefits

of fee waivers to requestors with the fiscal impact and objective to

preserve and fortify DACA. Although DHS agrees to modify the rule to

require the existing bundled process, DHS declines to adopt the

suggestion to implement fee waivers.

Other Alternatives to an Unbundled Process

    Comment: A commenter stated that DACA would benefit from not

changing the application process in the manner set forth in the

proposed rule due to the precarious situation of the policy's long-term

viability. Alternatively, the commenter suggested that DHS amend the

rule to provide an unbundled process option for initial DACA requestors

should they be allowed to receive benefits in the future and maintain

the existing bundled process for individuals seeking to renew their

status. A different commenter recommended that the agency provide a way

for requestors to affirmatively decline filling out an application for

work authorization, instead of unbundling these processes. Another

commenter suggested that either the rule maintain the bundled process

or that an additional option be included that combines the work permit

and DACA renewal instead of ``completely decoupling'' the two requests.

Another commenter urged DHS to continue to grant employment

authorization concurrently with deferred action and to prominently list

on Form I-821D the significant benefits and any known drawbacks of

having an EAD for requestors.

    Response: DHS acknowledges and thanks commenters for these

suggestions. As an initial matter, DHS reiterates that the proposed

unbundled process would not have completely ``decoupled'' deferred

action and employment authorization requests for the DACA population.

Under the proposed rule, requestors would have retained the option to

bundle and concurrently file these requests, but would have the added

option of filing for employment authorization separately or not at all.

Nevertheless, as discussed above, upon careful consideration of

comments received and the extensive comments filed in opposition to the

proposed unbundled process, DHS is modifying the rule to codify the

longstanding bundled process. DHS believes that a consistent request

process for both initial and renewal requestors would best ensure

efficient processing and minimize processing delays or other

bureaucratic drawbacks of an unbundled process noted by commenters. DHS

therefore declines to adopt an unbundled approach for initial

requestors. In light of DHS's decision to adopt the existing bundled

process, DHS also declines to adopt suggestions to provide a means for

requestors to affirmatively decline employment authorization or to list

on Form I-821D the benefits and drawbacks of having an EAD.

  1. Automatic Termination of Work Authorization

    Comment: One commenter expressed general concern that, under the

proposed rule, termination of a DACA grant would result in termination

of the EAD as well, while another stated that the automatic termination

of work authorization provision is an example of the proposed rule

giving the policy ``more of a back[bone],'' stating that this was not

strictly enforced beforehand.

    Response: DHS acknowledges the range of views expressed, from one

commenter's concern that individuals are no longer eligible to work

lawfully once their EAD is terminated, to another commenter's support

for the provision. However, DHS disagrees that this provision was not

strictly enforced previously. Historically, when an individual's grant

of DACA has been terminated, so too has the individual's employment

authorization been terminated, because the underlying basis for the

employment authorization no longer exists upon the termination of DACA.

    DHS is revising 8 CFR 236.23(d)(3) in this rule to remove the

cross-reference to 8 CFR 274a.14(a)(1)(iv), which was vacated in

Asylumworks, et al. v. Mayorkas, et al., civ. 20-cv-3815 (D.D.C. Feb.

7, 2022). As a result of the vacatur and additional revisions made to

the DACA termination provisions to eliminate automatic termination

based on filing of an NTA, as discussed elsewhere in this rule, DHS is

further clarifying at 8 CFR 236.23(d)(3) that employment authorization

terminates when DACA is terminated and not separately when removal

proceedings are instituted.

  1. Lawfully Present (Sec. 236.21(c)(3)) and Unlawful Presence (Sec.

236.21(c)(4))

    In proposed 8 CFR 236.21(c)(3) and (4), DHS proposed that DACA

recipients, like all other deferred action recipients, would continue

to be considered ``lawfully present'' (a legal term of art) for the

purpose of receiving certain title II Social Security benefits under

existing 8 CFR 1.3(a)(4)(vi) and would not accrue unlawful presence for

inadmissibility determinations under INA sec. 212(a)(9)(B), 8 U.S.C.

1182(a)(9)(B) while they have DACA. Both provisions reflect policy and

practice for persons subject to deferred action more broadly since well

before the inception of DACA. As detailed below, the public comments on

these two proposals were overwhelmingly supportive of the two proposed

lawful presence provisions, with only a few commenters expressing

opposition to them. Several of the supportive commenters also provided

recommendations for additional modifications to the proposed

provisions. DHS responds first to the supporting comments, then to the

opposing comments, and finally to those comments that supported the

lawful presence provisions but recommended certain modifications.

 

[[Page 53207]]

 

Support for ``Lawfully Present'' and ``Unlawful Presence'' Proposals

    Comment: In expressing their strong support for DHS's proposal that

DACA recipients will continue to be deemed ``lawfully present'' for

certain benefit purposes as noted in 8 CFR 1.3(a)(4)(vi), commenters

provided several reasons. These reasons included: appreciation for

DHS's clarification and confirmation that DACA recipients are

``lawfully present''; support for DHS's explanation in the preamble

that it would continue to treat individuals granted deferred action

under DACA as ``lawfully present,'' as well as the agency's discussion

of the differences between lawful presence and lawful status; treating

undocumented immigrants as ``lawfully present'' allows them to find

employment to support themselves and their families; DACA recipients

would be able to obtain Social Security numbers, an outcome the

commenters said would allow individuals to obtain jobs and forms of

identification, pay taxes, and surpass evidentiary barriers to

services; the proposal on lawful presence would enable the recipients

to qualify for Social Security and certain other public benefits; and

there is no legitimate reason for treating DACA recipients differently

from others with deferred action with respect to ``lawful presence.''

    One commenter was particularly supportive of the proposal to treat

DACA recipients as ``lawfully present'' for purposes of statutes

governing eligibility for certain Federal benefits. Many commenters

applauded the proposals for confirming that DACA recipients are deemed

``lawfully present'' and do not accrue unlawful presence, commenting

that these individuals were not able to understand the implications of,

nor control, their entry into the United States at a young age.

    Many commenters were similarly supportive of the proposed rule's

incorporation of DHS's longstanding policy that DACA recipients, like

other deferred action recipients, do not accrue unlawful presence for

purposes of the inadmissibility grounds in INA sec. 212(a)(9), 8 U.S.C.

1182(a)(9) while their deferred action is valid. In expressing their

support, commenters noted the following: accruing unlawful presence

could otherwise present an obstacle to future admissibility; removing

lawful presence for DACA recipients would create a permanent underclass

and prevent such individuals from pursuing a green card; the treatment

of DACA recipients as lawfully present helps shield and protect DACA

recipients against adverse immigration consequences associated with the

accrual of unlawful presence, including bars on reentry; accrual of

unlawful presence would present barriers for individuals or their

relatives to pursue legal pathways to permanent residency; maintaining

the proposed rule's provision on unlawful presence will help ensure

that the largest possible percentage of DACA recipients remain eligible

for other forms of immigration relief; and holding DACA protections

always should prevent the accrual of unlawful presence.

    Several commenters specifically responded to DHS's request for

comments on whether persons who receive deferred action pursuant to the

proposed rule should be regarded as ``lawfully present'' or

``unlawfully present'' for purposes of eligibility for specified

Federal public benefits under 8 U.S.C. 1611(b) and admissibility under

8 U.S.C. 1182(a)(9), respectively. Commenters stated that individuals

with deferred action always have been covered by the lawfully present

regulation and that any other formulation would break from legal

precedent and longstanding policy, as well as create an unworkable and

overly complex adjudication framework. One commenter said that changing

longstanding policy around deferred action and lawful presence would

create a logistical nightmare in the complex realm of immigration law.

The commenter further stated that if such a change were made

retroactive, it would fly in the face of extensive legal precedent

regarding retroactive lawmaking, but if the change were not

retroactive, USCIS would have the problem of determining when different

recipients had DACA that prevented the accrual of unlawful presence

(pre-rule) and when their DACA did not protect them from accruing such

unlawful presence. According to the commenter, this would involve an

increase in adjudication and require the expenditure of more agency

resources that would significantly counterbalance any possible benefit

of such a change, resources the commenter noted the DACA policy is

intended to preserve. The commenter also stated that this would present

constitutional issues under the Fifth Amendment's equal protection

guarantee \201\ because that guarantee requires the Government to

provide sufficient rationale if it wants to treat persons in similar

situations in a disparate manner. The commenter noted that USCIS would

need to increase adjudication as those who are similarly situated are

offered rights that new DACA recipients are not. Other commenters made

similar points regarding the disadvantages of changing the longstanding

practice regarding DACA recipients' nonaccrual of unlawful presence,

including the constitutional equal protection concerns and the

difficulties of applying such a change. The commenters added that the

change likely would necessitate DHS deciding which DACA recipients had

not accrued unlawful presence prior to the rule given that it would

likely not be retroactive as compared to those who would accrue

unlawful presence after promulgation of such a change. A commenter also

noted that removal of the lawful presence designation could undermine

postsecondary educational opportunities for DACA recipients in the

workforce.

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    \201\ [thinsp]The commenter cited both the Fourteenth and Fifth

Amendments. Although the Equal Protection Clause of the Fourteenth

Amendment does not apply to the Federal Government, the Supreme

Court in Bolling v. Sharpe, 347 U.S. 497, 500 (1954), held that

while ``equal protection of the laws' is a more explicit safeguard

of prohibited unfairness than `due process of law,' . . .

discrimination may be so unjustifiable as to be violative of due

process.'' In the case of racial discrimination in DC public

schools, the Court found that no lesser Constitutional protections

apply to the Federal Government through the application of the Due

Process Clause in the Fifth Amendment than by application of the

Equal Protection Clause of the Fourteenth Amendment.

---------------------------------------------------------------------------

 

    Some commenters stated that they supported the provision to

consider individuals with deferred action as lawfully present and

opposed any DACA rule that would fail to confirm lawful presence for

individuals with deferred action. Similar to the commenter noted above,

these commenters said that any DACA rule that fails to include lawful

presence could present Equal Protection Clause implications, citing the

Fourteenth Amendment of the U.S. Constitution and stating that DHS must

treat DACA recipients the same as individuals with other forms of

deferred action. A form letter submitted by several commenters cited

the Department of Health and Human Services (HHS) action stripping

lawful presence for DACA recipients for Affordable Care Act (ACA)

purposes as an agency action that received significant public

opposition and worsened healthcare outcomes for impacted individuals.

Several commenters noted that DHS should formalize its longstanding

policy that DACA recipients granted deferred action do not accrue

unlawful presence for purposes of INA sec. 212(a)(9), 8 U.S.C.

1182(a)(9).

    Response: The Department acknowledges and appreciates the many

 

[[Page 53208]]

 

reasons that commenters provided for their support of the proposed

rule's two provisions on lawful presence (proposed 8 CFR 236.21(c)(3)

and (4)). For the reasons detailed in Section III.E of the proposed

rule and discussed further below,\202\ DHS agrees that DACA recipients

are provided deferred action and should continue to be deemed

``lawfully present'' like all other deferred action recipients--as they

have been since the start of DACA--under 8 CFR 1.3(a)(4)(vi) for

purposes of receiving title II Social Security benefits described in

that regulation. Similarly, DHS agrees that the rule properly codifies

DHS's decade-long policy that DACA recipients are similarly situated to

other individuals with deferred action who have, since at least 2002,

not accrued unlawful presence for purposes of INA sec. 212(a)(9), 8

U.S.C. 1182(a)(9) inadmissibility while action is deferred in their

case.\203\ The Department sees no reason to treat DACA recipients any

differently from other deferred action recipients for these purposes,

and therefore is retaining proposed 8 CFR 236.21(c)(3) and (4) in the

final rule. DHS notes, however, that although it firmly believes it has

the legal authority to promulgate these provisions, as described in its

response below to the opponents of the lawful presence provisions, DHS

also maintains its views on severability, as provided in 8 CFR 236.24

and discussed elsewhere in this rule, in the event that any portion of

the rule is declared invalid, including one or both of these lawful

presence provisions. In particular, even if a court determines that DHS

does not have the legal authority to promulgate one or both of the

lawful presence provisions, DHS intends that the remainder of this

rule, including the forbearance and work authorization provisions,

should be maintained.

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    \202\ See 86 FR 53760-53762. See also DHS response under

Opposition to ``lawfully present'' and ``unlawful presence''

proposals below.

    \203\ See Memorandum to Field Leadership from Donald Neufeld,

Acting Associate Director, USCIS Office of Domestic Operations,

Consolidation of Guidance Concerning Unlawful Presence for Purposes

of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act, at 42

(May 6, 2009) (hereinafter Neufeld Memorandum); Memorandum for

Johnny N. Williams, INS Executive Associate Commissioner, from

Stuart Anderson, INS Executive Associate Commissioner, Re: Deferred

Action for Aliens with Bona Fide Applications for T Nonimmigrant

Status, at 1 (May 8, 2002) (hereinafter Williams Memorandum); USCIS

Adjudicator's Field Manual ch. 40.9.2(b)(3)(J).

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    DHS also notes the concerns expressed by some commenters that a

rule that states that DACA recipients, unlike other deferred action

recipients, lack lawful presence would violate equal protection

principles and that changing this policy would create significant

operational complexity for DHS. Since DHS has not taken such an

approach and the rule continues the long-existent policy that DACA

recipients, similar to other deferred action recipients, are lawfully

present for certain public benefits and do not accrue unlawful presence

for purposes of section 212(a)(9)(B) of the INA, DHS does not express a

position regarding the commenters' hypothetical equal protection

arguments. DHS will address the claim if it becomes necessary to do so

in a subsequent forum. However, DHS concurs that changing the policy

regarding lawful presence would create significant operational

complexity if done prospectively, as USCIS would need to determine in

future adjudications the specific amount of unlawful presence accrued

by DACA recipients on an individual basis.\204\

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    \204\ Several commenters cited Vartelas v. Holder, 566 U.S.

257(2012) (noted in ruling against retroactive application of a law

that court was ``[g]uided by the deeply rooted presumption against

retroactive legislation''). Cf. also, e.g., Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 208 (1988) (``a statutory grant of

legislative rulemaking authority will not, as a general matter, be

understood to encompass the power to promulgate retroactive rules

unless that power is conveyed by Congress in express terms''). DHS

takes note of commenters' stated retroactivity concerns, but

declines to express a view at this time as to whether retroactive

application of a policy change regarding DACA recipients and the

accrual of unlawful presence for section 212(a)(9)(B) purposes would

be impermissibly retroactive.

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Opposition to ``Lawfully Present'' and ``Unlawful Presence'' Proposals

    Comment: A few commenters opposed the proposed rule's provisions on

lawful presence for certain public benefits and the nonaccrual of

unlawful presence while in DACA for inadmissibility purposes. One

commenter, who also set forth a view of the overall illegality of DACA,

wrote that the proposed rule not only ignored statutorily mandated

removal proceedings but also went further to provide immigration

benefits to people with no lawful access to immigration benefits. In

support of this view, the commenter quoted from the district court in

Texas: `` `Against the background of Congress' `careful plan,' DHS may

not award lawful presence and work authorization to approximately 1.5

million aliens for whom Congress has made no provision.'' The commenter

further stated that the message to the world is that illegal entry will

be rewarded and unlawful presence will be mooted by executive action.

The commenter said that promulgating a DACA regulation only perpetuates

the problem. Another commenter who expressed opposition to the DACA

policy and the rule's provision of lawful presence to recipients wrote

that DHS is bound by the Texas district court's ruling that DACA is

unlawful and cannot continue with DACA rulemaking just because it

disagrees with the court.

    One commenter stated that Congress' careful plan for the allotment

of lawful presence forecloses the possibility that DHS may designate

hundreds of thousands of people to be lawfully present. The commenter

noted that the proposed rule would allow the Secretary to grant lawful

presence and work authorization to every ``illegal alien'' in the

United States. The commenter stated that the INA does not permit DHS to

reclassify ``illegal aliens'' as ``lawfully present'' and eligible for

Federal and State benefits, including work authorization. Another

commenter similarly expressed opposition to the proposed rule for

intentionally choosing not to enforce immigration law, stating that

DACA recipients do not have lawful presence regardless of any economic

activity in which they engage after entering the country illegally. The

commenter further noted that the recipients' intent or age at the time

has no relevance and that the commenter could not present a personal

defense in court based upon a lack of knowledge of the law or lack of

intent if charged of any crime. The commenter stated that illegally

entering the United States is no exception.

    Response: DHS appreciates these comments but continues to

respectfully disagree with the commenters who oppose the two provisions

in this rule related to lawful presence for the reasons described in

the preamble to the proposed rule in Section III.E.\205\ As noted

elsewhere in this rule, DHS fundamentally disagrees with the commenters

who stated DHS does not have the legal authority to implement the DACA

policy or to promulgate a rule continuing the policy. DHS also believes

it has the legal authority to continue providing DACA recipients the

same longstanding treatment it has afforded to all other recipients of

deferred action, who are deemed ``lawfully present'' under 8 CFR

1.3(a)(4)(vi) for title II Social Security benefits and under DHS's

guidance on nonaccrual of unlawful presence for INA sec. 212(a)(9)

purposes.

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    \205\ 86 FR 53760-53762.

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    In PRWORA,\206\ Congress provided the Attorney General (now

Secretary) the authority to determine which noncitizens would be

considered

 

[[Page 53209]]

 

``lawfully present'' for purposes of retirement and disability benefits

under title II of the Social Security Act.\207\ The Balanced Budget Act

of 1997 \208\ amended PRWORA to add substantially identical exceptions

for Medicare and railroad retirement and disability benefits.\209\

States may also affirmatively enact legislation making noncitizens

``who [are] not lawfully present in the United States'' eligible for

State and local benefits.\210\ Federal law also limits the availability

of residency-based State postsecondary education benefits for

individuals who are ``not lawfully present.'' \211\ Thus, while there

is no express definition of ``lawfully present'' or ``unlawfully

present'' for all purposes, Congress clearly authorized the Secretary

to determine who is ``lawfully present'' for certain purposes. DHS

notes that in the intervening 26 years since the Attorney General

determined by rule, 8 CFR 1.3(a)(4)(vi), that deferred action

recipients are ``lawfully present'' for purposes of 8 U.S.C.

1611(b)(2), the provision has not been struck down by courts. Nor has

Congress enacted any legislation contrary to the Secretary's

determination to designate deferred action recipients as eligible for

receiving Social Security benefits. To the contrary, Congress has

enacted other similar provisions indicating that the Attorney General's

determinations as to lawful presence for certain individuals make those

individuals eligible for public benefits.\212\ Noncitizens granted

deferred action long have been considered ``lawfully present'' under 8

CFR 1.3(a)(4)(vi) for purposes of receiving title II Social Security

benefits, and DHS sees no basis for distinguishing deferred action

recipients under the DACA policy.

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    \206\ Public Law 104-193, 110 Stat. 2105.

    \207\ See 8 U.S.C. 1611(b)(2).

    \208\ Public Law 105-33, 111 Stat. 251.

    \209\ 8 U.S.C. 1611(b)(3) and (4).

    \210\ 8 U.S.C. 1621(d).

    \211\ 8 U.S.C. 1623(a).

    \212\ 8 U.S.C. 1611(b)(3) and (4).

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    DHS also disagrees with the commenters who expressed opposition to

the proposed codification of the decade-long DHS practice of including

DACA recipients within the group of all other deferred action

recipients who do not accrue ``unlawful presence'' for purposes of the

inadmissibility grounds in INA sec. 212(a)(9)(B), 8 U.S.C.

1182(a)(9)(B). For purposes of those specific grounds, Congress stated

``an alien is deemed to be unlawfully present in the United States if

the alien is present in the United States after the expiration of the

period of stay authorized by the Attorney General [now Secretary] or is

present in the United States without being admitted or paroled.'' \213\

As DHS explained in the proposed rule, since 2002 the Government has

interpreted this deeming provision enacted by Congress to mean that

persons should not be deemed ``unlawfully present'' during ``period(s)

of stay authorized by the Attorney General,'' including a period of

deferred action.\214\ DHS also notes that the first clause of the

statutory definition of ``unlawfully present'' addresses how an alien's

presence should be ``deemed'' after expiration of a period of stay, not

during such a period. DHS sensibly construes Section 1182(a)(9)(B) as a

whole not to deem a noncitizen ``unlawfully present'' during an

authorized stay, regardless of whether the person was previously

``admitted or paroled.'' Otherwise, ``unlawful presence'' would accrue

when a noncitizen's presence has been authorized by DHS. For example,

asylum is a lawful status, but it does not constitute an ``admission''

(or parole).\215\ Such an interpretation would mean noncitizens who

entered without inspection and then received asylum would still accrue

``unlawful presence''--notwithstanding that they are authorized to

remain in the United States, and in fact have lawful status. That would

make little sense.

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    \213\ 8 U.S.C. 1182(a)(9)(B)(ii).

    \214\ See 86 FR 53761 (citing Neufeld Memorandum; Williams

Memorandum; USCIS Adjudicator's Field Manual ch. 40.9.2(b)(3)(J)).

    \215\ In re V- X-, 26 I&N Dec. 147, 150-52 (BIA 2013).

---------------------------------------------------------------------------

 

    DHS's interpretation does not mean that, in a broad sense, deferred

action recipients, such as those with DACA, are lawfully in the United

States for all purposes.\216\ Instead, the concept of ``lawful

presence'' is a term of art, and very different from ``lawful status.''

It encompasses situations in which the executive branch tolerates an

individual being present in the United States at a certain, limited

time or for a particular, well-defined period. The term is reasonably

understood to include someone who is (under the law as enacted by

Congress) subject to removal, and whose immigration status affords no

protection from removal, but whose temporary presence in the United

States the Government has chosen to tolerate, including for reasons of

resource allocation, administrability, humanitarian concern, agency

convenience, and other factors. For these reasons, DHS believes that it

is within its authority, as provided by INA sec. 212(a)(9)(B)(ii), 8

U.S.C. 1182(a)(9)(B)(ii) to deem DACA recipients, like other deferred

action recipients, to be within ``a period of stay authorized by the

[Secretary]'' and, thus, not accruing unlawful presence for purposes of

inadmissibility under INA sec. 212(a)(9)(B).

---------------------------------------------------------------------------

 

    \216\ Nor does DHS's interpretation address similar terms. For

example, it is unlawful for an ``alien [who] is illegally or

unlawfully in the United States'' to possess a firearm or

ammunition. See 18 U.S.C. 922(g)(5)(A). Multiple courts have

concluded that this criminal bar encompasses DACA recipients. See,

e.g., United States v. Lopez, 929 F.3d 783, 786-87 (6th Cir. 2019)

(in noting that DACA recipient was an ``alien illegally or

unlawfully in the United States for purposes of section

922(g)(5)(A),'' court distinguished 8 U.S.C. 1611(b)(2-4),

concerning specific public benefits for individuals who are

``lawfully present,'' and 8 U.S.C. 1182(a)(9)(B)(ii), concerning

``unlawful presence'' for inadmissibility purposes); United States

  1. Arrieta, 862 F.3d 512, 515-16 (5th Cir. 2017) (holding that DACA

did not confer a legal status for purposes of section 922(g)(5)).

---------------------------------------------------------------------------

 

    DHS has further considered the district and appellate court

opinions concerning DHS's authority to deem DAPA or DACA recipients

``lawfully present'' for certain purposes, and respectfully disagrees

with those decisions for the reasons explained in the proposed

rule.\217\

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    \217\ 86 FR 53761-53762.

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Support for ``Lawfully Present'' and ``Unlawful Presence'' Provisions,

but With Suggested Modifications

    Comment: A commenter stated that granting ``lawful presence''

instead of ``lawful status'' (as was the case under ``previous

rulings,'' according to the commenter) would establish different rules

and protections for DACA recipients.

    A commenter who commended DHS for its proposal to continue treating

DACA recipients as ``lawfully present,'' and for clarifying the

distinction from ``lawful status,'' also requested that DHS include

details in the final rule explaining that DACA recipients would be

eligible for any other forms of Federal benefits for lawfully present

noncitizens associated with future laws or prospective legislative

immigration reform (e.g., any such benefits contained in the proposed

Build Back Better legislation if it is enacted). Multiple other

commenters similarly requested that the final rule explicitly establish

that DACA recipients, considered lawfully present and eligible to

receive certain Social Security benefits, would be eligible for title

IV Federal student aid programs like Pell grants, work study, and

direct loans under proposed legislation's extension of eligibility for

these programs to individuals with deferred action and TPS. The same

commenters urged DHS to allow for flexibility for DACA recipient

students to demonstrate title IV eligibility, if that

 

[[Page 53210]]

 

eligibility is extended to DACA recipients and those who qualify.

    Several commenters expressed support for granting lawful presence

to DACA recipients to confirm Social Security eligibility, with one

commenter citing research \218\ demonstrating that DACA recipients make

significant contributions to Social Security and Medicare and that

ending DACA could result in a $39.3 billion loss of Social Security and

Medicare contributions over a 10-year period. The commenter further

remarked that many States require lawful presence for public benefit

eligibility. Citing research, a commenter similarly stated that the

Social Security and Medicare trust funds would be significantly

diminished if DACA recipients are not contributing to the program. The

commenter also said that, because Social Security requires workers to

reach retirement age with at least 10 years of covered work experience,

some DACA recipients may pay Federal Insurance Contributions Act and

Medicare taxes without ever receiving benefits. One commenter stated

that the designation of lawful presence was important for DACA

recipients to qualify for certain State benefits, referencing New York

State regulations affording professional licensing eligibility to those

``not unlawfully present.''

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    \218\ See Maga[ntilde]a-Salgado and Wong (2017).

---------------------------------------------------------------------------

 

    Several of the commenters noted above, as well as other commenters,

suggested that additional clarity was needed to assist State and

Federal agencies in making decisions about benefit eligibility,

including confirmation from USCIS that: (1) DACA recipients are

authorized to be present in the United States during the period of

their grant; (2) DACA recipients' grant of relief is identical to

relief associated with any other person granted deferred action; and

(3) individuals granted deferred action are permitted to establish

domicile in the United States. Commenters also requested that the rule

include language stating that individuals granted deferred action are

not precluded by Federal law from establishing domicile in the United

States, as this would assist the recipients in seeking certain State

benefits. One such commenter also requested that DHS clarify that

individuals with lawful presence are not prohibited from establishing

domicile in the United States, stating that DACA recipients should be

treated the same as other individuals with deferred action and

suggesting that DHS take additional steps to communicate this

clarification to other Federal and State agencies. The commenter said

that confusion over whether DACA recipients can establish domicile in

the United States would result in DACA recipients' exclusion from

certain benefits and programs that are available to other individuals

with deferred action (citing eligibility for residential property tax

relief in South Carolina as an example of such exclusion).

    Commenters noted that USCIS' posted Frequently Asked Questions

(FAQs) on DACA \219\ include the following helpful clarifications that

have assisted State and Federal agencies in making decisions about

eligibility for services and public benefits that they control:

---------------------------------------------------------------------------

 

    \219\ USCIS, Frequently Asked Questions, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/frequently-asked-questions (last updated Aug. 31,

2021) (hereinafter DACA FAQs).

 

     While distinguishing lawful presence from lawful

status, USCIS clarifies that ``[a]n individual who has received

deferred action is authorized by DHS to be present in the United

States, and is therefore considered by DHS to be lawfully present

during the period deferred action is in effect.'' (A. 1) [of the

DACA FAQs]

     USCIS explains that ``[t]he relief an individual

receives under DACA is identical for immigration purposes to the

relief obtained by any person who receives deferred action as an act

of prosecutorial discretion.'' (A. 3) [of the DACA FAQs]

     USCIS confirms that ``[i]ndividuals granted deferred

action are not precluded by federal law from establishing domicile

in the U.S.'' (A.5) [of the DACA FAQs]

 

By contrast, one such commenter said that some language in the proposed

rule's preamble could contribute to confusion, such as the notation

that the term lawful presence does not confer authorization or

authority to remain in the United States, and gave examples at 86 FR

53740 and 53773. The commenter stated it assumed that the agency meant

``beyond the period of the grant'' or that ``individuals granted DACA

do not have an absolute right to remain, and . . . may nevertheless be

removed under certain conditions.'' The commenter recommended that DHS

clarify that its interpretation of lawful presence is at least as broad

as under previous DACA guidance. This commenter, as well as others,

requested that DHS and USCIS confirm that individuals granted DACA are

federally authorized to be present in the United States, and are

considered to be lawfully present during the period of their grant;

relief that DACA recipients receive is identical for immigration

purposes to the relief obtained by any other person granted deferred

action; and individuals granted deferred action are not precluded by

Federal law from establishing domicile in the United States.

    Commenters expressed support for the proposal's confirmation that

DACA recipients would be considered lawfully present and its statement

that DHS has treated persons who receive a period of deferred action

under DACA like other deferred action recipients for purposes of

establishing lawful presence. The commenters stated that this would

ensure DACA recipients are eligible for Social Security and do not

accrue unlawful presence toward the 3- and 10-year bars. The commenters

further suggested that additional clarification was needed to ensure

other Federal and State agencies understand the implications of a DACA

grant, its relation to deferred action for other individuals, and any

related interpretations of immigration law, citing DACA recipients'

exclusion from certain healthcare benefits under the ACA as one example

of the need for additional clarity.

    One commenter recommended that DHS work with the HHS to extend

health insurance coverage under the ACA to DACA recipients, stating

that a lack of eligibility for ACA marketplace coverage contributes to

higher uninsured rates among DACA recipients. Another commenter

expressed support for providing access to affordable healthcare for all

individuals, including DACA recipients, and urged DHS to ensure that

DACA recipients are not excluded from purchasing subsidized health

coverage through the ACA marketplace. Additional commenters agreed and

recommended that DHS align the definition of ``lawfully present'' with

eligibility requirements for certain health coverage programs to allow

DACA recipients to access such programs and avoid disparate treatment.

The commenters expressed concern about HHS' exclusion of DACA

recipients from participation in Medicaid, the Children's Health

Insurance Program (CHIP), and the ACA health insurance marketplace and

said that other individuals with deferred action are eligible for such

programs. The commenters questioned why DACA recipients are excluded

from these important health programs and, citing research, said that

participation in Medicaid is associated with higher educational

attainment and greater financial stability. The commenters recommended

that DHS clarify the definition of ``lawfully present'' to ensure DACA

recipients are not excluded from Medicaid, CHIP, and subsidized health

insurance through the ACA marketplace.

 

[[Page 53211]]

 

    Citing research demonstrating the importance of access to

healthcare for vulnerable immigrant populations, including immigrant

women, a commenter also urged DHS to ensure that DACA recipients are

eligible for all public benefits available to similarly situated

immigrants, including Medicaid, CHIP, and subsidized health coverage

through the ACA marketplace. The commenter said that access to

healthcare is a critical equity consideration that the agency must

consider in complying with Executive Order (E.O.) 13563 and its focus

on promoting equity and fairness, and it urged DHS to ensure that DACA

recipients are entitled to the same benefits as all other individuals

considered ``lawfully present.''

    A commenter recommended that DHS grant deferred action

retroactively to erase periods of unlawful presence accrued prior to

confirmation of deferred action, particularly noting that such

retroactivity should cover any period since June 15, 2007, because DACA

requestors must establish that they have resided in the United States

since that date. The commenter further noted that USCIS has the

authority for such retroactive application of deferred action and gave

as an example current practice that permits USCIS to grant ``nunc pro

tunc'' reinstatement of status to individuals who have filed untimely

Extension or Change of Status applications, meaning that unlawful

presence is erased because the applicant is considered to have been in

status the whole time.

    Response: DHS acknowledges and appreciates the many supportive

comments on the proposed rule's two provisions regarding lawful

presence, as well as the recommendations and suggestions for

modifications. With respect to the comment that the rule only provides

lawful presence to DACA recipients instead of the previous rulings'

grant of lawful status, which the commenter indicated would institute

different rules and protections for DACA recipients, DHS notes that

DACA has never conferred lawful immigration status on recipients as the

commenter mistakenly asserts, nor has any other grant of deferred

action. DHS does not have the legal authority to deem deferred action

recipients to be in a lawful immigration status by virtue of such

deferred action. As discussed elsewhere in this rule and in the

preamble to the proposed rule at Section IV.B, deferred action is not a

lawful immigration status but rather is only an exercise of

prosecutorial discretion not to remove a noncitizen from the United

States for a designated period of time. Thus, DHS declines to modify

the rule to provide protections to DACA recipients akin to those with

lawful status.

    DHS also declines to adopt the suggestion of the commenter who

urged that the rule allow for the retroactive elimination of any

unlawful presence time between June 15, 2007, and an individual's

approval for DACA because the individual had to demonstrate continuous

residence in the United States since that date to obtain deferred

action under the DACA policy. The commenter likened this suggestion to

a noncitizen who is in a lawful nonimmigrant status but who files late

to extend or change that status to another nonimmigrant category and

who, if approved, is allowed ``nunc pro tunc'' reinstatement of

nonimmigrant status for the period between the initial status and the

changed or extended status. Unlike the person who files late to change

or extend a lawful nonimmigrant status and is approved, a DACA

recipient is not in a lawful immigration status that is amenable to

reinstatement ``nunc pro tunc,'' but rather enjoys a temporary period

in which DHS has chosen not to remove them from the United States for a

period of time in the future as an act of prosecutorial discretion.

Thus, deferred action is a forward-facing step; forbearance not to

remove a noncitizen for a period that already has passed would be

meaningless and incompatible with DHS's general deferred action

practices. For these reasons, DHS does not believe it may properly

erase a person's pre-DACA unlawful presence by beginning deferred

action from a date in the past.

    Similarly, DHS is unable to adopt the suggestions of commenters to

specify that DACA recipients will be considered ``lawfully present''

for purposes of current or future proposed legislation regarding

noncitizens' eligibility for public benefits before such legislation is

enacted. Until legislation is enacted that authorizes DHS to define who

has lawful presence for particular purposes--as has occurred for the

purpose of receiving certain Social Security benefits,\220\ railroad

retirement benefits,\221\ and Medicare \222\--it is premature for DHS

to attempt to predict the final terms of such legislation and the

extent to which Congress may or may not authorize DHS to describe the

categories of noncitizens who may be eligible to apply for particular

public benefits. Other agencies whose statutes independently link

eligibility for benefits to lawful presence may have the authority to

construe such language for purposes of those statutory provisions.

---------------------------------------------------------------------------

 

    \220\ 8 U.S.C. 1611(b)(2).

    \221\ 8 U.S.C. 1611(b)(4).

    \222\ 8 U.S.C. 1611(b)(3).

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    In response to commenters who recommended that DHS make clear that

DACA recipients are affirmatively authorized to be in the United States

during the period of their deferred action, DHS has plainly stated in 8

CFR 236.21(c) that the Department intends to forbear from removing DACA

recipients from the United States. This is consistent with the fact

that the DACA policy is an exercise of prosecutorial discretion and

does not confer lawful immigration status, affirmative authorization to

remain in the United States, or a defense to removal. In that sense,

DACA differs from a grant of lawful immigration status such as

permanent resident status, asylum, or TPS. At the same time and as

noted previously, DHS also views an individual's time as a DACA

recipient as ``a period of stay authorized by the [Secretary]'' under

section 212(a)(9)(B)(ii); therefore, while the individual has DACA,

there is no accrual of ``unlawful presence'' for inadmissibility

purposes. DHS believes that the rule is more precise and sufficiently

clear on this point as well. In response to the request that DHS

clarify that its interpretation of ``lawful presence'' in the rule is

at least as broad as its interpretation under prior DACA guidance, DHS

confirms that the rule reflects the same longstanding treatment of DACA

recipients as ``lawfully present'' for purposes described in 8 CFR

1.3(a)(4)(vi), and with regard to their nonaccrual of ``unlawful

presence'' for purposes of INA sec. 212(a)(9), 8 U.S.C. 1182(a)(9)

while they have deferred action under DACA, as existed under DHS's DACA

policy prior to implementation of this rule.

    In terms of whether DACA is ``identical relief'' to other forms of

deferred action, DHS agrees that forbearance from removal for a

designated period applicable to the individual is true for DACA

recipients as it is for all other deferred action recipients and that

EADs for all deferred action recipients, including DACA recipients, are

available based on a determination of economic need. However, DHS

declines to adopt the suggestion made by some commenters to label DACA

as ``identical relief'' to that provided to all other recipients of

deferred action because DHS believes that using such a label could

create confusion with respect to the bases for obtaining deferred

action and the conditions that may apply to an

 

[[Page 53212]]

 

individual's deferred action. For example, guidelines differ depending

on the category under which deferred action is provided, as well as

with respect to individual requests that are granted outside of special

policies.\223\ Different periods of deferred action also may be

provided, and conditions placed on the individual's deferred action may

vary. For these reasons, DHS declines to adopt the suggestions to

modify the rule to state that DACA is an ``authorization'' to remain in

the United States or that it is ``identical'' to all other forms of

deferred action.

---------------------------------------------------------------------------

 

    \223\ See, e.g., Military Deferred Action (available to certain

relatives of certain active and former members of the military),

https://www.uscis.gov/military/discretionary-options-for-military-members-enlistees-and-their-families; Special Immigrant Juveniles--

Consideration of Deferred Action, 6 USCIS PM J.4 [G.1], https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220307-SIJAndDeferredAction.pdf; VAWA--Deferred Action, 3 USCIS PM

D.5 [C.2], https://www.uscis.gov/policy-manual/volume-3-part-d-chapter-5.

---------------------------------------------------------------------------

 

    The Department understands the concerns expressed by some

commenters regarding DACA recipients' ability to obtain State and local

public benefits that require applicants to demonstrate ``domicile'' in

a particular locality. Some commenters requested that the rule state

that Federal law does not prohibit DACA recipients from establishing

domicile while others urged an affirmative statement that DACA

recipients may establish domicile in the United States. Although the

Department knows of no Federal law that prohibits DACA recipients from

establishing domicile within the United States, the Department declines

to amend the text of the rule to address ``domicile'' explicitly

because doing so would be outside the scope of the rule, and Congress

has not directed the Department to provide guidance on or a definition

of ``domicile'' for any Federal, State, or local public benefit

purposes.

    The Department also understands and respects the concerns expressed

by several commenters who requested that the rule clarify for Federal,

State, and local governments that DACA recipients are considered

``lawfully present'' for purposes of all public benefits that require

such presence for eligibility. However, absent a specific authorizing

law, the Department does not have the authority to mandate that other

Federal, State, and local departments and agencies provide benefits

that they administer to DACA recipients, even when DHS categorizes them

as ``lawfully present'' for certain discrete, limited purposes. Subject

to enacted laws, DHS may only determine the categories of immigration

status or other authorization (or lack of either) that apply to

noncitizens. Through programs such as Systematic Alien Verification for

Entitlements, DHS thus informs participating benefit-administering

agencies of the immigration category that may apply to a particular

person. DHS does not, however, establish the eligibility rules or

administer Federal, State, or local public benefits such as those that

provide for health, housing, food, education, and general welfare.

Other departments and agencies, such as HHS, the Social Security

Administration, and the U.S. Department of Agriculture, have those

responsibilities.

    With limited exceptions, noncitizens who are not ``qualified

aliens'' as defined in 8 U.S.C. 1641 are not eligible for Federal

public benefits.\224\ Deferred action recipients are not encompassed

within the definition of ``qualified alien.'' As such, they are

generally excluded from receipt of Federal public benefits.\225\

Congress, however, did expressly except certain Federal benefits from

the restrictions in 8 U.S.C. 1611(a). With respect to certain title II

Social Security benefits, railroad retirement benefits, railroad

unemployment insurance, and Medicare, Congress provided that the

restrictions shall not apply to noncitizens who are ``lawfully

present'' as determined by the Attorney General (now the

Secretary).\226\ Other agencies whose statutes independently link

eligibility for benefits to lawful presence may have the authority to

construe such language for purposes of those statutory provisions. For

instance, any future revision of this determination for Medicaid, CHIP,

or with respect to the ACA Exchange and private market programs would

need to be made by HHS. DHS has determined that addressing the

eligibility of DACA recipients for additional benefits is beyond its

legal authority and the scope of this rule.

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    \224\ See 8 U.S.C. 1611(a).

    \225\ There are exceptions for certain emergency, in-kind, and

other benefits, as well as other limited exceptions to PRWORA's

restrictions. See 8 U.S.C. 1611(b)(1).

    \226\ See 8 U.S.C. 1611(b)(2), (3), and (4).

---------------------------------------------------------------------------

 

    Commenters also recommended that DHS work with other Federal

agencies, such as HHS, to amend their guidance and regulations to

clarify that DACA recipients are eligible for benefits under the ACA.

DHS acknowledges the suggestion, but these topics are also beyond the

scope of this rulemaking.

  1. Discretionary Determination (Sec. 236.22)
  2. General Comments on Discretionary Determination

Case-by-Case Determination and Discretion

    Comment: A commenter said that DACA recipients should be vetted on

a case-by-case basis. Another commenter stated that requestors should

be considered for forbearance only when considered on a true case-by-

case basis, which the commenter said would ease pressure on USCIS and

provide a more consistent application of law. Similarly, a commenter

said that DACA has a very low denial rate and that officers rarely ask

for additional evidence to demonstrate that requestors have good moral

character. The commenter added that the broad criteria for DACA ``leave

almost no room for officers to exercise discretion.'' Another commenter

said that the proposed rule deprives ICE and CBP officers of

discretion. The commenter stated that the proposed rule suggests that

officers may be able to make a determination without necessitating

further investigation, but it is unclear how an officer could have used

their discretion without a full picture of the individual's immigration

and criminal history.

    Response: DHS acknowledges commenters' concerns but disagrees with

the suggestion that DACA requests will not be assessed on a case-by-

case basis as a result of this rule or that the threshold criteria are

so broad that officers are limited in their ability to exercise

discretion. On the contrary, the rule explicitly requires case-by-case

assessments. At new 8 CFR 236.22, DHS lays out several threshold

discretionary criteria that USCIS will assess on a case-by-case basis

as a review of the totality of the circumstances. DHS proposed in the

NPRM that, even when a request meets all threshold criteria, USCIS

would examine the totality of the circumstances in the individual case

to determine whether there are negative factors that make the grant of

deferred action inappropriate or outweigh the positive factors

presented by the threshold criteria or by any other evidence.\227\ DHS

is retaining this same approach to the individualized case-by-case

assessment in this final rule and is now codifying it at new 8 CFR

236.22(b) and (c).

---------------------------------------------------------------------------

 

    \227\ 86 FR 53765.

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    Regarding one commenter's concern that the NPRM deprives ICE and

CBP officers of discretion by suggesting that an officer may be able to

make a determination without necessitating

 

[[Page 53213]]

 

further investigation, there appears to be some confusion as to DHS's

intended meaning. The language referenced pertains to how the

regulatory provisions would ``fortify DHS's prioritized approach to

immigration and border enforcement'' by streamlining the review

required when DHS officers encounter a DACA recipient.\228\ As USCIS

already will have reviewed the individual's immigration and criminal

history and made the individualized determination to defer enforcement

action against that individual according to the DACA policy, it may be

duplicative for an officer to conduct a full review again in

circumstances such as the primary inspection booth at a checkpoint. As

the NPRM further notes, and as discussed in Section II.A.8, while

officers must exercise their judgment based on the facts of each

individual case, the prior vetting of DACA recipients provides a

baseline that can streamline an enforcement officer's review of whether

a DACA recipient is otherwise an enforcement priority.\229\ However,

where warranted by the evidence, ICE and CBP may find that certain DACA

recipients no longer merit a favorable exercise of enforcement

discretion. DHS therefore declines to make any changes in response to

these comments.

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    \228\ 86 FR 53752.

    \229\ Id.

---------------------------------------------------------------------------

 

    Comment: A commenter expressed due process and notice concerns

related to the discretionary case-by-case assessment as part of a

totality of circumstances review. The commenter wrote that USCIS would

be wise to attach an automatic right of judicial review to their DACA

determinations. Given that Section IV.C of the proposed rule clearly

lays out the factors the agency is to consider when making its

decision, the commenter said that a reviewing court should have no

problem assuring the agency action is not arbitrary or capricious.

    Response: Because deferred action is by its nature an exercise of

prosecutorial discretion and not a benefit, USCIS will not provide for

the right to file an administrative appeal or allow for the filing of a

motion to reopen or motion to reconsider.\230\ Furthermore, an act of

prosecutorial discretion is generally not reviewable by the courts. As

discussed in the NPRM, USCIS may, however, reopen or reconsider either

an approval or a denial of such a request on its own initiative.\231\

In addition, a denied requestor would be allowed to submit another DACA

request on the required form and with the requisite fees or apply for

any applicable form of relief or protection under the immigration

laws.\232\ DHS therefore declines to make any changes in response to

this comment.

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    \230\ See new 8 CFR 236.21(b) and 236.23(c)(3).

    \231\ 86 FR 53769.

    \232\ See new 8 CFR 236.22(d) and 236.23(c).

---------------------------------------------------------------------------

 

USCIS Discretion To Deny if Criteria Are Met

    Comment: Several commenters discussed the proposed rule's

indication that, under the totality of circumstances review, even if

all the threshold criteria are found to have been met, the adjudicator

has discretion to deny deferred action if, in the adjudicator's

judgment, the case presents negative factors that make the grant of

deferred action inappropriate or that outweigh the positive factors.

One commenter objected to using a totality of the circumstances test in

lieu of granting those requests that meet threshold criteria and

enumerated guidelines, even if this changes existing processes. The

commenter stated that there would be too much room for adjudicator

discretionary bias in the proposed process, particularly since there is

no guidance or definition provided in the NPRM for determining the

totality of the circumstances. Another commenter expressed concern

about the proposed rule's layering of discretion and said the two-step

process would be vulnerable to future abuses of discretion to deny

requests. The commenter said that discretion is already exercised in

devising eligibility requirements and the protocols for assessing them,

thus there is no need for a final denial override that would discourage

requestors out of concern that, even if fully eligible, they could be

denied. Another commenter stated that, per the proposed rule, a

requestor who has filed the proper documents, paid the required fees,

and has a college degree may be denied DACA if USCIS, within its

discretion, decides that the requestor's totality of positive

contributions do not outweigh, for example, a one-time instance of

driving under the influence.

    Another commenter stated that they supported instituting the DACA

policy via regulation but opposed empowering officers to deny, in an

exercise of discretion, DACA requests that otherwise meet threshold

criteria for a grant of deferred action. This commenter stated that the

language of proposed 8 CFR 236.22(c) does not provide clarity to

requestors or to USCIS adjudicators as to what circumstances would be

considered nor what would make deferred action inappropriate, and the

proposed rule preamble provides little additional clarity. The

commenter said that the proposed rule states only that: (1) USCIS would

review the totality of the circumstances to see if there are any

negative factors that would make the grant of deferred action

inappropriate or that outweigh the positive factors; and (2) foreign

convictions, minor traffic offenses, and other criminal activity

outside of what is described by proposed 8 CFR 236.22(b)(6) would be

considered in the totality of the circumstances. However, the commenter

said, there is no further guidance in the proposed rule as to what, if

any, additional factors should be considered nor how to analyze any of

these factors in making a determination to grant deferred action.

Contrary to DHS's explanation that the threshold discretionary

requirements in combination with the exercise of discretion is meant to

promote consistency and avoid arbitrariness in grants of deferred

action, the commenter wrote, applying discretion to these adjudications

would have the opposite effect.

    The commenter also said that the absence of clarity in the proposed

rule combined with USCIS' policy guidance for applying discretion in

adjudications would result in inconsistent and arbitrary grants of

deferred action for those individuals who otherwise meet the threshold

requirements for DACA. The commenter discussed the USCIS Policy Manual

guidance on discretion, stating that it would be the primary tool used

by adjudicators in making a discretionary analysis. The commenter said

that: (1) the methodology for discretionary analysis set out in the

USCIS Policy Manual would result in arbitrary and capricious decisions

that are inconsistent and reliant on biased assumptions; (2) the Policy

Manual does not provide clear guidelines for adjudication; (3) the

Policy Manual's guidance regarding the weighing of discretionary

factors is confusing and contradictory; and (4) amendments to the

Policy Manual were based on a discriminatory and illegal animus toward

immigrants and were intended to further undermine the function of the

lawful immigration system.

    Response: DHS maintains the position expressed in the proposed rule

and codified at new 8 CFR 236.22(c) that it is appropriate for

adjudicators to have discretion to deny a deferred action request, even

if they have found that the requestor meets all of the threshold

criteria, if in their judgement the case presents negative factors that

make the grant of deferred action inappropriate or

 

[[Page 53214]]

 

that outweigh the positive factors.\233\ As discussed in the NPRM,

case-by-case assessment is a longstanding feature of deferred action

determinations, inherent in the exercise of discretion, that can

provide important benefits in cases where the balance of the

circumstances and relevant equities suggests a result that could not

have been codified in prior policy guidance.\234\ While DHS recognizes

that there may be costs associated with maintaining adjudicator

discretion to deny a request even where the requestor meets the

threshold eligibility guidelines at new 8 CFR 236.22, DHS has concluded

that this approach maintains an appropriate balance of guidelines and

discretion, which serves to promote consistency and avoid arbitrariness

in these determinations.

---------------------------------------------------------------------------

 

    \233\ See 86 FR 53765.

    \234\ See id.

---------------------------------------------------------------------------

 

    DHS appreciates the commenter's feedback on the USCIS Policy Manual

but declines to address it further as the Policy Manual is outside of

the scope of this rulemaking. DHS is therefore not making any changes

in response to these comments.

  1. Threshold Criteria

Evidentiary Requirements for Threshold Criteria

    Comment: A commenter recommended that DHS drastically reduce the

evidentiary burden on DACA requestors. The commenter stated that

currently, DHS requires initial requestors to produce decades' worth of

evidence that is particularly difficult to gather given the age of many

individuals when they entered the United States. The average age of a

DACA recipient at the time they entered the country is only 7 years

old, and given the length of time since then, the commenter said,

primary evidence documenting physical presence may be impossible to

obtain. Additionally, the commenter wrote that DHS has not publicly

expressed any fraud-related concerns with affidavits. The commenter

stated that with wildly varying Federal enforcement regimes in place,

and many States creating hostile environments for noncitizen residents,

immigrant families often go to great lengths to prevent their children

from interacting with these systems, denying them the very proof that

DHS currently requires to demonstrate DACA eligibility. In addition,

the commenter said, whatever proof may have existed is rarely

maintained long enough to be accessible, as many institutions maintain

records for only 5 years or less before destroying them, and records

are rarely digitally stored. The commenter concluded that establishing

a standard of review that recognizes this reality and ensures that the

broadest possible eligible population is able to request and receive

DACA is in the interests of DHS, potential requestors, their

communities, and the advocates who are devoting significant resources

to helping them submit requests.

    Referencing the proposed rule's discussion in the preamble of

primary and secondary evidentiary requirements, a commenter stated that

the provisions continue to reflect a first world understanding of

documentation from countries of origin and the ability of a DACA

requestor to find and obtain these records. The commenter said the

provisions would benefit from greater clarification on further examples

of circumstantial documentary evidence that DHS would accept as part of

DACA requests from individuals who do not benefit from the powerful

consular help that a country of origin like Mexico provides. Other

commenters said that many farmworkers and their families may have

difficulty accessing identification documents, such as birth

certificates, as births may not be registered or may be registered

incorrectly. Considering these concerns, the commenters encouraged DHS

to maintain a flexible approach regarding documentation.

    Response: DHS appreciates commenters' concerns and acknowledges

that some DACA requestors may face substantial challenges in obtaining

or providing primary or secondary evidence demonstrating they meet the

threshold criteria. Recognizing these challenges and that the evidence

available may vary from requestor to requestor, DHS is declining to

specify in detail in this preamble and will not include in regulatory

text the types of evidence that may or may not be sufficient to meet

the threshold criteria for DACA, to avoid creating a list that may

unintentionally be construed as exhaustive or limiting to adjudicators

or requestors.

    The DACA requestor has the burden to demonstrate that they meet the

threshold criteria by a preponderance of the evidence.\235\ Under the

preponderance of the evidence standard, the sufficiency of each piece

of evidence is examined for relevance, probative value, and

credibility, both individually and within the context of the totality

of the evidence, to determine whether the fact to be proven is probably

true.\236\ DHS believes this standard provides an appropriate balance

between ensuring that deferred action under the DACA policy is extended

to the intended population and retaining a threshold that the evidence

show that the facts are more likely than not to be so. This also has

been the standard of proof for DACA requests since the initiation of

the DACA policy, and it is the standard of proof applicable to

immigration benefit adjudications as well, unless otherwise specified.

DHS is therefore retaining the preponderance of the evidence standard

at new 8 CFR 236.22(a)(3).

---------------------------------------------------------------------------

 

    \235\ See 86 FR 53766; proposed 8 CFR 236.22(a)(3).

    \236\ Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

---------------------------------------------------------------------------

 

    Consistent with longstanding practice and as proposed in the

preamble of the NPRM, DHS will accept either primary or secondary

evidence to determine whether the DACA requestor meets the threshold

criteria. As used in this final rule, primary evidence means

documentation, such as a birth certificate, that, on its face, proves a

fact. Secondary evidence means other documentation that could lead the

reviewer to conclude that it is more likely than not that the fact

sought to be proven is true. In response to a commenter's request that

DHS provide greater clarification of what may constitute qualifying

secondary evidence, DHS is expanding here on the examples provided in

the NPRM preamble, but cautions that these examples are not meant to be

exhaustive. Such examples of secondary evidence may include baptismal

records issued by a church or school records with a date of birth

showing that the DACA requestor was born at a certain time, rental

agreements in the name of the DACA requestor's parents, or the listing

of the DACA requestor as a dependent on their parents' tax return to

demonstrate periods of residence in the United States. Secondary

evidence may, but does not necessarily, require corroboration with

other evidence submitted by the requestor. DHS will evaluate the

totality of all the evidence to determine if the threshold criteria

have been met.

Affidavits

    Comment: A commenter urged DHS to reduce barriers preventing people

from receiving relief and to ensure the policy is accessible by

continuing to accept affidavits. Another commenter suggested that DHS

should incorporate into the final rule expanded ways for requestors to

prove that they meet the eligibility criteria, including giving more

weight to sworn affidavits and

 

[[Page 53215]]

 

letters for periods of continuous residence and proof of entry.

    Another commenter stated that, if DHS publishes the proposed rule

as is, it should clarify that affidavits will be accepted as evidence

for all the eligibility requirements, including physical presence,

continuous residence, and lack of lawful status. The commenter said

that this policy should be codified in regulation, such as through a

separate evidentiary section in 8 CFR 236.22. The commenter wrote that

this regulation could adopt the ``any credible evidence'' standard used

in other areas of immigration law, with which immigration practitioners

are familiar, thus creating much-needed flexibility.

    A joint comment also stated that DHS should demonstrate increased

flexibility in allowing requestors to meet documentation requirements,

commenting that farmworkers and their family members face extreme

difficulty meeting the documentation requirements of DACA. To help

remedy this issue, the commenter urged DHS to provide that affidavits

would be accepted as secondary evidence for all requestors at all

stages of their request and to not require supplemental documents

beyond affidavits, as that undermines requestors who do not have other

forms of documentation. Another commenter said that DHS could improve

access to DACA by including references to sworn affidavits as

acceptable evidence, accepting affidavits as proof of satisfying that

the requestor came to the United States before reaching their 16th

birthday, and accepting affidavits from the requestors themselves.

    Response: DHS acknowledges commenters' concerns regarding the

challenges some DACA requestors face in obtaining primary and secondary

evidence to demonstrate eligibility under the threshold criteria.

However, as discussed in the response above, DHS is declining to

specify in detail in this rule the types of evidence that may or may

not suffice to meet the threshold criteria for DACA, to avoid creating

a list that may be unintentionally viewed as exhaustive or limiting to

adjudicators or requestors. DHS therefore declines the commenter's

suggestion to create a separate evidentiary section within new 8 CFR

236.22.

    As stated in the NPRM and consistent with longstanding practice,

while there are certain circumstances in which affidavits may be

submitted in lieu of primary or secondary evidence, affidavits are

generally not sufficient on their own to demonstrate that a requestor

meets the DACA threshold criteria. This is reflective of DHS's desire

to balance that under the preponderance of the evidence standard, the

evidence must show that the facts asserted are more likely than not to

be so, while also allowing for some flexibility to account for

circumstances in which DACA requestors may not have access to primary

or secondary evidence for reasons beyond their control.

    One circumstance in which affidavits may be used in lieu of primary

and secondary evidence is in support of a requestor meeting the

continuous residence requirement. Another circumstance is where there

may be a shortcoming in documentation with respect to brief, casual,

and innocent departures during the continuous residence period before

August 15, 2012. DHS will consider affidavits in these contexts in

recognition of the challenges DACA requestors may face in obtaining

primary or secondary evidence in these contexts, particularly for those

who may have been very young during the periods for which documentation

is needed.

    Finally, as discussed in further detail below, in recognition of

the challenges faced in obtaining primary and secondary evidence for

the start of the continuous residence period for new initial requestors

for DACA who may have been very young at the time of entry to the

United States, DHS will consider affidavits in this context when

assessing whether the new initial requestor has submitted sufficient

evidence to demonstrate their residence in the United States at the

beginning of the continuous residence period.

(1) Arrival in United States Under the Age of 16

Support for the ``Arrival in United States Under the Age of 16''

Criterion

    Comment: A few commenters generally supported maintaining the

criterion of arrival into the United States before age of 16. One of

these commenters said that this criterion would preserve the character

of DACA as a program for individuals brought to the United States as

children.

    Response: DHS acknowledges commenters' support for maintaining the

threshold requirement of arrival in the United States prior to age 16.

DHS is retaining this threshold requirement in the final rule at new 8

CFR 236.22(b)(1), reflecting the Department's desire, as described in

the NPRM, to limit DACA to those who came to the United States as

children, and who therefore present special considerations that may

merit assigning lower priority for removal action due to humanitarian

and other reasons.

USCIS Should Revise the ``Arrival in United States Under the Age of

16'' Criterion

    Comment: Many commenters suggested changing the criterion regarding

age at the time of entry to expand eligibility for DACA to those who

entered at or after the age of 16. A few commenters stated that the

threshold criterion of arrival before the age of 16 has left otherwise

eligible immigrant youth and students out of DACA and the critical

protection it offers. Another commenter said that these potential

requestors who would be left out either arrived after their 16th

birthday but before becoming an adult at age 18, or they had no proof

that they entered the United States before the age of 16 (e.g., their

birthday is in the summer, and they turned 16 before enrolling in

school). The commenter said that changing this criterion would ensure

that more immigrant youth are covered and would improve their ability

to cite more reliable evidence, such as school records, to prove their

entry.

    While some of these commenters did not suggest a specific age for

modifying this threshold requirement, others urged DHS to change the

age of entry to be consistent with other laws that define childhood and

the age of majority. Many commenters suggested that DHS revise the

arrival age to 18, with some saying that a minor is legally defined as

someone under age 18. Some commenters stated that some of the proposed

legislation for Dreamers requires a requestor to have entered the

United States before the age of 18, including the DREAM Act, the

Health, Opportunity, and Personal Empowerment Act, and the American

Dream and Promise Act. A few commenters noted that the definition of an

unaccompanied child under Federal law references children without a

parent or legal guardian and without lawful immigration status who have

not yet reached the age of 18 (6 U.S.C. 279(g)(2)). A joint comment

submission also said that the cutoff age of 16 is contrary to other

U.S. societal norms regarding who is considered a child, such as

individuals under 18 not being allowed to vote, join the military, or

work in most hazardous occupations.

    Some commenters urged DHS to expand the age of entry to 21, as INA

sec. 101(b)(1), 8 U.S.C. 1101(b)(1) defines a child as ``an unmarried

person under twenty-one years of age.'' A couple of commenters remarked

that this definition governs other types of immigration benefits (e.g.,

family-based

 

[[Page 53216]]

 

visa petitions and derivative status on a parent's application). One

commenter wrote that expanding the age to 21 would be consistent with

other humanitarian immigration classifications such as Special

Immigrant Juvenile (SIJ) classification. This commenter also cited the

United Nations (UN) definition of a child as under the age of 18, under

the UN Convention of the Rights of a Child, and definition of a youth

as between the ages of 15 and 24 years. A couple of commenters said

that DACA should be available to individuals who entered the United

States prior to 21 years of age, or at most 18 years of age, to ensure

that immigrant youth would be covered, as is the intended rationale for

DACA.

    One commenter stated the rule perpetuates the inconsistency and

unfairness of an age-16 cap, and said that whether looking at ages of

majority, high-school enrollment ages, humanitarian definitions of

unaccompanied children, or the INA itself, defining children as under

18 or under 21 is more common and accurate. The commenter concluded

that retaining this threshold requirement would echo anti-immigrant

propaganda hostile to treating 16- and 17-year-old teenagers as

children.

    One commenter stated that the proposed rule must offer a

justification and explanation for the age cutoff rather than

reiterating the policy from the Napolitano Memorandum, as there is no

way to determine that this decision of age 16 is not capricious.

Another commenter stated that DHS should be concerned that the proposed

rule would entirely exclude younger ``Generation Z'' undocumented

students. The commenter remarked that this would amount to an unforced

error and create bitterness and disillusionment among young people who

have lived in the United States most of their lives and have witnessed

the benefits of DACA.

    Response: DHS acknowledges commenters' concerns about immigrant

youth who may be similarly situated to those in the DACA population but

who may not meet the criterion of having arrived in the United States

prior to their 16th birthday. However, as discussed elsewhere in the

NPRM and this rule, DHS has decided to focus this rulemaking on

preserving and fortifying DACA, as directed by President Biden's

memorandum. DHS has determined that the best approach to preserving and

fortifying DACA for those recipients--and their families, employers,

schools, and communities--who have significant reliance interests in

DACA is to codify the threshold criteria as articulated in the

Napolitano Memorandum.

    DHS also recognizes that certain laws and intergovernmental bodies

may define a child as a person up to the age of 18 or 21.\237\ However,

DHS notes that there is precedent in immigration law for limiting

eligibility for a benefit to those under the age of 16, such as in the

context of adoption-related immediate relative petitions, orphan cases,

and Hague Convention adoptee cases--except in limited

circumstances.\238\ With this point in mind, and with an emphasis on

protection of reliance interests for this particular rulemaking, DHS

therefore disagrees that retaining the threshold requirement of arrival

in the United States under 16 years of age is arbitrary or capricious

and declines to make any changes in response to these comments.

---------------------------------------------------------------------------

 

    \237\ See, e.g., INA sec. 101(b)(1), 8 U.S.C. 1101(b)(1); 6

U.S.C. 279(g)(2); UN Convention on the Status of the Child.

    \238\ See INA sec. 101(b)(1)(E), (F), and (G), 8 U.S.C.

1101(b)(1)(E), (F), and (G).

---------------------------------------------------------------------------

 

(2) Continuous U.S. Residence From June 15, 2007

General Concerns With the ``Continuous Residence'' Date

    Comment: Some commenters provided personal anecdotes about

individuals not having access to DACA, and the opportunities that

accompany it, due to the June 15, 2007, threshold date. A couple of

commenters called the eligibility cutoff date arbitrary. Another

commenter also described the requirement for continuous residence as

arbitrary and wrote that the requirement would exclude many otherwise

eligible applicants.

    Response: DHS acknowledges that, as a result of the continuous

residence date requirement, there are noncitizens who will not be

eligible to request deferred action under the DACA policy. However, in

the Department's effort to preserve and fortify DACA, it is maintaining

this threshold criterion in line with longstanding policy and the

Napolitano Memorandum.\239\ As discussed elsewhere in this rule and the

NPRM, this approach reflects the reliance interests of those who

already have received DACA and those similarly situated who have not

yet requested DACA, and their families, employers, schools, and

communities. As discussed above, DHS has determined the best way to

preserve and fortify DACA as directed by President Biden's memorandum

is to codify in regulation the longstanding criteria in the Napolitano

Memorandum. It is also informed by DHS's assessment that this and other

threshold criteria in the Napolitano Memorandum advance DHS's important

enforcement mission and reflects the practical realities of a defined

class of undocumented noncitizens who, for strong policy reasons, are

unlikely to be removed in the near future and who contribute

meaningfully to their communities, as discussed elsewhere in this rule.

Finally, as discussed in greater detail in Section II.A.7, DHS also is

retaining this requirement in recognition of the Department's desire to

avoid creating an incentive to migrate in order to attain eligibility

for deferred action under DACA. DHS is therefore not making any changes

in response to these comments.

---------------------------------------------------------------------------

 

    \239\ See new 8 CFR 236.22(b)(2).

---------------------------------------------------------------------------

 

USCIS Should Revise the ``Continuous Residence'' Date

    Comment: Many commenters discussed the exclusionary effects of the

continuous residence threshold and suggested that USCIS revise the 2007

date to a more recent date in order to include more individuals. One

commenter cited sources indicating that of the more than 450,000

undocumented students in higher education nationwide, less than half

are DACA-eligible. The commenter said that the DACA policy, without an

update to the eligibility criteria, would continue to beget this

counterintuitive outcome of leaving new generations of students without

avenues to success. Echoing these concerns, multiple legal services

providers offered examples of clients who would be negatively impacted

by the requirement. Other commenters asked that DHS consider either

removing the continuous presence requirement in the rule or adjusting

the date to provide relief for individuals who arrived in the United

States after 2007.

    Other commenters stated that USCIS should preserve and fortify DACA

without turning back the clock to 2012. The commenters said that DACA's

original eligibility date was arbitrary, and USCIS could advance the

date to expand the number of eligible individuals through rulemaking,

thus strengthening the program's humanitarian impact while yielding

greater economic and social benefits. A commenter similarly said that

DACA's timeline still operates from the Napolitano Memorandum, which

has remained untouched despite the lack of progress in getting any

permanent legislative solutions passed through Congress. The commenter

said it is time to strengthen, not weaken, the program and protect

those who have grown up in the United States as the only home they have

ever known.

 

[[Page 53217]]

 

    Many commenters said that USCIS should revise the ``continuous

residence'' date or ``continuous presence'' date to 5 years before the

publication or implementation of this final rule to expand eligibility

for DACA to younger individuals. Some of these commenters stated that

the 2007 continuous residence date was 5 years before President Obama

created DACA, and another remarked that this would be consistent with

other areas of immigration law, such as naturalization. Other

commenters similarly wrote that the continuous residence requirement

should be updated to be closer to the date of the final rule given that

the 2007 date is based on the 2012 issuance of the initial DACA policy.

Similarly, another commenter said that DHS should draw from the

original intent of DACA in 2012, which required a minimum continuous

presence of 5 years, not 14 or more, which is unduly burdensome. The

commenter said that Dreamers who spend their entire lives in the United

States would be left without any relief if DHS does not adjust the

continuous presence requirements to reflect the original intent of

President Obama's Executive order.

    Commenters recommended a number of alternative continuous residence

dates, including June 15, 2017, January 21, 2021, or five years prior

to the publication of the final rule. Commenters stated that advancing

the continuous residence date would provide more young people with the

opportunity to succeed and contribute to society. One of these

commenters noted that, because individuals must be age 15 or over to

request DACA and have had continuous presence since June 15, 2007, by

June 15, 2022, the number of Dreamers eligible to apply would be locked

into place, not including those over the age of 15 who had not yet

applied. The commenter said that this would mean that the past 14 years

of Dreamers, many of whom would be entering high school in the coming

year, would not be eligible and would have no career prospects, which

the commenter said would go against the purpose of DACA.

    A joint submission expressed support for a continuous presence date

5 years prior to publication of the final rule that would be updated

annually. Another commenter suggested that the continuous presence date

should be revised to 5 years prior to when a requestor is first

eligible for DACA.

    Another commenter reflected this view, also stating that the rule

should provide that moving forward, the President should review this

requirement every 2 years to determine if it should be further

extended. Another commenter wrote that DHS should require no more than

3 years of continuous residence for DACA requestors.

    Multiple commenters said that DHS should establish a rolling

continuing presence requirement. Some commenters said that there should

be a rolling date instead of moving the June 15, 2007 date forward,

specifically suggesting a 5-year continuous presence from the date of

the filing of the request for DACA consideration, which the commenter

said would allow DHS the ability to make case-by-case determinations

about its enforcement priorities as it relates to this population well

into the future. Commenters said that this would expand DACA to

populations of noncitizens who, but for their date of entry, would meet

the criteria for DACA, and one remarked that it would reduce the burden

of gathering 14 years of evidence of continuous residence. Another

wrote that this suggestion would focus eligibility on those with

significant ties to the United States, would not require routine

regulatory updates, and would preserve the disincentive to immigrate to

attain DACA protections.

    Some commenters wrote that DHS should remove the requirement for

continuous presence prior to a certain date, and instead require

continuous presence prior to a certain age, as this would expand

protection to undocumented youth. Similarly, a commenter stated that

USCIS should eliminate the date requirement for continuous residence,

and instead require that a person has lived in the United States before

turning 18. The commenter stated that this would allow those originally

left out of the policy to request DACA, while easing the burden on

requestors who lack 14 years of continuous residence documentation.

Another commenter wrote that the continuous residence requirement

should be removed from the rule as long as applicants meet age and

uninterrupted residence requirements.

    Response: While DHS appreciates the many suggestions of commenters

to modify or remove the continuous residence requirement to expand the

threshold criteria to include a broader population, as noted above, DHS

is maintaining this threshold criterion in line with longstanding

policy and the Napolitano Memorandum.\240\ As discussed elsewhere in

this rule and the NPRM, this approach reflects the reliance interests

of those who already have received DACA and those similarly situated

who have not yet requested DACA, and their families, employers,

schools, and communities. This approach is also consistent with DHS's

longstanding message that DACA is not available to individuals who have

not continuously resided in the United States since at least June 15,

2007.\241\ While several commenters stated that advancing the date for

the start of the continuous residence requirement would not create an

incentive to migrate to attain deferred action under DACA, DHS believes

that advancing the date or eliminating the requirement would

potentially undermine the agency's enforcement messaging, but that by

keeping the dates from the 2012 Napolitano Memo, DHS is clear that it

is not incentivizing future migration flows. As discussed in the NPRM

and in additional detail in Section II.A.7 of this preamble, border

security is a high priority for the Department, and by codifying the

longstanding DACA policy, including the original continuous residence

date, DHS focuses this rulemaking on the problem identified in the

proposed rule and avoids the possibility of creating any unintended

incentive for migration.

---------------------------------------------------------------------------

 

    \240\ See new 8 CFR 236.22(b)(2).

    \241\ See new 8 CFR 236.22(b)(2).

---------------------------------------------------------------------------

 

    Comment: A commenter wrote that DHS does not offer a rationale for

codifying the 2007 continuous residence date outside of stating that it

would not impact border security. The commenter stated that this

appears to be a reference to a false argument that DACA encourages

unauthorized border crossings. Another commenter also mentioned DHS's

decision to link the rationale for the continuous residence requirement

to border security concerns, writing that this justification is not

related to the agency's goals with DACA. The commenter wrote that DACA

was initially intended to recognize the positive economic and social

impacts of granting deferred action to young people brought to the

United States at least 5 years prior to the policy's creation. The

commenter stated that DHS does not explain why it only has considered

alternatives where that goal is frozen in the past, rather than using a

date such as analogously utilizing the date from other border policy,

November 1, 2020 (which has been included in recent enforcement

priorities memoranda), or implementing a 5-year cushion from the

present. The commenter said that merely invoking border security is an

insufficient justification, reasoning that moving the relevant dates

forward would increase the positive effects that DACA already

 

[[Page 53218]]

 

has had on communities and on the national economy.

    Response: DHS disagrees with commenters that the Department's

strong interest in border security is an insufficient justification for

maintaining the continuous residence requirement as proposed in the

NPRM. It is also not DHS's only justification for codifying this

threshold criterion. As discussed above, DHS's desire not to undermine

its enforcement messaging, together with its adherence to the

President's directive to preserve and fortify the DACA policy; its

desire to protect the reliance interests of DACA recipients and those

similarly situated and their families, employers, schools, and

communities; and the Department's need to preserve finite resources,

all serve as the underlying bases for DHS's determination to maintain

this longstanding threshold requirement from the Napolitano Memorandum.

    DHS also disagrees that retaining the continuous presence

requirement for DACA conflicts with recent enforcement policy,

including the September 30, 2021, DHS Guidelines for the Enforcement of

Civil Immigration Law (``Enforcement Guidelines''), which are currently

not in effect.\242\ While the Enforcement Guidelines highlight that

noncitizens who are ``apprehended in the United States after unlawfully

entering after November 1, 2020,'' will be considered a threat to

border security and are therefore a priority for apprehension and

removal, it also clarifies that any noncitizen ``apprehended at the

border or a port of entry while attempting to unlawfully enter'' as of

the effective date of the memorandum is also a priority for

apprehension and removal.\243\ This serves to reinforce the

Department's enforcement messaging while continuing to recognize that

it must prioritize its use of limited resources.

---------------------------------------------------------------------------

 

    \242\ Memorandum from Alejandro N. Mayorkas, Secretary, DHS, to

Tae D. Johnson, Acting Director, ICE, et al., Guidelines for the

Enforcement of Civil Immigration Law (Sept. 30, 2021), https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf

(hereinafter Enforcement Guidelines). On July 5, the U.S. Court of

Appeals for the Sixth Circuit vacated a nationwide preliminary

injunction that a district court had entered against the Enforcement

Guidelines. Arizona v. Biden,--F.4th--, 2022 WL 2437870 (6th Cir.

July 5, 2022). The district court's injunction had previously been

stayed pending appeal. Nevertheless, the Enforcement Guidelines are

not currently in effect because, on June 10, another district court

vacated the guidance nationwide. On July 7, 2022, the Fifth Circuit

denied the government's request to stay the district court's

decision. Texas v. United States, 40 F.4th 205 (5th Cir. 2022). On

July 21, 2022, the Supreme Court denied the Government's application

for a stay of the district court's nationwide vacatur, but granted

the petition for writ of certiorari. United States v. Texas, No. 22-

58 (22A17), 597 U.S. __, 2022 WL 2841804 (July 21, 2022). The case

will be set for argument in the first week of the December 2022

argument session.

    \243\ Id. at 4.

---------------------------------------------------------------------------

 

    Comment: A commenter said that continuous residence should

incorporate a universal exception for brief, casual, and innocent

departures, not the unsupportable distinction between departures before

and after August 15, 2012. The commenter went on to state that such a

bright-line rule is severe and unfair as there are many reasons why an

individual may need to travel abroad and therefore interrupt their

continuous residence. Another commenter recommended that DHS consider

extraordinary circumstances when determining whether travel outside of

the United States disrupts continuous residence, reasoning that it is

unfair to deny DACA to an individual who would otherwise qualify, but

for a brief, casual, or innocent departure after August 15, 2012, that

resulted from an emergency or other exigent circumstance.

    Response: DHS acknowledges that there may be reasons why a DACA

requestor would need to travel abroad during the continuous residence

period following August 15, 2012. However, it has been DHS's

longstanding policy to allow for exceptions to the continuous residence

period only for any brief, casual, and innocent travel prior to August

15, 2012, as this is the date of implementation of the DACA policy.

After this date, noncitizens who met the DACA criteria could plan

accordingly. Furthermore, those granted DACA after that date had the

ability to request advance parole for certain kinds of travel. Prior to

that date, in contrast, the DACA population may not have been eligible

for advance parole. DHS therefore declines to make the commenters'

suggested changes to the brief, casual, and innocent exception to the

continuous residence requirement.

Documentation Standards for the ``Continuous Residence'' Date

    Comment: Multiple commenters suggested that USCIS reduce the

evidentiary burden and amount of documentation required to prove

continuous residence. One commenter suggested that the evidentiary

requirements in the proposed rule preamble could deter qualified

requestors from making requests under the policy and require

significant attorney and paralegal effort for nonprofits to prepare

successful requests. Another commenter said that noncitizen requestors

may fear interacting with systems that could provide the necessary

documentation and, as a result, would not have the appropriate evidence

of continuous residence. One commenter similarly wrote that some States

create hostile environments for noncitizen residents, resulting in

noncitizen families avoiding institutions that could provide acceptable

proof of physical presence in the country.

    Other commenters stated that the continuous residence requirement

should be satisfied for the relevant year if a requestor submits one

document demonstrating residency during that particular year; or for

multiple years if a requestor submits one document covering multiple

years in the continuous residency period. Similarly, other commenters

said that DHS should clarify that: (1) there is no minimum number of

documents that a DACA requestor must provide per year to demonstrate

continuous residence; and (2) agency adjudicators must draw reasonable

inferences from the totality of the evidence of residence a requestor

provides, including presuming residence for a reasonable period of time

on the basis of point-in-time evidence that the requestor resided in

the United States on a particular date. For example, in some cases a

single document (such as a tax filing or lease) should suffice as

evidence of residence for an entire year. In other cases, the requestor

may show continuous residence over the course of a year by producing

three or four point-in-time documents such as date-stamped photos or

records of calls or purchases.

    The commenter further stated that DHS should adopt a standard of

accepting ``any credible evidence'' of a requestor's continuous

residence. This standard of proof applies in other immigration contexts

where, the commenter wrote, as in the DACA policy, requestors or

applicants may experience significant difficulty obtaining primary or

secondary evidence. Examples of documents that the commenter said

should qualify as ``credible evidence'' include tax returns or tax

transcripts (which, according to the commenter, should establish a full

year of presence), a date-stamped photo of the requestor at a

recognizable location in the United States, credit or debit card

statements showing purchases made in the United States, insurance

policies, vehicle registrations, and cell phone records showing calls

placed from the United States. Another commenter also said that USCIS

should adopt a ``credible evidence'' standard for the various forms of

evidence that are allowed to show continuous residence, including

primary sources like school and work records, as well as

 

[[Page 53219]]

 

secondary sources like parent documentation, church records, and

affidavits. A commenter wrote that DHS should ensure that any credible

evidence of continuous residence is accepted and clarify that it will

draw reasonable inferences of residence and expand the use of

affidavits to do this.

    One commenter stated that the proposed rule is vague as to how much

evidence requestors need to supply to prove continuous residence and

added that the requirement that requestors provide as much

documentation as ``reasonably possible'' is unclear. The commenter

wrote that this vagueness has resulted in advocacy groups creating

their own documentation requirement guidance with varying standards to

better inform requestors. Another commenter stated that the

requirements for documentation of continuous presence should be relaxed

during the COVID-19 pandemic, writing that DACA requestors may have

difficulty producing documentation from this period.

    Response: DHS appreciates commenters' concerns and desire for

greater clarity on the evidentiary requirements for the continuous

residence requirement. DHS also acknowledges commenters' request for

additional leniency in the evidentiary requirements for continuous

residence, particularly in the context of the COVID pandemic and in

light of the challenges that noncitizens may face in obtaining primary

and secondary evidence. However, as discussed above, DHS is refraining

from specifying in detail in this rule the types of evidence that may

or may not be sufficient to meet the threshold criteria for DACA, to

avoid creating a list that may be unintentionally exhaustive or

limiting to adjudicators or requestors. DHS will take commenters'

suggestions under advisement in the development of any subregulatory

guidance on this subject.

    Comment: A commenter said that it would be burdensome for initial

DACA requestors to find proof of their continuous residence in the

United States for 14 years, as well as burdensome for DHS officers who

must then review 14 years' worth of documentation. The commenter

recommended allowing requestors to show they have continuously resided

in the United States for a shorter period prior to submitting their

request, a length of time that they described as more reasonable. A

commenter wrote that the added benefit of a shortened continuous

residence requirement would be a reduced workload on legal service

providers and, as a result, increased access to immigration services

for requestors. Other commenters stated that updating the eligibility

dates would help prevent some of the documentation burdens of providing

proof of continuous presence.

    Response: DHS acknowledges that retaining the continuous residence

requirement as proposed in the NPRM results in requestors needing to

provide documentation for a lengthy period, which may be burdensome for

some requestors. However, as stated above, DHS is maintaining this

threshold guideline in its efforts to preserve and fortify DACA, in

recognition of the particular reliance interests of those who already

have received DACA and those similarly situated who have not yet

requested DACA, and their families, employers, schools, and

communities, and consistent with the agency's longstanding enforcement

messaging. DHS declines to make any changes in response to these

comments.

Affidavits as Acceptable Evidence of Continuous Residence

    Comment: Multiple commenters stated that various forms of evidence,

including affidavits attesting to presence, should be sufficient for

the continuous residence criterion. One commenter expressed support for

the use of affidavits as acceptable evidence for the start of the

continuous residence period in initial requests and for any other gap

in the continuous presence timeline, stating that as affidavits are

written under the penalty of perjury, they should be taken as accurate.

Another commenter stated that acceptance of affidavits is particularly

important because undocumented individuals, and particularly those who

are Indigenous and do not speak common languages, often do not have

access to the services and resources that would provide the kinds of

evidence DACA has previously required (e.g., bank accounts, valid

employment documents, evidence of property ownership).

    Response: As discussed above and in the preamble of the NPRM,

affidavits may be submitted to demonstrate that the requestor meets the

continuous residence requirement if there is a gap in documentation for

the requisite periods and primary and secondary evidence is not

available. DHS will consider affidavits in this context in recognition

of the challenges DACA requestors may face in obtaining primary or

secondary evidence in these contexts, particularly for those who may

have been very young during the periods for which documentation is

needed. As described further below, DHS also will consider affidavits

when determining if the requestor has submitted sufficient evidence of

their residence in the United States at the start of the requisite

continuous residence period for new initial DACA requests where the

requestor was unable to access primary or secondary evidence due to

their young age at the time of entry to the United States.

    Comment: Several commenters responded to DHS's request for comments

on whether affidavits should be considered acceptable evidence of the

start of the continuous residence period for new initial requestors for

DACA who may have been very young at the time of entry to the United

States. Multiple commenters expressed support for the use of affidavits

as acceptable evidence of the start of the continuous residence period

in initial DACA requests, as new requestors may have been very young at

the time of entry and may have difficulty obtaining primary or

secondary evidence. One commenter noted that this is a particular

challenge for those who arrived as very young children as they

typically do not enter the formal educational system until age 5 and

therefore often do not have formal primary documentation of their

presence in the United States until their enrollment in school.

    Other commenters agreed that the use of affidavits should be

acceptable evidence of the start of the continuous residence period for

this population, but added that the use of affidavits should not be

limited to just those who were very young at the time of entry. One

commenter said expanding the use of affidavits is especially necessary

if DHS retains the continuous residence requirement as proposed in the

NPRM, as it would be difficult for requestors to demonstrate over 14

years of evidence for continuous presence. Similarly, another commenter

said that other requestors, not just those who were very young at the

time of entry, would face challenges in providing documentation.

    Response: In the NPRM, DHS requested comments on whether affidavits

should be considered acceptable evidence of the start of the continuous

residence period for new initial requestors for DACA who may have been

very young at the time of entry to the United States and may have

difficulty obtaining primary or secondary evidence to establish this

threshold requirement.\244\ Many commenters expressed support for this

suggestion, and as a result, DHS is clarifying in this final rule

preamble that it will consider affidavits when determining if the

requestor has

 

[[Page 53220]]

 

submitted sufficient evidence of their residence in the United States

at the start of the continuous residence period for new initial

requestors who were very young at the time of entry to the United

States. As one commenter noted, part of the challenge that those who

arrived in the United States as a young child may face is that they may

not have primary or secondary evidence of their physical presence until

they enter the formal educational system. As age 8 is the highest age

at which school attendance becomes compulsory within the United States,

DHS plans to extend the flexibility of submitting affidavits for the

start of the continuous residence period for new initial requestors who

arrived in the United States at or before age 8 in subregulatory

guidance.\245\

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    \244\ 86 FR 53767.

    \245\ See Institute of Education Sciences, National Center for

Education Statistics, State Education Practices, Table 1.2.

Compulsory school attendance laws, minimum and maximum age limits

for required free education by state: 2017, https://nces.ed.gov/programs/statereform/tab1_2-2020.asp.

---------------------------------------------------------------------------

 

    While DHS appreciates commenters' requests to further extend this

flexibility beyond new initial requestors who arrived as very young

children, as noted above, DHS will continue to consider affidavits to

support evidence that the requestor meets the continuous residence

requirement if there is a gap in documentation for the requisite

periods and primary and secondary evidence is not available.

Other Comments on the ``Continuous Residence'' Date

    Comment: Multiple commenters urged an exception that would allow

deported individuals to meet the continuous residence requirement.

Several commenters also stated that the proposed rule would penalize

those individuals who complied with a legal directive to depart, noting

that those who are subject to a final order of removal but who do not

depart the United States remain eligible for DACA. The commenters

further noted that many of those who departed the United States under a

removal order did so as children, not on their own volition and without

understanding the legal context.

    Response: DHS will consider deferred action under DACA for

noncitizens with final removal orders that have not been executed who

otherwise meet the threshold guidelines for DACA, as DHS may still

elect to exercise discretion as to whether to remove the noncitizen.

However, it has been long-standing practice and policy for DHS to

consider departures on or after June 15, 2007, due to an order of

exclusion, deportation, voluntary departure, or removal to interrupt

the continuous residence criterion. In such a scenario, continuous

residence would not only be interrupted by the departure, but the

noncitizen may also be barred from re-entering the United States for

years or permanently, further inhibiting any ability to comply with the

continuous residence requirement.\246\

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    \246\ See INA sec. 212(a)(9)(B)(i)(I) and (II), INA sec.

212(a)(9)(C)(i)(I); 8 U.S.C. 1182(a)(9)(B)(i)(I) and (II), 8 U.S.C.

1182(a)(9)(C)(i)(I).

---------------------------------------------------------------------------

 

(3) Physical Presence in United States

Support for ``Physical Presence in the United States'' Criterion

    Comment: A commenter stated that physical presence within the

United States on the day that DACA was announced is an important

qualifier toward acceptance and ensures that the policy is not being

exploited by individuals entering the country after the fact to gain

deferred status.

    Response: DHS acknowledges the commenter's support for maintaining

the threshold criterion of being physically present in the United

States on June 15, 2012, which is the date of issuance of the

Napolitano Memorandum. For the same reasons described above and as

proposed in the NPRM, DHS is codifying this criterion in this

rule.\247\

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    \247\ See new 8 CFR 236.22(b)(3).

---------------------------------------------------------------------------

 

USCIS Should Revise the ``Physical Presence in the United States''

Criterion

    Comment: Numerous commenters suggested moving forward the physical

presence requirement from June 15, 2012, to expand eligibility for DACA

to a larger population. Several commenters stated that the date is

arbitrary and suggested removing this criterion or substituting it with

a larger timeframe.

    Multiple commenters said that the rule should advance the date for

physical presence from June 15, 2012, to the date the final rule is

implemented. A commenter similarly suggested advancing the date of

physical presence to the date of final rule promulgation. Relatedly,

another commenter recommended that the date should be advanced to a

time closer to when individuals submit requests and recommended a time

period of 5 years from the date the rule is published or implemented. A

commenter recommended advancing the date for physical presence to at

least 5 years prior to submitting a request.

    Another commenter recommended replacing the June 15, 2012, date

with a flexible standard that would expand access to those individuals

who otherwise would qualify for DACA. The commenter stated that this

recommendation would align with the enforcement priorities set by the

Secretary on September 30, 2021. A commenter suggested that a rolling

date approach and linking the requirement dates only to the date of the

request would reduce significant documentation burden on requestors and

increase consistency with the Napolitano Memorandum.

    Several commenters recommended that DHS advance the physical

presence requirement to January 1, 2021, which matches the date

proposed in H.R. 6, the American Dream and Promise Act of 2021. Many of

these commenters stated that DHS has not updated the physical presence

date in 9 years, and there is nothing that prevents DHS from moving the

date in recognition that there are many Dreamers who arrived since the

original physical presence date who are otherwise eligible for DACA.

The commenter said that most individuals who would benefit would not be

enforcement priorities, and enabling these Dreamers to access higher

education and employment authorization through DACA would help them

contribute to their communities and would be in line with the intent of

the Napolitano Memorandum.

    Similarly, a commenter suggested a revised date of January 20,

2021, stating that prescribing a date is at the discretion of USCIS and

the rule should be more inclusive. Other commenters recommended

updating the date to January 21, 2021, and another suggested updating

the date to June 15, 2020. One commenter stated that if the requirement

for physical presence is to be retained, the date should be based on

the age of the requestor when they immigrated to the United States,

rather than an arbitrary date from a policy memorandum.

    A few commenters stated that the requirement of physical presence

on June 15, 2012, should be eliminated, but the requirement of physical

presence at the time of filing of the DACA request should be retained.

One of these commenters said that this would ensure that DACA remains

available only to individuals currently in the United States.

    A commenter suggested that DHS grant deferred action and extend

eligibility for a work permit to individuals who arrived after June 15,

2012, but meet all other eligibility criteria and commit to teaching or

other public service. Given the teacher shortage and the need to

diversify the teaching profession, the commenter asked that

consideration be given to

 

[[Page 53221]]

 

other eligibility factors, including individuals who desire to teach.

    Response: DHS appreciates commenters' suggestions to modify or

eliminate the physical presence requirement to expand eligibility for

DACA to a larger population. However, for the same reasons as discussed

in the continuous residence section above, DHS is maintaining this

threshold criterion in line with the longstanding DACA policy, under

which DACA is not available to individuals who were not physically

present on June 15, 2012, the date of issuance of the Napolitano

Memorandum.\248\ As discussed in the NPRM and elsewhere in this rule,

border security is a high priority for the Department, and by codifying

the longstanding DACA policy, including the physical presence

criterion, DHS is preserving its finite resources and avoiding the

possibility of creating any unintended incentive for migration.

---------------------------------------------------------------------------

 

    \248\ See new 8 CFR 236.22(b)(3).

---------------------------------------------------------------------------

 

(4) Lack of Lawful Immigration Status

USCIS Should Eliminate the ``Lack of Lawful Immigration Status''

Criterion

    Comment: Numerous commenters stated USCIS should eliminate the

threshold criterion that the requestor demonstrate that they were not

in a lawful immigration status on June 15, 2012. Many of these

commenters said that Documented Dreamers should be eligible to request

DACA, with some stating that these children know America as their

country, contribute to society, and should not be discriminated

against. Some of these commenters said that, absent a clear, legal

pathway to citizenship for Documented Dreamers, eligibility to receive

DACA would allow Documented Dreamers an opportunity to remain in the

United States with families, and access work and educational

opportunities. Another commenter stated that expanding eligibility for

immigrant youth in lawful status that meet all other DACA requirements

would provide an opportunity to end one of the artificial distinctions

that separates immigrant youth based on how they arrived in the United

States.

    Many commenters said that the exclusion of Documented Dreamers is

unjust to children brought here lawfully by their parents and with

lawful status (e.g., H-4 dependents) who will have to self-deport when

they ``age out'' at 21 due to backlogs. Other commenters stated that,

by removing this requirement, thousands of young people who grew up in

the United States as dependents of nonimmigrant visa holders and had

lawful status on June 15, 2012, would be afforded protection.

    Citing sources, several companies stated that many Documented

Dreamers follow in the footsteps of their parents and are leaders in

STEM fields, only to age out of status at age 21. The commenters said

this situation is untenable for these children and their employees on

high-skilled visas who face the prospect of separation from family

members if their child ages out before they receive a green card. Other

commenters stated that the proposed criterion would result in the loss

of valuable talent and potentially significant contributions to the

national economy by children of visa holders that age out. The

commenters also said this issue hinders U.S. companies' ability to

retain highly skilled workers and prevents the United States from

competing in the global economy, citing a source indicating the net

economic cost of losing Documented Dreamers is over $30 billion.\249\

Another commenter similarly stated that the parents of Documented

Dreamers have skills that allowed them to build U.S. technologies, and

every U.S. company has been able to be a leader in the world because of

these high-skilled immigrants who were given visas and did everything

right. The commenter said it is inhumane to ask Documented Dreamers to

self-deport because of an unfair policy.

---------------------------------------------------------------------------

 

    \249\ See Dip Patel, Biden's Immigration Plan Must Reform DACA

to Cover Dreamers Whose Parents Are Here Legally, NBC News ``Think''

(Dec. 4, 2020), https://www.nbcnews.com/think/opinion/biden-s-immigration-plan-must-reform-daca-cover-dreamers-whose-ncna1248885;

David J. Bier, Huge Fiscal Benefits of Including Legal Immigrant

Dreamers in the DREAM Act, Cato at Liberty (Oct. 23, 2017), https://www.cato.org/blog/huge-fiscal-benefits-including-legal-immigrant-dreamers-dream-act.

---------------------------------------------------------------------------

 

    Another commenter asked DHS to update this criterion to allow

individuals who had lawful status in the United States on June 15,

2012, but subsequently lost such status by the time of their request,

to qualify for DACA. The commenter said that this update could be

accomplished by changing the criterion to read: ``had no lawful status

at the time of filing of the request for DACA.'' The commenter further

remarked that Documented Dreamers have been raised in the United

States, went to school here, graduated from the U.S. education system,

and have gone on to become productive members of our society,

contributing greatly to the national economy and communities.

    Response: DHS thanks commenters for highlighting the important

contributions of Documented Dreamers and agrees that many have strong

ties to the United States and may not have known another country as

their home. DHS also acknowledges that, as a result of the longstanding

``lack of lawful status'' criterion, Documented Dreamers are not able

to request deferred action under the DACA policy. However, as with the

other threshold criteria, in the Department's effort to preserve and

fortify DACA, DHS is maintaining this criterion in line with

longstanding policy.\250\ As discussed in Sections II.A and III.A of

this rule and in the NPRM, this approach reflects the Department's

acknowledgement of the reliance interests of those who already have

received DACA and those similarly situated who have not yet requested

DACA, and their families, employers, schools, and communities. It also

preserves limited agency resources while retaining the Napolitano

Memorandum's focus on providing forbearance from removal for those who

entered as children and did not have lawful status as of the time of

the creation of the policy.

---------------------------------------------------------------------------

 

    \250\ See new 8 CFR 236.22(b)(4).

---------------------------------------------------------------------------

 

    Comment: A commenter said that the lack of lawful status provision

is outrageous and strange in that it would require DACA requestors to

show they broke the law to be eligible. Some commenters said that it

would encourage further unauthorized immigration.

    Response: As discussed above and in the NPRM, this rule reflects

the reality that DHS enforcement resources are limited, and that

sensible priorities for the use of those limited resources are vital.

It also recognizes that, as a general matter, DACA recipients, who came

to this country many years ago as children, lacked the intent to

violate the law, have not been convicted of any serious crimes, and

remain valued members of our communities. Furthermore, the rule

requires that a noncitizen have entered the United States prior to the

age of 16 and have been continuously present in the United States since

June 15, 2007, to meet the threshold criteria for DACA.\251\ As

discussed in Section II.A.7, the rule will not forbear the removal of

any noncitizen who arrived after that date. Because DHS has declined to

expand the threshold eligibility criteria and for the other reasons

discussed in Section II.A.7, DHS disagrees with commenters that the

``lack of lawful status'' criterion would incentivize further irregular

migration.

---------------------------------------------------------------------------

 

    \251\ See 8 U.S.C. 236.22(b)(1) and (2).

---------------------------------------------------------------------------

 

    Comment: Multiple commenters stated that the June 15, 2012 date was

arbitrary and that USCIS did not

 

[[Page 53222]]

 

sufficiently justify the reason for retaining the date. Several

commenters remarked along the same line that DHS should remove the

requirement that DACA requestors have no lawful status on that date in

order to qualify for deferred action under the DACA policy. One

commenter said that the proposed rule's claim that the requirement is

implicit in the Napolitano Memorandum's reference to children and young

adults who are subject to removal because they lack lawful immigration

status ignores the memorandum's key goal, which was to give

consideration to the individual circumstances of each case and not

remove productive young people to countries where they may not have

lived or even speak the language. Additionally, the commenter said that

there is precedent from previous deferred action initiatives, such as a

2009 deferred action initiative via memorandum for certain widows of

U.S. citizens.

    Response: As several commenters point out, this explicit guideline

was not in the Napolitano Memorandum issued on June 15, 2012. However,

DHS disagrees that retaining this longstanding criterion conflicts with

the primary goals of the Napolitano Memorandum or the underlying

motivations in creating the DACA policy. To the contrary, this

requirement is consistent with the purpose of the policy, inasmuch as

it limits the availability of the policy to those individuals who were

subject to removal at the time the memorandum was issued, and therefore

reflects that the DACA policy is an enforcement discretion policy,

allowing DHS to focus its limited enforcement resources on higher

priority populations.\252\ While DHS recognizes that there are other

noncitizens, including Documented Dreamers, who will not be able to

request deferred action under the DACA policy as a result of DHS

codifying the lack of lawful immigration status criterion in this rule,

as discussed above, this approach reflects the Department's careful

balancing of its directive to preserve and fortify DACA, as well as the

reliance of DACA recipients and those who have not yet requested DACA

on the Napolitano Memorandum's criteria.

---------------------------------------------------------------------------

 

    \252\ See 86 FR 53767.

---------------------------------------------------------------------------

 

Other Comments on the ``Lack of Lawful Immigration Status'' Criterion

    Comment: A few commenters urged the Department to consider amending

proposed 8 CFR 236.22(b)(4) to remove the reference to June 15, 2012,

and only require a lack of lawful immigration status on the date of

filing the DACA request. Commenters suggested that this change would

better align with the intent of DACA to protect young people brought to

the United States as children and reduce the significant burden of

demonstrating lack of lawful status going back to 2012. Alternatively,

some commenters suggested other modifications to the date of the

criterion, including changing the date in proposed 8 CFR 236.22(b)(4)

to the date the final rule is promulgated, or using a period of time,

instead of a concrete date, in the provision.

    Response: DHS appreciates commenters' suggestions and understands

that the criterion that the requestor demonstrate lack of lawful status

as of June 15, 2012, may present a burden to some requestors or result

in others being unable to meet the DACA criteria. However, for the

reasons stated above, DHS is retaining this threshold criterion as

proposed.

(5) Education

Support for the ``Education'' Criteria

    Comment: A few commenters provided general support for the

educational criteria, stating that educational opportunities provide a

chance for DACA recipients to further their contributions to society.

While suggesting changes to other threshold requirements, another

commenter recommended no changes to the current educational

requirements.

    Other commenters supported the codification of longstanding

standards for establishing when an individual is ``currently . . .

enrolled in school'' for purposes of the threshold criteria as proposed

at 8 CFR 236.22(b)(5). The commenter stated that doing so would offer

additional stability to DACA requestors as they consider their

educational options and assess the consequences of those decisions for

obtaining DACA.

    Response: DHS appreciates commenters' support for the proposed

education guideline and agrees that educational opportunities provide a

chance for DACA recipients to further their contributions to society,

and agrees that maintaining the current standards will provide clarity

and stability for DACA requestors. As discussed in the NPRM, this

guideline also reflects DHS's recognition of the importance of

education and military service to the United States and the

Department's desire to support and promote such opportunities.\253\ In

accordance with longstanding DHS policy and the Napolitano Memorandum,

DHS is therefore codifying the guideline that a DACA requestor must be

currently enrolled in school, have graduated or received a certificate

of completion from high school, have obtained a GED, or be an honorably

discharged veteran of the Coast Guard or Armed Forces of the United

States.\254\

---------------------------------------------------------------------------

 

    \253\ 86 FR 53768.

    \254\ See new 8 CFR 236.22(b)(5).

---------------------------------------------------------------------------

 

    As proposed in the NPRM preamble, and in accordance with

longstanding DHS policy, to be considered enrolled in school for the

purposes of new 8 CFR 236.22(b)(5), the DACA requestor must be enrolled

in one of the following as of the date of the request:

     A public, private, or charter elementary school, junior

high or middle school, high school, secondary school, alternative

program, or homeschool program that meets State requirements;

     an education, literacy, or career training program

(including vocational training) that has a purpose of improving

literacy, mathematics, or English, or is designed to lead to placement

in postsecondary education, job training, or employment and where the

requestor is working toward such placement; or

     an education program assisting students either in

obtaining a regular high school diploma or its recognized equivalent

under State law (including a certificate of completion, certificate of

attendance, or alternate award), or in passing a GED exam or other

State-authorized exam (e.g., HiSet or TASC) in the United States.\255\

---------------------------------------------------------------------------

 

    \255\ 86 FR 53768.

 

    Such education, literacy, or career training programs (including

vocational training), or education programs assisting students in

obtaining a regular high school diploma or its recognized equivalent

under State law, or in passing a GED exam or other State-authorized

exam in the United States, include programs funded, in whole or in

part, by Federal, State, county, or municipal grants, or administered

by nonprofit organizations. Under longstanding policy, which DHS

currently plans to maintain (but could revise to the extent consistent

with law at a future date) programs funded by other sources would

qualify if they are programs of demonstrated effectiveness.\256\ As

discussed in the NPRM, DHS does not consider enrollment in a personal

enrichment class (such as arts and crafts) or a recreational class

(such as canoeing) to be an alternative educational

 

[[Page 53223]]

 

program.\257\ Therefore, enrollment in such a program will not be

considered to meet the ``currently enrolled in school'' guideline for

purposes of this final rule.

---------------------------------------------------------------------------

 

    \256\ Id.

    \257\ Id.

---------------------------------------------------------------------------

 

    As noted above, DHS is also codifying the longstanding policy as

proposed in the NPRM that a DACA requestor also can meet the

educational guideline if they have graduated from high school or

received a GED.\258\ To meet this component of the educational

guideline, consistent with longstanding policy and as discussed in the

preamble of the NPRM, the DACA requestor will need to show that they

have graduated or obtained a certificate of completion from a U.S. high

school or have received a recognized equivalent of a high school

diploma under State law; have passed a GED test or other equivalent

State-authorized exam in the United States; or have graduated from a

public or private college, university, or community college. USCIS

considers graduation from a public or private college, university, or

community college as sufficient proof of meeting the educational

guideline because a college or university generally would require a

high school diploma, GED certificate, or equivalent for

enrollment.\259\

---------------------------------------------------------------------------

 

    \258\ Id.

    \259\ Id.

---------------------------------------------------------------------------

 

    Finally, DHS also is codifying the longstanding policy as proposed

in the NPRM that a DACA requestor may meet the educational guideline if

they are an honorably discharged veteran (including honorably

discharged reservists) of the Coast Guard or Armed Forces of the United

States. As has been longstanding policy and as discussed in the NPRM

preamble, current or ongoing service in the Coast Guard or Armed Forces

of the United States will not, however, qualify under this component of

the guideline, although such service may, in some instances, qualify

noncitizens for other forms of enforcement discretion or for lawful

immigration status.\260\

---------------------------------------------------------------------------

 

    \260\ Id.

---------------------------------------------------------------------------

 

Opposition to the ``Education'' Criteria

    Comment: One commenter voiced opposition to the proposed

educational criteria, stating that the intent of the DACA policy--to

protect young people who were brought to the United States as children

and lacked the intent to violate the law--has no relation to an

individual's educational attainment. The commenter stated that if the

educational requirements were removed, and noncitizens who qualify for

DACA but for the education requirements could enter the workforce,

States could benefit from increased tax revenue from those requestors.

The commenter asked that if the educational requirements remain as

proposed, the Department address what constitutes ``demonstrated

effectiveness'' such that requestors are not limited based on the type

of educational program they attend.

    Another commenter opposed the education criteria that DACA

recipients graduate high school and stated that the education

requirements are unnecessarily stringent. The commenter asked why--if

an individual has not been eliminated from disqualification due to any

other criteria--their ability to pass the 12th grade would make an

impact on their qualification.

    Response: DHS acknowledges that there are many noncitizens who may

meet the threshold guidelines for DACA but for the education

requirement. DHS also does not disagree that were such noncitizens to

be granted deferred action and work authorization under the DACA

policy, States could potentially benefit from their increased economic

contributions and tax revenue. However, DHS disagrees that the

education criteria as codified in this rule is too stringent. To the

contrary, DHS provides myriad ways for DACA requestors to meet this

threshold guideline, including enrollment in a variety of educational

programs, graduation from high school or a GED program, or honorable

discharge from the Coast Guard or Armed Forces of the United

States.\261\

---------------------------------------------------------------------------

 

    \261\ See new 8 CFR 236.22(b)(5).

---------------------------------------------------------------------------

 

    DHS also disagrees that the education criteria is unsupported by

the foundational principles undergirding the creation of the DACA

policy. As the Napolitano Memorandum highlights, this policy was

intended to defer removal for ``productive young people'' who have

``contributed to our country in significant ways.'' \262\ While the

Department recognizes that there are many ways that the DACA population

have and continue to contribute to the United States and their

communities, by incorporating an education criteria into the threshold

guidelines, DHS is highlighting the importance of education and

military service by considering those who give back and invest in their

future through education to be lower priorities for enforcement action.

---------------------------------------------------------------------------

 

    \262\ Napolitano Memorandum at 2.

---------------------------------------------------------------------------

 

    In response to one commenter's request to address what constitutes

``demonstrated effectiveness'' for alternative education programs that

are not publicly funded, DHS notes that it has provided subregulatory

guidance on its website explaining that when looking at demonstrated

effectiveness, USCIS reviews:

     the duration of the program's existence;

     the program's track record in assisting students in

obtaining a GED, or a recognized equivalent certificate;

     receipt of awards or special achievement or recognition

that indicate the program's overall quality; and/or

     any other information indicating the program's overall

quality.\263\

---------------------------------------------------------------------------

 

    \263\ DACA FAQs.

 

DHS believes that these factors provide flexibility to requestors while

also maintaining a threshold level of educational quality as it relates

to a program's overall effectiveness, and that such factors are best

provided in subregulatory guidance rather than in regulation. DHS is

therefore not making any changes to new 8 CFR 236.22(b)(5) in response

to these comments.

Other Comments on the ``Education'' Criteria

    Comment: Several commenters recommended creating a hardship waiver

for people who, for example, had to drop out of high school to work, to

be caregivers due to the pandemic, due to domestic violence, or due to

other reasons. Some commenters suggested that a requestor demonstrate

compelling circumstances for the inability to satisfy the educational

guidelines in Form I-821D, Part 8 or include an addendum in their DACA

request for USCIS' consideration. Several commenters recommended adding

a caregiving exemption to the educational requirements that would

recognize the importance of domestic work, paid or unpaid, in immigrant

communities. One of these commenters reasoned that caring for family

members requires significant time and can be a barrier to meeting the

current educational requirements. Another of these commenters requested

that DHS also provide a hardship exemption to the education criteria in

recognition of the financial hardship and challenges of residing in a

remote location faced by many farmworker families. The commenter noted

that farmworkers also have inflexible and long work hours that further

exacerbate difficulties in obtaining an education. Another commenter

urged DHS to expand eligibility to those who were unable to graduate

from high school or earn a GED, stating that the requirement is biased

toward youth who have supports that allow them to pursue an education.

    Some commenters also recommended adding an exemption to the

educational

 

[[Page 53224]]

 

requirement through community service. One commenter reasoned that

allowing a community service exemption would demonstrate a commitment

to DACA objectives through structured volunteer activities and would

strengthen future employability in the nonprofit sector.

    Response: DHS appreciates the commenters raising the importance of

caregiving and community service and agrees that these are meaningful

occupations that contribute to society. DHS also acknowledges that

caregiving duties, financial hardship, residing in a remote location,

inflexible work schedules, domestic violence, the pandemic, and other

challenges may impact a requestor's ability to meet the education

criteria. However, as noted above, DHS believes that there is

sufficient flexibility in the various ways a requestor may satisfy this

threshold guideline to enable requestors in a variety of circumstances

to find a program that fits their needs. For the reasons articulated

throughout this rule, DHS also is retaining this threshold guideline as

proposed in its efforts to preserve and fortify the policy. DHS

therefore declines to create an exemption to the education criteria for

hardship, caregiving, community service, or other reasons.

    Comment: Some commenters recommended that individuals in current or

ongoing military service be eligible to meet the education criteria,

not just those who have received an honorable discharge. One commenter

stated that this expansion of eligibility for current military service

members would align with the requirements of the Department of Veterans

Affairs benefits. Another commenter requested that USCIS clarify that

union apprenticeships qualify as approved educational programs that

meet current requirements.

    Response: DHS appreciates commenters raising these possibilities

for expanding the education criteria to include current military

service or union apprenticeships. However, as discussed elsewhere in

this rule, DHS is retaining this and the other threshold criteria as

proposed in its efforts to preserve and fortify DACA, and in

recognition of the reliance interests of current DACA requestors and

those similarly situated who have not yet requested DACA, and their

families, employers, schools, and communities.

    Comment: A commenter referenced former USCIS Director Francis

Cissna's May 25, 2018 response to Rep. Steve King's questions regarding

the education levels of DACA recipients. The commenter said that the

NPRM does not mention, as stated by Director Cissna, that education is

a required field on Form I-821D for initial requests but is not a

required field on renewal requests. The commenter went on to cite

education-related figures for approved DACA recipients from 2012-2018,

questioning whether the rule is simply allowing 800,000 children to get

work authorization and a driver's license with little apparent hope of

reaching their dreams. Another commenter said that many DACA requestors

only register to study while the request is processed and then they

abandon their studies.

    Response: As discussed above, DHS incorporated the education

criteria into the threshold guidelines for DACA in recognition of the

importance of education and military service and of the contributions

that DACA requestors make to the country. For example, one study of the

effects of DACA on educational achievement concluded that, because of

DACA, more than 49,000 additional Hispanic youth obtained a high school

diploma, and that the gap in high school graduation between citizen and

noncitizen youth in the study's sample closed by 40 percent.\264\ The

same study found positive, though imprecise, impacts on college

attendance.\265\

---------------------------------------------------------------------------

 

    \264\ Kuka (2020).

    \265\ Id.

---------------------------------------------------------------------------

 

    DHS also recognizes that there may be circumstances beyond a

requestor's control that may impede their ability to participate in or

complete certain educational programs, and for that reason, DHS

intentionally provided a variety of options for meeting this threshold

guideline.

    It is DHS's position that participation in or graduation from

educational programs is beneficial to requestors and to the community

writ large. As stated elsewhere in this rule, many DACA recipients have

gone on to continue their studies at post-secondary and professional

levels, and some have become doctors, lawyers, nurses, teachers, or

engineers.\266\ Approximately 30,000 DACA recipients are healthcare

workers, and many of them have helped care for their communities on the

frontlines during the COVID-19 pandemic.\267\ DHS therefore disagrees

with the commenters that this rule provides work authorization to DACA

recipients without supporting educational outcomes or contributions.

---------------------------------------------------------------------------

 

    \266\ See Gonzales (2019); Svajlenka (2020); Wong (2020); Zong

(2017).

    \267\ Svajlenka (2020). DACA recipients who are healthcare

workers also are helping to alleviate a shortage of healthcare

professionals in the United States and they are more likely to work

in underserved communities where shortages are particularly dire.

Chen (2019); Garcia (2017).

---------------------------------------------------------------------------

 

    DHS acknowledges commenters' correct assertion that DHS does not

currently require requestors to affirmatively provide evidence of their

continued participation in educational programs upon seeking renewal of

DACA. Once the threshold educational guideline is met by evidence

provided for adjudication of the initial request, DHS focuses its

renewal adjudications on critical issues such as whether the individual

continues to meet the criminality, public safety, national security,

and continuous residence guidelines.

(6) Criminal History, Public Safety, and National Security

General Comments

    Comment: Some commenters generally expressed that DACA should be

more forgiving of minor offenses, with most stating that young people,

like everyone, make mistakes that should not result in excessive

punishment or deprive them of DACA. However, one commenter expressed

that the requirement related to criminal history was sound judgment.

    One commenter stated that DHS failed to elaborate on why it allows

convicted criminals to obtain DACA, whereas law-abiding prospective

immigrants are not considered for deferred action and employment

authorization, saying that existing data do not support that officers

exercise discretion in granting DACA. Another commenter said that DHS

failed to conduct meaningful studies on crimes DACA recipients have

committed and their negative impacts on U.S. society or on crime

victims, nor did DHS consider any measures to enhance national

security, such as banning all persons with any criminal records from

receiving DACA. The commenter went on to cite data indicating that more

than 10 percent of the approved DACA recipients have at least one

arrest, which the commenter said was not acknowledged in the rule. This

commenter questioned how much discretion the adjudicating officer has,

stating that it is unimaginable that someone who has been accused of

crimes such as murder or assault could receive favorable discretion.

    A commenter expressed concern over the use of vague language to

disqualify individuals who pose a threat to national security or public

safety, stating that this abstract language provides no standard or

guidance as to how an individual can prove by a preponderance of the

evidence that they meet this requirement. Further, the

 

[[Page 53225]]

 

commenter stated that this vague language leaves open the possibility

of uneven and discriminatory application, and officers who are

unfriendly to the policy's ideals may wield it to exclude otherwise-

qualified individuals for dishonorable and politically motivated aims.

The commenter said that this concern is based on the historical use of

similar grounds to incite fear and discriminate against individuals

based on race, religion, sexual orientation, political ideology, and

various other identities. Another commenter suggested eliminating or

narrowing the public safety discretionary factor, stating that

overbroad categorizations of being a threat to public safety rely

heavily on often unfounded allegations of gang membership or

participation in criminal activities, and that public safety long has

been used as a pretext for criminalizing immigrants.

    Multiple commenters opposed DHS requiring or requesting juvenile

records as part of the DACA adjudication process, stating that

requiring such records is a breach of confidentiality for juveniles and

may be illegal in some States, such as California. The commenter

recommended that DHS refrain from requesting juvenile records as a

nationwide policy to ensure a consistent and fair process across all

States.

    Response: DHS acknowledges the variety of comments on this issue,

ranging from concern that the rule should be more forgiving of minor

offenses, to agreement with the criteria, to objection that someone

with a criminal conviction at all (regardless of the severity of the

offense) can receive DACA. DHS maintains that the criminal history,

public safety, and national security criteria, as proposed, strike an

appropriate balance that is generally consistent with the spirit of

DHS's Enforcement Guidelines, which focus on threats to national

security, public safety, and border security. Excluding all individuals

with any criminal records from receiving DACA, as proposed by one

commenter, would not serve DHS's enforcement priority goals, as DHS

does not have the ability to pursue removal of every individual without

lawful status who has a criminal record. DHS agrees with commenters

that the rule should be forgiving of some minor offenses and maintains

that the criteria as proposed do accomplish that goal: individuals with

isolated minor convictions are not categorically excluded, including

those with minor traffic offenses. While those with three or more

misdemeanor convictions will not be granted DACA, this reflects DHS's

judgment that an individual with multiple misdemeanor convictions,

however minor as individual offenses, generally does not warrant a

favorable exercise of enforcement discretion in the form of DACA.

    DHS acknowledges one commenter's reference to the November 2019

USCIS report ``DACA Requestors with an IDENT Response,'' \268\ which

includes data reflecting that approximately 10 percent of DACA

requestors approved between 2012 and October 2019 had been arrested or

apprehended for a criminal offense or immigration-related civil

offense, but disagrees that the NPRM did not acknowledge this data as

it is explicitly referenced in the preamble to the NPRM at 86 FR 53752.

Additionally, because the report reflects arrests and apprehensions--

not charges or convictions--and includes apprehensions for immigration-

related civil violations which cannot be systematically excluded from

the report, the report is significantly overinclusive and not a

reliable basis for informing the development of the criminal

conviction-related criteria.

---------------------------------------------------------------------------

 

    \268\ USCIS, Office of Policy & Strategy, Research & Evaluation

Division, DACA Requestors with an IDENT Response: November 2019

Update (Nov. 2019), https://www.uscis.gov/sites/default/files/document/data/DACA_Requestors_IDENT_Nov._2019.pdf (last accessed

February 25, 2022).

---------------------------------------------------------------------------

 

    DHS acknowledges a commenter's view that whether someone poses a

threat to national security or public safety is vague, but disagrees

with the assertion that this may lead to discriminatory application or

that officers will use this provision to exclude individuals for

dishonorable or politically motivated aims. Determining whether someone

poses a threat to national security or public safety is at the heart of

DHS's mission, and Congress has directed the Secretary to prioritize

national security, public safety, and border security. These concepts

are longstanding and familiar to officers based on both experience and

training, and are incorporated into DHS's enforcement priorities, as

reflected in the rule.

    DHS further disagrees with a commenter's assertion that existing

data do not support the conclusion that officers should exercise

discretion in adjudicating DACA requests. The DACA policy has

historically included threshold discretionary criteria that USCIS

assesses on a case-by-case basis as a review of the totality of

circumstances. The assessment of whether a requestor meets these

criteria itself entails the exercise of discretion by adjudicators--

such as whether the requestor meets the criminal history, public

safety, and national security criteria or whether they meet the

continuous residence criterion, and additionally, even when a requestor

meets all threshold criteria, USCIS adjudicators have had (and will

continue to have) discretion to determine that in the totality of

circumstances, a favorable exercise of discretion is nonetheless not

warranted. Thus, USCIS data on DACA denials is itself an indication

that officers exercise discretion in adjudicating DACA requests. USCIS

data through December 31, 2021, reflects that USCIS has denied 107,245

DACA requests since the policy was implemented.\269\

---------------------------------------------------------------------------

 

    \269\ USCIS, Deferred Action for Childhood Arrivals (DACA)

Quarterly Report (Fiscal Year 2022, Q1) (Mar. 2022), https://www.uscis.gov/sites/default/files/document/reports/DACA_performancedata_fy2022_qtr1.pdf (last visited June 2, 2022).

---------------------------------------------------------------------------

 

    With respect to juvenile delinquency records, as explained

elsewhere in this rule, USCIS does not consider a juvenile delinquency

determination a conviction for immigration purposes, consistent with

longstanding DACA policy and Board of Immigration Appeals (BIA)

precedent. Also consistent with longstanding DACA policy, USCIS does

not consider juvenile delinquency adjudications as automatically

disqualifying for DACA. If a requestor cannot provide the record

because it is sealed or because State law prohibits even the individual

to whom the record relates (i.e., the DACA requestor) from themselves

disclosing the record, USCIS still may request information about the

underlying conduct in order to perform a case-by-case analysis of

whether the individual presents a threat to public safety or national

security and whether a favorable exercise of prosecutorial discretion

is otherwise warranted.

Mandatory/Categorical Criminal Bars to DACA

    Comment: One commenter recommended no changes be made to the

criminal criteria as drafted in the proposed rule. However, many

commenters opposed categorically denying DACA based on contact with the

criminal legal system, suggested removal of the criminal conviction

bars entirely, and recommended instead instituting a case-by-case

review for those with such convictions. Commenters stated that the

proposed criminal criteria are much broader than DHS's current

memorandum on enforcement priorities, undermining the claim that the

criminal criteria identify young people who are a high priority for

removal, and that categorical bars by their nature eliminate the option

of case-by-case determinations.

 

[[Page 53226]]

 

Commenters added that as a result, mandatory criminal bars require DHS

to deny certain requestors even when they have demonstrated that they

warrant favorable discretion, noting that the very nature of DACA means

that every eligible requestor entered the United States as a child, and

this fact alone should obligate DHS to consider each case in the

totality of circumstances without being constrained by mandatory

criminal bars. One commenter stated that consideration of the final DHS

enforcement priorities, issued after the proposed rule was published,

should be incorporated into the final rule so that no one is denied

DACA who is not an enforcement priority. The commenter further noted

that the statement in the proposed rule that where DACA guidelines may

not align with current or future enforcement discretion guidance, USCIS

may consider that guidance when determining whether to deny or

terminate DACA even when the guidelines are met, invites future

administrations to nearly end DACA by determining that all immigrants

encountered by DHS may be enforcement priorities. Commenters stated

that eliminating criminal conviction exclusions would decrease barriers

for individuals with criminal records seeking DACA, bringing the policy

into compliance with basic tenets of racial equity as well as

compliance with E.O. 13985.

    Commenters who oppose the criminal conviction criteria stated that

they are arbitrary and discriminatory; unjustly transfer the racial

inequities of the criminal legal system into the administration of DACA

in light of the long history of racial disparities in the U.S. criminal

legal system; unfairly exclude communities who already are

criminalized, surveilled, and facing discrimination; impose a ``double

punishment'' on largely Black, Brown, and Indigenous immigrants who

already have served their full sentences and complied with

consequences; ignore the disparities in the criminal legal system and

the over-policing and over-prosecution of people, particularly youths,

in communities of color; and do not sufficiently take into account the

impact on children, as children whose parents or caregivers would be

ineligible could experience the harms of family separation through

detention or deportation.

    One commenter noted that no other area has changed as significantly

since 2012 as social perceptions of the criminal legal system,

concluding that the rule's exclusions for criminal history are

fundamentally incompatible with this reform movement. A legal services

provider shared anecdotal examples of how the criminal bars

disproportionately affected its clients. Another commenter stated that

removing the criminal bars would align with the dual intentions of

DACA--to preserve DHS resources and provide relief to individuals

brought to the United States as children--because it would provide

relief to a broader population and lead to greater stability for more

families, more opportunities to pursue education or careers, and

increased tax revenue. The commenter further noted that removing the

criminal bars would acknowledge the capability of rehabilitation.

    Commenters said that the criminal framework within DACA includes a

unique system of criminal bars, separate from the grounds of

inadmissibility and deportability, that is used to unfairly target

certain members of the DACA population, by singling out certain contact

with the criminal legal system based on the type of offense or conduct,

and that does not account for differences in sentencing or severity of

punishment across different localities. Commenters stated that this

encourages officers to reach beyond the criminal legal system's

disposition and form their own judgment without the benefit of due

process.

    Some commenters recommended eliminating certain per se criminal

bars, including minor traffic offenses, driving under the influence, 8

U.S.C. 1325 (improper entry) and 1326 (reentry of removed individuals),

and offenses involving marijuana or related paraphernalia, in light of

the decriminalization of marijuana.

    Commenters stated that a conviction does not necessarily indicate

whether an individual poses a threat to persons or property, or

otherwise does not warrant deferred action. The commenter further

stated a conviction is an unreliable predictor of future danger, and is

an unreliable indicator of past criminal conduct because of disparate

policing practices and the significant number of people who may plead

guilty to a crime for a number of reasons. The commenter stated that by

adopting categorical criminal bars, the agency prevents itself from

considering mitigating circumstances or humanitarian concerns.

    One commenter stated that individualized consideration for those

few exceptional cases in which DHS has an objectively reasonable,

particularized belief that criminal history is currently relevant

should account for differences in sentencing or severity of punishment

across different localities and provide an opportunity for the

requestor to respond to and explain the information. The commenter

further noted that the rule does not require most sentences described

to be actually served and fails to cut off consideration of past

conduct based on the passage of time since the conviction. Another

commenter also recommended that the conviction definitions consider

actual time served rather than potential sentences imposed.

    One commenter stated that when a conviction occurred should limit

exclusions, reasoning that no one should be defined solely by their

long-past actions. The commenter recommended considering actual

sentences served rather than the potential sentences captured by the

felony and misdemeanor conviction definitions in order to reflect the

courts' assessments of offense severity.

    Response: DHS appreciates and acknowledges the range of views

expressed by the commenters, with one supporting the criminal criteria

as drafted, and many opposing categorical criminal criteria and instead

recommending a framework that considers aggravating and mitigating

factors on a case-by-case basis. DHS notes commenters' comparison of

the criminal criteria with the Enforcement Guidelines, observation that

the criteria are distinct from the criminal grounds of inadmissibility

and deportability, and attention to the fact that the definitions

provided of felonies and misdemeanors reference potential sentences

rather than actual time served. DHS acknowledges commenters' statements

that: the criminal criteria are arbitrary and discriminatory, systemic

racism or other disparities may result in disproportionate contact with

the criminal legal system, and it is improper to draw conclusions about

future threats to public safety based on the fact of a past conviction.

    Despite the limitations and imperfections of the criminal legal

system, criminal convictions rendered under Federal and State laws

often carry immigration consequences. It is therefore consistent with

immigration law generally for DHS to take convictions into

consideration when determining whether to favorably exercise its

enforcement discretion to defer removal action. It is likewise

consistent with Federal law definitions of felonies and misdemeanors

for DHS to classify offenses for DACA purposes based on the potential

sentence, rather than time served. DHS maintains that for purposes of

consideration under DACA and consistent with longstanding DACA policy,

it remains appropriate for USCIS to take into consideration a

requestor's criminal convictions. As

 

[[Page 53227]]

 

noted in the NPRM, DHS acknowledges that the threshold DACA criteria

and DHS's broader enforcement priorities may not always perfectly

align. In its effort to preserve and fortify DACA, DHS does not believe

that it is necessary or beneficial to tie the DACA threshold criteria

to the specific DHS enforcement priorities that are in place at any

given time, in light of the possibility for the priorities to change,

because the DACA criteria are such that the DACA population will

generally be considered a low priority. Although the criteria outlined

in this rule are the primary factors considered in determining whether

to grant DACA, because deferred action is a case-by-case act of

prosecutorial discretion, DHS may consider other relevant factors,

including changed enforcement priorities, when determining whether to

grant deferred action in an individual case. Factors outside of the

threshold criteria may not universally overrule the threshold criteria

in all cases such that changed enforcement priorities render the

threshold criteria entirely moot, but because DHS may consider all

factors in a case, the current enforcement priorities may properly be

taken into consideration. DHS acknowledges that as a result, there may

be cases in which ICE or CBP determine in their discretion that an

individual is not a priority for removal even when USCIS determines the

individual does not warrant a favorable exercise of enforcement

discretion in the form of DACA. But DACA was never intended to capture

every individual who ICE or CBP determines is not a priority for

removal. Indeed, the very nature of discretion is such that different

DHS components may exercise their discretion differently based on

differing operational considerations, reaching different outcomes for

an individual, all while remaining within the boundaries of the

applicable guidelines.

    The criminal criteria reflect a targeted approach to considering

public safety concerns, identifying convictions that do not support the

favorable exercise of enforcement discretion, and balancing the

positive equities of the requestor population as reflected in other

threshold criteria. While the criteria serve as important benchmarks

for consideration of DACA, they do not prevent or replace a case-by-

case weighing of all relevant factors by USCIS adjudicators. Moreover,

as explained in the proposed rule, DHS seeks to retain the threshold

criteria of the DACA policy as applied by USCIS since 2012 in part due

to recognition of the significant reliance interests in the continued

existence of the DACA policy of individuals who previously have

received DACA grants, and those similarly situated who have not yet

requested DACA, as well as their families, employers, schools, and

communities. DHS determined that the best approach to preserving and

fortifying DACA to ensure the continued existence of the policy to is

to codify the existing threshold criteria. Accordingly, DHS believes

the criminal criteria as proposed, and as implemented for 10 years,

enable USCIS to identify more readily those who are likely to be a low

priority based on their positive equities and successfully advance

DHS's important enforcement mission.

    Accordingly, DHS will not make any revisions to 8 CFR 236.22(b)(6)

as a result of these comments.

Waivers and Exceptions

    Comment: Multiple commenters stated that the rule should, at a

minimum, include a waiver for individuals who trigger the criminal

bars, so DACA requestors would not be rendered ineligible without a

case-by-case determination. Commenters said that adjudicators should be

able to consider the totality of circumstances, mitigating factors, and

positive equities, including the severity of the crime, the age of the

individual at the time the crime was committed, rehabilitation, minor

drug-related offenses, whether a conviction was related to the

individual having been a survivor of domestic violence or human

trafficking, the time that has passed between the conviction and

adjudication of the DACA request, length of residence, community ties,

family ties, the impact of a possible denial of a request on U.S.

citizen or permanent resident family members, and mental and physical

health. One commenter said that requestors should be allowed to seek a

waiver for ineligibility, similar to the waiver available under INA

sec. 212(h), 8 U.S.C. 1182(h).

    A few commenters stated that a program rooted in a case-by-case

exercise of discretion should not categorically exclude a class of

individuals without providing them an opportunity to present their

equities to an adjudicator who can weigh the totality of the

circumstances. Other commenters also noted concern that barring whole

categories of individuals imports the biases of the criminal legal

system into immigration decision making and unfairly targets portions

of the population who are already targets of discriminatory policing

practices. Some commenters said that DHS should use its authority to

grant extraordinary circumstances waivers in cases of DACA requestors

with felony convictions to avoid the unjust, disproportionate impact of

the felony conviction bar on communities of color and LGBTQ DACA-

eligible individuals.

    Multiple commenters also noted that the existing DACA policy allows

a waiver of the criminal exclusions due to ``exceptional

circumstances,'' but stated that it is unclear what evidence a

requestor should submit to establish exceptional circumstances, nor is

it clear how adjudicators determine if the standard is met. One

commenter urged DHS to codify and expand the availability of this

exception for convictions from the existing DACA policy.

    Response: DHS acknowledges commenters' concerns regarding

communities of color and LGBTQIA+ individuals being disproportionately

impacted by the criteria, and the suggestion that the criminal criteria

include a waiver or exception that takes into consideration aggravating

and mitigating factors on a case-by-case basis. However, DHS declines

to accept the recommendation that DHS codify the longstanding

``exceptional circumstances'' exception to the criminal conviction

criteria. Commenters correctly note that historically, under DACA FAQs

61 and 66,\270\ USCIS retained discretion to determine that an

individual with a disqualifying conviction nonetheless warranted a

favorable exercise of enforcement discretion due to exceptional

circumstances after careful consideration of the specific facts of the

case. DHS is choosing not to codify that exception because it believes

that the criminal criteria strike the correct balance for determining

what criminal history should be disqualifying for enforcement

discretion under DACA. Moreover, DHS notes that despite the long

history of this exception, USCIS rarely, if ever, found exceptional

circumstances that warranted a grant of DACA where the requestor did

not meet the criminal guidelines. If such cases arise in the future,

DHS may, where appropriate, consider the DACA requestor for other forms

of enforcement discretion.

---------------------------------------------------------------------------

 

    \270\ DACA FAQs.

---------------------------------------------------------------------------

 

Statute of Limitations

    Comment: One commenter stated that there should be no misdemeanor

bar in the rule, but if there is one, there should be a ``statute of

limitations'' on misdemeanors. Other commenters similarly stated that

the rule should impose a statute of limitations, saying

 

[[Page 53228]]

 

that lack of a statute of limitations is punitive because few people

are the same person they were 5 or 10 years before when they made bad

decisions. Multiple commenters specifically recommended that DHS

establish an administrative statute of limitations for consideration of

convictions that occurred 5 or more years before the request date, and

one recommended that all conviction-based exclusions be limited to

within 5 years of the rule's promulgation.

    Several commenters said that DACA-eligible youth have developed

deep ties to family and community in the United States, deserve the

chance to rehabilitate and contribute, and should not suffer further

consequences if they have successfully completed the terms of any

sentence resulting from a criminal conviction. A few commenters also

stated that this approach would be in line with the administration's

current enforcement priorities, which lists how long ago the conviction

occurred as one of the factors in deciding whether to exercise

prosecutorial discretion.

    One commenter stated that this change to the rule is necessary when

Southeast Asian immigrant and refugee communities have a long history

of being over-policed and racially profiled, and to prevent further

repercussions of racial inequities and injustices in the criminal legal

system that disproportionately impact Black and Indigenous communities

and other people of color.

    Response: DHS acknowledges commenters' suggestion that the criminal

criteria include an administrative ``statute of limitations'' to limit

USCIS from considering convictions that occurred more than 5 or 10

years ago as automatically disqualifying. DHS further acknowledges

commenters' statements that individuals may have rehabilitated

following older convictions and that contact with the criminal legal

system is often the result of systemic racism.

    Despite the limitations and imperfections of the criminal legal

system, criminal convictions rendered under Federal and State laws

often carry immigration consequences. It is therefore consistent with

immigration law generally for DHS to take convictions into

consideration when determining whether to favorably exercise its

enforcement discretion to defer removal action. DHS maintains that for

purposes of consideration under DACA and consistent with longstanding

DACA policy, in the exercise of discretion, it remains appropriate for

USCIS to take into consideration convictions even if they occurred more

than 5 or 10 years in the past. The criminal criteria reflect a

targeted approach to considering public safety concerns, identifying

convictions that do not support the favorable exercise of enforcement

discretion, and balancing the positive equities of the requestor

population as reflected in other threshold criteria. As explained in

the proposed rule and elsewhere in this rule, DHS seeks to retain the

threshold criteria of the DACA policy as applied by USCIS since 2012 in

part due to recognition of the significant reliance interests in the

continued existence of the DACA policy of individuals who previously

have received DACA grants, and those similarly situated who have not

yet requested DACA, and their families, employers, schools, and

communities. Accordingly, DHS believes the criminal criteria as

proposed, and as implemented for 10 years, enable USCIS to identify

more readily those who are likely to be a low priority based on their

positive equities and successfully advance DHS's important enforcement

mission. Accordingly, DHS will not make any revisions to 8 CFR

236.22(b)(6) as a result of these comments.

Expunged and Juvenile Convictions

    Comment: Many commenters stated that the rule should clearly

prohibit consideration of expunged convictions and juvenile delinquency

adjudications in DACA determinations, including the many ways in which

expungement is defined, and opposed the rule's reference to the

definition of conviction at INA sec. 101(a)(48)(A), 8 U.S.C.

1101(a)(48)(a) because it includes expunged convictions. One commenter

said that this could be read to limit DHS's discretion in this area.

    Commenters stated that expungements were available for similar

programs such as the Special Agricultural Worker and other legalization

programs of the 1980s and are included in legislation currently before

Congress. They noted recognizing the validity of expungements is

critical to meeting the intent of DACA and giving effect to important

safeguards of the criminal legal system that recognize the capacity for

rehabilitation of impacted individuals and the special vulnerabilities

of youth and counter the impact of policing in our communities. One

commenter stated that expunged, sealed, or otherwise vacated records

are a powerful indicator of change in an individual. One commenter

noted that many DACA recipients are Black, Latinx, and/or other people

of color who come from communities harmed by a history of racial

injustice and a deeply flawed law enforcement system.

    Multiple commenters stated that considering expunged convictions

and juvenile delinquency adjudications as disqualifying convictions

would be a damaging departure from longstanding DACA policy that would

result in current DACA recipients being unable to renew. Many stated

that, at a minimum, the rule should codify existing DACA policy, which

provides that expunged convictions and juvenile delinquency

determinations do not presumptively bar an applicant from receiving

DACA and are considered on a case-by-case basis to determine whether,

under the particular circumstances, a favorable exercise of

prosecutorial discretion is warranted.

    However, multiple commenters opposed the case-by-case review of

expunged convictions and juvenile delinquency adjudications as provided

by current policy. Commenters stated that it leads to differing

decisions for similarly situated requestors based on the adjudicating

officer, undermining the finality of a State or local judicial decision

to set aside and expunge an individual's criminal conviction, noting

that the very purpose of expungement is to eliminate collateral

consequences arising from the existence of the conviction on an

individual's record. Commenters also noted that it wastes valuable

agency time, as State and local authorities already examined the facts

of the case and concluded that the conviction merited expungement, and

almost all States have expungement mechanisms that do not allow for the

expungement of felonies.\271\ Another commenter stated that current

guidance does not align with the purpose of expungement, nor comport

with relevant research on young adults, their decision-making process,

and their brain development. They cited the importance of the research

because it suggests a person's past juvenile record is not indicative

of their adult potential.

---------------------------------------------------------------------------

 

    \271\ See Restoration of Rights Project, 50-State Comparison:

Expungement, Sealing & Other Record Relief, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside (last updated

Oct. 2021).

---------------------------------------------------------------------------

 

    Commenters cited academic research demonstrating that individuals

with expunged convictions present a low public safety risk and, thus,

should be a low priority for removal, like other members of the DACA-

eligible population. Additionally, a commenter said that legislative

and policy changes providing for expungement--including automatic

expungement--reflect an increased desire to create second-chance

 

[[Page 53229]]

 

opportunities in employment, housing, and professional licensing for

individuals with prior criminal convictions. Commenters also stated

that, in the criminal legal system, an expunged conviction is removed

from the system entirely, including for housing, loan, employment,

voting, and all other purposes, and DHS must similarly abide by this

standard.

    Commenters also noted that the immigration system recognizes the

special position of juveniles in immigration court proceedings, where a

juvenile delinquency adjudication is not considered to be a criminal

conviction for immigration purposes and does not trigger adverse

immigration consequences that flow from a conviction, which has been

repeatedly affirmed by the BIA. Therefore, commenters state that the

same should be true regarding DACA. One said that no conduct committed

when under 18 should exclude someone from receiving DACA and that

juvenile convictions should not be considered a negative factor, noting

the inconsistency of saying that children lacked intent to violate the

law in coming to the United States but then holding them responsible as

a collateral consequence for other conduct while adolescents.

    Response: DHS agrees with commenters that the longstanding DACA

policy of not considering expunged convictions and juvenile delinquency

adjudications as automatically disqualifying should be continued. DHS

did not intend for the rule to abandon this policy as reflected in DACA

FAQ 68,\272\ which provides that expunged convictions and juvenile

delinquency adjudications are not considered disqualifying convictions

for purposes of the criminal criteria, but instead are assessed on a

case-by-case basis to determine whether, under the particular

circumstances, a favorable exercise of prosecutorial discretion is

warranted.

---------------------------------------------------------------------------

 

    \272\ DACA FAQs.

---------------------------------------------------------------------------

 

    However, DHS disagrees with commenters that case-by-case

consideration of such criminal history should be eliminated and that

the rule should prohibit entirely any consideration of expunged

convictions or juvenile delinquency adjudications. By conducting an

individual, case-by-case assessment that takes into consideration the

nature and severity of the underlying conduct, DHS is giving effect to

the State or local judicial determination to erase the conviction

itself from the individual's criminal record, while still allowing DHS

to consider the underlying facts to make a proper determination as to

whether a requestor poses a threat to public safety or national

security and whether the favorable exercise of prosecutorial discretion

is otherwise warranted. While DHS recognizes that in other immigration

contexts, expungements are generally considered convictions for

immigration purposes with few exceptions, providing for case-by-case

consideration of the underlying nature and severity of the criminal

offense rather than categorically excluding requestors with otherwise

disqualifying convictions that were expunged is consistent with the

nature of DACA as an exercise of enforcement discretion--as distinct

from an adjudication involving statutory eligibility requirements plus

the exercise of adjudicative discretion--and reflects a balancing of

the use of guidelines and discretion, which serves to promote

consistency and avoid arbitrariness in DACA determinations.

    Likewise, in the case of juvenile delinquency adjudications, DHS

agrees that the rule should not depart from longstanding DACA policy

and BIA precedent establishing that a juvenile delinquency

determination is not a conviction for immigration purposes.\273\

Nonetheless, for the same reasons explained above, DHS maintains that

it is appropriate for adjudicators to still consider the underlying

conduct as part of a case-by-case analysis of whether the individual

presents a threat to public safety or national security and whether a

favorable exercise of prosecutorial discretion is otherwise warranted.

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    \273\ Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981).

---------------------------------------------------------------------------

 

    In this final rule, DHS is revising 8 CFR 236.22(b)(6) to clarify

that expunged convictions and juvenile delinquency adjudications are

not considered automatically disqualifying under the criminal history

criteria. However, consistent with longstanding policy, expunged

convictions and juvenile delinquency adjudications will still be

assessed on a case-by-case basis to determine whether the individual

presents a national security or public safety concern and otherwise

warrants a favorable exercise of discretion.\274\

---------------------------------------------------------------------------

 

    \274\ See new 8 CFR 236.22(b)(6).

---------------------------------------------------------------------------

 

Misdemeanors

    Comment: Multiple commenters asserted that the single-misdemeanor

bar should be eliminated because the offenses are undefined, overbroad,

and arbitrary, with one stating that the definition was at best vague

and at worst unjustly punitive. A commenter noted that these categories

are broad and subject to interpretation, and conduct is criminalized

differently in different jurisdictions, so there will continue to be

wildly inconsistent application and arbitrary adjudications, stating

that it undercuts the underlying spirit and intention of DACA, which

was created to assist DHS by providing a well-defined framework for

exercising its discretionary prosecutorial power and minimizing DHS

waste on non-priority enforcement cases. One commenter suggested DHS

define each offense rather than listing crimes, since States have

different versions of every law; another suggested considering them on

a case-by-case basis since young adults make dumb mistakes very often

and a mistake should not ruin someone's life.

    Commenters also stated that the use of an arbitrary length of

sentence imposed in determining a particular misdemeanor is

disqualifying is inappropriate and arbitrary, and will further

prevailing trends of inequality in the justice system, as well as

disparate treatment based on the applicant's jurisdiction and its

sentencing scheme. One noted that this provision undervalues a

federalist system in which a misdemeanor offense in one system can be

considered a felony in another, and sentencing varies by locality.

    One commenter stated that the misdemeanor definition used for the

single-conviction and three-conviction bars include offenses that are

considered non-criminal ``violations'' under New York law. The

commenter noted that a violation of disorderly conduct under New York

law is a violation, not a crime, but is a common disposition in

criminal courts, often for minor alleged conduct, and pleas to this

violation are often the release valve for the criminal legal system,

yet regularly lead to ineligibility for DACA. The commenter stated that

maintaining this bar will force people to choose between quickly and

efficiently disposing of their case and defending their innocence

through often prolonged and unnecessary litigation to ensure they do

not face a bar to obtaining DACA. The commenter additionally noted the

criminal bars would disparately impact those who are routinely

criminalized because of disparate policing practices, including based

on race, sexual orientation, and gender, or in connection with

experiences of trafficking and domestic violence, stating that DACA

recipients often come from vulnerable communities that may be more

susceptible to low-level offenses. Another commenter stated that

disqualifying individuals based on

 

[[Page 53230]]

 

convictions incurred by a system characterized by institutionalized

discrimination and racism only serves to compound punishment on Black

and Brown immigrants.

    Multiple commenters noted appreciation of the clarified definition

of a ``significant misdemeanor,'' but nonetheless opposed the criminal

bars, stating that they add to the harmful rhetoric of immigrants as

criminals. Some of these commenters expressed concern that a

``significant misdemeanor'' offense from many years ago may act as a

bar to DACA, despite positive discretionary factors.

    Many commenters said that individuals should not be barred from

DACA by any single offense or offenses where a sentence of less than 90

days was imposed. The commenters stated that adjudicators have applied

the misdemeanor bars inconsistently in the DACA context, State criminal

legal systems present a wide array of different treatment for different

offenses, and regional differences in policing compound the impact of

disparate treatment for individuals who otherwise would be eligible for

DACA. By adopting this measure, the commenters stated that the rule

would increase consistency in DACA adjudications and ensure that

individuals are not disqualified for offenses for which a lesser

sentence was imposed.

    One commenter said that TPS has a limit of two misdemeanors, and

this rule should do the same.

    Response: DHS acknowledges commenters' suggestion to remove single

defined misdemeanors as disqualifying for DACA purposes, to instead

consider such offenses on a case-by-case basis, and to provide that any

offenses where a sentence of less than 90 days was imposed should not

be disqualifying. DHS further notes commenters' statements that the

categories of offenses listed are vague and broad and that contact with

the criminal legal system is often the result of systemic racism.

    Despite the limitations and imperfections of the criminal legal

system, criminal convictions rendered under Federal and State law often

carry immigration consequences. It is therefore consistent with

immigration law generally for DHS to take convictions, including

misdemeanors, into consideration when determining whether to favorably

exercise its enforcement discretion to defer removal action. DHS

maintains that for purposes of consideration under DACA and consistent

with longstanding DACA policy, it remains appropriate for USCIS to take

into consideration a requestor's misdemeanor convictions. The criminal

criteria reflect a targeted approach to considering public safety

concerns, identifying convictions that do not support the favorable

exercise of enforcement discretion, and balancing the positive equities

of the requestor population as reflected in other threshold criteria.

In addition to the merits of this targeted and balanced approach, and

as explained in the proposed rule, DHS has decided to codify the

threshold criteria of the DACA policy as applied by USCIS since 2012 in

part due to recognition of the significant reliance interests in the

continued existence of the DACA policy of individuals who previously

have received DACA grants, and those similarly situated who have not

yet requested DACA, as well as their families, employers, schools, and

communities.\275\ Furthermore, DHS has determined that retaining the

criteria as set forth in the Napolitano Memorandum defines the

population of those who may request DACA to those who are likely to

continue to be a low priority for removal under the Department's

general enforcement priorities. Accordingly, DHS believes the criminal

criteria as proposed, and as implemented for 10 years, enable USCIS to

identify more readily those who are likely to be a low priority based

on their positive equities and successfully advance DHS's important

enforcement mission. Accordingly, DHS will not make any revisions to 8

CFR 236.22(b)(6) as a result of these comments.

---------------------------------------------------------------------------

 

    \275\ 86 FR 53766.

---------------------------------------------------------------------------

 

    DHS acknowledges the commenter's statement that New York

``violations'' are ``non-criminal'' and often lead to denial of DACA

requests. DHS further acknowledges that New York's penal code does not

classify violations, such as disorderly conduct, as ``crimes'' but

rather labels them ``petty offenses.'' \276\ DHS notes, however, that

New York violations are punishable by up to 15 days of

incarceration.\277\ As such, New York violations meet the Federal

definition of a misdemeanor as an offense for which the maximum term of

imprisonment authorized is 1 year or less but greater than 5 days,

which has been in DACA policy since 2012 and is codified in this rule

at new 8 CFR 236.22(b)(6). Moreover, New York violations meet the

minimum constitutional requirements for criminal convictions discussed

by the BIA in Matter of Eslamizar, such as requiring the ``beyond a

reasonable doubt'' standard of proof.\278\ DHS recognizes that certain

low-level crimes, which some States and localities do not term

``misdemeanors,'' will be encompassed under the Federal definition of

that term in this rule. However, DHS believes that the rule's

standardized sentence-based definition helps DHS treat many different

State and local offenses similarly for DACA purposes, rather than

relying on the many variations of terminology and classifications in

State and local penal codes.\279\ For these reasons, DHS declines to

change this rule to exclude New York violations from being considered

misdemeanors for DACA purposes.

---------------------------------------------------------------------------

 

    \276\ N.Y. Crim. Proc. L. Sec.  1.20(39). See also Galenson v.

Kirwan, 324 N.Y.S. 2d 540, 541 (N.Y. Sup. Ct. 1971) (noting the

revision of the N.Y. Penal Law that classified violations as petty

or non-criminal offenses, but that retained criminal procedures and

actions for trying and sentencing offenders).

    \277\ See N.Y Penal L. Sec.  10.00(3) (``A `violation' means an

offense, other than a `traffic infraction,' for which a sentence to

a term of imprisonment in excess of fifteen days cannot be

imposed.'')

    \278\ See 23 I&N Dec. 684, 687-88 (BIA 2004) (BIA provided

helpful guideposts in assessing whether a conviction for an Oregon

violation was a criminal conviction, including noting constitutional

requirements of beyond a reasonable doubt standard of proof and the

right to counsel where imprisonment is a possibility).

    \279\ State law is not controlling for Federal immigration

purposes. See, e.g., Franklin v. INS, 72 F.3d 571(8th Cir. 1995).

---------------------------------------------------------------------------

 

Driving Under the Influence (DUI) Convictions

    Comment: Multiple commenters recommended eliminating misdemeanor

DUI convictions as an automatic bar to DACA, and several recommended

instead a case-by-case review. One commenter said that including a DUI

conviction is extreme, and that there should be allowances for one bad

experience.

    Another commenter suggested that DHS clarify its DUI restrictions

under the proposed rule. The commenter stated that DUI charges should

be reviewed on a case-by-case basis, or at a minimum the rule should

provide that a DUI with no aggravating factors is an exception, because

a DUI can have varying degrees of threat and culpability. The requestor

also recommended including an exception for requestors under age 21

with a DUI conviction, absent aggravating factors on a case-by-case

basis. Another commenter acknowledged that violent or drug crimes are a

concern, but similarly stated that a single DUI should not be a bar to

DACA and it is not an inadmissibility ground in other programs. A

different commenter asked why the bar is so high for an undocumented

person just to obtain DACA protections, when there are

 

[[Page 53231]]

 

lawyers with multiple DUIs that still hold their licenses.

    Multiple commenters stated that DUIs have not been consistently or

fairly adjudicated in DACA requests, which has led to erroneous denials

and requests for evidence that are highly dependent upon the State in

which the applicant resides. For example, the commenters said that: (1)

some State laws criminalize sitting in a vehicle while inebriated,

without attempting to operate it; (2) other States have statutes that

criminalize offenses considered less than a ``regular'' DUI but that

still have some element of impairment, or simply include the word

``impairment'' in the title, and these have been counted as DUI bars to

DACA; and (3) yet other State laws do not require any finding of

impairment of the ability to drive safely due to consumption of a

substance, and some of these laws have been wrongly counted as a DUI

and an automatic bar to DACA. The commenters concluded that because of

this inconsistency, the rule should eliminate DUIs from the list of

specific misdemeanors that would automatically bar someone from

qualifying for DACA.

    A commenter stated that, if DHS must continue to include DUIs in

the list of enumerated misdemeanors, at minimum, it should clearly

define that term to ensure consistent adjudication throughout the

country. Because of the diverse State-law definitions of ``DUI,'' the

commenter wrote, requestors are erroneously denied due to a misdemeanor

conviction that may constitute a DUI in one State but not another. The

commenter said that a consistent definition would allow requestors to

assess their eligibility and adequately prepare their requests with a

full understanding of the consequences of their criminal convictions.

    One commenter stated that a DUI is inappropriate as a categorically

elevated misdemeanor given the array of circumstances covered and

differential outcomes based on access to counsel and other means that

depend on privilege and racial hierarchies. If DUI is included, the

commenter suggested that elements of the offense should be defined to

require either a blood alcohol content finding of 0.08 or higher or a

finding of impaired ability to drive safely, noting that ICE has used

such a definition. The commenter also recommended defining

``impairment'' as ``to a degree that renders the operator incapable of

safe operation.''

    A legal services provider stated that, despite having paid fees,

attended court hearings, and participated in rehabilitation classes,

several of its clients have either lost DACA protection or been

ineligible to apply. The commenter said that the uncertainty and

upheaval to the lives of these individuals is immeasurable and further

stated that individuals who seek to request DACA, and were otherwise

eligible but for a single DUI conviction, will never have the

opportunity to ``rise out of the shadows'' and take a path of greater

success.

    One commenter said that the DUI rule should be the same for DACA as

it is for applying for citizenship to leave room for mistakes: if you

have one in the last 5 years or two in the last 10 years, you cannot

apply.

    Response: DHS acknowledges commenters' suggestions to remove

misdemeanor DUIs as disqualifying for DACA and instead consider such

convictions on a case-by-case basis and to provide a clear definition

of DUI for DACA purposes. DHS further notes commenters' concerns with

inconsistent adjudications and variations in State law.

    DHS maintains that for purposes of consideration under DACA and

consistent with longstanding DACA policy, it remains appropriate for

USCIS to consider a single DUI conviction disqualifying for DACA. The

criminal criteria reflect a targeted approach to considering public

safety concerns, identifying convictions that do not support the

favorable exercise of enforcement discretion, and balancing the

positive equities of the requestor population as reflected in other

threshold criteria. As explained in the proposed rule and elsewhere in

this section, DHS seeks to retain the threshold criteria of the DACA

policy as applied by USCIS since 2012. DHS determined that the best

approach to preserving and fortifying DACA, as directed by the Biden

Memorandum, for these recipients, future similarly situated requestors,

as well as their families, employers, schools, and communities, who

have significant reliance interests in the continued existence of the

DACA policy is to codify the existing threshold criteria.

    Accordingly, DHS believes the criminal criteria as proposed, and as

implemented for 10 years, enable USCIS to identify more readily those

who are likely to be a low priority based on their positive equities

and successfully advance DHS's important enforcement mission, and who

are likely to continue to be a low priority under DHS's general

enforcement priorities. DHS agrees with commenters that a clear

definition of a DUI conviction for DACA purposes is valuable to

promoting consistent adjudications, and longstanding internal guidance

has provided such a definition. However, DHS believes that such a

definition is appropriately provided in subregulatory guidance to allow

DHS the necessary flexibility to make revisions if changes in State

laws or other circumstances make such adjustments necessary and

appropriate. Accordingly, DHS will not make any revisions to 8 CFR

236.22(b)(6) as a result of these comments.

Domestic Violence

    Comment: Multiple commenters recommended that the rule remove

misdemeanor domestic violence convictions as a categorical bar to DACA,

but most also stated that if the bar is retained, the rule should

include a clear definition of a domestic violence offense for DACA

purposes. Commenters noted that the lack of a definition has led to

inconsistent adjudications and irrational bases for denials. Some of

these commenters stated that, in practice, any misdemeanor related to a

domestic conflict has been deemed a bar to DACA. The commenters said

that consistent adjudications necessitate a definition of a domestic

violence offense and a requirement that the person have been convicted

of that offense. Also, the commenters reasoned, it is not possible for

defense counsel to provide an adequate Padilla \280\ advisal of the

immigration effect of a plea without a clear definition of domestic

violence. In addition, commenters said that DACA requestors who

initially were charged with a domestic offense, but who were either

convicted of a different offense not related to domestic conflict or

never convicted of any offense at all, are routinely denied DACA.

---------------------------------------------------------------------------

 

    \280\ Padilla v. Kentucky, 559 U.S. 356 (2010).

---------------------------------------------------------------------------

 

    Multiple commenters specifically recommended that DHS use the

definition of a ``crime of domestic violence'' from INA sec.

237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), which requires conviction

of a ``crime of violence'' (as defined in 18 U.S.C. 16(a)) in a

qualifying domestic situation. One of the commenters said that

definition ``provides a relevant waiver for survivors of domestic

violence who have a conviction but were not the primary perpetrators of

violence in their relationships.'' Another of the commenters added that

the new DHS enforcement priorities state that ``a categorical

determination that a domestic violence offense compels apprehension and

removal could make victims of domestic violence more reluctant to

report the offense conduct.'' Several commenters noted the potential

impact of the bar on survivors of

 

[[Page 53232]]

 

domestic violence, stating that it is not uncommon for both the victim

and perpetrator to be arrested, or for survivors of domestic violence

to be convicted of crimes as a result of their victimization, and

warned that perpetrators could potentially take advantage of the legal

system to terrorize survivors.

    One commenter suggested DHS abandon the domestic violence

conviction exclusion and instead adopt a totality of circumstances

approach with a presumption that an individual with a misdemeanor

conviction for domestic violence who was not physically incarcerated

for over 30 days be considered prima facie eligible for DACA.

    Response: DHS acknowledges commenters' suggestions to remove

misdemeanor domestic violence convictions as disqualifying for DACA and

instead consider such convictions on a case-by-case basis and to

provide a clear definition of domestic violence for DACA purposes, and

DHS notes commenters' concerns with inconsistent adjudications and the

exclusion's impact on victims of domestic violence.

    DHS maintains that for purposes of consideration under DACA and

consistent with longstanding DACA policy, it remains appropriate for

USCIS to consider a single domestic violence conviction disqualifying

for DACA. The criminal criteria reflect a targeted approach to

considering public safety concerns, identifying convictions that do not

support the favorable exercise of enforcement discretion, and balancing

the positive equities of the requestor population as reflected in other

threshold criteria. As discussed above, DHS does so in recognition that

a central purpose of this rulemaking is to preserve and fortify DACA as

directed by the President's memorandum, and modifications to the

threshold criteria related to criminal history, public safety, and

national security could invite additional challenges to the policy. DHS

therefore does not believe that changing the threshold criteria best

serves it purpose of preserving the policy for those DACA recipients

and other similarly situated individuals who have not yet requested

DACA, and their families, employers, schools, and communities, all of

whom have significant reliance interests in the continued existence of

the DACA policy. Accordingly, DHS believes the criminal criteria as

proposed, and as implemented for 10 years, enable USCIS to identify

more readily those who are likely to be a low priority based on their

positive equities and successfully advance DHS's important enforcement

mission. The DHS Enforcement Guidelines acknowledge that a categorical

determination that domestic violence offenses compel apprehension and

removal could make victims more reluctant to report offenses; however,

this is provided as an example in the Enforcement Guidelines of how the

broader public interest is material in deciding whether to take

enforcement action in a particular case, noting the specific facts of

the case should be determinative. As noted in the NPRM and elsewhere in

this rule, the threshold DACA criteria and DHS's broader enforcement

priorities may not always perfectly align, as DHS has determined that

to best preserve and fortify DACA, it is beneficial to maintain the

longstanding threshold criteria rather than to tie the criteria to the

specific DHS enforcement priorities in place at a given time.

Regardless, the approach to domestic violence convictions reflected in

this rule is still generally consistent with the spirit of the DHS

Enforcement Guidelines: while the threshold criteria serve as important

benchmarks for consideration of DACA, they do not prevent or replace a

case-by-case weighing of all relevant factors by USCIS adjudicators,

just as the DHS Enforcement Guidelines emphasize case specific

determinations. DHS agrees with commenters that a clear definition of a

domestic violence conviction for DACA purposes is valuable to promoting

consistent adjudications, and longstanding internal guidance has

provided such a definition. However, DHS believes that such a

definition is appropriately provided in subregulatory guidance to allow

DHS the necessary flexibility to make revisions if changes in State

laws or other circumstances make such adjustments necessary and

appropriate. Accordingly, DHS will not make any revisions to 8 CFR

236.22(b)(6) as a result of these comments.

Minor Traffic Offenses

    Comment: Several commenters generally stated that minor traffic

offenses should not be added as disqualifying offenses for DACA

purposes, as a minor traffic offense does not make someone a high

priority for enforcement and would open the door for disproportionately

punishing communities of color, which are generally targeted by law

enforcement. Numerous commenters supported including a definition of

``minor traffic offenses'' to prevent arbitrary deprivation of DACA and

help prevent a minor traffic violation from being incorrectly deemed a

misdemeanor. Multiple commenters recommended that the rule define

``minor traffic offenses'' as any traffic-related infraction,

misdemeanor, or felony where there was no serious bodily injury to a

third party, including driving without a license, driving on a

suspended license, driving without insurance, and violating traffic

regulations such as speeding, regardless of the level of offense under

State law--noting that Florida, Georgia, Illinois, Indiana, Kentucky,

and Missouri all classify driving without a license as a felony. In

contrast, one commenter discouraged DHS from defining ``minor traffic

offenses'' and opposed including language that permits USCIS to

consider such offenses in its discretion, stating that State traffic

and criminal codes create consequences that are proportionate to the

violation and the threat of deportation should never be a consequence

of a minor traffic offense.

    Multiple commenters stated that minor traffic offenses should

explicitly be excluded from consideration in a totality of

circumstances analysis, in addition to being excluded from triggering

misdemeanor or felony bars, but stated that where a traffic offense

does involve serious bodily injury, USCIS should use a totality of

circumstances analysis to determine if a favorable exercise of

prosecutorial discretion is warranted. Commenters stated that

undocumented individuals face disproportionate barriers to obtaining

driver's licenses, which they said directly leads to higher instances

of traffic-related offenses. Commenters also noted that police officers

are more likely to stop drivers of color than white drivers and that

consideration of racially disparate minor traffic offenses in a

totality of circumstances analysis compounds the racist impact of such

traffic stops on communities of color. One commenter stated that minor

traffic offenses are irrelevant to the objectives of DACA or any

applicant's fitness.

    A commenter said that the proposed rule eliminates the ``minor

traffic offenses'' exception that always has existed and that this

change would be ``fatal'' to new applicants, as almost any young

immigrant who has been here since 2007 has had three or more traffic

tickets. The commenter stated that the preamble language about

considering minor traffic offenses in the totality of circumstances

contradicts the unambiguous and mandatory language of the proposed

rule, and officials would be obliged to follow the rule. The commenter

also said that this provision would result in unequal treatment of

immigrants, depending on where they live and whether their State allows

licenses for undocumented immigrants.

 

[[Page 53233]]

 

    Response: DHS acknowledges commenters' support for adopting a

definition of minor traffic offenses in light of the variations in

State laws, the suggested definition some commenters provided, and

other commenters' recommendation that such offenses be explicitly

excluded from consideration in a totality of circumstances analysis.

DHS notes that some commenters misunderstood the request for comments

on whether to add a more detailed definition of minor traffic offenses

to the rule as a request for comments on whether to make minor traffic

offenses disqualifying offenses in the rule. DHS does not intend to

treat minor traffic offenses as per se disqualifying for DACA purposes;

rather, DHS will consider such offenses in the totality of

circumstances to determine if a DACA requestor merits a favorable

exercise of prosecutorial discretion. DHS disagrees with the suggestion

that the rule prohibit USCIS from considering such offenses at all, as

excluding particular factors is generally inconsistent with a totality

of circumstances approach.

    DHS maintains that for purposes of consideration under DACA and

consistent with longstanding DACA policy, it remains appropriate for

USCIS to consider a requestor's entire offense history along with other

facts to determine whether, under the totality of circumstances, an

individual warrants a favorable exercise of enforcement discretion. The

criminal criteria, including the ability to consider an individual's

entire offense history, reflect a targeted approach to considering

public safety concerns, identifying convictions that do not support the

favorable exercise of enforcement discretion, and balancing the

positive equities of the requestor population as reflected in other

threshold criteria. As explained above, DHS has determined that

retaining the existing threshold criteria is the appropriate mechanism

by which to preserve and fortify the DACA policy. In weighing the

interests of preserving the policy to ensure its continued existence

against altering the threshold criteria, DHS believes the criminal

criteria as proposed, and as implemented for 10 years, enable USCIS to

identify more readily those who are likely to be a low priority based

on their positive equities and successfully advance DHS's important

enforcement mission. DHS agrees with commenters that a clear definition

of minor traffic offenses for DACA purposes is valuable to promoting

consistent adjudications. However, upon consideration, DHS believes

that such a definition is appropriately provided in subregulatory

guidance to allow DHS the necessary flexibility to make revisions if

changes in State laws or other circumstances make such adjustments

necessary and appropriate. Accordingly, DHS will not make any revisions

to 8 CFR 236.22(b)(6) as a result of these comments.

Immigration-Related Offenses

    Comment: One commenter stated that the final rule should codify the

exception for immigration-related offenses in the regulatory text, as

USCIS officials would be bound by the regulatory text, not the policy

statements in the preamble to the Federal Register notice. Another

commenter said that criminal exclusions should not be based on

immigration-related conduct, as the proposal rightly recognizes in

eliminating immigration-related offenses characterized as felonies or

misdemeanors under State laws. The commenter said that one of the

starkest examples of criminalizing immigrants is Federal law on border

crossings and recommended removing convictions under 8 U.S.C. 1325

(improper entry) and 1326 (reentry of removed individuals) from

consideration.

    Response: As explained in the preamble to the NPRM, DHS intends to

continue its longstanding policy that convictions under State laws for

immigration-related offenses will not be treated as disqualifying

crimes for the purposes of considering a request for DACA. Although the

NPRM did not propose to codify this exception in the regulatory text

and instead only referenced the exception in the preamble, because 8

CFR 236.22(b)(6) specifies that a requestor must not have been

convicted of a felony, misdemeanor as described, or three or more other

misdemeanors and this is an exception to that general premise, DHS

agrees with the commenter's suggestion that this exception for State-

level immigration-related offenses should be codified in the regulatory

text. Accordingly, DHS is revising 8 CFR 236.22(b)(6) to include this

exception.\281\ While DHS acknowledges that certain federal statutes

criminalize unlawful entry and re-entry, such regulation in the field

of immigration is properly within the realm of the federal government,

in contrast with State-level immigration offenses which may be

preempted.\282\ DHS therefore has determined it is appropriate to

consider federal immigration-related criminal offenses in determining

whether the DACA criteria are met. Of course, where appropriate, DHS

may consider such offenses when exercising discretion in individual

cases.

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    \281\ See new 8 CFR 236.22(b)(6).

    \282\ See, e.g., Arizona v. United States, 567 U.S. 387 (2012).

---------------------------------------------------------------------------

 

(7) Age at Time of Request

    Comment: A number of commenters suggested that DHS should remove

the proposed rule's criterion that DACA requestors were born on or

after June 16, 1981, (``upper age limit'') and are at least 15 years of

age at the time of filing their request (``lower age limit''), unless,

at the time of filing their request, they are in removal proceedings,

have a final order of removal, or have a voluntary departure order.

    Some commenters recommended eliminating the age limits to include

requestors who meet all other requirements. Many of these commenters

described the age limits as arbitrary and stated that they unfairly bar

individuals from requesting DACA based on their age when DACA was

announced, which is no fault of their own. Other commenters said the

age limits disregard the benefits of protection for requestors under 15

years old and the continued necessity of protection for individuals who

were older when DACA first was implemented.

    Some commenters who suggested removing the upper age limit reasoned

that childhood arrivals excluded by this limit have been living in the

United States for more than 15 years without any immigration relief,

that the limit goes against equal protection and law, and that it

divides families and prevents individuals who have resided in the

United States for decades longer than DACA recipients from receiving

protections. Other commenters said that eliminating the upper age limit

would particularly benefit older noncitizens who are more likely to

have U.S. citizen children, and that doing so also would benefit older

adult learners. Other commenters said that removing this age cap would

further DACA's goal by addressing an arbitrary date that excludes many

otherwise eligible requestors and would allow people who already are

not enforcement priorities to receive lawful status and work

authorization. Some commenters stated that DHS previously attempted to

remove this age cap in a 2014 memorandum that was rescinded following

the 2016 Texas opinion, partially due to failure to comply with the

APA. The commenters said that nothing precludes the agency from

 

[[Page 53234]]

 

removing this age cap through the instant notice-and-comment process.

    Several commenters also urged DHS to remove the lower age limit,

stating that parents want relief from deportation for their children as

early as possible, and that opportunities for growth and development,

such as school field trips, job opportunities, and driver's permits,

arise before a child turns 15. Additionally, the commenters said that

high school students pursuing a college education would benefit from

having DACA and using their EAD and State identification card to prove

their identity when taking college admission exams, and to be able to

list a Social Security number on college applications. Likewise, some

commenters who supported eliminating the lower age threshold stated

that work authorization is important to youth in agricultural

communities where the Fair Labor Standards Act allows children as young

as age 12 to work in agriculture. Another commenter said the lower age

cap leaves many young noncitizens with the fear of deportation, leading

to poor mental health outcomes.

    Some commenters stated that the age at time of request requirements

impose undue barriers for requestors and should be revised. A couple of

commenters suggested lowering the minimum age requirement for

requestors and providing protections to children from removal until

they are eligible to request DACA.

    Other commenters discussed the exclusionary effects of the age

restrictions and suggested that USCIS revise the age criterion to

include noncitizens who were not above the age of 35 on June 15, 2012.

Citing sources, one commenter discussed multiple benefits of raising

the maximum age of requestors to 35, including a strengthened economy,

less spending on enforcement, and improved access to healthcare for a

greater number of immigrants. A commenter reasoned that not updating

the outdated age eligibility criteria would have negative consequences

on the health, well-being, and growth of undocumented individuals,

their families, communities, and the economy. Other commenters stated

that changing the dates and removing the age cap to expand eligibility

would demonstrate to Congress the need for legislation to preserve and

fortify DACA.

    Response: DHS appreciates the many suggestions of commenters to

modify or remove the upper and lower age caps in the threshold criteria

and recognizes that the criteria exclude certain noncitizens who

arrived as children from consideration for DACA deferred action and

employment authorization and delays it for otherwise eligible

noncitizens until age 15. DHS agrees that it has legal authority to

modify or remove these age caps through notice-and-comment rulemaking.

However, as discussed elsewhere in the NPRM and this rule, DHS has

determined as a matter of policy to focus this rulemaking on preserving

and fortifying DACA by generally retaining the threshold criteria of

the Napolitano Memorandum. Retaining the criteria fortifies the

longstanding policy upon which the DACA population and their families,

employers, schools, and communities have relied for a decade.

(8) General Comments on Criteria and Comments on Multiple Overlapping

Criteria

DACA Eligibility Criteria Related to Age and Dates Should Be Expanded

    Comment: Commenters suggested that DHS change certain guidelines so

that the proposed rule and DHS's Enforcement Guidelines correspond with

one another, and so that DHS can concentrate its resources on border

security. Specifically, the commenters recommended that DHS remove the

age cap and require that requestors have continuously resided in the

United States since November 1, 2020, to the time of filing the

request; were physically present in the United States on the date of

enactment of the proposed rule, as well as at the time of filing the

request; and had no lawful immigration status on the date of enactment

of the proposed rule, as well as at the time of filing of the request.

    Another commenter suggested that work authorization be expanded to

include recipients regardless of status to add additional security to

the lives of recipients and their families.

    Response: DHS acknowledges these commenters' suggestion to amend

certain threshold criteria to align with the Secretary's enforcement

priorities as defined in the Enforcement Guidelines. However, DHS

reiterates that it is issuing this rule to preserve and fortify the

DACA policy, to ameliorate legal uncertainty, and to clarify criteria

for the DACA population, which, along with their families, employers,

and communities, has significant reliance interests in DACA. Nor could

DHS extend employment authorization to any non-DACA population through

this rulemaking due to its limited scope. DHS therefore declines to

make changes to the rule in response to this comment.

High Bar for DACA Recipients

    Comment: A commenter said that multiple criteria, including

criminal history and education, set a higher bar for DACA recipients

than for the rest of the U.S. population. Another commenter said that

DACA recipients have registered themselves to be under a microscope--

they have given up their personal information and agreed to a higher

standard than the average citizen.

    A commenter stated that DACA has stricter requirements than does

the process of adjustment of status or naturalization, which negatively

impacts young people and their families. The commenter urged DHS to

view DACA recipients as future U.S. citizens and, thus, ensure that the

eligibility requirements are not stricter than those for adjustment of

status or naturalization since strict requirements do not influence

whether a DACA recipient ultimately will gain citizenship.

    Response: DHS acknowledges these commenters' statements and

suggestions. DHS reiterates that this rule is a reflection of the

Department's authority to identify a target population--and the

threshold criteria for inclusion in this target population--for

deferred action as an exercise of prosecutorial discretion. DHS agrees

that, by virtue of requesting DACA, requestors must provide personal

information and have the burden to establish they satisfy threshold

eligibility criteria and otherwise merit the favorable exercise of

discretion. DHS reiterates that DACA is a form of time-bound deferred

action, which requires an assessment of positive and negative

discretionary factors. DHS notes that the eligibility criteria for

benefit classifications such as adjustment of status and naturalization

are outside the scope of this rulemaking, and disagrees that criteria

for DACA, an exercise of prosecutorial discretion, necessarily should

align with the criteria for adjustment of status or naturalization. DHS

therefore declines to make changes to the rule in response to these

comments.

Other Comments

    Comment: Multiple commenters recommended that the final rule should

explicitly state USCIS will accept new requests to prevent ambiguity

caused by previous court decisions that kept USCIS from accepting new

requests. Some of these commenters wrote that many more people would

qualify for this vital policy if they are able to apply, and these

future recipients should not be excluded as they merit the same

 

[[Page 53235]]

 

favorable exercise of discretion. Another commenter said that it

supports DHS's decision to apply the proposed rule to both current and

future DACA requestors, as both groups have reliance interests and

should not be denied significant opportunities afforded by DACA.

    One commenter stated that it assumed an extension of time would be

given to requestors who missed a qualification deadline during the time

of the July 16, 2021 injunction.

    A commenter said that the proposed rule fails to provide

alternatives to its narrow and outdated coverage. Another commenter

stated that it disagreed with the notion that DACA's coverage cannot be

expanded due to the reliance interests of previous recipients of DACA

and those similarly situated who have not yet requested DACA.

    Response: DHS acknowledges these commenters' concerns but for

reasons expressed throughout this preamble, DHS believes the scope of

this rule is amply justified. DHS does not assert in this rulemaking

that reliance interests prohibit DHS from altering the criteria set

forth in the Napolitano Memorandum. Rather, as explained in this rule,

this focus on reliance interests and preservation of the primary

features of the policy is consistent with the President's directive to

preserve and fortify DACA, as well as the Supreme Court's decision in

Regents, as described above. Further, DHS also has determined that the

criteria contained in the Napolitano Memorandum successfully advance

DHS's important enforcement mission and reflect the practical realities

of a defined population of undocumented noncitizens who, because of

limited enforcement resources are unlikely to be removed in the near

future and who contribute meaningfully to their families, their

communities, their employers, and the United States generally, as

discussed elsewhere in this rule. Moreover, the establishment and

continued application of these threshold criteria, while allowing for

the residual exercise of discretion to account for other relevant

considerations, serves to promote consistency and avoid arbitrariness

in these determinations. Finally, because this final rule codifies

longstanding threshold criteria, DHS does not believe any requestors

impacted by the Texas decision have qualification deadlines that would

need extension upon implementation of this rule. DHS therefore declines

to adopt changes in response to these comments.

    Comment: A commenter expressed support for DACA but recommended

that DHS pick a date and, from that day forward, no person, including

children, should be allowed to remain in the United States without

lawful status.

    Response: The comment is outside the scope of the proposed rule.

DHS nonetheless acknowledges this commenter's suggestion, and

emphasizes that it enforces the immigration laws consistent with

available resources, statutory requirements, and agency priorities,

including a particular focus on those who pose a threat to our national

security, public safety, and border security. However, DHS maintains

authority to exercise prosecutorial discretion and defer the removal of

noncitizens lacking lawful status. DHS declines to make changes to the

rule in response to this comment.

  1. Procedures for Request, Terminations, and Restrictions on

Information Use (Sec.  236.23)

  1. Fees and Fee Waivers

Fees Are Too Low

    Comment: A commenter stated that the proposed $85 DACA filing fee

was too low and recommended that this fee should be at least $250.

Another commenter recommended a larger one-time fee. A commenter stated

that DACA requestors should at least pay the full cost of adjudicating

their cases plus a surcharge to fund enforcement and restitution

initiatives. The commenter went on to cite figures relating to USCIS'

backlog. The commenter also stated that USCIS disclosed to Congress in

2018 that to fund DACA processing, the agency dipped into funds from

application fees of lawful visa applicants and their sponsors. The

commenter further remarked that the fee proposed in the NPRM for the

Form I-821D is woefully insufficient to cover the costs associated with

adjudicating a DACA request. The commenter reasoned that the cost of

processing an initial DACA request is $446 and the cost of processing a

DACA renewal request is $216, yet the proposed rule only requires DACA

requestors to pay an $85 fee to cover the cost of fingerprinting,

essentially making the cost of adjudication free to the requestor.

    Another commenter stated that USCIS may make $310 less per DACA

request for any number of requests, which could diminish the agency's

budget by $34.9 million annually, or $384 million over the next 11

years. The commenter said that the proposed restructuring of the fees

would make it nearly impossible for USCIS to meet its obligation for

ensuring that the USCIS has enough capital to cover the total cost of

full adjudication for each request considered, which is $332, and USCIS

would recover only $85 of this potential cost from each request. The

commenter remarked that, under the proposed fee restructuring, each

request would recover $247 less than the potential cost of full

adjudication, and that the proposed rule acknowledges that, under the

current structure, USCIS would charge $93 million less than the

estimated full cost of adjudication for every DACA request received

annually. The commenter stated that the final rule should include

evidence to justify the risks of the proposed rule for funding USCIS

operations. The commenter further stated that estimating how many

requestors would no longer apply for employment authorization under the

proposed fee restructuring would allow for more accurate estimates of

the total losses that USCIS would face. A commenter asked if the

Government would be affected financially by the drastic reduction in

the cost of DACA requests, or if the change would be negligible.

Another commenter remarked that more research is needed to justify how

restructuring fees may affect USCIS operations that rely on those fees

for funding.

    Response: As explained elsewhere in greater detail, this rule is

amending DHS regulations to codify the existing requirement that

requestors file Form I-765, Application for Employment Authorization,

which currently requires a $410 fee, with Form I-821D, Consideration of

Deferred Action for Childhood Arrivals, and reclassifying the $85

biometric services fee as a Form I-821D filing fee, to recover any

additional DACA adjudication costs.\283\ In the NPRM and Supplemental

Cost Methodology Document, DHS explained that the current $85 fee for

DACA would not recover the full costs for individuals who did not

request an EAD and pay the full costs of the Form I-765. 86 FR 53764.

At the time USCIS conducted its cost analysis for the proposed rule, it

estimated that the unit cost of Form I-821D was $332. Id. This

represents the most recent unit cost estimates for Form I-821D.

---------------------------------------------------------------------------

 

    \283\ See new 8 CFR 236.23(a)(1).

---------------------------------------------------------------------------

 

    USCIS cost estimates may change over time. New information may be

available, such as more recent receipts or adjudication hours.

Estimates may use different assumptions. For example, the Supplemental

Cost Methodology Document in the NPRM docket did not distinguish

between initial and renewal DACA requests. However, the older USCIS

cost estimate cited by a commenter relied on older information

 

[[Page 53236]]

 

and distinguished between initial and renewal DACA requests.\284\ That

old estimate used draft FY 2019-2020 fee rule information. The

published proposed rule for the FY 2019-2020 fee rule had different

results than the draft cited by the commenter. In the supporting

documentation accompanying the FY 2019-2020 proposed fee rule, USCIS

estimated the unit cost for Form I-821D was $273.\285\ Ultimately, DHS

removed DACA fees \286\ from the final fee rule, which was later

enjoined.\287\ DHS maintains its position that the $332 in the NPRM and

Supplemental Cost Methodology Document represents a reasonable estimate

of the Government's costs of processing these forms. In the future, DHS

plans to propose new USCIS fees in a separate rulemaking after

reviewing fees for Form I-765 and other immigration benefit

requests.\288\ DHS determined that the cost for adjudicating

concurrently filed Forms I-765 and I-821D, as required in this final

rule, is a negligible increase in costs compared to the $332 estimated

in the NPRM for adjudicating Form I-821D alone. USCIS determined there

is a negligible workload difference between adjudicating Form I-821D

alone and the combined Forms I-821D/I-765 DACA adjudicative

action.\289\ As such, DHS determined the $332 estimated cost in the

NPRM is reasonable to use for the final rule. DACA requestors will

therefore be covering the full cost of adjudicating a DACA request and

should not create a deficit in USCIS' budget. However, DHS disagrees

that DACA filing fees should include a surcharge to fund enforcement

and restitution initiatives because DHS has an interest in ensuring

that requests for DACA are accessible to those who may meet threshold

criteria. As discussed throughout this rule, the DACA policy reflects

an appropriate use of the Department's resources to exercise deferred

action for a specific population of individuals who are low priorities

for removal. As discussed elsewhere, it serves DHS's interest in

conserving enforcement resources when the DACA policy is accessible for

those who are potentially eligible to come forward to submit requests

so that DHS can conduct background checks and determine whether they

merit the exercise of prosecutorial discretion and thereby conserve

other congressionally appropriated resources for higher priority

enforcement uses.

---------------------------------------------------------------------------

 

    \284\ USCIS, USCIS Responses to the Congressional Research

Service (Oct. 2018), https://www.uscis.gov/sites/default/files/document/questions-and-answers/USCIS_Responses_to_Congressional_Research_Service_CRS_Questions_on_DACA_Costs.pdf.

    \285\ See USCIS, FY 2019/2020 Immigration Examinations Fee

Account: Fee Review Supporting Documentation (Apr. 2019), https://www.regulations.gov/document/USCIS-2019-0010-0007. On page 24, the

Model Output column of Appendix Table 3, Proposed Fees by

Immigration Benefit Request, is $273 for Form I-821D. Model Output

is the projected total cost from the ABC model divided by projected

fee-paying volume. It is only a unit cost forecast (using a budget)

and not the actual unit cost (using spending from prior years).

USCIS does not track actual costs by immigration benefit request.

    \286\ 85 FR 46801.

    \287\ See 85 FR 46788 (Aug. 3, 2020) and 86 FR 7493 (Jan. 29,

2021).

    \288\ See 87 FR 5241.

    \289\ See Table 3 of the Supplemental Cost Methodology Document

and the subsequent paragraph on page 8.

---------------------------------------------------------------------------

 

Fees Are Too High

    Comment: By contrast, many commenters stated that DACA-related fees

are too high and urged DHS to reduce them to make DACA more accessible.

Commenters stated that many requestors come from low-income backgrounds

and struggle to cover the costs. Others noted that the COVID-19

pandemic has resulted in a loss of work for many, while many DACA

recipients continue to work in essential roles, with one commenter

noting that DACA recipients with front-line jobs have endured

additional costs related to acquiring Personal Protective Equipment and

covering the costs of their own healthcare due to exclusions from ACA

subsidies. Many commenters stated that requiring individuals to pay

$495 in fees to renew DACA every 2 years presents a challenging

financial burden. A commenter stated that the cost of filing the

request for deferred action together with the application for work

authorization should be reduced to a level that is realistically

affordable to DACA-eligible requestors based on their age and level of

income. The commenter said that the fees for deferred action and work

authorization together amount to 69 hours of work at the Federal

minimum wage rate, and there is no fee waiver available. The commenter

stated that because the forms are lengthy, with legal jargon and

generally confusing language, many requestors need filing assistance,

with associated costs as high as $900. In addition to the costs of

filing fees and filing assistance are the costs for obtaining

documents, making copies, and mailing them. Other commenters cited

research from the Migration Policy Institute indicating that fees

remain a barrier to DACA renewal and that an estimated 35 percent of

DACA eligible individuals live in families with incomes less than 100

percent of the Federal Poverty Line. Commenters expressed concern that

requestors often seek private loans that later develop into more

challenging financial burdens. Other commenters cited data that 36

percent of DACA recipients reported a delay submitting their request to

raise funds. A number of commenters stated that the fees created

barriers to employment and would lead otherwise eligible noncitizens to

engage in unauthorized employment.

    Response: DHS acknowledges these commenters statements related to

DACA related fees. DHS recognizes that the $85 Form I-821D filing fee,

proposed to replace the existing $85 biometrics fee, coupled with the

current $410 Form I-765 filing fee, may present a financial barrier to

otherwise eligible requestors. However, DHS disagrees with comments

that fees are arbitrarily determined. As stated in the NPRM, DHS

recognizes that many DACA requestors are young adults who are

vulnerable because of their lack of immigration status and may have

little to no means to pay fees associated with a DACA request. DHS also

acknowledges that DACA-eligible noncitizens may have a variety of

financial burdens that make it difficult to afford the fees. DHS has

accounted for filing costs to the requestors in the RIA, including the

time burden for completing the request, costs related to assistance in

completing and filing a DACA request, travel costs, and filing fees.

    USCIS is funded primarily by immigration and naturalization benefit

request fees charged to applicants and petitioners and must balance the

need to recover some of the costs of reviewing DACA requests with the

humanitarian needs of the DACA requestor population. As discussed in

the NPRM and in this rule, DHS proposed to eliminate the DACA

biometrics fee, replace it with an $85 Form I-821D filing fee, and

unbundle the Forms I-821D and I-765 as a mechanism to recover some

costs of adjudicating these requests while providing an option that

would reduce financial barriers to DACA requestors. However, as

discussed Section II.C.2.c, after careful consideration of comments,

DHS has made changes in the rule to codify the existing bundled form

requirements, thus requiring requestors to concurrently file Form I-

821D with associated $85 filing fee, Form I-765 with associated filing

fee (currently set at $410), and Form I-765WS. DHS has determined this

fee structure to be reasonable because it fully recovers adjudicatory

costs. DHS has already determined, as explained in the NPRM and in the

context of the unbundled filing process proposed, that it is in the

 

[[Page 53237]]

 

public interest to hold the fee for Form I-821D, Consideration of

Deferred Action for Childhood Arrivals, below the estimated full cost

of adjudication. But DHS has not so determined for the Form I-765,

Application for Employment Authorization, which is filed by millions of

noncitizens outside the DACA population. Additionally, as DACA is an

act of enforcement discretion designed to allow DHS to focus

enforcement resources on higher-priority cases, DHS believes it is

appropriate for DACA recipients to cover the cost of adjudicating their

requests. DHS therefore declines to make changes to the fee amounts

proposed in the NPRM.

Need for Fee Waivers

    Comment: In light of the financial hardship fees present many DACA

requestors, many commenters urged DHS to permit DACA requestors to

request a waiver or reduction of the filing fee, in addition to the

existing limited fee exemption criteria. One commenter suggested

eliminating the fees completely or, at a minimum, providing a fee

waiver. A commenter cited data stating that naturalization almost

doubled when eligible applicants were offered a fee waiver and

increased by 30 percent when they were simply informed of their

eligibility for a fee waiver. One commenter supported a fee waiver,

even if it requires raising the overall fee for DACA requests to cover

the adjudication costs of those who cannot pay.

    Commenters proposed a variety of approaches to expand fee waiver

access to the DACA population. Some commenters suggested a ``hardship

waiver'' for individuals under economic or employment difficulties,

including challenges affording secondary education, especially with the

lack of access to Federal and State tuition aid, or those who are

forced to prioritize other costs, such as childcare. Other commenters

recommended reduced fees for individuals not interested in work

authorization, especially students; and fee waivers for employment

authorization applications. A commenter suggested replacing fee

exemptions before applications with regular fee waivers simultaneous to

applications. A commenter suggested that DHS can allow the fee waiver

by amending 8 CFR 106.3 to add a paragraph providing that DACA

requestors may apply for a waiver of any fees for DACA and any

associated filing. Another commenter reasoned that the hardship of a

recurring fee for DACA renewal requestors is considered an emergent

circumstance that allows for USCIS to authorize a fee waiver.

    Response: DHS acknowledges commenters' suggestion to make fee

waivers broadly available to DACA requestors. DHS recognizes that fee

waivers may make DACA more accessible to eligible noncitizens who may

have insufficient resources to pay DACA related fees. The INA

authorizes DHS to establish and collect fees for adjudication and

naturalization services to ``ensure recovery of the full costs of

providing all such services, including the costs of similar services

provided without charge to asylum applicants or other immigrants.''

\290\ Through the collection of fees established under that authority,

USCIS is funded primarily by immigration and naturalization fees

charged to applicants, petitioners, and other requestors.\291\ As

discussed above, DHS is adopting in this rule the existing bundled

process and fee structure that includes filing fees associated with the

Form I-821D, Consideration of Deferred Action for Childhood Arrivals,

and the Form I-765, Application for Employment Authorization.

---------------------------------------------------------------------------

 

    \290\ INA sec. 286(m), 8 U.S.C. 1356(m).

    \291\ On August 3, 2020, DHS published a final rule, U.S.

Citizenship and Immigration Services Fee Schedule and Changes to

Certain Other Immigration Benefit Request Requirements (hereinafter

2020 Fee Schedule Final Rule), which was to be effective October 2,

  1. 85 FR 46788 (Aug. 3, 2020). The 2020 Fee Schedule Final Rule,

among other things, established a new USCIS fee schedule and

effectively transferred the USCIS fee schedule from 8 CFR 103.7(b)

to the new 8 CFR part 106 at 8 CFR 106.2, Fees. However, before the

2020 Fee Schedule Final Rule took effect it was enjoined. See

Immigr. Legal Resource Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal.

2020); Nw. Immigrant Rts. Proj. v. USCIS, 496 F. Supp. 3d 21 (D.D.C.

2020). At this time, DHS is complying with the terms of these orders

and is not enforcing the regulatory changes set out in the 2020 Fee

Schedule Final Rule, including the specific fees found in 8 CFR

106.2. 86 FR 7493 (Jan. 29, 2021). Nothing in this proposed rule

proposes any change to that ongoing compliance.

---------------------------------------------------------------------------

 

    DHS recognizes that some DACA requestors face economic hardship

that impacts their ability to pay the required fees, but notes that

DACA, as an exercise of prosecutorial discretion that allows DHS to

focus limited resources on higher priority cases, is not an immigration

benefit or associated filing authorized for fee waiver under INA sec.

245(l)(7), 8 U.S.C. 1255(l)(7), and that it is appropriate for

beneficiaries of this enforcement discretion to cover the cost of

adjudication.

    In the NPRM, USCIS estimated the full cost for processing Form I-

821D using the agency's established cost methodology and the available

parameters at the time of the review.\292\ USCIS estimated that the

total cost of adjudicating Form I-821D is approximately $125.9 million.

USCIS assumed that all DACA requestors in the workload would pay the

fee.\293\ Dividing the total cost by the estimated DACA workload

resulted in a unit cost of approximately $332 each, as illustrated in

Table 4 of the of the Supplemental Cost Methodology Document. If some

DACA requestors received fee waivers, then that would decrease the fee-

paying workload and increase the unit cost. For example, if only 50

percent of DACA workload paid the fee, then the unit cost would be

approximately twice as high because of the lower divisor.\294\ USCIS

uses 50 percent for illustrative purposes only. USCIS does not know how

DACA fee waivers would affect fee-paying receipts. Based on FY 2021

revenue and receipts, USCIS estimates that approximately 44 percent of

Form I-765 filings unrelated to DACA paid the $410 fee. USCIS analysis

indicated that approximately 77 percent of the TPS population may have

paid the fee for Form I-765 because these individuals have a valid EAD

as of April 12, 2021. Using any of these fee-paying percentages would

reduce DACA revenue estimates.

---------------------------------------------------------------------------

 

    \292\ See Supplemental Cost Methodology Document.

    \293\ Id. at 8.

    \294\ Id. at 8-9. In Table 4, the Total Cost of Form I-821D

Activities and Cost Objects is $125,853,334. The unit cost is the

total cost divided by 379,500. The calculation for the 50 percent

example is $125,853,334/(379,500 * 50%) = $663.26.

---------------------------------------------------------------------------

 

    DHS estimates that making fee waivers available to DACA requestors

for Form I-765 would result in a reduction of approximately $72,324,000

and $100,105,600 in fees paid in FY 2022 and 2023, respectively, from

the current policy permitting only limited fee exemptions. DHS must

carefully balance the interest of making DACA available to those who

may meet the criteria with the need for adequate resources to process

requests efficiently and effectively. A reduction in fees collected

would either negatively impact processing times or require increased

fee amounts paid by others to offset revenue diminished by waived fees.

In weighing these important interests, and in line with President

Biden's directive to preserve and fortify DACA, DHS has determined that

maintaining the existing fee structure with limited fee exemptions

strikes the appropriate balance. For these reasons, DHS declines to

modify the rule to extend fee waivers for DACA and related work

authorization requests.

Fee Exemptions

    Comment: Several commenters urged DHS to broaden its DACA fee

exemption

 

[[Page 53238]]

 

policy. Commenters also suggested DHS should, at minimum, codify the

availability of fee exemptions for DACA and DACA-related EADs, stating

that fee exemptions are a valuable failsafe for eligible individuals,

and fee waivers should be available to the DACA requestor population to

facilitate their entry into the workforce. The commenters took the

position that adding a provision to the rule stating fee exemptions

will be available under certain circumstances will help to ensure that

the fee exemptions will remain available to requestors. The commenters

provided draft language for the proposal at 8 CFR 263.23(a)(5) to

clarify the availability of fee exemptions for DACA-related application

for employment authorization. Some commenters suggested codifying the

availability of fee exemptions and expanding to a broader group of

people, such as children under age 18, similar to the policies for U

Nonimmigrant Status petitioners or VAWA self-petitioners.

    Response: DHS acknowledges these commenters' suggestion to codify

and broaden its DACA fee exemption criteria. DHS agrees fee exemptions

are necessary in some situations. Under current policy and practice, a

requestor may be considered for a fee exemption if they submit a letter

and supporting documentation to USCIS demonstrating that they meet one

or more of the following circumstances: (1) their annual income is less

than 150 percent of the U.S. poverty level, they are under 18, and are

either homeless, in foster care or otherwise lacking any parental or

other familial support; (2) they cannot care for themself because they

suffer from a serious, chronic disability and their income is less than

150 percent of the U.S. poverty level; or (3) they have, at the time of

the request, accumulated $10,000 or more in debt in the prior 12 months

as a result of unreimbursed medical expenses for themself or an

immediate family member, and their income is less than 150 percent of

the U.S. poverty level.\295\ As discussed in this rule, DHS must

carefully weigh the interest of access to DACA with the need to collect

fees at a level that ensures recovery of the full cost of providing

immigration services except under very limited circumstances. DHS has

determined that the current fee structure with limited fee exemptions

strikes the appropriate balance. For these reasons, DHS declines to

modify the rule to codify or expand fee exemptions for DACA and related

work authorization requests. DHS has further determined that

subregulatory guidance provides the best vehicle for fee exemption

guidance so that DHS maintains flexibility to retain or modify such

agency procedures as necessary in the future, and thus declines to

modify the rule to codify the existing fee exemption guidance.

---------------------------------------------------------------------------

 

    \295\ DACA FAQs.

---------------------------------------------------------------------------

 

Other Alternatives To Reduce the Fee Burden

    Comment: A commenter recommended reducing the total fee for DACA by

half if DHS does not lengthen the 2-year validity period for DACA

related EADs. Another commenter suggested that fee waivers should be

available to DACA renewal requestors, if not available for all

requestors. A different commenter suggested that all fees should be

capped at $250 and that the fee for associated advance parole requests

be reduced or eliminated. Other commenters suggested that DHS

reallocate funds to provide financial assistance and fee waivers for

DACA requestors. Another commenter who suggested that the DACA request

should be free and reasoned that any lost revenue could be replaced by

dissolving ICE and its subsidiary departments. Other commenters

suggested that fees should be as minimal as possible to still maintain

the necessary DHS funding. Another commenter suggested that renewal

fees for DACA should be less than the initial request fees because it

should not take as much labor to review renewal requests. A different

commenter said that the $85 fee for Form I-821D is appropriate if it is

entirely devoted to application processing but suggested a reduction to

the EAD fee. The commenter recommended mitigating costs as much as

possible to facilitate employment.

    A commenter suggested that DHS base fees on the requestor's age and

income. Other commenters recommended establishing a family plan to ease

the financial burden on families that must file separately for

individual family members.

    Response: DHS acknowledges the suggestions raised by these

commenters. As discussed above, DHS has carefully considered the DACA

fee structure, weighing the interests in recovering the costs of

adjudicating these requests and in reasonably mitigating financial

barriers to requestors. DHS has concluded that the proposed fee

structure, in which the Form I-821D and Form I-765 filing fees, within

a bundled filing process, recover the costs of processing DACA

requests, represents a reasonable approach to balance these interests.

Although DHS recognizes the commenter's suggestion that initial and

renewal requests should have different filing fees because renewal

requests require less time to adjudicate, DHS has concluded that having

two fees would be administratively burdensome and potentially confusing

to requestors. Furthermore, as this rule does not modify longstanding

threshold criteria to expand DACA eligibility, DHS expects that the

majority of DACA requests moving forward will be renewal requests. DHS

therefore declines to make changes to the rule in response to these

comments. DHS also notes that recommendations regarding appropriations,

budget allocation, and dissolution of DHS agencies fall outside the

scope of this rule and declines to address these comments further.

  1. USCIS Jurisdiction (Including Comments on Inability To Grant DACA to

Someone in Immigration Detention)

    Comment: Most commenters who submitted comments on this topic

requested that USCIS adjudicate DACA requests from detained individuals

rather than require DACA-eligible individuals to secure release from

detention before their request can be granted. Several commenters

expressed concern that the proposed approach would bar detained

individuals from seeking DACA. Other commenters expressed that

extending USCIS jurisdiction over detained individuals would provide

more protection to immigrant youth. Commenters argued that the proposed

framework would deprive certain individuals of the main benefit of

DACA--the ability to demonstrate their low priority for removal and

their eligibility for deferred action (which, according to a commenter,

would necessarily constitute a strong basis for release from

detention). One commenter argued that denying access to DACA to

detained young people deprives them of a tool to advocate for their

release and defend themselves against deportation while in removal

proceedings.

    Commenters expressed concern that the proposed approach would lead

to unnecessary and prolonged detention of DACA-eligible individuals. A

commenter similarly opposed the approach stating it would lead to

unnecessary detention, where the commenter stated that they had

witnessed abuse, inadequate legal and medical services, unsanitary

conditions, and lax COVID-19 protocols.

    Several commenters expressed concern that DACA decisions should be

made by USCIS and not be subject to separate action or decision by ICE.

Commenters argued that providing

 

[[Page 53239]]

 

USCIS jurisdiction over detained cases would permit USCIS to make

informed decisions based on the totality of the circumstances.

    Several commenters opposed granting ICE veto power over DACA

decisions. Commenters expressed concern about ICE's decision-making

process for release from detention, stating that the process is

notoriously arbitrary and disorganized and noting inconsistent

decisions would block individuals from receiving DACA even if USCIS

determines an applicant is eligible and merits a favorable exercise of

discretion. Another commenter stated that ICE staff often fail to

execute ICE's mandate, fail to review cases accurately, are

unresponsive to counsel, and are not transparent or accountable in

decision-making. Other commenters expressed concern that ICE or CBP

could prevent renewal of a DACA grant keeping an individual detained,

and cited examples of Inland Empire class members who were unable to

renew their DACA request due to being detained.

    A commenter noted that release from detention is often based on

factors that do not bear on an individual's fitness for DACA, and that

decisions about bonds are similarly arbitrary and subject to great

variety across different regions of the United States. Several

commenters stated their concern that ICE and CBP detention decisions

may be based on noncitizens' contact with the criminal legal system

that does not always lead to a disqualifying conviction, and permitting

ICE or CBP to take DACA decisions away from USCIS would unfairly

reproduce racial inequities associated with the criminal legal system

(stating that many DACA recipients are Black, Latinx, or other people

of color whose communities experience a high rate of policing).

    Response: DHS acknowledges commenters' concerns regarding the

requirement that detained individuals be released from detention for

USCIS to grant their DACA request. DHS likewise acknowledges

commenters' requests to place DACA decisions solely in the hands of

USCIS rather than ICE or CBP. DHS emphasizes that foundationally, DACA

is a policy guiding the exercise of prosecutorial discretion for

certain individuals who are low enforcement priority, and as such, is

necessarily connected to, and dependent on, immigration enforcement

decisions made by the Department's enforcement agencies. USCIS' role in

considering requests from individuals identifying themselves as low

enforcement priorities does not strip ICE and CBP of the responsibility

to enforce the immigration laws. DHS has determined that the balance of

the relevant agencies' responsibilities is best served by permitting

individuals who have been apprehended and are currently in immigration

detention to identify themselves as DACA-eligible so that ICE may

consider whether they are a low enforcement priority such that they

should be released from custody, after which USCIS may then approve or

deny their request. DHS notes that USCIS has not previously had

jurisdiction to grant DACA to a noncitizen in immigration detention

under custody of ICE and that under longstanding DACA policy, detained

noncitizens were instructed to identify themselves to ICE for potential

release to pursue their DACA request.\296\ Under current procedures,

if, after review, these noncitizens appear to meet the DACA criteria,

ICE may release them to file a DACA request with USCIS.\297\ DHS

believes that, as provided in this rule, permitting detained

individuals to instead begin the DACA request process by filing a

request with USCIS before being released from detention will make the

decision-making process more efficient while maintaining ICE's role in

determining the enforcement priority level of individual detainees.

While requestors may file their requests while detained, under this

rule, USCIS may not grant these requests until the individuals have

been released from detention.

---------------------------------------------------------------------------

 

    \296\ DACA FAQ 12; ICE, Deferred Action for Childhood Arrivals

(DACA) and Deferred Action for Parents of Americans and Lawful

Permanent Residents (DAPA), https://www.ice.gov/daca (last updated

Mar. 17, 2022).

    \297\ ICE, Deferred Action for Childhood Arrivals (DACA) and

Deferred Action for Parents of Americans and Lawful Permanent

Residents (DAPA), https://www.ice.gov/daca (last updated Mar. 17,

2022).

---------------------------------------------------------------------------

 

    DHS acknowledges the concerns expressed by commenters regarding

release-from-detention policies and the potential impact of decisions

by individual ICE officers. As originally envisioned by the Napolitano

Memorandum, DACA is one portion of implementing the Department's

overall enforcement strategies. The Napolitano Memorandum included

guidelines for identifying low enforcement priority individuals for

deferred action under what became the DACA policy, including those

individuals in detention and removal proceedings, and envisioned

individuals would self-identify as candidates for deferred action.

Similarly, the Department's Enforcement Guidelines set out enforcement

priorities and instruct enforcement agencies to exercise discretion as

appropriate for individuals outside of those priorities. While all

discretionary enforcement and adjudicatory decisions involve multiple

decisions made by a single enforcement officer or adjudicator, DHS

asserts that consistent policies, training, and review best address

concerns of individual ICE officers ``vetoing'' otherwise DACA-eligible

noncitizens. Additionally, DHS has set up a case review process for

noncitizens to obtain expeditious review of enforcement actions,

including decisions on detention.\298\

---------------------------------------------------------------------------

 

    \298\ ICE, Contact ICE About an Immigration/Detention Case,

https://www.ice.gov/ICEcasereview (last updated June 24, 2022).

---------------------------------------------------------------------------

 

    DHS thanks commenters for highlighting concerns that differential

policing of communities will affect detention decisions based on

contact with the criminal justice system. DHS acknowledges that arrests

and convictions are best understood in the totality of the

circumstances.

    DHS acknowledges the related concern that detention of a DACA

recipient could prevent that individual from renewing a DACA grant.

However, individuals with DACA are generally not subject to enforcement

action absent a determination that enforcement discretion is no longer

warranted, typically due to activity that would serve as a basis for

termination of the DACA grant. Additionally, DHS encourages DACA

recipients to file renewal requests within the recommended filing

window to best avoid gaps between periods of deferred action under

DACA.\299\

---------------------------------------------------------------------------

 

    \299\ DACA FAQ 49.

---------------------------------------------------------------------------

 

Inefficiency Concern

    Comment: Some commenters suggested it would be more efficient for

USCIS to adjudicate requests from detained noncitizens. Several

commenters stated that the proposed bifurcation of DACA adjudication

for detained and non-detained individuals would be inefficient and

impede individuals from making a showing of low priority for removal

and eligibility for deferred action. One commenter suggested that ICE

be granted authority to adjudicate DACA in certain cases to avoid

double adjudication and promote efficiency.

    Response: DHS appreciates suggestions on ensuring efficiency in the

implementation of DACA. DHS emphasizes that USCIS remains responsible

for the adjudication of all DACA requests. As discussed above, USCIS

has determined that permitting detained individuals to request DACA

from USCIS prior to release will increase efficiency. This change will

 

[[Page 53240]]

 

also resolve situations under the previous policy where a requestor who

had already been released from detention could be found ineligible for

DACA because they were detained when they submitted the DACA request.

DHS asserts that specific details of intra-department coordination

between ICE and USCIS are best handled through subregulatory guidance

in order to retain operational flexibility and to best respond to the

circumstances that individual cases may present.

Lack of Justification or Rationale for Rule

    Comment: Commenters stated there is no reason why USCIS would be

prohibited from adjudicating DACA from detained individuals, noting

that USCIS regularly adjudicates other applications for detained

individuals. Another commenter stated that no other immigration benefit

effectively precludes detained individuals from applying, and that

tying approval for DACA to detention status is unprecedented and

unwarranted. One commenter stated that DHS risks violating the

principle that immigration detention be nonpunitive by promulgating a

DACA rule that deems detained individuals ineligible for DACA. A

commenter stated that there was no evidence on the ICE website

suggesting that individuals cannot be granted DACA while in custody,

and remarked that detained individuals have previously sought and been

granted DACA, with that approval informing subsequent decisions on the

individual's release from custody. The commenter further stated that it

was arbitrary and capricious to require release from custody before

USCIS can grant a DACA request because DACA eligibility requirements do

not require that an individual not be detained and that past practice

had created a reliance interest in adjudicating DACA requests from

detained individuals.

    Response: DHS acknowledges that USCIS sometimes adjudicates

immigration applications and petitions benefiting detained individuals.

DHS submits that as a discretionary exercise of prosecutorial

discretion, DACA is difficult to compare to immigration benefits, some

of which may be granted to detained individuals, and refers to the

above response regarding the balance of responsibility between ICE and

USCIS. DHS believes that it would not be appropriate to grant

enforcement discretion under the DACA policy to an individual that ICE

has determined warrants continued detention. As explained above, since

the inception of the DACA policy, USCIS has not exercised jurisdiction

to grant DACA to a detained individual. Both the USCIS DACA FAQs and

the ICE public web page containing DACA information instruct detained

individuals to identify themselves for potential release to seek DACA

with USCIS.\300\ Additionally, to answer the first question on Form I-

821D, Consideration of Deferred Action for Childhood Arrivals, the

requestor states ``I am not in immigration detention.'' \301\

Acknowledging that some cases may present complicated detention

histories, DHS submits that any such request referred to by commenters

was likely granted in error if the requestor was in fact detained at

the time of the adjudication of the request. DHS also notes that the

regulation permits detained individuals to submit requests for DACA to

USCIS, which were previously denied under the existing DACA policy.

Given the longstanding DACA policy, DHS does not believe requestors

have a reliance interest in USCIS adjudicating DACA requests from

detained requestors. DHS recognizes the strong interest a noncitizen in

immigration detention may have in requesting and receiving DACA, but

denies that the rule's approach is punitive; in these cases, the

immigration enforcement entity detaining the potential DACA requestor

applies the Department's enforcement strategy in determining whether to

release that person from detention prior to or in coordination with

another agency's decision to grant deferred action for a period of

time.

---------------------------------------------------------------------------

 

    \300\ DACA FAQs 12-14; ICE, Deferred Action for Childhood

Arrivals (DACA) and Deferred Action for Parents of Americans and

Lawful Permanent Residents (DAPA), https://www.ice.gov/daca (last

updated Mar. 17, 2022).

    \301\ USCIS, Form I-821D, Consideration of Deferred Action for

Childhood Arrivals, https://www.uscis.gov/sites/default/files/document/forms/i-821d.pdf.

---------------------------------------------------------------------------

 

Further Recommendations

    Comment: One commenter criticized DHS for failing to include in the

proposed rule guarantees that ICE would release DACA-eligible

individuals from detention. Another commenter recommended aligning DACA

with other humanitarian programs by providing similar safeguards to

other classes of vulnerable people DHS has recognized as unsuitable for

detention, such as SIJ petitioners, petitioners and applicants for U

and T nonimmigrant status, and VAWA self-petitioners. The commenter

recommended expeditious processing of DACA requests for detainees,

including explicitly allowing USCIS to accept biometrics taken by ICE

to facilitate the processing; that the rule afford automatic stays of

removal for requestors until requests are adjudicated; and that the

rule consider directing immigration judges to sua sponte continue

proceedings where a DACA request is pending, and to terminate or

administratively close proceedings where there is evidence that USCIS

approved a DACA request. The commenter also urged USCIS to consider a

prima facie or bona fide determination process for DACA requestors.

    Response: DHS appreciates the suggestion to include guarantees that

ICE will release DACA-eligible individuals from detention. Specific

guidance on how USCIS and ICE will cooperate to address detained

individuals who request DACA is best addressed in subregulatory

guidance.

    DHS notes that the DACA policy serves important humanitarian aims,

as do immigration benefit requests such as U and T nonimmigrant status,

SIJ classification, and relief under VAWA; however, there are important

distinctions between DACA--a policy to exercise prosecutorial

discretion to defer removal of noncitizens who demonstrate they are a

low enforcement priority--and those benefits that are designed to

assist abused, neglected, or abandoned minors, and victims of crime,

human trafficking, and domestic battery or extreme cruelty. DHS notes

that, unlike for petitions for U nonimmigrant status, there is no

annual cap on the number of DACA requests that may be approved, and as

a result, requestors do not wait years for a final adjudication of

their request. As a result, DHS has not found it necessary to create a

prima facie or bona fide determination policy for DACA. DHS appreciates

suggestions on managing removal proceedings over the course of the

adjudication of a DACA request. Because the rule is not a joint DHS/DOJ

rule, DHS cannot insert provisions binding EOIR, though it notes the

suggestions as applied to ICE's Office of the Principal Legal Advisor.

DHS appreciates the request to streamline processing by allowing USCIS

to accept biometrics taken by ICE. USCIS is examining whether it has

the legal authority and technical capability to submit to the Federal

Bureau of Investigation biometrics collected by a criminal justice

agency or from a non-criminal justice agency when the biometrics were

collected for a different purpose from USCIS' purpose of use. DHS will

continue to explore the feasibility of permitting USCIS to use

biometrics collected by ICE for

 

[[Page 53241]]

 

adjudication of DACA requests from detained individuals.

  1. Grants and Denials of a Request for DACA (Including Additional

Evidence, 2-Year Period, Consultations, Notice of Decision)

Two-Year Grant Period for Deferred Action and Work Authorization

    Comment: Many commenters opposed the 2-year DACA validity period,

commenting that it is too short, limits DACA recipients' ability to

plan between renewals, and places a financial burden on applicants due

to a frequent and complex renewal process. A commenter also stated that

the validity period undermines the goals of DACA by generating fear of

imminent deportation or loss of schooling or work authorization

approximately every 1\1/2\ years. Commenters expressed concern that the

2-year validity period for DACA and related EADs, coupled with slow

processing times for renewals and a lack of sequential renewal option

(such that DACA is renewed from the date of expiration of the previous

grant, avoiding any overlap in approval periods), negatively impacts

DACA recipients, employers, and others, causing lapses in deferred

action that result in accrual of unlawful presence, lost work

authorization and potentially suffering other lasting harms. A

commenter stated that delays and lapses in employment authorization

result in a trickle-down effect to manufacturers of consumer goods,

customers, and other business stakeholders when applicants lose the

ability to work. Some commenters highlighted that the 2-year period for

DACA EADs creates additional burdens for USCIS, as well as requestors.

    Commenters recommended that the DACA grant period be extended

beyond 2 years, with suggestions ranging from 3 to 10 years. Commenters

stated that longer grant periods would result in less taxing

administrative processes and judicial review of renewals and,

consequently, reduced backlogs. Commenters also expressed concern

surrounding the financial hardship DACA recipients face, stating that

many recipients are from low-income families and cannot afford the

renewal fee. A commenter advocating for longer validity periods stated

that working families need and deserve stability and the ability to

plan for the future, and that a 2-year validity period is too short to

provide adequate assurances that it is worth the risk to submit a

detailed, personal application to DHS. The commenter also noted that

the short timeframe creates disincentives for employers looking to hire

and train DACA recipients. Commenters cited studies indicating the

benefits of extending DACA and EAD grants beyond 2 years, including

cost and time savings for applicants, reduced administrative burdens

for USCIS, and avoided consequences for recipients, employers, and the

workforce upon loss of employment authorization. Other commenters

similarly discussed the economic benefits of extending DACA and EAD

grants beyond 2 years. Commenters stated that USCIS approves more than

98 percent of DACA renewal requests each year and extending the

validity period would reduce the burden of biennial renewal requests,

while supporting DHS's stated policy goal of prioritizing limited

enforcement resources. The commenters further stated that the

Department could make this extension without undermining its

enforcement authority, as it would retain the discretion to revoke DACA

at any time.

    Response: DHS acknowledges these commenters' concerns regarding the

2-year validity period for DACA and associated employment

authorization. DHS recognizes and appreciates that biennial renewal

requests may cause uncertainty for DACA recipients and employers and

impose higher costs than a longer validity period. DHS also agrees that

extending DACA and associated EAD validity periods could improve

stability for recipients and reduce adjudicatory costs. DHS

acknowledges one commenter's concern that the 2-year validity period

could provide a disincentive for employers to hire and train DACA

recipients, but notes that the commenter did not provide data to

support this statement, and other sources indicate an 84- to 89-percent

employment rate among DACA recipients.\302\

---------------------------------------------------------------------------

 

    \302\ Congressional Research Service, Deferred Action for

Childhood Arrivals (DACA): By the Numbers (Apr. 14, 2021), https://sgp.fas.org/crs/homesec/R46764.pdf.

---------------------------------------------------------------------------

 

    DHS must carefully balance the benefits of a longer validity period

with the nature of deferred action as a discretionary, temporary

exercise of prosecutorial discretion. In other contexts, DHS has

provided deferred action for periods both greater than and less than 2

years. As DACA recipients do not have an underlying petition or

application for nonimmigrant or immigrant status pending adjudication,

DHS believes 2 years is an appropriate frequency for review and

decision on whether to continue to favorably exercise discretion in the

form of deferred action. DHS also has determined that codifying the

longstanding 2-year validity period for deferred action best achieves

President Biden's directive to preserve and fortify DACA. DHS

appreciates that DACA recipients may risk either overlap or gaps in

their DACA and EAD validity periods when renewing their requests and

reiterates the importance of filing their renewal requests in

accordance with guidance published on the USCIS website to mitigate

these risks. Regarding a commenter's concern that 2 years is too short

of a period of both deferred action and employment authorization to be

worth the risk of submitting detailed, personal information to USCIS,

DHS notes that this rule clarifies longstanding policy protecting

information provided in DACA requests from disclosure to ICE and CBP

for the purpose of immigration enforcement proceedings unless DHS

initiates immigration enforcement proceedings against the requestor due

to a criminal offense, fraud, a threat to national security, or public

safety concerns.\303\ DHS therefore declines to make changes in the

rule in response to these comments.

---------------------------------------------------------------------------

 

    \303\ See new 8 CFR 236.23(e).

---------------------------------------------------------------------------

 

DACA Renewals: Sequential Grant Periods

    Comment: Some commenters stated that, due to fluctuating processing

times and concerns over losing work authorization, DACA recipients

rarely benefit from the full 2-year validity period in practice. As

such, these commenters stated that most DACA recipients submit their

renewal applications well before the grant has expired, resulting in

additional time and costs for requestors and USCIS. Because USCIS

currently assigns the renewal approval date as the date the validity

period begins, early filing can result in an overlap between the grant

periods, described by one commenter as reducing the effective validity

period to 1\1/2\ years.

    Commenters recommended that the agency instead issue sequential

approval validity dates for renewal requests. Some of these commenters

stated that sequential grants, which they asserted were previously

piloted, would allow DACA recipients to receive full 2-year periods of

deferred action rather than one overlapping into the next. Commenters

stated this would allow recipients to avoid disruptions to their work

or education and better plan for the future, while another commenter

stated it would mitigate the punitive effect on recipients who file

renewal requests early. Another commenter

 

[[Page 53242]]

 

suggested that sequential grant periods would reduce USCIS' workload.

    Response: DHS thanks commenters for the suggestion to forward-date

DACA and associated EAD validity periods. DHS recognizes that this

suggestion could reduce recipients' disruptions to education and

employment and mitigate the risk of gaps or significant overlap in

validity periods. DHS notes that sequential grant periods were not

previously piloted, but will continue to evaluate operational and

processing mechanisms to improve efficiency and reliability for the

DACA population and, if appropriate, issue subregulatory guidance. DHS

therefore declines to make changes to the rule in response to these

comments.

Automatic Renewals or Extensions

    Comment: Some commenters urged USCIS to issue automatic extensions

of deferred action and work authorization validity upon receipt of a

DACA renewal request or when USCIS is experiencing staffing issues and

processing delays. Commenters suggested automatic extensions would

mitigate the profound impact of lapses in protection and disruption in

employment for those who timely file renewal requests but risk lapse

due to USCIS backlogs, as well as assist requestors who experience

other financial and practical obstacles in the renewal process. As an

alternative to automatic EAD renewals, commenters suggested that the

agency add DACA to the list of employment authorization categories that

receive an automatic 180-day extension of their EAD validity period

when an employment authorization renewal application is timely filed. A

commenter noted that the alternative 180-day automatic extension is an

existing process that currently includes TPS holders. The commenter

further reasoned that allowing for automatic extensions would be in

line with the agency's rationale that this safeguard provides

additional stability to U.S. employers and individuals eligible for

employment authorization. A commenter added that allowing the receipt

notice for a DACA-based EAD renewal application to serve as temporary

work authorization would avoid disruptions to the workforce and free up

USCIS resources used towards inquiries on pending cases.

    Response: DHS appreciates these commenters' suggestions to

automatically extend deferred action and employment authorization

temporarily upon filing of a DACA renewal request. DHS notes that in FY

2022, USCIS has reduced median processing times for DACA renewal

requests and related employment authorization requests to 0.5 months,

as of May 31, 2022.\304\ DHS reiterates that the decision to grant

deferred action--initially and upon a renewal request--is a case-by-

case determination of whether to favorably exercise prosecutorial

discretion. Providing automatic temporary extensions of deferred action

to DACA renewal requestors would be inconsistent with DHS's treatment

of other deferred action populations' requests for renewed deferred

action and the nature of enforcement discretion. DHS therefore declines

to modify the rule to codify automatic temporary extension of deferred

action based upon the filing of a renewed request. As employment

authorization granted in connection with DACA is predicated upon the

grant of deferred action, DHS also declines to make changes to the rule

to qualify DACA renewal requestors for automatic extensions of their

EADs beyond the validity of the underlying deferred action. DHS

acknowledges that certain applicants who have filed Form I-765 in other

categories are eligible for the automatic temporary extension. However,

under 8 CFR 274a.13(d)(iii), a category can only be designated as

eligible if the category does not require the adjudication of an

underlying application or petition before the adjudication of the

renewal application. DACA-based renewal requests for employment

authorization do not meet this regulatory requirement.\305\ DHS

therefore declines to make changes to the rule in response to these

comments.

---------------------------------------------------------------------------

 

    \304\ USCIS, Historical National Median Processing Time (in

Months) for All USCIS Offices for Select Forms By Fiscal Year,

Fiscal Year 2017 to 2022 (up to May 31, 2022), https://egov.uscis.gov/processing-times/historic-pt (last visited June 29,

2022).

    \305\ See USCIS, Automatic Employment Authorization Document

(EAD) Extension, https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/automatic-employment-authorization-document-ead-extension (last updated July 22, 2022).

---------------------------------------------------------------------------

 

Lapsed DACA Requestors

    Comment: Some commenters recommended that USCIS deem as a renewal

request any request from an individual who has previously been granted

DACA, regardless of the length of time since their prior DACA grant

lapsed. Citing instructions for USCIS considerations of DACA requests,

a commenter opposed the current policy whereby DACA requests qualify

for renewal only if the requestor files within 1 year after their last

period of deferred action expired. The commenters concluded that, as

DHS is enjoined from granting initial DACA requests, current policy

bars eligible individuals from obtaining DACA when they delay renewal

due to financial, legal, or other reasons. Commenters suggested that

the policy could be updated in the instructions and online DACA FAQs.

    A commenter recommended that USCIS provide an optional backdating

of deferred action grants for requestors whose DACA expires and who

later apply for initial or renewal of DACA. This, the commenter said,

would prevent requestors from accruing unlawful presence during USCIS

adjudication delays or other barriers to renewal.

    Response: DHS acknowledges and thanks these commenters for their

suggestions. DHS recognizes that in light of the Texas district court

order, former DACA recipients whose DACA has lapsed for more than 1

year are precluded from receiving a renewed grant of DACA. However, DHS

reiterates that this rule aims to preserve and fortify DACA for both

initial and renewal requestors. DHS notes that ``initial'' DACA

requests must be accompanied by evidence demonstrating that the

requestor meets all of the DACA guidelines at the time of filing, while

renewals only require evidence of some of the criteria, on the

understanding that only some criteria are related to factors that are

more prone to change (e.g., comparing evidence of criminal history to

evidence that the requestor entered the country before 2007). DHS

believes it is important to retain the ability to fully review

eligibility in cases where DACA has been allowed to lapse for a

significant period of time. DHS also believes that granular policy

matters such as filing requirements for lapsed recipients are better

addressed through subregulatory guidance and therefore declines to

modify the rule in response to these comments. DHS also declines to

make changes to the rule to allow for back-dating DACA grants to

retroactively eliminate the accrual of any unlawful presence for

individuals whose DACA expires and later are granted DACA again. As

discussed above, deferred action is a forward-facing step; the decision

to forbear removal of a noncitizen for a period that has already past

would be meaningless. For these reasons, the Department does not

believe it may properly erase a person's pre-DACA unlawful presence by

beginning deferred action from a date in the past.

DHS Should Waive Biometrics Collection for Renewal

    Comment: Several commenters urged the agency to utilize existing

biometrics

 

[[Page 53243]]

 

for DACA renewals rather than requiring new biometrics every 2 years

upon renewal. Some of these commenters reasoned that there is no clear

rationale for requiring new biometrics as biometrics are unlikely to

change, and requesting them is costly for both the Government and

requestors. Some commenters further reasoned that Application Support

Center closures during the COVID-19 pandemic and the successful use of

prior biometrics demonstrate that this step is unnecessary for DACA

renewal. A commenter further reasoned that many DACA requests face

significant physical and psychological struggles with presenting for

biometrics. The commenter requested that, at minimum, USCIS allow the

reuse of biometrics upon the request of requestors or their

representatives where presenting for biometrics would impose an

unnecessary burden on the requestor.

    Response: DHS acknowledges commenters' suggestion to reuse

requestor biometrics for DACA renewal requests. DHS notes that as of

May 31, 2022, USCIS reduced FY 2022 median processing times for DACA

renewal requests and related employment authorization requests to 0.5

months.\306\ DHS continues to evaluate and implement, as appropriate,

strategies to improve efficiency in processing DACA requests. DHS

thanks commenters for the suggestion to reuse biometrics, but wishes to

maintain flexibility in this type of processing decision and will

consider whether to adopt this suggestion in subregulatory guidance.

DHS therefore declines to make changes to the rule in response to these

comments.

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    \306\ USCIS, Historical National Median Processing Time (in

Months) for All USCIS Offices for Select Forms By Fiscal Year,

Fiscal Year 2017 to 2022 (up to May 31, 2022), https://egov.uscis.gov/processing-times/historic-pt (last visited June 29,

2022).

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Denials of a Request for DACA

    Comment: Some commenters urged USCIS to provide requestors the

reasons for denial or intended denial and allow requestors an

opportunity to respond, with one commenter stating the requirement to

submit another request without full knowledge of any administrative or

eligibility errors in the first request unnecessarily increases costs

for the individual seeking protection or renewal of protections.

    Response: DHS appreciates these suggestions. Given the nature of

deferred action as an exercise of prosecutorial discretion, as opposed

to a benefit request, defined in 8 CFR 1.2, the decision to not confer

deferred action, either initially or upon a renewed request, is

appropriately an action within DHS's sole and unreviewable discretion.

DHS further notes that as a matter of existing practice and policy,

USCIS typically issues either a Request for Evidence or a Notice of

Intent to Deny that identifies the reason(s) DHS intends to deny, and

provides an opportunity for requestors to respond before a request is

denied. Furthermore, if DHS denies a DACA request, the notice of denial

will generally state the reasons for denial. DHS acknowledges that a

request denied as a matter of discretion will not repeat the negative

discretionary factors in the request, but those issues are identified

to the requestor in the RFE or NOID prior to DHS issuing a denial. DHS

therefore declines to make changes to the rule in response to these

comments.

Other Comments and Recommendations

    Comment: One commenter suggested that the agency consider a faster

request process such that requestors would be able to apply between 30

and 45 days prior to the EAD permit expiring and possibly eliminating

the fingerprinting process.

    Response: DHS acknowledges this commenter's suggestions, but

believes that operational considerations to improve adjudicatory

efficiency and the potential reuse of biometrics for renewal applicants

are better addressed through subregulatory guidance. DHS therefore

declines to make changes to the rule in response to this comment.

  1. Notice to Appear or Referral to ICE

    Comment: Some commenters stated that automatic NTAs after denial

should not be permitted under any circumstances. While the commenters

supported the rule's listing of situations in which USCIS would issue

an NTA or refer a denial to ICE, noting it would provide clarity for

requestors, they expressed concern about the inclusion of denials for

fraud on that list. The commenters expressed concern that issuing an

NTA after a denial for fraud could have a ``chilling effect'' on

requestors that might frustrate DACA's ultimate goals, as requestors

unfamiliar with immigration law could worry that simple errors could be

perceived as fraud. The commenters asserted that issuing NTAs to fraud-

based denials does little to further the sensible DHS priorities of

``protecting national security, border security, and public safety.''

    Response: DHS appreciates the commenters' concerns, and notes that

NTAs are not automatic, as each denial and decision to initiate removal

proceedings by issuing an NTA or referring a denied requestor to ICE is

made by an adjudicator after assessing the evidence in a case. In

response to the suggestion that denials for fraud should not be issued

an NTA, DHS notes that the proposed 8 CFR 236.23(c)(2) codifies and

clarifies longstanding DACA policy, including on referring fraud-based

denials to ICE for purposes of removal proceedings.\307\ As such, DHS

does not anticipate a change in requestors' behavior based on fear of

filing errors being mistaken for fraud. However, DHS appreciates the

concern and will consider public perception when developing filing

instructions, website language, and other public messaging. DHS

strongly disagrees that countering immigration fraud does little to

further DHS priorities. Combatting fraud and misrepresentation is

central to DHS's mission and to DHS's ability to provide immigration

benefits and relief to qualifying individuals. In recognition of this

principle, Congress provided a specific ground of inadmissibility to

address the use of fraud or willful misrepresentation when obtaining a

benefit under the INA.\308\

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    \307\ DACA FAQ 26.

    \308\ INA sec. 212(a)(6), 8 U.S.C. 1182(a)(6).

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  1. Appeals and Reconsideration

    Comment: A few comment submissions addressed appeals and

reconsideration of DACA denials. A few commenters said that the final

rule should include a reconsideration process for requestors to

challenge denials, with procedural protections and legal

representation. While recognizing that reconsideration motions and

appeals may not be required, one commenter stated that this does not

explain why the proposed rule does not create a process for challenging

denials and stated that the costs of an erroneous denial to the

requestor, their family, community, and society are too high to rely on

re-request as the sole corrective. One commenter stated that to promote

filing and fairness, DACA requestors should have, among other things,

avenues to challenge denials or terminations.

    Commenters opposed the proposed rule's exclusion of administrative

appeals, reopening, or reconsideration stating that it violates USCIS'

inherent authority to exercise discretion to review prior decisions, as

Service Officers generally retain an inherent ability to review past

decisions via motion or appeal, citing 8 CFR 103.5 as an example.

Commenters also noted that the proposed rule would limit the

 

[[Page 53244]]

 

authority inherently granted to all USCIS officers and add another

unnecessary burden to an immigration system that is already

overburdened with gratuitous regulatory and administrative

complications. Commenters further stated that the proposed rule would

not stop officers from acting of their own accord and questioned

whether attempting to foreclose any review of past DACA decisions would

result in an increase in motions and letters requesting the reviewing

Service Officer to exercise discretion to reconsider their decision via

self-motion. Commenters also stated that the proposed rule will

undermine USCIS' ability to adjudicate DACA requests, because the

failure to provide an opportunity for reconsideration will undermine

the deference attributed to USCIS when a DACA decision is challenged in

APA litigation. The commenters noted criticism of the AAO and stated

that USCIS should instead be empowered to exercise its inherent

authority to review past DACA denials or rejections. The joint

submission stated that DACA requestors must be afforded a mechanism for

challenging denials on the basis of abuse of discretion and that

whether a mechanism is embedded in the proposed rule will not prevent

DACA recipients from attempting to challenge a DACA denial through an

APA challenge. Finally, the submission stated that this would be one of

the only instances where an applicant is barred from seeking to have a

negative decision reviewed, reconsidered, or appealed, which they

stated is notable given the lack of uniformity and clarity on which

misdemeanors make an applicant ineligible, for example.

    One group of commenters stated that incentivizing denied requestors

to create and submit new materials rather than appealing or amending

their prior requests burdens both USCIS and requestors because USCIS

must reprocess and consider requests that are only marginally different

from those it already considered, while requestors spend additional

money on filing fees and try to ascertain and fix the error that led to

the prior denial. The submission stated that allowing amendments to

requests prior to denial would reduce workloads, as requestors could

correct their forms that otherwise would impact their requests. They

further stated that creating an appeal structure would not be

procedurally difficult because such a structure already exists for

appealing denials caused by administrative errors, and parallel

structures already exist for most other immigration processes through

the AAO. They stated that expanding the existing DACA appeals process

to accommodate substantive appeals and allow amendments to correct

requestor errors is not likely to be substantially difficult.

    Response: DHS appreciates commenters' suggestion that the rule

include a reconsideration process for challenging denials or

terminations. However, DHS disagrees with commenters that such a

process is appropriate for DACA decisions. Given the nature of deferred

action as an exercise of prosecutorial discretion, rather than as a

benefit request as defined in 8 CFR 1.2, the decision not to exercise

favorable enforcement discretion or not to continue to do so is

appropriately an action within DHS's sole and unreviewable discretion.

    While DHS recognizes that refiling a DACA request after denial

requires an expenditure of money, time, and effort for the DACA

requestor, so too would filing a motion to reopen/reconsider or an

administrative appeal to the AAO, if USCIS were to permit such motions

or appeals. Individuals seeking reopening, reconsideration, or appeal

of a benefit request must do so by filing a Form I-290B, Notice of

Appeal or Motion with a statement and supporting evidence, and

generally must pay a $675 fee.\309\ DHS additionally notes that it

generally issues an RFE or a NOID before denying a DACA request,

providing requestors notice of deficiencies in the request and an

opportunity to fix them.

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    \309\ Only special immigrant Iraqi or Afghan nationals who work

for or on behalf of the U.S. Government are not required to pay the

Form I-290B filing fee.

---------------------------------------------------------------------------

 

    DHS also disagrees with commenters who state that by not providing

for administrative appeals or motions to reopen or reconsider, DHS is

violating USCIS' inherent authority to exercise discretion to review

prior decisions. The preamble to the proposed rule specifies that USCIS

would still be permitted to reopen or reconsider a DACA approval or

denial on its own initiative.\310\ The rule does not impact USCIS'

inherent authority to reopen or reconsider its decisions, in its

discretion. Further, under current policy and practice as reflected in

DACA FAQ 25,\311\ USCIS may also reopen or reconsider its DACA

decisions if a DACA requestor seeks review of their DACA denial by

contacting the USCIS Contact Center for creation of a Service Request,

where the requestor believes USCIS incorrectly denied the request due

to certain administrative errors. DHS intends to maintain the ability

for requestors to request review via the Contact Center in certain

limited circumstances involving administrative error, however DHS

believes this process is best suited to subregulatory guidance.

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    \310\ 86 FR 53769.

    \311\ DACA FAQs.

---------------------------------------------------------------------------

 

    DHS further disagrees with commenters who state that the rule will

undermine the deference attributed to USCIS when challenged in APA

litigation and in any event, does not believe that the availability of

deference to USCIS' decisions on DACA requests when challenged in

litigation should determine how the final rule addresses the

availability of appeals and reconsideration.

    While DHS agrees with commenters that an existing appeal structure

exists at the AAO for certain benefit requests, DHS disagrees with the

cited criticism of the AAO and maintains that establishing an appeal

process for DACA denials is inconsistent with the nature of deferred

action as a temporary, favorable exercise of immigration enforcement

discretion that gives some cases lower priority for enforcement action.

    Accordingly, DHS is not making any changes to 8 CFR 236.23(c)(3) in

response to public comments.

  1. Termination of a Grant of DACA (Including Comments on Discretionary/

Automatic Termination and Alternatives)

Notice of Intent To Terminate and Automatic Termination Upon Filing an

NTA

    Comment: No commenters wrote to support the termination provisions

presented as the primary proposal in the proposed rule. Many commenters

stated that USCIS should be required to provide a Notice of Intent to

Terminate (NOIT) prior to terminating DACA in all cases in order to

provide notice of the proposed grounds for termination and a fair

opportunity to respond. Several of these commenters said that this

change would preserve due process by allowing DACA recipients the

opportunity to correct misinformation and provide supplementary support

or documentation, thus preventing unjustified terminations. Similarly,

many commenters emphasized the importance of fairness and accuracy in

the decision process for terminating a DACA grant, stating that

terminating a DACA grant without notice or opportunity to respond is

inconsistent with the rule's principle of allowing USCIS to make

decisions based on the totality of the circumstances. Commenters also

stated that terminating a DACA grant without notice would be

 

[[Page 53245]]

 

arbitrary and capricious in violation of the APA.

    One commenter suggested that USCIS implement the third proposed

alternative in the NPRM to specify the instances in which USCIS

generally will issue a NOIT, with opportunity for the DACA recipient to

respond before USCIS makes its final decision on DACA termination.

Another expressed general agreement with implementing this third

alternative but requested that the agency provide a narrower definition

of cases involving criminal offenses or concerns regarding national

security or public safety so as to only include the most extreme

threats to public safety.

    One organizational commenter stated that it was disappointed that

the proposed regulation at 8 CFR 236.23(d)(1) would permit USCIS to

terminate a DACA grant at any time in its discretion with or without

issuance of a notice of intent to terminate and urged USCIS to provide

DACA recipients with a fair process before termination. The commenter

requested that, at minimum, USCIS provide the recipient with an

opportunity to respond, reasoning that procedural fairness is essential

to minimize the risk of erroneous deprivation and to decrease racially

disparate outcomes. The commenter proposed various amendments to the

language at 8 CFR 236.23(d)(1) regarding USCIS' discretionary authority

to terminate DACA. The commenter stated that providing notice and an

opportunity to respond would: (1) decrease the risk of erroneous DACA

terminations; (2) decrease the potential for racially discriminatory

decision-making; and (3) honor the deeply held reliance interests that

DACA recipients possess.

    Many commenters opposed automatic termination based on the filing

of an NTA, stating that the rule should not allow ICE or CBP to force

USCIS to automatically terminate DACA by issuing and filing an NTA.

Some of these pointed out that allowing ICE or CBP to take these

actions is contradictory to the core principle of the proposed DACA

regulations, which allows USCIS to make considered decisions based on

the totality of the circumstances. Similarly, other commenters stated

that automatic termination of DACA upon issuance of an NTA undermines

the tenets of DACA, which protects against removal and can be requested

while in proceedings. Other commenters stated that USCIS is in the best

position to make DACA determinations based on agency policy and that

ICE and CBP should not be permitted to override USCIS' determinations.

Commenters also stated that automatic termination upon NTA filing is

arbitrary and capricious under the APA.

    Multiple commenters expressed concerns that the proposal would

perpetuate racial disparities in policing and the criminal justice

since, since NTAs are often issued as a result of encounters with local

law enforcement, which disproportionately impact Black people and other

people of color. Many other commenters expressed similar concerns,

adding that criminal charges are often later dismissed, but if a DACA

recipient is placed in removal proceedings on the basis of a criminal

charge that is eventually dismissed, their DACA protections are

unjustifiably terminated regardless.

    One commenter also stated that automatic termination would be a

significant change to policy without adequately addressing DACA

recipients' serious reliance interests, particularly for those granted

DACA after the filing of an NTA or in the presence of a final order of

removal who have made career and life plans for the immediate future in

reliance on the continuation of DACA, and specifically, on the

continuation of the individual's DACA despite the filing of an NTA.

Another stated that there are significant reliance interests in the

continuation of existing DACA grants because people make consequential

decisions based on the 2-year grants of deferred action and many rely

on DACA recipients for financial, emotional, and other support.

    Many commenters supported the NPRM's first option in alternative

two: striking the provision regarding automatic termination of DACA

solely based on the filing of an NTA for all DACA recipients. Some

recommended going further and specifically prohibiting DACA termination

based solely on the filing of an NTA, with one proposing to allow

exceptions for fraud, national security threats, or public safety

concerns with additional safeguards and a NOIT. Multiple commenters

stated that the alternatives proposed did not go far enough and

presented problems with consistency and due process. One stated that

they agreed with only the second proposed alternative, which would

strike or modify the provision regarding automatic termination of DACA

solely based on the filing of an NTA. A few commenters opposed the

second option in alternative two, stating that tying automatic

termination to the issuance of a final removal order would be

irrational since individuals with final orders of removal still can be

granted DACA. One commenter suggested that the later point in the

process when DACA should terminate automatically is upon removal. A few

commenters opposed the first alternative--limiting automatic

termination based on NTA filing to certain individuals, such as those

subject to investigation, arrest, or conviction of an Egregious Public

Safety (EPS) offense or who fall within certain terrorism or national

security-related inadmissibility or deportability grounds--as too broad

and vague, and as continuing to present due process concerns.

    Multiple commenters recommended that, at a minimum, if DHS is not

inclined to provide NOITs before terminating DACA in all cases and to

eliminate automatic termination upon NTA filing, the rule should codify

the approach required by the Inland Empire-Immigrant Youth Collective

  1. Nielsen (``Inland Empire'') injunction and apply it to all DACA

recipients. Commenters stated that DHS provided insufficient

explanation for why DHS proposes to depart from the Inland Empire

approach that it has followed for nearly 4 years and why instead DHS

seeks to codify an approach that was already found unlawful by the

Inland Empire court.

    Response: DHS agrees with commenters that in most cases, there are

good reasons to give DACA recipients adequate notice and an opportunity

to respond prior to termination of their DACA. This approach will

promote fairness and accuracy in the decision-making process for

terminating a DACA grant by allowing DACA recipients the opportunity to

correct any incorrect information and provide supplementary information

to rebut the intended basis for termination.

    DHS further agrees that the Inland Empire preliminary injunction

provides a framework for the limited circumstances in which termination

without a NOIT is necessary. However, DHS now intends to issue NOITs in

even broader circumstances than required by Inland Empire, in

recognition of the concerns raised by commenters about fairness and

accuracy in the termination process. Accordingly, DHS is revising 8 CFR

236.23(d) to adopt the first option in alternative two (eliminate

automatic termination based on filing of an NTA) and to codify that

USCIS will issue a NOIT prior to terminating DACA in most circumstances

not involving travel without advance parole, but retains discretion to

terminate without a NOIT when the DACA recipient has been convicted of

an EPS offense or a national security offense. For these purposes, an

EPS offense is a crime

 

[[Page 53246]]

 

involving significant risk to the safety of others,\312\ and a

conviction for a national security offense is a conviction relating to

conduct described in 8 U.S.C. 1182(a)(3)(B)(iii) (terrorist activity),

(iv) (engage in terrorist activity), or 1227(a)(4)(A)(i)) (national

security). This approach is a modified, simpler approach than required

by the Inland Empire injunction, which permits USCIS to proceed quickly

to termination (but not automatic termination) for those individuals

who present a potential egregious public safety or national security

risk. Eliminating automatic termination based on NTA issuance and

generally providing NOITs except in circumstances involving certain

convictions also mitigates commenters' concerns that automatic

termination fails to take into consideration DACA recipients' reliance

interests.

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    \312\ See, e.g., definition of EPS in Revised Guidance for the

Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases

Involving Inadmissible and Removable Aliens, USCIS PM-602-0050 (Nov.

7, 2011).

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Automatic Termination Upon Departing the United States Without Advance

Parole

    Comment: Many commenters opposed automatic termination due to

departure without advance parole, and multiple commenters specifically

supported the fourth alternative proposed in the NPRM: providing an

exception for departure without advance parole under exigent

circumstances. Commenters said that this change would give DACA

recipients much-needed flexibility, as recipients may experience

emergency situations where they need to leave the country temporarily,

but do not have time to obtain an advance parole document, or where the

departure is brief and accidental. One commenter described obtaining an

advance parole document as an arduous process that can take weeks,

which complicates efforts to seek emergency advance parole when

visiting a dying family member or attending to other pressing matters.

Another commenter stated that the USCIS Contact Center may be unable or

unwilling to schedule an in-person emergency advance parole appointment

in time for those who need to depart on short notice. If given an

appointment but denied emergency advance parole, the commenter stated,

the DACA recipient would need to make the impossible choice between

seeing a loved one for the last time and maintaining their right to

reside and work in the country they call home.

    Commenters supported what they called a more humane approach that

would consider the totality of the circumstances of the individual's

departure. One commenter remarked that any DACA recipient who leaves

the United States without an advance parole document should have the

opportunity to explain their circumstances prior to the termination of

their DACA grant. One commenter requested that USCIS communicate

specific criteria under which a person would be allowed to leave the

United States without securing an advance parole document, including

the circumstances that would warrant leaving without advance parole,

how long a DACA recipient would be permitted to remain outside of the

United States, what evidence they might need to prove their request

matches prescribed circumstances, the types of travel documentation

they would need to bring along, and the process for returning.

    Response: DHS agrees with commenters that there may be some limited

circumstances where a DACA recipient departs the United States without

first obtaining an advance parole document due to exigent

circumstances--such as departures that are accidental or involuntary,

and in such circumstances the automatic termination of their DACA may

not be warranted. In consideration of the comments received, DHS is

eliminating the provision at 8 CFR 236.23(d)(2)(ii) on automatic

termination of DACA following departure without advance parole and

revising 8 CFR 236.23(d)(2) to provide that USCIS may terminate DACA

after NOIT if a DACA recipient departs the United States without first

obtaining advance parole and subsequently enters without inspection.

Generally, a recent entry without inspection will be a significant

negative factor warranting termination of DACA as a threat to border

security, but where there are exigent circumstances, such as accidental

or involuntary border crossings, DHS may choose to continue exercising

prosecutorial discretion and allow the grant of deferred action to

continue. DACA recipients who depart the United States without first

obtaining advance parole but who are paroled into the United States may

resume their DACA upon expiration of the period of parole. However, DHS

notes that DACA recipients who depart the United States without first

obtaining an advance parole document run a significant risk of being

unable to reenter the United States, and that obtaining an advance

parole document prior to departure is strongly encouraged to reduce the

risk of being unable to return and resume DACA.

Effect of Prior Termination

    Comment: Several commenters discussed USCIS' past practice of

automatically denying renewal requests for anyone whose DACA grant had

been terminated previously at any point. The commenters stated that

many DACA grants have been terminated based on arrests or charges that

ultimately did not result in any serious criminal conviction.

Considering these concerns, the commenters suggested that prior

automatic termination of DACA not be used to justify the denial of a

renewal request.

    Response: DHS acknowledges commenters' concerns but believes that

the elimination of automatic termination based on NTA issuance in the

final rule will largely alleviate these concerns. Except in limited

circumstances described elsewhere in this preamble and at new 8 CFR

236.23(d)(1), USCIS will generally issue a NOIT before terminating an

individual's DACA. Where USCIS proceeds to termination and the

individual also has a renewal request pending, USCIS believes that

immediate denial of the pending renewal in light of the termination

remains appropriate, as the underlying basis for the termination

remains true such that favorably exercising prosecutorial discretion to

grant a new period of deferred action is not warranted. In cases where

an individual files a new DACA request after their DACA has been

terminated, USCIS does not automatically deny the new request. However,

DHS continues to believe that considering all relevant factors and

evidence is appropriate in determining whether to grant a DACA request,

including the basis for a prior termination, which may be an indication

the individual is no longer a low enforcement priority. Accordingly,

DHS is not making any revisions to the regulations based on these

comments.

  1. Restrictions on Use of Information Provided by DACA Requestors

(Including Information Sharing and Privacy Concerns)

    Comment: A few commenters expressed support for codifying the

restrictions on use of information in the final rule. One commenter

also stated that they supported the exceptions to the restrictions on

information use as proposed in the rule, including for identifying and

preventing fraudulent claims, for national security purposes, and for

the investigation or prosecution of a criminal offense.

    Response: DHS appreciates commenters' support for codifying the

 

[[Page 53247]]

 

restrictions on use of information from DACA requestors in this rule.

DHS proposed to codify the longstanding policy that has governed the

use of information provided by DACA requestors to mitigate the

possibility that noncitizens eligible for DACA may be disincentivized

to file a request and become known to the U.S. Government. As described

in the NPRM, under this longstanding policy, information provided by

DACA requestors is collected and considered for the primary purpose of

considering their DACA requests and may not be used for immigration

enforcement-related purposes apart from limited exceptions.\313\ In

furtherance of the Department's dual desire to minimize concerns that

DACA requestors may have in providing their information through the

submission of a DACA request while also retaining exceptions for

limited national security or public safety purposes, DHS is now

codifying this policy at new 8 CFR 236.23(e).

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    \313\ 86 FR 53771.

---------------------------------------------------------------------------

 

    Comment: Expressing concern about information sharing and use among

ICE, CBP, and other Federal, State, or local law enforcement agencies,

a few commenters advocated that DHS further strengthen data privacy

under proposed 8 CFR 236.23(e). A few commenters recommended that DHS

both ensure and demonstrate that requesting DACA would not lead to

immigration enforcement against a requestor. A group of commenters said

that the ``need to know'' policy for sharing information with ICE and

CBP should be clarified, because the list of uses and instances in

which information can be shared is not presented as exhaustive, making

it possible to demonstrate ``need to know'' in other circumstances that

may have a lower evidentiary threshold. Instead, the commenter

suggested that DHS definitively enumerate the exclusion of any specific

uses and instances not listed. A commenter requested that agencies

protect DACA by strengthening data privacy, reasoning that the fear of

immigration enforcement could preclude recipients from enrolling in

healthcare coverage. Another commenter urged DHS to strengthen

protections around the personal identifiable information (PII) of DACA

recipients and expressed concern around ICE handling DACA recipients'

PII. The commenter, along with another commenter, said that DACA

recipients' PII should never be used for enforcement purposes. Another

commenter recommended specific regulatory language for this provision

to ensure the protection of requestors' information from being shared

with immigration enforcement agencies, along with appropriate

administrative penalties for violations.

    Response: DHS acknowledges these commenters' recommendations to

further enhance data privacy in this rule, including to enumerate the

exclusion of specific uses not listed. DHS however respectfully

declines to write such granularity into the final rule. As discussed

above, the rule codifies longstanding prohibitions on use of

information for enforcement purposes with specific exceptions. This

longstanding practice has worked to protect against improper uses of

information provided in DACA requests for enforcement purposes. In

January 2022, the U.S. Government Accountability Office (GAO) published

a report on the extent to which USCIS shares information on DACA

requestors and recipients with immigration enforcement agencies and for

what purpose. The GAO report found that, in keeping with the DACA

information-sharing policy, USCIS has shared information with ICE, for

immigration enforcement purposes, on a small number of DACA requestors

and recipients who engaged in activities that disqualified them from

DACA, estimating that from June 2012 to June 2021, of the 106,000 DACA

requests that USCIS denied, USCIS referred fewer than 900 cases (less

than 1 percent) to ICE.\314\ The report did not make any

recommendations for necessary changes. Given this conclusion and DHS's

experience since the inception of DACA, DHS believes that the

longstanding policy governing use of DACA information sufficiently

protects DACA requestors' privacy. Regarding one commenter's request

that there be appropriate administrative penalties for violations of

the information use provision, DHS declines to address penalties in

regulatory text, as DHS components already have robust systems in place

for ensuring that its personnel follow applicable laws, regulations,

policies, and procedures in the performance of their duties, including

but not limited to information sharing and use.

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    \314\ GAO, Report No. GAO-22-104734, Immigration: Information on

Deferred Action for Childhood Arrivals (Jan. 2022), https://www.gao.gov/assets/gao-22-104734.pdf (last visited May 22, 2022).

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    Comment: Some commenters expressed concern with broad exceptions

pertaining to fraud, national, security, and public safety that in

their view undermined the protective provisions under proposed 8 CFR

236.23(e). Citing reports indicating that some gang databases are

unreliable, one commenter recommended that the regulations eliminate

these exceptions. The commenter added that, at the very least, the

regulations should delineate the situations warranting national

security or public safety exceptions that justify initiating removal

proceedings while compelling DHS to establish clear and convincing

evidence to bolster the exception when a requestor, recipient, or

family member or guardian listed in the request is placed in removal

proceedings.

    Another commenter recommended that the regulations provide

specific, clear and precise circumstances supporting a national

security or public safety exception warranting initiation of

proceedings. Pursuant to these exceptions, commenters recommended that,

if removal proceedings are initiated against a DACA requestor or

recipient, or against family members or guardians listed in a DACA

request, DHS should assume the burden of proof to support the

exception. Similarly, some commenters recommended that DHS be compelled

to prove to the Immigration Judge by clear and convincing evidence that

the information divulged in the request was not a basis for commencing

removal proceedings. If DHS cannot meet this burden of proof, the

commenters suggested that removal proceedings be terminated.

    Response: DHS acknowledges commenters' concerns with the use of

information provided in DACA requests for the purposes of immigration

enforcement. DHS notes that new 8 CFR 236.23(e)(2) prohibits the use of

information pertaining to family members or guardians provided in DACA

requests for the purpose of enforcement proceedings against such family

members or guardians, without exception. DHS refers commenters

requesting additional guidelines on when removal proceedings may be

initiated to the discussion of issuance of an NTA above.

    Comment: One commenter stated that data privacy protections were

and continue to be important for building sufficient trust between the

DACA requestor and the government to submit sensitive information but

expressed concern that there are few enforceable controls preventing

ICE from accessing information on DACA requestors. The group

recommended that USCIS prevent both direct and indirect disclosure of

information in DACA requests to ICE or CBP. To the extent mutually

accessible data systems must be used between agencies, another

commenter recommended that USCIS be allowed to track which agencies

view that

 

[[Page 53248]]

 

information and to monitor and enforce limitations on the rationale for

access or acceptable uses of information.

    Some commenters recommended that USCIS modify the information use

provisions to further restrict information use and sharing. These

commenters recommended the provisions forbid the disclosure,

circulation, or use of all past or future information--including via

electronic systems--for reasons beyond implementing DACA. In the event

that another agency obtained any information submitted during the DACA

process, or if the information was used for any reason beyond carrying

out the DACA policy, the commenters recommended that DHS notify the

DACA requestor.

    Several commenters also recommended that DHS incorporate guidelines

on information storage and electronic access, including strict

protocols on accessing information stored or obtained electronically,

as well as transparency and oversight measures. One commenter urged DHS

to make multiple specific improvements to information protection and

sharing, including by establishing stronger safeguards for data from

noncitizens who were denied DACA, such as not entering biographical

information, biometric information, information about the requestor's

family, or immigration status information for denied requestors into

the A-file. The commenter said these protections are needed because

these individuals are vulnerable to identification and removal by

enforcement officers, even if their case is not affirmatively referred

to ICE. This risk could deter individuals from requesting DACA. This

commenter also suggested reconsidering the Form I-812D disclaimer and

limiting third-party data sharing, because the combined risk and

complexity it poses could potentially deter eligible DACA recipients

and their family who depend on deferred action.

    A commenter requested a firm and transparent commitment from all

branches of the U.S. Government to refrain from collecting or sharing

information on DACA requestors with ICE, including geolocation data

from private apps requestors use. Another commenter urged DHS to limit

its collection of biometric and biographical data to information that

is absolutely necessary to verify eligibility for temporary forbearance

under DACA. This commenter also requested the opportunity for public

comment on any future proposals to expand biometric data collection or

use.

    Response: DHS appreciates commenters' suggestions for building

trust among the communities that DACA is intended to benefit. DHS notes

that since the inception of the policy, the DACA requestor population

has stepped forward to request DACA under the same guidelines on

information use to be codified in this rule. DHS acknowledges the

suggestion for monitoring access to data systems accessible by multiple

agencies but believes that such modifications to DHS data systems are

unwarranted at this time. As support for the adequacy of the current

policies DHS refers to the GAO report on DACA information sharing

referenced above, which documents the small number of DACA requests

that have been referred to ICE for further investigation or issuance of

an NTA and makes no recommendations for changes to DHS policy or

practice. DHS therefore declines to make any changes to the rule in

response to these comments.

    Comment: Commenters wrote that requestors should be permitted to

redact false Social Security numbers from documents used to demonstrate

continuous residence, and privacy guidelines should state that this

information will not be shared with immigration or law enforcement

agencies or used against the requestor in any other manner.

    Response: DHS recognizes that individual requestors will submit the

evidence that they believe is appropriate in support of the threshold

guidelines. However, DHS will afford the appropriate weight to the

evidence based upon the information included. As noted elsewhere in

this preamble, under the preponderance of the evidence standard, the

sufficiency of each piece of evidence is examined for relevance,

probative value, and credibility, both individually and within the

context of the totality of the evidence, to determine whether the fact

to be proven is probably true.

    In response to commenter's request to modify the information use

provision, as discussed above, the rule codifies longstanding

prohibitions on use of information with specific exceptions. This

longstanding practice has worked to protect against improper uses of

information provided in DACA requests for enforcement purposes. DHS

therefore respectfully declines to write such granularity into the

final rule.

  1. Severability (Sec. 236.24)

    Comment: A number of commenters addressed the severability

provision of the proposed rule. One commenter expressed support for the

severability provision of the proposed rule because it would mitigate

risks associated with the fact that the DACA policy faces continued

litigation risk. Another commenter supported making DACA benefits

severable, reasoning that this aspect of the rule aligns with

longstanding principles of contract law.

    A commenter said that inserting a severability provision in the

regulation is not enough to protect and insulate EADs from litigation

and preserve access to work authorization. Another commenter echoed

this while also expressing concern that future administrative or legal

actions could create barriers to DACA recipients' efforts to secure

work authorization in a timely manner. Another group of commenters

argued against separating deferred action from work authorization,

including via the severability provision, arguing that a severability

provision should not be necessary because granting employment benefits

to DACA recipients does not violate the INA.

    Response: A severability clause is a standard legal provision. It

indicates DHS's intent that if a court finds that a specific provision

of a rule is unlawful, the court should allow the remainder of the rule

to survive. Those provisions that are unaffected by a legal ruling can

be implemented by an agency without requiring a new round of rulemaking

simply to promulgate provisions that are not subject to a court ruling.

    DHS understands the concern that if one portion of the rule is

severed from the others by a court it could lead to undesirable

consequences for DACA recipients. However, although DHS believes that

all portions of this rule are well within its legal authority, if a

court finds that portions of the rule are unlawful it is preferable to

sever and strike only those portions, rather than having the rule

stricken in its entirety. Although the important goals and policies

reflected here are best served if each of the portions of the rule

remains intact, DHS recognizes that each portion of the rule will

remain workable without the others. Therefore, even if portions of the

rule are struck down DHS will implement the provisions of this rule

that survive judicial review. For example, DHS will continue to

implement 8 CFR 236.21(c)(1) (relating to forbearance) and 8 CFR

236.21(c)(2) (relating to employment authorization) even if DHS is

prohibited from deeming DACA recipients ``lawfully present'' for

purposes of receiving certain Social Security benefits (8 CFR

236.21(c)(3)) or the unlawful presence provisions at INA sec.

212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) (8 CFR 236.21(c)(4)). Similarly,

although there are significant benefits to providing work authorization

alongside forbearance, forbearance remains

 

[[Page 53249]]

 

workable and desirable without work authorization, and DHS would have

adopted the forbearance portion of the policy even if it did not

believe that the work authorization portion of the rule were legally

authorized. There are further discussions of the comments received on

the separation of deferred action and work authorization elsewhere in

this preamble.

  1. Advance Parole and Adjustment of Status

Strengthening and Expanding the Availability of Advance Parole

    Comment: Many commenters expressed support for the proposal's

clarification that advance parole will continue to be an option for

DACA recipients. Several commenters remarked that DACA recipients

should have the right to travel internationally and requested that DHS

remove the requirements for advance parole or expand the circumstances

that make DACA recipients eligible for advance parole. Other commenters

stated that including advance parole for DACA recipients in regulation

will allow them to study and conduct research abroad and would be

critical for opening opportunities to develop international skills and

gain experience via study abroad programs. Commenters described DACA

recipients' significant contributions to campus life, corporate

success, and the overall economy, and said that these contributions

have engendered significant reliance interests, including recruiting

and investments by educational institutions and employers.

    Many commenters requested expanding advance parole beyond

employment, educational, or humanitarian grounds. Commenters noted that

current categories are often not applicable for DACA recipients, or

that they may be difficult to predict or document months in advance.

Some commenters reasoned that delays or denial of parole based on

narrow restrictions have adverse impacts on students' educational

experiences and outcomes and stated that DACA recipients' access to

advance parole improves their educational outcomes and enhances their

contributions on campus. Several commenters stated that there was no

statutory, regulatory, or practical reason for the narrow grounds for

advance parole available to DACA recipients. One commenter requested

that USCIS exercise its discretion to issue advance parole to DACA

recipients for the broadest range of travel purposes when justified by

urgent humanitarian need or significant public benefit, arguing that

USCIS is clearly authorized to exercise such discretion. The commenter

reported inconsistent application of the current standards by

adjudicators and suggested that applying a broader interpretation and

maximum discretion would be more efficient, allowing USCIS to timely

adjudicate applications for advance parole.

    Many commenters suggested DHS expand the grounds for advance parole

to include any reason for travel. One commenter requested that advance

parole apply to DACA recipients in the same manner as it is applied for

TPS recipients (requiring less documentation of specific reasons for

travel). Other commenters agreed and recommended that DHS harmonize

advance parole requirements for DACA with other forms of humanitarian

relief (such as TPS) that require less documentary evidence and allow

travel for any reason. Other commenters recommended travel standards be

revised to include cultural and familial reasons. One commenter cited

research demonstrating that a high percentage (35.4 percent) of DACA

students interviewed meet the clinical cutoff for anxiety, and

recommended that DHS expand the parameters for advance parole to

provide a greater opportunity for DACA recipients to travel abroad and

visit family and loved ones over holiday breaks to support mental

health.

    Response: DHS acknowledges the comments in support of advance

parole for DACA recipients. DHS agrees with the commenters that

allowing DACA recipients to apply for advance parole is consistent with

the INA. The INA authorizes DHS to grant parole on a case-by-case

basis, for urgent humanitarian reasons or significant public benefit,

to individuals, at the discretion of DHS. 8 U.S.C. 1182(d)(5). Advance

parole allows a noncitizen to leave the United States and then be

paroled back in, consistent with INA sec. 212(d)(5), 8 U.S.C.

1182(d)(5) and 8 CFR 212.5(f). The statute provides that the Secretary

may parole ``any alien applying for admission to the United States''

for the purposes in the statute. 8 U.S.C. 1182(d)(5) (emphasis added).

Because DACA recipients who depart the United States and seek to

reenter are applicants for admission, they are statutorily eligible to

apply for parole.\315\ And because parole is not an ``admission,'' DACA

recipients remain eligible for parole even if they are ``inadmissible''

under 8 U.S.C. 1182.\316\

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    \315\ Although some DACA recipients were admitted as

nonimmigrants or under other authorization, they overstayed their

authorization period in the United States. When they depart and seek

to reenter, they would become ``applicants for admission'' and may

be paroled at that time in DHS's discretion.

    \316\ See 8 U.S.C. 1101(a)(13)(B) (``An alien who is paroled . .

. shall not be considered to have been admitted.'').

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    Consistent with these comments in support of advance parole, DHS

reiterates that under the rule, it would continue its adherence to that

standard. In response to the commenters who suggest broadening the

standard for advance parole to include all reasons for travel, or all

reasons for travel if a significant public benefit or urgent

humanitarian reason is articulated, DHS has considered this request,

but declines to make changes, as statutory language in INA sec.

212(d)(5) that limits DHS's exercise of parole to urgent humanitarian

or significant public benefit reasons requires case by case

consideration of the reason for travel. While DHS acknowledges

commenters' requests to specifically broaden DACA recipients' access to

advance parole beyond travel for humanitarian, employment, and

educational purposes, DHS declines to set such standards in this rule.

DHS has generally found that permitting DACA recipients to travel in

certain circumstances for humanitarian, educational, or employment

related reasons provides a significant public benefit or is justified

as an urgent humanitarian reason for travel. DHS additionally notes

that specific instructions for applying for an advance parole document

under several categories are provided in the Form I-131, Application

for Travel Document itself, and declines to write them into this rule

for only DACA requestors.\317\

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    \317\ Form instructions are incorporated into regulations by

operation of 8 CFR 103.2(a)(1).

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    With respect to the commenters who requested that advance parole

for DACA recipients be harmonized with the standards for granting

travel authorization to TPS beneficiaries, DHS first notes that TPS,

unlike DACA, is a lawful immigration status expressly prescribed by

statute. Indeed, Congress expressly contemplated that TPS beneficiaries

be able to travel and return with advance authorization.\318\ In

addition, the law requires that a TPS beneficiary who travels abroad

with such prior authorization, ``shall be inspected and admitted in the

same immigration status the alien had at the time of departure'' unless

certain narrow exceptions related to mandatory ineligibility for TPS

apply.\319\ DACA, on

 

[[Page 53250]]

 

the other hand, is not a statutorily-provided immigration status like

TPS, but merely forbearance from removing an individual from the United

States. Accordingly, the Department has a reasonable basis for

prescribing different criteria for TPS beneficiaries seeking permission

travel and for DACA recipients seeking advance parole.

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    \318\ See INA sec. 244(f)(3), 8 U.S.C. 1254a(f)(3).

    \319\ See 8 U.S.C. 1254a note (``Aliens Authorized to Travel

Abroad Temporarily'') (This note derives from section 304(c) of the

Miscellaneous and Technical Immigration and Naturalization

Amendments Act of 1991, Public Law 102-232, 105 Stat. 1733, 1749

(Dec. 12, 1991) (as amended). This provision requires admission in

TPS of a TPS beneficiary who travels abroad with prior

authorization, unless the individual is inadmissible for reasons

that are also certain mandatory criminal or security ineligibility

bars to TPS in INA sec. 244(c)(2)(A)(iii), 8 U.S.C.

1254a(c)(2)(A)(iii)). See generally Duarte v. Mayorkas, 27 F.4th

1044 (5th Cir. 2022). Accordingly, DHS is no longer using the

advance parole mechanism to authorize TPS travel. See Rescission of

Matter of Z-R-Z-C- as an Adopted Decision; agency interpretation of

travel authorized by TPS beneficiaries, USCIS PM-602-0188 (Jul. 1,

2022).

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Advance Parole and Relation to INA Sec. 245(a)

    Comment: Commenters stated that expanding the categories for

advance parole would eliminate barriers to adjustment of status and

would streamline the adjudication workload. Several other commenters

expressed support for the proposed rule's recognition that DACA

recipients who travel abroad and return to the United States can be

paroled back into the country and will satisfy the ``inspected and

admitted or paroled'' requirement for adjustment of status under INA

sec. 245(a), 8 U.S.C. 1255(a). Expressing support for expanding the

circumstances for requesting advance parole, a commenter said that

advance parole has allowed many DACA recipients to travel

internationally and satisfies the ``inspected and admitted''

requirement for adjustment of status. Multiple commenters expressed

concern about the uncertainty of being allowed to reenter when DACA

recipients return to a port of entry, arguing that this uncertainty

prevents many DACA recipients from applying for advance parole. As a

solution, the commenters recommended establishing a parole-in-place

program, similar to the program available for U.S. military families,

for eligible DACA recipients to adjust their status to lawful permanent

resident to reduce uncertainty and promote administrative efficiency.

Another commenter remarked that undocumented immigrants should have a

pathway to achieve legal status without risking prohibitions or

restrictions on international travel and reentry into the United

States, suggesting that a Reentry Permit should be made available to

DACA recipients because this population should be permitted to travel

and reenter the country legally without fear of rejection or other

consequences.

    Conversely, one commenter referred to the court's discussion in

Texas stating that allowing DACA recipients to receive advance parole

contradicts Congress' intention to restrict adjustment of status

eligibility for those who have not been lawfully admitted or paroled

into the United States. The commenter disagreed with DHS's

rationalization that DACA recipients are subject to the same urgent

humanitarian or significant public benefit analysis the statute

requires, and therefore, providing DACA recipients the ability to seek

advance parole is in line with the authorization provided by Congress

in the statute. The commenter argued that applying the parole standard

does not mean that ``Congress intended to create a class-based

exception to the adjustment of status restriction or the bars to

reentry.''

    Response: Advance parole is rooted in INA sec. 212(d)(5), 8 U.S.C.

1182(d)(5), which authorizes parole on a case-by-case basis for urgent

humanitarian or significant public benefit reasons. The INA contains

several relevant statutory provisions and requirements for eligibility

for adjustment of status to that of a lawful permanent resident,

including those laid out at INA sec. 245, 8 U.S.C. 1255, which

requires, among other things, that applicants for adjustment of status

be eligible for an immigrant visa and be admissible under INA sec. 212,

8 U.S.C. 1182, and that applicants were ``inspected and admitted or

paroled'' into the United States. Although advance parole granted to

DACA recipients may aid certain recipients later seeking adjustment of

status in meeting the requirement in 8 U.S.C. 1255(a) to have been

``inspected and admitted, or paroled,'' that effect of parole was

determined by Congress. Parole may have a similar effect with respect

to the restriction in 8 U.S.C. 1182(a)(6)(A)(i), which applies only if

an individual is ``present in the United States without being admitted

or paroled,'' but that too was determined by Congress and is likewise

independent of DACA itself.\320\ Moreover, even if parole removes a

particular bar to subsequent adjustment of status, parole itself does

not entitle any individual to adjustment of status; each applicant for

adjustment of status must meet all other statutory requirements

relevant to their particular basis for adjusting status to that of a

lawful permanent resident and be granted adjustment in an exercise of

discretion, and those requirements are not affected by this rule. So

long as DHS acts within the limits of its parole authority in 8 U.S.C.

1182(d)(5), there is no conflict with Congress' expressed intent for

eligibility for adjustment of status. As discussed above, DHS believes

the DACA-based advance parole guidance does just that. DHS also

disagrees with the characterization of this process as ``class-based,''

as all advance parole decisions are made on a case-by-case,

individualized basis. DHS therefore declines to make any changes in

response to the comments either requesting expansion or limitations to

Congress' requirements for adjustment of status, which is beyond the

scope of rulemaking.

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    \320\ In response to the Intervenors' discovery request in

Texas, USCIS estimated, with a +/-1.5% margin of error, that between

13,908 and 14,358 requestors who were approved for DACA between June

2012 and June 2018 and who had subsequently adjusted to LPR status

as an immediate relative (i.e., qualified spouse, child, or parent

of a United States citizen) could not have met the requirement in 8

U.S.C. 1255(a) to have been ``inspected and admitted, or paroled''

but for their entries to the United States on DACA-based advance

parole granted prior to the filing of their Forms I-485 for

adjustment of status. See Fed. Defs.' Revised Resp. to Def.-

Intervenors' Revised Disc. Req., dated November 8, 2019, provided in

Texas. Reaching this estimate involved several months of intensive

statistical research, data sampling, manual file reviews, and

subsequent data analysis. DHS has not had another occasion to

undertake such a labor-intensive effort to update this estimate,

which was based on the sampling of cases from the first 6 years of

DACA.

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Reducing Financial and Administrative Burdens for DACA Recipients

Seeking Advance Parole

    Comment: A few commenters recommended that DHS design a

streamlined, less intricate, or less costly application process for

advance parole. Some commenters recommended incorporating advance

parole with a reduced or eliminated fee into the final rule. Another

commenter requested that USCIS expand DACA provisions to allow for a

right of reentry and stated that requiring DACA recipients to file form

I-131 (at a significant cost of $575) creates delays and increased

paperwork burdens. Other commenters recommended that DHS allow

applications for advance parole to occur at the same time as both

initial DACA requests, and requests for DACA renewal. One commenter

suggested that the final rule allow for departures from the United

States for 6 months or 1 year instead of the discrete windows allowed

under current policy. The commenter further recommended USCIS develop

clear procedures and criteria for adjudication of advance parole

applications to allow for more efficient

 

[[Page 53251]]

 

and effective processing of such applications.

    Another commenter stated that long processing times and the 2-year

grant of DACA present challenges for DACA recipients to travel freely

internationally. The commenter noted that USCIS policies already

provide for a combined EAD and advance parole document for applicants

for adjustment of status and recommended expanding this option to allow

DACA recipients to receive joint EAD and advance parole cards.

Similarly, a commenter suggested creating an EAD travel card for work,

educational, or humanitarian purposes.

    Response: DHS recognizes the financial costs and time required for

adjudication of applications for advance parole for DACA recipients.

The advance parole adjudication process, however, is the same for DACA

recipients as for all noncitizens filing Form I-131 Application for

Travel Document, including the filing costs, which are set by the fee

rule, and processing times for an advance parole document. While

acknowledging the financial costs and time required for processing

advance parole requests, DHS notes that other noncitizens face similar

processing times and fee costs for travel documentation and declines to

provide differentiated treatment to DACA recipients. In response to

concerns regarding the timing of advance parole, DHS does offer an

expedited adjudication for exceptionally urgent reasons, and does offer

longer time periods for advance parole where warranted. Finally, with

regard to requests for a combination employment authorization document

and advance parole card as is available for adjustment of status

applicants, DHS has considered the various concerns of commenters, but

notes that DACA recipients granted a temporary reprieve from removal

action and applicants for adjustment of status awaiting visa

availability are differently situated, and has determined not to create

new forms, identity documents, and additional operational processes for

advance parole for DACA recipients.

Easing or Eliminating Need for Advance Parole

    Comment: A commenter expressed concern about what they perceived as

DACA recipients' inability to travel internationally, writing that a

continued restriction on international travel could hinder their

professional development and prevent them from traveling abroad to

visit relatives. Several commenters likewise requested that DHS

consider proposals to eliminate advance parole requirements or travel

restrictions more generally. One commenter stated that advance parole

for DACA recipients was unnecessarily restrictive and costly, and

recommended that DHS consider ways to facilitate travel for DACA

recipients by loosening advance parole requirements, including

permitting DACA recipients to travel without advance parole in

emergency situations. One commenter expressed general support for

allowing DACA recipients to travel internationally and expressed a

willingness to pay for an upgraded DACA that would allow for

international travel without needing to establish advance parole.

    Response: DHS acknowledges the commenter's concern about DACA

recipients' ability to engage in international travel. DHS notes the

existing DHS policy of granting advance parole to DACA recipients in

its discretion on employment, educational or humanitarian grounds, if

the applicant satisfies certain criteria, allowing recipients to travel

internationally in some circumstances.

    DHS also acknowledges commenters' requests to ease or eliminate

advance parole requirements for DACA recipients, as well as the

uncertainty associated with returning to the United States. DHS notes

that it lacks the authority to do so through rulemaking. DHS does not

have the legal authority to eliminate the statutory requirements for

parole under INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5), or broaden the

requirement beyond the statutory standard of urgent humanitarian

reasons or significant public benefit. For these reasons, and those

discussed above, DHS is not altering the advance parole requirement in

the rule.

 

  1. Other Issues Relating to the Rule

 

  1. Public/Stakeholder Engagement (e.g., Requests To Extend the Comment

Period)

Public Engagement

    Comment: One commenter stated that DHS should communicate with

immigrant communities and organizations about the rule and should read

every comment submitted. Other commenters commented that DHS should

continue to collaborate with and provide information to farmworker

communities about DACA. The commenters suggested that DHS continue to

share information in accessible languages, including Indigenous

languages, through a variety of media, and engage in outreach sessions

with trusted voices in the farmworker community.

    Response: DHS appreciates these commenters' suggestions. DHS has

reviewed and carefully considered all comments that fall within the

scope of this rulemaking. DHS communicates with the DACA requestor

population through the online DACA FAQs, social media, and other

stakeholder engagements, which it intends to continue upon publication

of this rule.

  1. Administrative Procedure Act and Rulemaking Requirements

Compliance With the Administrative Procedure Act

    Comment: A few commenters wrote that DHS should establish DACA

through notice-and-comment rulemaking following the requirements of the

Administrative Procedure Act (APA). Others voiced opinions on the

sufficiency with which the rule complies with the APA. One commenter

remarked that the proposed rule was so long and complex that it may

subvert the APA's public comment process.

    Response: In this rule, DHS is establishing DACA through notice-

and-comment rulemaking in accordance with the APA. During this process

and as DHS explains throughout this rule, DHS has complied with the

APA, in particular by welcoming comments on and carefully considering

all comments received during the comment period. DHS understands that

notice-and-comment rulemaking and the associated documents can be long

and complex, but this rulemaking follows the appropriate process, and

the rule is at an appropriate level of detail.

Negotiated Rulemaking

    Comment: Multiple commenters requested that DHS require negotiated

rulemaking for future changes made to the final rule since negotiated

rulemaking involves enhanced stakeholder input and would be in the

public's best interest.

    Response: DHS appreciates that negotiated rulemaking can provide

additional collaboration with affected parties outside of notice-and-

comment rulemaking. All comments received during the comment period

have been considered. However, DHS declines to limit the available

means by which future changes to DACA regulations or policies can be

made by requiring negotiated rulemaking, which is not a process

typically used by DHS.

Future Changes Timeline

    Comment: Multiple commenters suggested that any future changes to

the final rule should not take effect for 240 days because

modifications to DACA could result in significant impacts to those

involved.

 

[[Page 53252]]

 

    Response: DHS understands that future changes to these regulations

could have significant effects on DACA recipients and in some instances

longer lead times to implement changes might be desirable. Recognizing

this, DHS will take such effects into consideration when considering

future changes to the regulations and will comply with the APA and

other legal requirements when doing so.

  1. Processing Time Outlook (Including Comments on Backlogs)

    Comment: Many commenters expressed general concern about long

processing times and urged DHS to improve its infrastructure to shorten

timeframes or otherwise address backlogs that slow down the immigration

process overall to give individuals the chance to succeed academically

and economically and preserve families. Citing research and government

data, commenters highlighted wait times for DACA requests lasting more

than 11 months, as well as an 85-percent increase in the USCIS backlog

between 2015 and 2020. A commenter noted that that the COVID-19

pandemic has exacerbated processing delays at a time when many DACA

recipients are on the front lines as essential workers. Commenters

expressed concern that long wait times threaten DACA recipients' safety

and jobs, and cause stress and uncertainty, and that processing delays

of renewal requests cause lapses in recipients' work authorization.

    Commenters suggested additional ways for USCIS to address

processing times, including: resuming expedited request criteria for

DACA recipients to reduce the backlog of requests; prioritizing

processing of initial and renewal DACA requests; completing processing

within 60 days and prioritizing renewal requests nearing their validity

expiration; addressing staffing shortages that have contributed to the

backlog; and DHS leveraging congressional appropriations to improve

DACA request processing.

    Response: DHS appreciates commenters' concerns with processing

times for DACA-related requests and suggestions for improving

efficiency in considering these requests. DHS recognizes the

significant impact that backlogs and delays have on requestors, and

acknowledges that policy changes, court rulings, and resource

constraints in recent years contributed to increased backlogs and

processing delays. As discussed in this rule, USCIS has taken important

steps to ensure properly filed requests are swiftly adjudicated. These

steps are reflected in significantly improved processing times for

renewal requests. As of May 31, 2022, the FY 2022 median processing

time for a DACA-related Form I-765 is 0.5 months.\321\ Further, USCIS

continues to examine strategies for ensuring efficient processing of

DACA-related requests.\322\ Indeed, this rule serves to codify

threshold criteria, clarify processes, and establish a filing and fee

structure intended to fortify DACA and support efficient processing of

requests. DHS takes under advisement commenters' suggestions, but

believes that the operational details of resource allocation and

prioritization of adjudications are best addressed through

subregulatory guidance, which provides greater flexibility to address

fluctuating workloads.

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    \321\ USCIS, Historical National Median Processing Time (in

Months) for All USCIS Offices for Select Forms By Fiscal Year,

Fiscal Year 2017 to 2022 (up to May 31, 2022), https://egov.uscis.gov/processing-times/historic-pt (last visited June 29,

2022).

    \322\ See, e.g., USCIS, USCIS Announces New Actions to Reduce

Backlogs, Expand Premium Processing, and Provide Relief to Work

Permit Holders (Mar. 29, 2022), https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work. Also, since April

2022, DACA recipients have had the option to submit their renewal

request and associated work authorization request online. See USCIS,

USCIS Announces Online Filing for DACA Renewal Forms (Apr. 12,

2022), https://www.uscis.gov/newsroom/news-releases/uscis-announces-online-filing-for-daca-renewal-forms.

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  1. DACA FAQs

    Comment: A commenter stated that the DACA FAQs are a large source

of policy clarification that should be examined carefully, recommending

that the final rule clarify that relevant policy and operational

directives, or other guidance, will be incorporated or updated as

appropriate, including anything related to pandemic relief assistance

for DACA recipients. The commenter produced a non-exhaustive list of

DACA FAQs that should be preserved, including those pertaining to

request processing, acceptable documentary evidence, travel, and fee

exemptions, as well as those that proscribe information sharing with

immigration enforcement authorities.

    Response: DHS appreciates the commenter's suggestions and has

incorporated into the preamble and regulatory text some of the guidance

from the DACA FAQs, including guidance on the definition of ``currently

enrolled in school'' and acceptable documentary evidence in support of

the threshold criteria. DHS takes under advisement the commenter's

suggestions regarding any future revisions of the DACA FAQs.

  1. Other Comments on Issues Relating to the Rule

Other Comments

    Comment: A commenter requested that DHS remove what it described as

dehumanizing language from the regulation, including the use of the

word ``alien.'' The commenter said that the use of this language is at

odds with the Biden administration's own proposed immigration

legislation and direction from the Department's leaders, citing

relevant memoranda. Another commenter objected to the use of the term

noncitizen and encouraged DHS to use the term ``alien'' instead.

    Response: While the term ``alien'' is a legal term of art defined

in the INA for immigration purposes, DHS recognizes that the term has

been ascribed with a negative, dehumanizing connotation, and

alternative terms, such as ``noncitizen,'' that reflect our commitment

to treat each person the Department encounters with respect and

recognition of that individual's humanity and dignity are preferred.

DHS will use the term ``alien'' when necessary in the regulatory text

as the term of art that is used in the statute, but where possible DHS

will use the terms ``requestor'' or ``recipient'' to refer to those who

are seeking or who have received deferred action under the DACA

policy.\323\ This preamble uses the term noncitizen for that same

reason.

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    \323\ See, e.g., new 8 CFR 236.21(c)(2) and 236.22(a)(3).

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    Comment: A commenter stated that Asian and Pacific Islander

communities have historically low rates of DACA requests and attributed

this to cultural stigma, language barriers, high application fees,

difficulties collecting required documents, and a lack of awareness.

The commenter requested that USCIS work to remove these barriers to

accessing the DACA policy.

    Response: DHS appreciates commenter's request and takes it under

advisement as it considers outreach to Asian and Pacific Islander

communities.

    Comment: A commenter stated that DACA provides essential

protections and opportunities for survivors of gender-based violence.

However, the commenter requested that DHS do more to protect this

vulnerable population and consider establishing an ``amnesty'' program

for DACA requestors who are survivors of sexual misconduct, harassment,

and abuse that would provide automatic protection against deportation

resulting from their report of such victimization.

    Response: DHS appreciates the commenter's support of the DACA

 

[[Page 53253]]

 

policy and acknowledgement that it provides important protections to

eligible survivors of gender-based violence. However, the commenter's

request to create a program that would provide automatic protection

against removal for DACA requestors who report their victimization goes

beyond the scope of this rulemaking.

    Comment: One commenter said that any modifications or updates to

DACA should allow spouses of U.S. citizens to obtain legal status by

paroling in place.

    Response: DHS acknowledges the commenter's feedback but notes that

this suggestion is beyond the scope of this rulemaking.

 

  1. Statutory and Regulatory Requirements

 

  1. Impacts and Benefits (E.O 12866 and E.O. 13563)
  2. Methodology and Adequacy of Cost-Benefit Analysis

(1) Methodology of the RIA

    Comment: One commenter approved of DHS's consideration of various

costs and benefits such as application costs and earned income of DACA

recipients. The commenter also recommended that DHS supplement the RIA

by more thoroughly addressing several arguments that DHS previously

offered against the DACA policy in its rescission memoranda.

    Response: DHS considered the input and suggestions received

throughout the public comments and adjusted the RIA where it deemed

applicable and feasible. The adjustments made are described in

applicable comment responses and corresponding RIA sections.

Additionally, we refer readers to Table 3 in the RIA of this final

rule. The table provides details of the changes and adjustments made in

the estimates of the analysis from the NPRM to the final rule. DHS also

addresses the Duke and Nielsen recission memoranda in detail in Section

II.B.3.

(2) Comments on Population Estimates and Assumptions

    Comment: A commenter stated that the proposed rule should have also

considered half a million existing DACA recipients, not just new DACA

recipients in the labor market analysis section, which, the commenter

stated, is not a small number.

    Response: DHS appreciates the comment regarding the population

estimates in labor market analysis section. As presented in the RIA,

DHS analyzed possible labor market impacts relative to two baselines, a

No Action baseline where only future DACA recipients where considered,

and a Pre-Guidance baseline where existing and future DACA recipients

were considered, consistent with the commenter's suggestion. The RIA

details this methodology and analysis.

    Comment: A group of commenters stated that DHS assumptions about

the DACA population are unsound. The commenter stated that new intakes

under the DACA policy, ``declined consistently between FY 2014 and FY

2016,'' even before the announced decision to rescind DACA further

curtailed ``new intakes in FY 2018-2020.'' The commenter further

reasoned that conditioning DACA eligibility on having ``continuously

resided'' in the United States since June 2007 and having been

``physically present'' in the United States since June 2012 would

reduce DACA's new intakes more quickly than what DHS population

estimates reflect.

    Response: DHS appreciates the comment regarding the assumptions

about the projections of an active DACA population presented in the

RIA. The purpose of presenting active DACA population projections is

not to project the trend of the ``stable'' period of FY 2015-FY 2017

identified in the RIA. DHS identified the ``stable'' period of FY 2015-

FY 2017 as a period that was characterized by relatively consistent

operations of the DACA policy in which there were no requestor surges

nor stoppages in the processing due to policy changes or litigation.

Although the rate of increase of the active DACA population was slowing

during the ``stable'' period as some recipients ceased renewing their

DACA requests, and the number of Initial Approved Requests was

declining, DHS does not assume the same trend in the active DACA

projections, as it is uncertain what trends will emerge in the future.

Instead, DHS uses the average population during the ``stable'' period

as the estimated active DACA population. By using the average

population during the ``stable'' period, DHS is better able to account

for policy uncertainties and the policy's population, and the gap

between the views supporting the existence of large numbers of

potentially eligible requestors and the views supporting the opposite.

Further, although the threshold criteria set forth a minimum age at the

time of request, which could reduce the number of future eligible

requestors, DACA intake data for FY 2021 indicate the possibility still

exists that there are many adults who may meet threshold criteria for

consideration under the policy and could submit a request.\324\ For

example, under threshold criteria in place since 2012 and as codified

by this rule, a 15-year-old in 2025 would not meet threshold criteria,

but an 18-year-old in 2025 would. There could be many or few 18-year-

old potential requestors. Among those potential requestors, many or

only a few might choose to request DACA, decisions that could be

influenced by personal circumstances, political environments, and other

factors.

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    \324\ Source: USCIS, Office of Performance and Quality, NPD, C3,

ELIS, queried Aug. 2021, TRK#8129.

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    Comment: A commenter stated that DHS projections in the NPRM at

Table 8, 86 FR 53786, overstate the growth in the DACA population and

inadequately account for the aging of the DACA population due to the

threshold criteria. The commenter suggested that even if the proposal

to unbundle the Forms I-821D and I-765 result in a larger number of

initial applications, the number of initial applications resulting from

this change will be too small to justify USCIS' estimates of the active

DACA population. The commenter suggested that DHS should adopt more

empirically responsible and internally consistent DACA modeling

estimates. However, the commenter did not propose any specific

methodological suggestions or guidelines for USCIS to implement, other

than to take greater account of the role of age.

    Response: DHS appreciates the commenter drawing attention to the

NPRM's projections of an active DACA population, including the

estimated labor force participation rate for the DACA population

discussed in the NPRM RIA. As described in the NPRM RIA, the 30-percent

threshold is based on data from the Bureau of Labor Statistics (BLS) on

the labor force participation rates by age cohort. DHS acknowledges

that such participation may fluctuate over time. As it relates to the

population estimates more generally, as discussed in the NPRM RIA and

in a previous comment response, the phenomenon of ``aging in'' to

eligibility under the DACA threshold criteria does not solely control

DHS's projections of the active DACA population, or prevent growth in

the active DACA population in line with DHS projections.

    DHS acknowledges that the projections may be an overestimate, as

discussed above. DHS estimated this population based on available

internal and external data, and carefully considered a wide variety of

economic, policy, and legal expertise and relevant

 

[[Page 53254]]

 

literature. DHS acknowledges the possibility that the average age of

the projected active DACA population could increase and, as a result, a

higher proportion of active DACA individuals might choose to

participate in the labor market relative to the NPRM. Therefore, in the

final rule RIA, DHS is adjusting upwards the estimated percentage of

DACA recipients who might choose to participate in the labor market

from the estimated rate of 70 percent in the NPRM to the estimated rate

of 78 percent in the final rule. The assumptions and methodology of

this adjustment are discussed in greater detail in Section III.A.4.a.6.

    Comment: A commenter expressed concern with the Department's

methodology, noting it was sensitive to specific modeling assumptions

that could cause an under- or overestimation of the residual

subpopulation. They also noted that the Department does not have a

tested methodology to predict how many potential DACA-eligible

individuals will request DACA, and that to predict future DACA

requests, DHS used historical request data that USCIS collected from

individuals over the last several years, rather than estimating the

overall DACA eligible population and then further estimating the share

of the population eligible to request DACA in the future. However,

despite these concerns, the commenter generally approved of the

Department's population calculating methodology, noting that, all

methodologies face challenges and that they see no reason to believe

that another methodology would yield a more accurate estimate.

    Response: DHS appreciates the commenter's support of DHS's

analytical efforts as well as the feedback on the projections of the

active DACA population. DHS has determined that estimating the

population of those who are potentially eligible for DACA is not

necessary to estimate the number of individuals who might choose to

request DACA in the future. While estimating the total DACA-eligible

population would offer an upper bound of potential requestors, such an

estimate would not offer a precise number of those who will submit

requests that are approved. Thus, it would likely be overinclusive

because DHS lacks accurate data about several of the DACA criteria in

the potentially eligible population, such as educational attainment and

criminal histories, as well as the discretionary analysis performed in

each request. Nevertheless, given external estimates of potential DACA-

eligible populations, DHS believes that the projections offered in the

NPRM RIA and this rule are within the possible upper-bound estimates

given the historical data on the policy, the uncertainty surrounding

the DACA policy and its population, public comments that support larger

or smaller population estimates, existing literature, and available

expertise on the policy.

    Comment: A commenter stated that given the bias of all available

data, DHS should be cautious in considering the Migration Policy

Institute's data suggesting that 700,000 DACA-eligible individuals have

not submitted initial requests. The commenter expressed concern

regarding DHS's statement that DACA requestors will stop ``aging in''

to the policy in June 2022, but that this should not impact the number

of requests, based on available data. The commenter said that past

administration attempts to rescind DACA and the recent Texas court case

that bars new requestors have skewed the available data.

    Response: DHS appreciates the comment concerning the assumptions in

developing projections of the DACA population in this rule. To estimate

the relevant populations for this rule, DHS considered the DACA-

eligible population estimates from the Migration Policy Institute. As

discussed in elsewhere in this section and in Section III.A.4.a.1, DHS

agrees with the commenter that the ``age in'' restriction of the policy

will not necessarily impact the number of potential DACA requestors, at

least in the short run, and DHS did not base the population estimates

on this restriction. Additionally, recent attempts at rescinding DACA

and the district court injunction prohibiting DHS from administering

DACA for new requestors were not factors that impacted DHS's population

projections. The two baseline assumptions and the methodology for

population projections are detailed in Sections III.A.2 and III.A.4,

and III.A.4.a.1, respectively.

(3) Comments on Wage Rates

    Comment: One commenter cited literature and other information in

support of this rulemaking. The commenter stated that extending work

authorization to undocumented noncitizens would reduce the wage penalty

for those undocumented noncitizens, stabilize immigrant wages, and

benefit the overall economy. The commenter stated that the wage-earning

profiles of undocumented workers are far below authorized noncitizens'

and citizens' workers' age-earning profiles and is virtually flat

during most prime working years. The commenter further stated that

undocumented noncitizen women work fewer hours at lower pay than do

their undocumented noncitizen male counterparts, and that State-level

restrictions on undocumented employment increased the male wage penalty

by around 40 percent. The commenter suggested that work authorization

improves career and earnings prospects for DACA recipients and the

resulting increase in earnings and spending increases tax revenue and

labor demand, benefitting U.S. workers overall.

    Response: DHS appreciates the comment in support of this rulemaking

and in drawing attention to the direct and indirect wage penalty

implications discussed in the NPRM RIA. In consideration of this

comment, DHS presents additional qualitative discussion in the final

rule RIA regarding the potential wage penalty implications of this

rulemaking given the size of the affected population. For example,

assuming all else is constant, granting employment authorization to

undocumented noncitizens and allowing them to find employment in the

formal labor market could reduce the number of undocumented workers in

the informal labor market. Thus, informal labor market wages would rise

as employers would find it necessary to raise wages to attract

remaining informal labor market undocumented participants. In this

scenario, the wage gap between documented and undocumented noncitizens

would shrink. Conversely, ``State-level restrictions'' on the hiring of

undocumented noncitizens could reduce employer demand for undocumented

workers, lowering wages for this group, thus increasing the wage gap.

These outcomes, however, are heavily dependent on theoretical

assumptions. For example, countervailing forces may be present that

could affect not just the magnitude of these wage penalty outcomes, but

even push them in opposite directions.

  1. Benefits (No Action Baseline, Pre-Guidance Baseline, or Unspecified)

Quantifying the Benefits of Advance Parole

    Comment: A commenter wrote that certain benefits of advance parole

to DACA recipients, such as the ability to maintain family ties across

generations, simply cannot be quantified and that these and other

benefits outweigh the policy's costs. The same commenter responded to

DHS's request for comment on how to quantify the benefits of advance

parole by stating that advance parole allows some DACA recipients to

``be the bridge between

 

[[Page 53255]]

 

generations who cannot cross borders,'' providing an anecdotal example.

Another commenter acknowledged DHS's qualitative discussion of the

benefit of advance parole and offered suggestions to quantify this

benefit, including assessing economic data on travel spending. Other

commenters responded to USCIS' statement that the benefits of advance

parole could not be quantified, stating that 45,000 DACA recipients

have been approved for international travel under advance parole as of

August 2017 (citing the Congressional Research Service). The commenters

said that this figure demonstrates the deep importance of advance

parole and listed other reasons why advance parole was beneficial for

DACA recipients, including enhanced opportunities to apply for

adjustment of status, participation in enriching educational programs,

travel for work, and ability to visit families in countries of origin.

    Response: DHS appreciates the suggestions from commenters that past

demand for international travel under advance parole is indicative of

the benefit to DACA recipients of traveling for work and education, or

to visit families in countries of origin. DHS has taken these comments

into consideration in the RIA of this rule but does not quantify these

benefits. While some of the assumptions that commenters suggested would

permit DHS to quantify benefits like a reduction of fear and anxiety,

there is cause for concern about the accuracy of such estimates. For

example, assuming average annual spending on international trips to be

representative of the value of advance parole to a DACA recipient could

either overstate the kind of spending that a DACA recipient would do or

underestimate the nonmonetary benefit of attending a relative's

funeral. Describing such impacts as non-quantified in the RIA should

not be construed as a denial of their occurrence nor magnitude.

    Comment: A commenter stated that, based on the USCIS analysis, the

benefits of allowing DACA recipients to stay in the United States and

work over 20 years at a 7-percent discount rate would be $400 billion

and would far outweigh the approximately $7 billion in costs. Another

commenter urged USCIS to consider the incalculable benefits DACA

provides in terms of equity, human dignity, and fairness, as well as

lifetime benefits to the economy. The commenter said that the proposed

rule lays out some benefits that would be hard to quantify, such as:

(1) a reduction of fear or anxiety for DACA recipients and their

families; (2) an increased sense of acceptance and belonging to a

community; (3) an increased sense of family security; and (4) an

increased sense of hope for the future. Another commenter similarly

said that DHS should acknowledge that the proposed rule's quantifiable

costs can be, and are, outweighed by the unquantifiable benefit to DACA

recipients, their communities, and the nation.

    Response: DHS appreciates the commenters' support of the rule and

the additional evidence of the benefits of the DACA policy they

provide. DHS presents its analysis of costs and benefits of the

rulemaking in the RIA. In addition, DHS considers and discusses the

unquantifiable impacts of this rule in the RIA. DHS agrees that the

unquantifiable benefits are substantial and broadly agrees with the

commentator's characterization of some of those benefits, including

reduction of fear and anxiety.

    Comment: A commenter urged DHS to use available research to

quantify the mental health benefits of the proposed rule and offered

suggestions on how to do so. The commenter also offered suggestions on

how to quantify: (1) DACA's benefits from granting individuals the

ability to travel outside of the United States; (2) the ancillary

benefits of EADs; and (3) the benefits of streamlined enforcement

encounters.

    Response: DHS greatly appreciates the commenter's valuable

suggestions regarding a methodology to address the quantification of

certain benefits of this rulemaking. Consistent with E.O. 13563, DHS

agrees that quantification and monetization are desirable, to the

extent feasible and consistent with the best available evidence. As

discussed in the NPRM and in this final rule, a complete valuation of

many of these benefits is challenging and complex. There could be

starting points as to how much DACA requestors value these benefits,

such as filing costs, possibly representing a minimum willingness-to-

pay value. It is not clear, however, that these starting points

adequately capture the welfare benefits to the requestors. In addition,

DHS appreciates the commenter's suggestion to use proxies, such as

average U.S. population treatment costs for anxiety, average U.S.

population international travel costs, or average driver licenses'

costs. These are all instructive starting points or proxies for

estimation of lower bounds, and DHS has referred to them in its final

analysis. At the same time, and as explained in that analysis, DHS

continues to believe that such starting points and proxies do not

permit a full and accurate valuation of these benefits to this

population. Given this point, other public comments, and DHS's own

assessment, DHS has determined that these unquantifiable benefits are

of great positive magnitude and that attempts to fully monetize them

raise serious conceptual, normative, and empirical challenges.

Consistent with E.O. 13563, DHS has determined that considerations of

human dignity are among the main drivers of this rule, which is focused

on fortifying and preserving a policy for a vulnerable population that

has been present in the United States since 2012 and is a low priority

for enforcement measures, and on protecting the reliance interests of

DACA recipients and similarly situated noncitizens, their families,

schools, employers, communities, and States. The final analysis thus

offers relevant information on the challenging task of fully

quantifying and monetizing considerations of human dignity. Consistent

with E.O. 13563, human dignity greatly matters and is a relevant

consideration even if it cannot be quantified or turned into monetary

equivalents.

    Comment: A commenter stated that the economic benefits cited in the

proposed rule come not only from DACA protections, but also from the

benefit of work authorization. The commenter said that the proposed

rule does not acknowledge that by introducing the option of severing

the requests. The commenter stated that this provision creates a

potential gap between a DACA grant, when an applicant can begin to

establish reliance interests, and the economic production cited as a

motivating factor behind the proposed rule.

    Response: DHS appreciates the comment regarding the benefits of

work authorization associated with DACA. DHS considered other request

and fee structures as well as public input on this topic. As discussed

in greater detail in Section II.C.2.c, DHS has decided to codify the

longstanding required bundled process for deferred action and

employment authorization requests under the DACA policy.

  1. Regulatory Alternatives

    Comment: In response to the NPRM's request for comments on

regulatory alternatives in Section III.H, multiple commenters

emphasized the importance of protecting deferred action and work

authorization. Some of these commenters said that deferred action and

work authorization are not separate, as the ability for Dreamers to

freely live with their families and communities without fear of

deportation is synonymous with their ability to legally

 

[[Page 53256]]

 

work and contribute to their communities. A commenter agreed that a

policy of forbearance without work authorization would disrupt the

reliance of interests of hundreds of thousands of people, as well as

the families, employers, and communities that rely on them. The

commenter stated it would result in substantial economic losses and

would produce a great deal of human suffering, including harms to

dignitary interests, associated with lost income and ability to self-

support.

    Response: DHS appreciates the commenters' statements regarding the

regulatory alternatives. DHS considered a forbearance-only alternative,

as well as other request and fee structures. Upon careful consideration

of comments received, DHS agrees that a policy of forbearance without

work authorization--while still a policy that would carry substantial

benefits--would harm the substantial reliance interest of thousands of

DACA recipients, their families, employers, and communities. In

response to these commenters, DHS also notes its extensive discussion

of its reasoning and support for maintaining employment authorization

as a component of the DACA policy in Section II.C.2. DHS therefore is

not making changes to the final rule regarding DACA requestors' ability

to request employment authorization. Further, as discussed in detail

elsewhere in this rule, DHS is codifying the longstanding requirement

that requires requestors to concurrently file Form I-765, Application

for Employment Authorization, and Form I-765WS with their Form I-821D,

Consideration of Deferred Action for Childhood Arrivals.

  1. Regulatory Flexibility Act (Impact on Small Entities)

    Comment: A commenter, referencing the Small Business Regulatory

Enforcement Act (SBREFA), said that strengthening DACA would create a

limitless positive impact on small businesses, while any attempt to

restrict DACA would be detrimental. Another commenter said that the

nature of the economic evidence of DACA participants in the market and

the labor force indicates that these individuals contribute in uniquely

positive ways to the economy and to small businesses. The commenter

said that immigrants are some of the nation's most prolific small

business owners, and their rates of business ownership far exceed those

of native-born citizens. Rather than harming small businesses by

forcing them to match and contribute to Federal benefits, the commenter

reasoned, DACA recipients increase the volume of small businesses in

the United States. The commenter concluded that DACA has an overall

positive effect on the U.S. economy, and on the strength,

proliferation, and livelihood of small businesses. The commenter said

that these sizable benefits are attributable not only to the DACA

policy, but more specifically to the designation that DACA recipients

are lawfully present, which enables them to join the workforce and

contribute in significant ways to the workforce and small business.

More importantly, the commenter stated, the designation makes them

eligible to receive benefits, like Social Security and Medicare, to

which they are entitled after making such a mark on the U.S. economy.

    Response: DHS appreciates the comment regarding the RFA, SBREFA,

and the impact on small business in relation to DACA. DHS presents

possible direct and indirect costs and benefits of this rulemaking in

the RIA and in Section II.A.6. However, DHS reiterates that this rule

does not directly regulate small entities, including small businesses,

and is not expected to have a direct effect on small entities. This

rule does not mandate any actions or requirements for small entities in

the process of a noncitizen requesting deferred action or employment

authorization under the DACA policy. Rather, this rule regulates

individuals, and individuals are not defined as ``small entities'' by

the RFA.\325\ Based on the evidence presented in this analysis and

throughout the preamble, DHS certifies that this rule will not have a

significant economic impact on a substantial number of small entities.

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    \325\ 5 U.S.C. 601(6).

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  1. Other Comments on Costs and Benefits

    Comment: Expressing mixed views on the proposed rule, a commenter

encouraged DHS and the Office of Management and Budget to adopt the

proposed rule once a final cost-benefit analysis is made.

    Response: DHS appreciates the comment in support of promulgating

the DACA final rule. DHS provided the public an opportunity to comment

on the RIA that presents possible direct and indirect costs and

benefits of this rulemaking as well as the quantified and qualitative

costs and benefits. DHS has fully considered the public comments

received and has made relevant changes to the RIA.

  1. Paperwork Reduction Act (Including Comments on Actual Forms/

Instructions, and Burden Estimates for Forms I-821D and I-765)

    Comment: A commenter requested that prominent information be placed

on the Form I-765WS, Employment Authorization Worksheet, that specifies

and clearly explains the new, higher standard for passing the Form I-

765WS review.

    Response: DHS is not changing, nor did it propose to change, the

standard for demonstrating economic necessity via Form I-765WS for DACA

requestors applying for employment authorization. Although the NPRM

proposed making it optional for DACA requestors to file a Form I-765,

Application for Employment Authorization, DHS did not propose any

changes to the existing general rule for establishing economic

necessity, which is determined on a case-by-case basis pursuant to 8

CFR 274a.12(e). In this final rule, DHS is codifying the status quo

bundled process that requires the Form I-765 with accompanying Form I-

765WS be filed together with the Form I-821D. DHS is not modifying the

rule to eliminate or change the requirement of demonstrating economic

necessity. Therefore, DHS is not making any changes in response to the

commenter's request.

  1. Other Statutory and Regulatory Requirements (e.g., National

Environmental Policy Act)

National Environmental Policy Act

    Comment: Commenters expressed concerns that DHS has not adequately

complied with the National Environmental Policy Act (NEPA), 42 U.S.C.

4321 et seq, by failing to consider potential environmental impacts of

this rule. Commenters contend that allowing DACA recipients to remain

in the United States has the effect of adding people to (or not

removing people from) the U.S. population, which requires preparation

of an environmental impact statement or environmental assessment to

comply with NEPA. Commenters contend that the environmental impact of

the proposed regulatory action was not unduly speculative for DHS to

analyze and make projections of various potential effects resulting

from allowing individuals to remain in the United States. Commenters

also disagreed with DHS's determination in the NPRM that categorical

exclusion A3(c) applies to this action, arguing that A3(c) cannot be

applied because no prior NEPA analysis was conducted for the DACA

policy contained in the 2012 Napolitano Memorandum.

 

[[Page 53257]]

 

    Response: This action codifies DHS policy regarding exercise of

enforcement discretion and defines the criteria under which DHS may

exercise that discretion, with respect to a defined category of persons

that have been present in the United States since at least 2007.

    The commenters assumed this rule will result in 800,000 ``extra

people'' in the U.S. population because individuals meeting the

threshold criteria would be removed from or depart the United States

absent this rule. DHS disagrees with both assumptions. The persons

subject to the Secretary's 2012 policy of enforcement discretion have,

by definition, been present in the United States since at least 2007

without lawful status. Promulgation of this rule will neither directly

``add'' to the number of individuals currently residing in the United

States nor increase population growth. DHS also disagrees with the

commenters' assumption that in the absence of the rule DACA recipients

would be removed or would leave the United States voluntarily. DACA

recipients necessarily came to the United States at a very young age,

and many have lived in the United States for effectively their entire

lives. For many DACA recipients, the United States is their only home.

Indeed, some DACA recipients do not even speak the language of their

parents' home country. They are unlikely to voluntarily leave the only

country they have ever known. Nor is it reasonably foreseeable that

their removal would soon be a priority for the agency.

    DHS disagrees with the commenters' assertion that this rule ``would

ultimately grant approximately 800,000 illegal aliens the right to stay

and work in the U.S.'' This rule does not provide any protection from

removal or access to employment authorization beyond what is

contemplated in the 2012 DACA policy. It is intended to preserve and

fortify the existing DACA policy; it does not alter DACA eligibility

criteria, grant lawful immigration status or citizenship for

noncitizens or provide a means for entry into the United States.

Therefore, DHS anticipates no change in U.S. population as a direct

effect of this rule.

    In addition, as discussed above, DHS does not believe that

codification of the DACA policy is likely to have measurable population

effects nationwide or in any particular locations. If such effects were

to occur, the relationship between such effects and this rule would

likely be highly attenuated. Impacts in particular locations would be

contingent upon the independent decisions of individual current and

prospective DACA recipients, and upon choices and decision-making

processes across a range of individuals and institutions (e.g.,

employers, law enforcement officers, courts) at indeterminate times and

locations in the future under unknown and unpredictable economic,

personal, and employment conditions and circumstances entirely outside

the control of DHS.

    DHS Directive 023-01 Rev. 01 (Directive) and Instruction Manual

023-01-001-01 Rev. 01 (Instruction Manual) establish the policies and

procedures DHS and its components use to comply with the National

Environmental Policy Act (NEPA) and the Council on Environmental

Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500

through 1508.

    The CEQ regulations allow Federal agencies to establish, with CEQ

review and concurrence, categories of actions (``categorical

exclusions'') that experience has shown do not have a significant

effect on the human environment and, therefore, do not require an

Environmental Assessment or Environmental Impact Statement. The

Instruction Manual establishes categorical exclusions that DHS has

found to have no such effect. Under DHS implementing procedures for

NEPA, for a proposed action to be categorically excluded, it must

satisfy each of the following three conditions: (1) the entire action

clearly fits within one or more of the categorical exclusions; (2) the

action is not a piece of a larger action; and (3) no extraordinary

circumstances exist that create the potential for a significant

environmental effect.

    This rulemaking implements, without material change, the 2012 DACA

policy addressing exercise of enforcement discretion with respect to a

specifically defined population of noncitizens and is not part of a

larger DHS action. It defines the criteria under which DHS will

consider requests for DACA, the procedures by which one may request

DACA, and what an affirmative grant of DACA will confer upon the

requestor. DHS considered the potential environmental impacts of this

rule with respect to an existing population that has been present in

the United States since at least 2007 and determined, in accordance

with the Instruction Manual, that this rule does not present

extraordinary circumstances that would preclude application of a

categorical exclusion.

    This rule, therefore, satisfies the requirements for application of

categorical exclusion A3(c) in accordance with the Department's

approved NEPA procedures. DHS does not agree with commenters' assertion

that categorical exclusion A3(c) cannot be applied to this action

unless DHS first ``establish[es] that it had not previously violated

NEPA'' because it would effectively impose a new procedural step or

condition on application of categorical exclusions that is not required

or approved for the Department's NEPA implementing procedures.

Commenters also raised broader concerns about the adequacy of DHS's

NEPA compliance procedures as set forth in the DHS Directive and

Instruction Manual. Those concerns are outside the scope of this

rulemaking.

Family Assessment

    Comment: Two commenters stated that the proposed rule's Family

Assessment is incomplete because the rule does not provide additional

administrative relief for or properly considers DACA-eligible

individuals' parents, spouses, grandparents, and other loved ones

central to their lives.

    Response: As described in the Family Assessment in Section III.H,

DHS has assessed the effect of this rule on family well-being as

required by section 654 of the Treasury and General Government

Appropriations Act, 1999,\326\ enacted as part of the Omnibus

Consolidated and Emergency Supplemental Appropriations Act, 1999.\327\

In doing so, DHS considered the effect of this rule on the family, as

family is defined in section 654(b)(2) of that act. While DHS

appreciates the commenters' desire to provide additional administrative

relief to DACA recipients' parents, spouses, grandparents, and other

loved ones central to their lives, such relief falls outside of the

scope of this rule, which is limited to the population described within

this rule.

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    \326\ See 5 U.S.C. 601 note.

    \327\ Public Law 105-277, 112 Stat. 2681 (1998).

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  1. Out of Scope

 

    As noted throughout this preamble, a number of comments were

submitted that did not relate to the substance of the NPRM. Several

commenters expressed general opposition to the current administration

or its handling of immigration policy, without referring to the

proposed rule at all. Some commenters expressed direct opposition to

specific political parties, while others opposed Congress.

    Multiple commenters shared the challenges they faced in the United

States as either an undocumented or documented immigrant without

referring to the substance of this rulemaking. Other comments were from

noncitizens seeking information or

 

[[Page 53258]]

 

making requests regarding their own cases.

    Numerous commenters provided general support for immigration but

did not explicitly refer to DACA. Other out-of-scope comments related

to the COVID-19 pandemic, asylum seekers and the Asylum Officer

proposed rule, recommendations not pertaining to this rule, and general

statements unrelated to the substance of the regulation. DHS has

reviewed and considered all such comments and incorporated them as

applicable.

 

III. Statutory and Regulatory Requirements

 

  1. Executive Orders 12866 (Regulatory Planning and Review) and 13563

(Improving Regulation and Regulatory Review)

 

    E.O. 12866 and E.O. 13563 direct agencies to assess the costs and

benefits of available regulatory alternatives and, to the extent

permitted by law, to proceed only if the benefits justify the costs.

They also direct agencies to select regulatory approaches that maximize

net benefits while giving consideration, to the extent appropriate and

consistent with law, to values that are difficult or impossible to

quantify, including equity, human dignity, fairness, and distributive

impacts. In particular, E.O. 13563 emphasizes the importance of not

only quantifying both costs and benefits, reducing costs, harmonizing

rules, and promoting flexibility, but also considering equity,

fairness, distributive impacts, and human dignity. The latter values

are highly and particularly relevant here.

    This final rule is designated as a ``significant regulatory

action'' that is economically significant since it is estimated the

rule will have an annual effect on the economy of $100 million or more,

under section 3(f)(1) of E.O. 12866. Accordingly, OMB has reviewed this

final regulation.

  1. Summary of Major Provisions of the Regulatory Action

    This final rule will preserve and fortify DHS's DACA policy for the

issuance of deferred action to certain young people who came to the

United States many years earlier as children, who have no current

lawful immigration status, and who are generally low enforcement

priorities. The final rule codifies the following provisions of the

DACA policy from the Napolitano Memorandum and longstanding USCIS

practice:

     Deferred Action. The final rule codifies the definition of

deferred action as a temporary forbearance from removal that does not

confer any right or entitlement to remain in or reenter the United

States and does not prevent DHS from initiating any criminal or other

enforcement action against the DACA requestor at any time.

     Threshold Criteria. The final rule codifies the

longstanding threshold criteria where the requestor must have: (1) come

to the United States under the age of 16; (2) continuously resided in

the United States from June 15, 2007, to the time of filing of the

request; (3) been physically present in the United States on both June

15, 2012, and at the time of filing of the DACA request; (4) not been

in a lawful immigration status on June 15, 2012, as well as at the time

of request; (5) graduated or obtained a certificate of completion from

high school, obtained a GED certificate, currently be enrolled in

school, or be an honorably discharged veteran of the Coast Guard or

Armed Forces of the United States; (6) not been convicted of a felony,

a misdemeanor described in 8 CFR 236.22(b)(6) of the final rule, or

three or more other misdemeanors not occurring on the same date and not

arising out of the same act, omission, or scheme of misconduct, or

otherwise pose a threat to national security or public safety--with

additional clarifications explained below; and (7) been born on or

after June 16, 1981, and be at least 15 years of age at the time of

filing, unless the requestor is in removal proceedings, has a final

order of removal, or a voluntary departure order. The final rule also

codifies that deferred action under DACA may be granted only if USCIS

determines in its discretion that the requestor meets the threshold

criteria and merits a favorable exercise of discretion.

     Employment Authorization. The final rule codifies DACA-

related employment authorization for deferred action recipients in a

new paragraph designated at 8 CFR 274a.12(c)(33). The new paragraph

does not constitute any substantive change in current policy and,

therefore, the final rule will continue to specify that the noncitizen

must have been granted deferred action and must establish economic need

to be eligible for employment authorization.

     ``Lawful Presence.'' The final rule reiterates USCIS'

longstanding codification in 8 CFR 1.3(a)(4)(vi) of agency policy that

a noncitizen who has been granted deferred action is considered

``lawfully present''--a term that does not confer authority to remain

in the United States--for the discrete purpose of authorizing the

receipt of certain benefits under that regulation. The final rule also

reiterates longstanding policy that a noncitizen who has been granted

deferred action does not accrue ``unlawful presence'' for purposes of

INA sec. 212(a)(9).

     Procedures for Request and Restrictions on Information

Use. The final rule codifies the procedures for denial of a request for

DACA, the circumstances that would result in the issuance of an NTA or

RTI, and the restrictions on use of information contained in a DACA

request for the purpose of initiating immigration enforcement

proceedings.

    In addition to the retention of longstanding DACA policy and

procedure, the final rule includes the following changes in comparison

to the NPRM:

     Filing Requirements. The final rule codifies the

longstanding bundled filing requirement, in which requestors must file

Form I-765, Application for Employment Authorization, and Form I-765WS,

concurrently with the Form I-821D Consideration of Deferred Action for

Childhood Arrivals. See new 8 CFR 236.23(a)(1).

     Criminal History, Public Safety, and National Security:

The NPRM proposed to codify at 8 CFR 236.22(b)(6) the longstanding

criminal history, public safety, and national security criteria for

consideration of DACA. Upon careful consideration of comments received

on this NPRM provision, DHS is revising this provision to additionally

clarify that, consistent with longstanding DACA policy, expunged

convictions, juvenile delinquency adjudications, and immigration-

related offenses characterized as felonies or misdemeanors under State

laws are not considered automatically disqualifying convictions for

purposes of this provision. See new 8 CFR 236.22(b)(6).\328\

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    \328\ Regarding the criteria related to criminal convictions,

DHS also clarified in the preamble to this final rule that it does

not intend to retain the provision in the DACA FAQs that in

exceptional circumstances DHS may grant DACA notwithstanding that

the requestor does not meet the criminal guidelines. USCIS has

rarely, if ever, found exceptional circumstances that warrant a

grant of DACA where the requestor does not meet the criminal

guidelines.

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     Termination of DACA: The NPRM proposed to codify at 8 CFR

236.23(d)(1) and (2) DHS's longstanding DACA termination policy, as it

existed prior to the preliminary injunction issued in Inland Empire-

Immigrant Youth Collective v. Nielsen, No. 17-2048, 2018 WL 1061408

(C.D. Cal. Feb. 26, 2018), with some modifications. The rule proposed

that USCIS could terminate DACA at any time in its discretion with or

without a NOIT, and that DACA would terminate automatically upon

departure from the United States

 

[[Page 53259]]

 

without advance parole and upon filing of an NTA with EOIR (a

modification from the prior policy of automatic termination upon NTA

issuance), but DACA would not terminate automatically in the case of a

USCIS-issued NTA solely based on an asylum referral to EOIR. The NPRM

raised four alternative approaches and invited comment on these and

other alternatives for DACA termination. After careful consideration of

the comments on this provision and the alternatives suggested in the

NPRM and by commenters, DHS is maintaining in the final rule that USCIS

may terminate DACA at any time in its discretion. However, DHS is

revising this provision to provide that USCIS will generally provide

DACA recipients with a NOIT prior to termination of DACA, but maintains

discretion to terminate DACA without a NOIT if the individual is

convicted of a national security related offense involving conduct

described in 8 U.S.C. 1182(a)(3)(B)(iii), (iv), or 1227(a)(4)(A)(i), or

an egregious public safety offense. DHS is also revising this provision

to provide that DACA recipients who depart the United States without

advance parole, but who are nonetheless paroled back into the United

States, will resume their DACA upon expiration of the period of parole.

See new 8 CFR 236.23(d)(1) and (2).

     Automatic Termination of Employment Authorization. The

NPRM proposed at 8 CFR 236.23(d)(3) that employment authorization would

terminate automatically upon termination of DACA. This provision

included a cross reference to 8 CFR 274a.14(a)(1)(iv), however on

February 8, 2022, 8 CFR 274a.14(a)(1)(iv) was vacated in Asylumworks,

et al. v. Mayorkas, et al., civ. 20-cv-3815 (D.D.C. Feb. 7, 2022). As a

result of the vacatur and additional revisions to the DACA terminations

provisions to eliminate automatic termination based on filing of an

NTA, as described in this preamble, DHS is modifying 8 CFR 236.23(d)(3)

in this final rule to remove the vacated cross reference and clarify

that employment authorization terminates when DACA is terminated and

not separately when removal proceedings are instituted. See new 8 CFR

236.23(d)(3).

     Provision Rescinding and Replacing the Napolitano

Memorandum. In this final rule, DHS is clarifying at 8 CFR 236.21(d)

that this subpart rescinds and replaces the DACA guidance set forth in

the Napolitano Memorandum and from this point forward governs all

current and future DACA grants and requests. DHS also clarifies that

existing recipients need not request DACA anew under this new rule to

retain their current DACA grants. Historically, DHS has promulgated

rules without expressly rescinding prior guidance in the regulatory

text itself. However, DHS has chosen to depart from previous practice

in light of the various issues and concerns raised in ongoing

litigation challenging the Napolitano Memorandum. See new 8 CFR

236.21(d).

  1. Summary of Costs and Benefits of the Final Rule

    In light of public comments, DHS has made some adjustment to parts

of this RIA analysis. The following table captures the changes in the

RIA from the NPRM to the final rule.

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    The final rule will result in new costs, benefits, and transfers.

To provide a full understanding of the impacts of DACA, DHS considers

the potential impacts of this final rule relative to two baselines. The

No Action Baseline represents a state of the world under the DACA

policy; that is, the policy initiated by the guidance in the Napolitano

Memorandum in 2012 and prior to the July 16, 2021 Texas decision.

However, the No Action Baseline does not directly account for the Texas

decision, as discussed further in the Population Estimates and Other

Assumptions section discussing this baseline. The second baseline

considered in the analysis is the Pre-Guidance Baseline, which

represents a state of the world before the issuance of the Napolitano

Memorandum, where the DACA policy did not exist and has never existed.

To better understand the effects of the DACA policy, we focus on the

Pre-Guidance Baseline as the most useful point of reference, as it

captures the effects of going from a world completely without the DACA

policy to a world with the DACA policy.

    Table 4 provides a detailed summary of the provisions and their

estimated impacts relative to the No Action Baseline. Additionally,

Table 5 provides a detailed summary of the provisions and their

estimated impacts relative to the Pre-Guidance Baseline.

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    In addition to the impacts summarized above, and as required by OMB

Circular A-4, Table 6 and Table 7 present the prepared accounting

statements showing the costs, benefits, and transfers associated with

this regulation relative to the No Action Baseline and the Pre-Guidance

Baseline, respectively.\329\

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    \329\ See OMB, Circular A-4 (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.

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    Table 7 shows the pre-guidance baseline estimates, which are a

comprehensive assessment of the costs and benefits of the rule. Note

that the monetized benefits and transfers are a maximum estimate. We

are unable to provide a range because of uncertainty as to two factors:

(1) the substitutability of workers, and (2) the extent to which the

relevant population would be willing and able to work without

authorization in the absence of DACA. See discussion in Sections

III.A.4.b.6. and III.A.4.b.7.

 

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  1. Background and Purpose of the Rule

    The INA generally charges the Secretary with the administration and

enforcement of the immigration and naturalization laws of the United

States.\330\ The INA further authorizes the Secretary to ``establish

such regulations; prescribe such forms of bond, reports, entries, and

other papers; issue such instructions; and perform such other acts as

he deems necessary for carrying out his authority under the provisions

of'' the INA.\331\ In the Homeland Security Act of 2002, Congress also

provided that the Secretary ``shall be responsible for . . .

[e]stablishing national immigration enforcement policies and

priorities.'' \332\ The Homeland Security Act also provides that the

Secretary, in carrying out their authorities, must ``ensure that the

overall economic security of the United States is not diminished by

efforts, activities, and programs aimed at securing the homeland.''

\333\

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    \330\ Public Law 82-414, 66 Stat. 163 (as amended); INA sec.

103(a)(1), 8 U.S.C. 1103(a)(1). The INA also vests certain

authorities in the President, Attorney General, and Secretary of

State, among others. See id.

    \331\ INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3).

    \332\ Public Law 107-296, sec. 402(5), 116 Stat. 2135, 2178

(codified at 6 U.S.C. 202(5)).

    \333\ 6 U.S.C. 111(b)(1)(F).

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    The Secretary, in this final rule, establishes guidelines for

considering requests for deferred action submitted by certain

individuals who came to the United States many years ago as children,

consistent with the Napolitano Memorandum described above. As with the

2012 DACA policy, this final rule will serve the significant

humanitarian and economic interests animating and engendered by the

DACA policy, with respect to the population covered by that policy. In

addition, the final rule will preserve not only DACA recipients'

substantial reliance interests, but also those of their families,

schools, employers, faith groups, and communities.\334\ The final rule

also will

 

[[Page 53271]]

 

help to appropriately focus the Department's limited immigration

enforcement resources on threats to national security, public safety,

and border security where they are most needed.

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    \334\ See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891,

1914 (2020) (Regents) (``DACA recipients have `enrolled in degree

programs, embarked on careers, started businesses, purchased homes,

and even married and had children, all in reliance' on the DACA

policy. The consequences of the rescission, respondents emphasize,

would `radiate outward' to DACA recipients' families, including

their 200,000 U.S. citizen children, to the schools where DACA

recipients study and teach, and to the employers who have invested

time and money in training them. In addition, excluding DACA

recipients from the lawful labor force may, they tell us, result in

the loss of $215 billion in economic activity and an associated $60

billion in federal tax revenue over the next ten years. Meanwhile,

States and local governments could lose $1.25 billion in tax revenue

each year.'' (internal citations omitted)).

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  1. Cost-Benefit Analysis

    In light of public comments received and relative to the NPRM RIA,

DHS has adjusted parts of the RIA for this final rule to incorporate

some of the ideas and suggestions presented in various public comments.

For example, relative to the NPRM, DHS adjusted the projected DACA

population age distribution to account for the possibility that the

eligible and active population might age over the next 10 years,

thereby moving into higher age groups. As a result of the updated age

distribution, the estimated labor force participation rate of the

active DACA population also changed. The age distribution is used in

the estimation of an average compensation rate for DACA recipients. The

average compensation rate together with the estimated labor force

participation rate of the active DACA population are used in the

estimation of costs, benefits, and transfers of this final rule. In the

final rule, DHS also accounted for the value of non-paid time which

individuals would forgo when approved for DACA and if they chose to

participate in the labor market. This value was subtracted from the

estimated benefits. Further, DHS made additions to the qualitative

discussion regarding the unquantified and unmonetized benefits after

considering suggestions from commenters regarding potential

quantification and monetization of certain benefits bestowed on the

DACA population by this rulemaking. Additionally, the final rule

codifies the longstanding bundled filing requirements and reclassifies

the $85 biometrics fee as a Form I-821D filing fee. As such, a complete

DACA request under the final rule includes Forms I-821D, I-765, and I-

765WS with total fees of $495. Relative to the NPRM, this final rule no

longer estimates any potential cost savings from the request and fee

structure in the No Action Baseline and no potential transfers from

USCIS to the DACA requestor population as DHS is codifying the status

quo bundled filing process instead of the proposed provision to

unbundle the requests for deferred action from the Application for

Employment Authorization. The details of all the adjustments are

presented and incorporated throughout this RIA.

    DHS estimates the potential impacts of this final rule relative to

two baselines. The first baseline is a No Action Baseline, which

represents a state of the world wherein the DACA policy would be

expected to continue under the Napolitano Memorandum guidance. The No

Action Baseline does not account for the July 16, 2021, district court

decision, as discussed further in the Population Estimates and Other

Assumptions section below discussing this baseline. Relative to this

baseline, there were no quantitative and monetized impacts.

    The second baseline considered in the analysis is a Pre-Guidance

Baseline, which represents a state of the world before the guidance in

the Napolitano Memorandum, where the DACA policy does not exist and has

never existed. The Pre-Guidance Baseline is included in this analysis

in accordance with OMB Circular A-4 guidance, which directs agencies to

include a pre-statutory baseline in an analysis if substantial portions

of a rule may simply restate statutory requirements that would be self-

implementing, even in the absence of the regulatory action.\335\ In

this case, the DACA policy was implemented through DHS and USCIS

guidance. DHS has not performed a regulatory analysis on the regulatory

costs and benefits of the DACA policy guidance previously and,

therefore, includes a Pre-Guidance Baseline in this analysis for

clarity and completeness. Moreover, DHS presents the Pre-Guidance

Baseline to provide a more informed picture on the overall impacts of

the DACA policy since its inception, while at the same time recognizing

that many of these impacts have already been realized. DHS notes that

the Pre-Guidance Baseline analysis also can be used to better

understand the state of the world under the district court's decision

in Texas, should the partial stay of that decision be lifted. Relative

to this baseline, DHS estimated annualized net benefits of $21.9

billion at a 3-percent discount rate or $20.7 billion at a 7-percent

discount rate, annualized costs of $494.9 million at a 3-percent

discount rate or $480.8 million at a 7-percent discount rate, and

annualized transfers of $5.4 billion at a 3-percent discount rate or

$5.2 billion at a 7-percent discount rate.

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    \335\ See OMB, Circular A-4 (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.

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    The cost-benefit analysis of the RIA presents the impacts of this

final rule relative to the No Action Baseline first, and then relative

to the Pre-Guidance Baseline. In each of the baseline analyses, we

begin by specifying the assumptions and estimates used in calculating

any costs, benefits, and transfers of this final rule.

  1. No Action Baseline

(1) Population Estimates and Other Assumptions

    The numbers presented in this section have not changed from the

NPRM to the final rule. Based on the public comments received, DHS

added more clarity to some of the assumptions used in making the

population projections in this section. For example, DHS clarified

further that the averages of the ``stable'' period and not its trends

are used in the projections of the population numbers.

    The final rule will affect certain individuals who came to the

United States many years ago as children, who have no current lawful

immigration status, and who are generally low enforcement priorities.

DHS currently allows certain individuals to request an exercise of

discretion in the form of deferred action on a case-by-case basis

according to certain criteria outlined in the Napolitano Memorandum.

Individuals may request deferred action under this policy, known as

DACA.

    DHS recognizes a growing literature on the impacts of DACA that

identifies noncitizens who may potentially meet DACA threshold criteria

based on age and length of time in the United States. This approach to

estimating the population affected by this final rule estimates the

total number of people who are potentially eligible for consideration

for deferred action under the DACA policy and then predicts the

proportion of those people who will request DACA in the future. Widely

available national microdata that reports the immigration status of the

foreign-born population does not exist. The subpopulation that is

potentially eligible to request DACA must therefore be estimated by

other means. In general, analysts estimate the size of the DACA-

eligible population using a residual method in which the total foreign-

born population is estimated using various

 

[[Page 53272]]

 

surveys.\336\ The unlawfully and lawfully present foreign-born

population can be estimated based on DHS administrative records,

including a mix of DHS administrative records and logical rules based

on foreign-born demographic characteristics.\337\ Further, the

demographic characteristics from some of the underlying survey data may

be used to further identify the portion of the unauthorized population

that would potentially meet the DACA criteria, although some factors,

such as education, criminal history, and discretionary determinations

may not be accounted for in such estimates. For example, the Migration

Policy Institute (MPI) estimates an eligible DACA population of 1.7

million, including the currently active population, although this

estimate looked only at certain eligibility criteria and did not

consider the proportion of the potentially-eligible population who may

not meet the criminal history or continuous physical presence criteria,

or who might merit a favorable exercise of discretion, meaning that it

is likely an overestimate.\338\ Historical DHS administrative data

between FY 2012 and FY 2021 show a total of around 1 million initial

DACA requests.\339\ Thus, MPI's estimate implies a remaining DACA-

eligible population of up to roughly 700,000 people.

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    \336\ The surveys may include the U.S. Census Bureau's American

Community Survey (ACS), the Current Population Survey (CPS), the

American Time Use Survey, and the Survey of Income and Program

Participation (SIPP), among others.

    \337\ See, e.g., OIS, Estimates of the Unauthorized Immigrant

Population Residing in the United States: January 2015-January 2018

(Jan. 2021), https://www.dhs.gov/sites/default/files/publications/immigrationstatistics/Pop_Estimate/UnauthImmigrant/unauthorized_immigrant_population_estimates_2015_-_2018.pdf.

    \338\ For more details and additional resources on this

methodology, see Migration Policy Institute, Back on the Table: U.S.

Legalization and the Unauthorized Immigrant Groups that Could Factor

in the Debate (Feb. 2021), https://www.migrationpolicy.org/research/us-legalization-unauthorized-immigrant-groups (accessed May 16,

2022).

    \339\ Source: DHS/USCIS/OPQ (July 2021).

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    DHS has two concerns with adopting this approach to estimate the

number of future DACA requestors. First, as analysts who use the

residual method observe, the approach is complex and highly sensitive

to specific modeling assumptions. In a 2021 report estimating the U.S.

unauthorized immigrant population for the period January 2015 to

January 2018, OIS states that ``estimates of the unauthorized

population are subject to sampling error in the ACS and considerable

non-sampling error because of uncertainty in some of the assumptions

required for estimation [of the unauthorized population].'' \340\

Additionally, the U.S. Census Bureau (Census) details the many complex

adjustments applied to produce estimates of the population by sex, age,

race, Hispanic origin, and number of household units in the latest ACS

design and methodology report on weighting and estimation,\341\

clarifying that ``[t]he ACS estimates are based on a probability

sample, and will vary from their true population values due to sampling

and non-sampling error.'' \342\ A rigorous analysis by sociologists and

statisticians of the external validity of available methods used to

impute unauthorized status in Census survey data concluded that:

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    \340\ See OIS, Estimates of the Unauthorized Immigrant

Population Residing in the United States: January 2015-January 2018

(Jan. 2021), https://www.dhs.gov/sites/default/files/publications/immigrationstatistics/Pop_Estimate/UnauthImmigrant/unauthorized_immigrant_population_estimates_2015_-_2018.pdf, at 10.

    \341\ See U.S. Census Bureau, American Community Survey Design

and Methodology (January 2014), Chapter 11: Weighting and

Estimation, https://www2.census.gov/programs-surveys/acs/methodology/design_and_methodology/acs_design_methodology_ch11_2014.pdf (accessed Mar. 23, 2022).

    \342\ Id. at 16.

 

it is not possible to spin straw into gold. All approaches that we

tested produced biased estimates. Some methods failed in all

circumstances, and others failed only when the join observation

condition was not met, meaning that the imputation method was not

informed by the association of unauthorized status with the

dependent variable.\343\

---------------------------------------------------------------------------

 

    \343\ See Jennifer Van Hook, et al., Can We Spin Straw into

Gold? An Evaluation of Immigrant Legal Status Imputation Approaches,

Demography 52(1), 329-54, at 330.

 

    In light of these modeling challenges, it is possible that a new

estimate of the DACA-eligible population based on the residual method

would systematically under- or overestimate the authorized immigrant

population, which would, in turn, lead to systematic, but unknown,

under- or overestimation of the residual subpopulation.\344\

---------------------------------------------------------------------------

 

    \344\ In Pope (2016), see section 5, ``Empirical method.'' See

also George J. Borjas and Hugh Cassidy, The wage penalty to

undocumented immigration, Lab. Econ. 61, art. 101757 (2019), https://scholar.harvard.edu/files/gborjas/files/labourecon2020.pdf

(hereinafter Borjas and Cassidy (2019)). In section 2, ``Imputing

undocumented status in microdata files,'' the authors state that,

``[i]n the absence of administrative data on the characteristics of

the undocumented population, it is not possible to quantify the

direction and magnitude of any potential bias,'' and in footnote 2

they describe DHS's assumed correction for sample bias. See also

Catalina Amuedo-Dorantes and Francisca Antman, Schooling and Labor

Market Effects of Temporary Authorization: Evidence from DACA, J. of

Population Econ. 30(1): 339-73 (Jan. 2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5497855/pdf/nihms866067.pdf. In

Section III.B, ``Capturing Undocumented Immigrants and DACA

Applicants,'' the authors describe a potential effect of a

limitation in the data relied upon as follows: ``As such, some may

be concerned that the control group may be made up of individuals

who immigrated with the purpose of getting an educational degree in

the United States, as is the case with F1 and J1 visa holders.''

---------------------------------------------------------------------------

 

    A second concern about using the residual method to estimate the

number of future DACA requestors is that even if DHS accurately

estimates the total DACA-eligible population, DHS will still need a

reliable methodology to predict how many potentially DACA-eligible

individuals will actually request DACA in the future. Given the nature

of the DACA policy, political factors, the challenging legal history,

and the characteristics of the active DACA and DACA-eligible

populations, including varying personal circumstances and expectations,

predicting how many potentially eligible noncitizens may request DACA

would be uncertain and complex, even if a census of the remaining DACA-

eligible population existed. Therefore, in the context of this final

rule, DHS relies instead on the administrative data USCIS collects from

individuals who have requested DACA over the past several years, as

described later in this analysis.

    To provide a framework for the baseline population estimates, DHS

starts by first presenting historical USCIS data on the active DACA

population and then presenting historical data on DACA request

receipts. These data provide a sense of historical participation in the

policy and insights into any trends. The data also allow DHS to make

certain assumptions in estimating a potential future active DACA

population that would enjoy the benefits of this policy and that may

contribute potential transfers to other populations as well as in

estimating potential future DACA request receipts (i.e., the population

that would incur the costs associated with applying under the policy).

DHS therefore proceeds by presenting first the historical active DACA

population and its estimates of a potential future active DACA

population, and then the historical volume of DACA request receipts and

its estimates of this potential future population.

    However, before presenting the historical and projected populations

associated with this rule, DHS first identifies certain historical time

periods of interest for this analysis. Historically, the 2012 and,

subsequently, the 2017 DACA-related memoranda have shaped the level of

participation in the DACA policy. The 2012 Napolitano Memorandum

initiated the policy, and the 2017 Duke Memorandum halted

 

[[Page 53273]]

 

new requests.\345\ As such, DHS identifies three periods of interest:

(1) a surge period, FY 2012-FY 2014, where initial requests were high

compared to later years; (2) a stable policy period, FY 2015-FY 2017,

where initial requests were slowing, renewal requests were leveling

off, and the overall active DACA-approved population was stabilizing;

and (3) a cooling-off period, FY 2018-FY 2020, where initial requests

dramatically decreased, the active DACA-approved population started to

decline, and most requests were for renewals.\346\

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    \345\ As discussed above, the Duke Memorandum rescinded the DACA

policy, allowing for a brief wind-down period in which a limited

number of renewal requests would be adjudicated, but all initial

requests would be rejected. Duke Memorandum at 4-5. In the

litigation that followed, the Duke Memorandum was enjoined in part,

such that DHS was required to adjudicate renewal requests as well as

``initial'' requests from individuals who had been granted DACA

previously but did not qualify for the renewal process. See Regents

  1. DHS; Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y.

2018). In July 2020, then-Acting Secretary Wolf issued a memorandum

rescinding the Duke and Nielsen memoranda and making certain

immediate changes to the DACA policy, namely directing DHS personnel

to reject all pending and future initial requests for DACA, reject

all pending and future applications for advance parole absent

exceptional circumstances, and shorten DACA renewals. Memorandum

from Chad F. Wolf, Acting Secretary, to heads of immigration

components of DHS, Reconsideration of the June 15, 2012 Memorandum

Entitled ``Exercising Prosecutorial Discretion with Respect to

Individuals Who Came to the United States as Children,'' dated July

28, 2020 (hereinafter Wolf Memorandum). The effect of the Duke

Memorandum, along with these court orders and the Wolf Memorandum,

was that individuals who were granted DACA at some point before

September 5, 2017, remained able to request DACA, while those who

had never before received DACA were not able to do so until the Wolf

Memorandum was vacated in December 2020. See Batalla Vidal v. Wolf,

No. 16-cv-4756, 2020 WL 7121849 (E.D.N.Y. Dec. 4, 2020).

    \346\ DHS believes it is likely that the initial surge in DACA

requests reflects a rush of interest in the new policy, and that the

slowdown in 2014-2017 simply reflects the fact that many of the

eligible and interested noncitizens requested DACA shortly after it

became available. It is also possible that there was a decline in

interest due to the uncertainty caused by the Texas litigation

regarding the 2014 Memorandum described above, which began in 2014.

The limits on requests described above, supra n.345, along with

changes in the national political sphere, likely account for much of

the ``cooling off'' after 2017.

---------------------------------------------------------------------------

 

    Table 8 presents historical data on the volume of DACA recipients

who were active as of September 30th of each fiscal year. For clarity,

``active'' is defined as those recipients who have an approved Form I-

821D and I-765 in the relevant USCIS database. The approval can be

either an initial or a renewal approval. Additionally, DHS does not

need specificity or further breakdown of these data into initial and

renewal recipients to project this active DACA population and calculate

associated monetized benefits and transfers based on the methodology

employed in this RIA. Both initial recipients and renewal recipients

are issued an EAD that could be used to participate in the labor

market.\347\ Therefore, the annual cumulative totals of the active DACA

population suffices for estimating the quantified and monetized

benefits and transfers of this final rule that stem from the potential

labor market earnings of the DACA population with an EAD.

---------------------------------------------------------------------------

 

    \347\ See the Labor Market Impacts section of this RIA for

discussion and analysis of labor force participation as well as

discussion of the possibility that some DACA recipients might choose

not to work despite having employment authorization.

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BILLING CODE 9111-97-P

 

[[Page 53274]]

 

[GRAPHIC] [TIFF OMITTED] TR30AU22.023

 

    On July 16, 2021, the Texas decision enjoined USCIS from approving

initial DACA requests.\348\ Nevertheless, for this RIA, DHS employs the

assumption that the historical trends in the active DACA population

outlined remain a reasonable and useful indication of the trend in the

future over the period of analysis. Table 9 presents DHS's estimates

for the active DACA population for FY 2021-FY 2031. Given the

motivation and scope of this final rule, DHS assumes that upon the

implementation of the final rule the DACA policy will be characterized

by relatively more stability, where the yearly active DACA population

will not continue to decrease as it did in FY 2018-FY 2020. Therefore,

in our projections of the active DACA population, DHS uses the average

annual growth rate of 3.6174 percent in the stable policy period, FY

2015-FY 2017,\349\ and multiplied it by the current year cumulative

totals to obtain the next year's estimated active DACA population.

Therefore, the values in Table 9 grow at an annual rate of 3.6174

percent. These estimates will be used later when calculating the

monetized benefits and transfers of this final rule.

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    \348\ As of July 20, 2021, USCIS ELIS and CLAIMS 3 data show

89,605 initial requests have been accepted at a lockbox in FY 2021.

    \349\ For clarity and in consideration of public comments, DHS

reemphasizes that the average of period FY 2015-FY 2017 is used, and

not the trend.

 

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[[Page 53275]]

 

[GRAPHIC] [TIFF OMITTED] TR30AU22.024

 

BILLING CODE 9111-97-C

    DHS notes that although this methodology for projecting a future

active DACA population has important advantages (including

transparency, reproducibility, and a clear nexus to historical policy

data), it also has some potential limitations. For instance, the

methodology assumes that the active DACA population again will grow at

the average rate it grew over the period FY 2015-FY 2017, which was

just a few years after the Napolitano Memorandum was issued.

Additionally, public comments on this rulemaking have raised concerns

over the fact that potential DACA requestors stopped ``aging in'' to

the policy in June 2022, which is when the youngest possible requestor

reaches 15 years of age. However, DHS does not believe there will

necessarily be a precipitous decline in the growth rate of DACA

requestors after new requestors stop ``aging in'' in 2022. For example,

some individuals may newly meet the criteria after June 2022, upon

satisfying the educational or military service requirement for the

first time. Nothing in the DACA age threshold criteria restrict the

population projections made by DHS in this final rule. Nevertheless,

DHS projects a decline over the analysis period, albeit gradual, of

Initial requests in Table 11.

    Similarly, the active DACA population projections do not directly

capture the possibility that there could be a surge of request receipts

following publication of a final rule, followed by a slower growth rate

in later years. However, USCIS notes that projecting a surge in request

receipts does not necessarily imply a surge in the active DACA

population. The levels of approvals, renewals, and noncitizens renewing

or lapsing deferred action under the DACA policy can vary. For example,

there could be delays in processing requests caused by the surge of new

requests (assuming USCIS maintains current staffing levels) or by other

events, noncitizens could cease making renewal requests at higher rates

than before, or approval rates could change relative to historical

trends. As mentioned previously, a continuation of the injunction on

approving initial DACA requests would curtail initial requests.

    Next, DHS presents the population used when calculating the

monetized costs of this final rule. Table 10 presents historical data

on the numbers of DACA request receipts. This population incurred the

cost of requesting DACA. The population is composed of initial and

renewal requestors, both of whom face similar costs, such as filing

fees,\350\ time burdens, and opportunity costs. For clarity, this table

represents intake and processing data and is silent on the number of

requests that were approved as that level of detail is not required to

estimate the monetized costs of this final rule. DHS only needs total

receipts to estimate the monetized costs of this final rule.

---------------------------------------------------------------------------

 

    \350\ The proposed fee does not differentiate between initial

and renewal receipt costs. The estimated full cost reflects a

weighted average of April 2020 to March 2021 initial and renewal

workload receipt data.

 

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[[Page 53276]]

 

[GRAPHIC] [TIFF OMITTED] TR30AU22.025

 

    To project total DACA receipts, DHS uses the historical information

from Table 10 with the intention to capture a possible surge effect in

initial requests, a stabilization effect through the renewals, and then

a steady decline in initial requests as the newly DACA-eligible

population might dwindle over time because individuals stopped ``aging

in'' in June 2022. DHS first calculates the percentage of initial

requests in the previously defined surge years FY 2012-FY 2014 out of

the total period FY 2012-FY 2017 to account for a similar possibility

in projections, which DHS calls a surge rate.\351\ This surge rate is

77.7595 percent. Second, DHS calculates the average initial requests

over the stable period of FY 2015-FY 2017, which is 70,868.33. Third,

DHS calculates the average annual rate of growth of 29.08806 percent

for initial requests over FY 2015-FY 2017. Fourth, DHS calculates the

average number of renewal requests over FY 2015-FY 2020, which is

349,165.83. DHS chose FY 2015-FY 2020 for this calculation due to the

relatively stable nature of historical renewal requests. The intention

is to capture a possible surge effect in initial requests, a

stabilization effect through the renewals, and then a steady decline in

initial requests as the DACA-eligible population might dwindle over

time.

---------------------------------------------------------------------------

 

    \351\ Calculation: FY 2012-FY 2014 initials total = 743,331; FY

2012-FY 2017 initials total = 955,936; initials surge rate =

(743,331/955,936) * 100 = 77.7595%.

---------------------------------------------------------------------------

 

    Table 11 presents the projected volume of DACA request receipts.

DHS estimates a surge component in initial requests over FY 2021-FY

  1. As stated, these projections do not adjust for the uncertain

impacts of the Texas injunction on initial requests. To estimate the

surge component, DHS first calculates the total number of historic

initials over the stable period FY 2015-FY 2017, which is 212,605. DHS

then multiplies this number by the surge rate of 77.7595 percent to

estimate a potential surge in its projections of 165,320.57 initial

requests in the first two projected years, FY 2021-FY 2022. DHS then

divides this number in two to estimate a surge in initial requests for

FY 2021 and FY 2022, which is 82,660.29. Adding to this number the

average number of historic initial requests of 70,868.33 yields a total

(surge) number of 153,528.62 initial requests for FY 2021 and FY 2022.

Starting with FY 2024, DHS applies the historic FY 2015-FY 2017 growth

rate of -29.08806 percent to initial requests for the rest of the

projected years.\352\

---------------------------------------------------------------------------

 

    \352\ For example: FY 2024 = FY 2023 * (1-29.08806%), which

yields 70,868.33 * (1-0.2908806) = 50,254.11.

---------------------------------------------------------------------------

 

    The renewals in FY 2023-FY 2024 capture this surge as the

historical average number of renewals of 349,165.83 plus 153,528.62.

DACA recipients can renew their requests for deferred action every 2

years. Adding total initials and renewals for every fiscal year then

yields a total number of requests that will be used in estimating the

monetized costs of this final rule.

    As with DHS's projection methodology for the active DACA

population, DHS acknowledges potential limitations associated with the

methodology used to project requests. For instance, although the

methodology is transparent, reproducible, and has a clear nexus to

historical policy data, the methodology assumes that the ``surge rate''

for DACA requests following publication of this rule would mirror the

surge rate that followed issuance of the Napolitano Memorandum. There

are reasons to support such an assumption, including a potential

backlog of demand following the Duke Memorandum, subsequent guidance,

and ongoing litigation. But there are also reasons to question it, such

as the potential that demand was exhausted in the years before issuance

of the Duke Memorandum, such that any ``surge'' in requests would

consist primarily of requests from individuals who turned 15 after the

Duke Memorandum was issued.

 

[[Page 53277]]

 

[GRAPHIC] [TIFF OMITTED] TR30AU22.026

 

    As of July 2021, DHS administrative data for quarters 2 and 3 of FY

2021 show that there were 89,701 initial DACA requests and 302,985

renewal DACA requests pending.\353\ These data include requests filed

during earlier periods in which DHS did not accept most initial DACA

requests due to ongoing litigation and subsequent policy changes.\354\

For the projections presented in this RIA, it is assumed that initial

DACA requests would be accepted without interruptions from any legal

rulings on the policy in FY 2021 and all other subsequent projected

fiscal years. In the absence of these restrictions on initial requests,

DHS's projection for FY 2021 tracks with the observed trend in the most

recent FY 2021 administrative data.

---------------------------------------------------------------------------

 

    \353\ Source: DHS/USCIS/OPQ (July 2021).

    \354\ See Section II.B above for litigation history, including

Regents, 140 S. Ct. 1891 (2020), and Texas, 549 F. Supp. 3d 572

(S.D. Tex. 2021).

---------------------------------------------------------------------------

 

    In sum, while population estimates in this final rule are

consistent with the overall MPI population estimate,\355\ this RIA

relies on historical request data to estimate future DACA requests

rather than estimating the overall DACA-eligible population and then

further estimating the share of the population likely to request DACA

in the future. Either approach would still require a methodology for

projecting how many potentially eligible individuals might choose to

request DACA and also stay active. While both approaches face

methodological challenges, the Department has no reason to believe the

residual-based methodology would yield a more accurate estimate. At the

same time, the current approach based on historical request data offers

an especially transparent and easily reproducible estimation

methodology.

---------------------------------------------------------------------------

 

    \355\ That is, the DHS projected number of DACA requests, and

active DACA recipients falls within the ranges estimated by the

residual-based methodology.

---------------------------------------------------------------------------

 

(2) Forms and Fees

    The final rule codifies, as proposed in the NPRM, that the Form I-

821D require an $85 filing fee and eliminates the $85 biometrics fee

that had been assessed since the Napolitano Memorandum was issued.\356\

Individuals requesting deferred action under the DACA policy must file

Form I-821D to be considered. Currently, and as codified in the final

rule, all individuals filing Form I-821D to request deferred action

under DACA, whether for initial consideration of or renewal of DACA,

also must file Form I-765 and Form I-765WS (Form I-765 Worksheet) and

pay relevant fees. Submission of Forms I-821D, I-765, and I-765WS and

filing fees together is considered to comprise a complete DACA

request.\357\ Additionally, certain DACA requestors choose to have a

representative, such as a lawyer, prepare and file their DACA

request.\358\ In such cases, a Form G-28 must accompany a complete DACA

request.\359\

---------------------------------------------------------------------------

 

    \356\ See new 8 CFR 106.2(a)(38).

    \357\ See new 8 CFR 236.23(a)(1).

    \358\ An internal OPQ data request reveals that 44 percent of

requestors chose to have a preparer. We use this percentage

breakdown in subsequent cost calculations.

    \359\ Individuals retained to help a requestor prepare and file

their DACA request must submit a Form G-28, Notice of Entry of

Appearance as Attorney or Accredited Representative, to provide

information about their eligibility to act on behalf of the

requestor (see 8 CFR 292.4(a)).

 

---------------------------------------------------------------------------

 

[[Page 53278]]

 

    The final rule sets for the following fees associated with a DACA

request: the fee to file Form I-765 is $410; a $85 filing fee for Form

I-821D; no filing fee for Form I-765WS, or Form G-28; and no biometric

services fee. Therefore, the total fee as of May 20, 2020, to submit a

DACA request is $495, with or without the submission of Form G-28. DHS

believes this is a reasonable proxy for the Government's costs of

processing and vetting these forms when filed together.\360\ As stated

in the NPRM, USCIS data suggest there is a negligible workload

difference from adjudicating Form I-821D when submitted with Form I-

765.\361\ These fees will allow DHS to recover the Government's costs

of processing these forms in line with USCIS' standard fee-funded

operating structure. In the future, DHS plans to propose new USCIS fees

in a separate rulemaking after evaluating the resource requirements for

Form I-765 and other immigration benefit requests.\362\ The fee for

Form I-765 as of May 20, 2020 may need to be adjusted because it has

not changed since 2016.\363\

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    \360\ USCIS Office of the Chief Financial Officer (OCFO)

analysis.

    \361\ See 86 FR 53764.

    \362\ See 87 FR 5241.

    \363\ See 81 FR 73292.

---------------------------------------------------------------------------

 

(3) Wage Assumptions

    Compared to the NPRM, in this final rule, DHS adjusted the

preparer's estimated total compensation rate to reflect BLS data

updates and the estimated DACA recipients' total compensation rate to

reflect an adjusted DACA population age distribution. These adjustments

are described in detail below. The estimated hourly compensation rate

of DACA requestors and the total compensation rate of those hired to

prepare and file DACA requests are used as proxies for the opportunity

cost of time in the calculation of costs. The estimated wage rate of

the requestors also is used to estimate the benefits of income that

accrue to those requestors who participate in the labor market through

the grant of employment authorization. In the following, DHS explains

how it estimates compensation rates of the preparers and requestors.

All compensation estimates are in 2020 dollars.

    A DACA request can be prepared on behalf of the requestor. In this

final rule, DHS assumes that a preparer has similar knowledge and

skills necessary for filing a DACA request as an average lawyer would

for the same task. Based on Bureau of Labor Statistics (BLS) data, DHS

estimates an average loaded wage, or compensation, for a preparer of

$103.81.\364\

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    \364\ DHS assumes the preparers with similar knowledge and

skills necessary for filing DACA requests have average wage rates

equal to the average lawyer wage of $71.59 per hour. Source: BLS,

Occupational Employment and Wage Statistics, Occupational Employment

and Wages, May 2020, 23-1011 Lawyers, https://www.bls.gov/oes/2020/may/oes231011.htm.

    The benefits-to-wage multiplier is calculated as follows: (total

employee compensation per hour.)/(wages and salaries per hour) =

$38.60/$26.53 = 1.4549 = 1.45 (rounded). See BLS, Economic News

Release (Mar. 2021), Employer Cost for Employee Compensation--

December 2020, Table 1. Employer Costs for Employee Compensation by

ownership, https://www.bls.gov/news.release/archives/ecec_03182021.htm.

    Total compensation rate calculation: (wage rate) * (benefits

multiplier) = $71.59 * 1.45 = $103.81.

---------------------------------------------------------------------------

 

    To estimate the hourly opportunity cost of time of the DACA

requestor population, DHS uses data from Census and USCIS. DHS assumes,

for the purposes of this analysis, that the profile of DACA recipients

follows that of the U.S. population at large. For example, DHS assumes

that the average DACA recipient values education and employment in a

similar way as the average person in the U.S. population. This allows

DHS to use other government agencies' official data, such as Census

data, to estimate DACA recipient compensation rates and other economic

characteristics given the absence of DHS-specific DACA recipient

population economic data.

    USCIS data on the active DACA population \365\ lend themselves to

delineation by age group: 15 to 24, 25 to 34, and 35 to 44.\366\ In an

effort to provide a more focused estimate of wages, DHS uses these age

groups in its estimates, assuming that different age groups have

different earnings potential. DHS estimates these age groups to

represent about 36 percent, 56 percent, and 9 percent, respectively, of

the total DACA population. Based on the public comments DHS received

regarding the FY 2022 ``aging in'' aspect of the DACA policy, DHS has

adjusted its analysis in the final rule to account for the aging of the

DACA recipient population, which implies a shift in the age

distributions. As such, DHS takes the average of the FY 2021 age

distribution of the DACA-eligible population (15 to 24 years old [36

percent], 25 to 34 years old [56 percent], and 35 to 44 years old [9

percent]) and FY 2031 age distribution (15 to 24 years old [0 percent],

25 to 34 years old [36 percent], and 35 to 44 years old [64

percent]).\367\ Therefore, DHS assumes an overall age group

distribution of the DACA-eligible population to be 18 percent for those

15 to 24 years old; 46 percent for those 25 to 34 years old; and 37

percent for those 35 to 44 years old. For the purposes of this

analysis, these calculations seek to account for a range of possible

DACA recipients' skill, education, and experience levels. This age

distribution could be expected to change over time.

---------------------------------------------------------------------------

 

    \365\ Source: Count of Active DACA Recipients by Month of

Current DACA Expiration as of Dec. 31, 2020. DHS/USCIS/OPQ ELIS and

CLAIMS 3 Consolidated (queried Jan. 2021).

    \366\ We assume this distribution remains constant throughout

the periods of analysis for both baselines as new DACA recipients

enter and previous DACA recipients exit the policy. The current

(age) requirements of the DACA policy do not prohibit us from making

this assumption.

    \367\ We assume the age group 15-24 has no members by the end of

the projection period, FY 2031. To obtain the FY 2031 age group

distribution, we shift the FY 2021 distribution under the assumption

that DACA recipients in a particular age group retain their DACA

approval as they age throughout the projection period of this

analysis. That is, (a) age group 15-24 becomes 0 percent of the

population; (b) FY 2031 age group 25-34 becomes the FY 2021 age

group 15-24, with 36 percent of the population; and (c) FY 2031 age

group 35-44 becomes 64 percent of the population, which is the sum

of FY 2021 age group 25-34 (56 percent) and FY 2021 age group 35-44

(9 percent).

---------------------------------------------------------------------------

 

    Next, DHS seeks to estimate an average compensation rate that

accounts for income variations across these age groups. DHS first

obtains annual average Consumer Price Index information for calendar

years 2012 through 2020.\368\ DHS sets 2020 as the base year and then

calculate historical average annual incomes (in 2020 dollars) based on

Census historical income data.\369\ To do this, DHS converts the annual

mean incomes in the Census data (2019 dollars) into 2020 dollars and

then averages the period 2012-2019 to obtain average full-time salary

information for the population at large for these age groups as

$18,389.39, $45,528.59, and $60,767.17, respectively.\370\ DHS

recognizes that not all DACA recipients work full time or have jobs

that offer additional benefits beyond the offered wage. The employment

and school attendance status of DACA recipients is varied and includes

being in school only, working full or part time, or being unemployed.

Moreover, some DACA recipients have additional compensation benefits

such as health

 

[[Page 53279]]

 

insurance whereas others do not. Additionally, DACA recipients could

hold entry-level jobs as well as more senior positions. Some are

employed in industries that generally pay higher wages and some are

employed in industries where wages are relatively lower. To account for

this wide range of possibilities, DHS takes a weighted average of the

salaries presented above using the distribution of the age groups as

weights, divided by 26 pay periods and 80 hours per pay period (the

typical biweekly pay schedule), loading the wage to account for

benefits, to arrive at an average hourly DACA requestor and recipient

compensation of $32.58.\371\

---------------------------------------------------------------------------

 

    \368\ Source: BLS, Historical Consumer Price Index for All Urban

Consumers (CPI-U): U.S. city average, all items, index averages

(Mar. 2021), https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202103.pdf.

    \369\ Source: U.S. Census Bureau, Historical Income Tables:

People, Table P-10. Age--People (Both Sexes Combined) by Median and

Mean, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-income-people.html (last revised Nov. 9, 2021).

    \370\ The Census data delineate age groups as 15 to 24, 25 to

34, and 35 to 44. DHS assumes the age groups identified in the USCIS

data follow the same pattern on average as the age groups in the

Census data (e.g., the Census income information by age group also

represents the income information in the age groups identified in

the USCIS data).

    \371\ Calculation: $32.58 = ((($18,389.39 * 18%) + ($45,528.59 *

46%) + ($60,767.17 * 37%))/26)/80 * 1.45.

---------------------------------------------------------------------------

 

(4) Time Burdens

    Compared to the NPRM, this section contains no changes to the time

burdens. In the final rule, DHS did adjust the GSA 2021 travel rate per

mile for biometrics adjusted to 2020 values using BLS CPI. Calculating

any potential costs associated with this final rule involves accounting

for the time that it takes to fill out the required forms, submit

biometrics collection, and travel to and from the biometrics collection

site. DHS estimates the time burden of completing for Form I-821D is 3

hours per request, including the time for reviewing instructions and

completing and submitting the form.\372\ Moreover, DHS estimates the

time burden of completing Form I-765 is 4.75 hours, including the time

for reviewing instructions, gathering the required documentation and

information, completing the application, preparing statements,

attaching necessary documentation, and submitting the application, and

the time burden of completing Form I-765WS is 0.5 hours, including the

time for reviewing instructions, gathering the required documentation

and information, completing the application, preparing statements,

attaching necessary documentation, and submitting the application.\373\

Additionally, DHS estimates the time burden of completing Form G-28 is

0.83 hours.\374\

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    \372\ USCIS, Instructions for Consideration of Deferred Action

for Childhood Arrivals (Form I-821D), OMB No. 1615-0124 (expires

Mar. 31, 2023), https://www.uscis.gov/sites/default/files/document/forms/i-821dinstr.pdf.

    \373\ Department of Homeland Security, USCIS, Instructions for

Application for Employment Authorization (Form I-765), OMB No. 1615-

0040, https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf. Last accessed Aug. 12, 2022. On July 26, 2022, OMB

approved an emergency revision action (ICR# 202207-1615-004)

associated with the final rule titled Asylumworks Vacatur 1615-AC66.

This action will change the future Form I-765 time burden from 4.75

hours to 4.50 hours once USCIS releases new Form I-765 and form

instructions. This time burden change of 15 minutes was not a result

of the DACA rulemaking and/or its provisions. In our estimations, we

use the time burden of 4.75 as it is the most current Form I-765

time burden published by USCIS as of August 12, 2022.

    \374\ USCIS, Instructions for Notice of Entry of Appearance as

Attorney or Accredited Representative (Form G-28), OMB No. 1615-

0105, https://www.uscis.gov/sites/default/files/document/forms/g-28instr.pdf. Last accessed Aug. 12, 2022.

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    In addition to the filing fee, the requestor will incur the costs

to comply with the biometrics submission requirement as well as the

opportunity cost of time for traveling to an USCIS Application Support

Center (ASC), the mileage cost of traveling to an ASC, and the

opportunity cost of time for submitting their biometrics. While travel

times and distances vary, DHS estimates that a requestor's average

roundtrip distance to an ASC is 50 miles and takes 2.5 hours on average

to complete the trip.\375\ Furthermore, DHS estimates that a requestor

waits an average of 70 minutes or 1.17 (rounded, 70 divided by 60

minutes) hours for service and to have their biometrics collected at an

ASC according to the PRA section of the instructions for Form I-765,

adding up to a total biometrics-related time burden of 3.67 hours (2.5

plus 1.17). In addition to the opportunity cost of time for providing

biometrics and traveling to an ASC, requestors will incur travel costs

related to biometrics collection. The per-requestor cost of travel

related to biometrics collection is about $27.00 per trip,\376\ based

on the 50-mile roundtrip distance to an ASC and the General Services

Administration's (GSA) travel rate of $0.54 per mile.\377\ DHS assumes

that each requestor travels independently to an ASC to submit their

biometrics.

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    \375\ See Final Rule, Employment Authorization for Certain H-4

Dependent Spouses, 80 FR 10284 (Feb. 25, 2015), and Final Rule,

Provisional and Unlawful Presence Waivers of Inadmissibility for

Certain Immediate Relatives, 78 FR 536, 572 (Jan. 3, 2013).

    \376\ Calculation: 50 miles * $0.54 per mile = $27 per trip.

    \377\ See the U.S. General Services Administration website at

https://www.gsa.gov/travel/plan-book/transportation-airfare-pov-etc/privately-owned-vehicle-mileage-rates/pov-mileage-rates-archived for

privately owned vehicle mileage reimbursement rates.

    Also see BLS CPI information at https://www.bls.gov/cpi/tables/seasonal-adjustment/revised-seasonally-adjusted-indexes-2021.xlsx.

    Calculation: GSA 2021 rate = $0.56 per mile; average 2021 CPI =

270.97, average 2020 CPI = 258.84. Rate per mile in 2020 dollars is

$0.56/((1 + ((270.97 - ;258.84)/258.84)) = $0.5349, rounded to

$0.54.

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(5) Costs of the Final Regulatory Action

    The provisions of this final rule would not impose any new costs on

the potential DACA requestor population when requesting deferred action

through Form I-821D and an EAD through Form I-765 and Form I-765WS. The

final rule would not implement any new forms to file, nor would it

change the estimated time burden for completing and filing any of the

required forms to request deferred action, and thus the total DACA

request cost would not change from the current amount if requestors

continued to file Forms I-821D, I-765, and I-765WS. Therefore, relative

to the No Action Baseline, the final rule does not impose any new costs

on requestors.

(6) Benefits of the Final Regulatory Action

    There are quantified and monetized benefits as well as unquantified

and qualitative benefits associated with the DACA policy under the

Napolitano Memorandum and this final rule. The quantified and monetized

benefits stem from the income earned by DACA recipients who participate

in the labor market. DHS recognizes that some recipients will not

participate in the labor market. For example, this category could

include DACA recipients who are currently enrolled in school, who

perhaps have scholarships or other types of financial aid, and who may

not need additional financial support (e.g., young DACA requestors,

including high school students, who are supported by their parents or

guardians). Therefore, such individuals may choose not to participate

in the labor market.

    To identify the proportion of the DACA recipients who might

participate in the labor market, DHS uses data from BLS on labor force

participation rates.\378\ BLS data show historical and projected labor

force participation rates (as a percent of total working-age

population) by age group. Assuming the DACA requestors' population

profiles (such as education and employment status) match those of the

U.S. population at large, DHS combines the BLS data on labor force

participation by age group with previously presented USCIS data on the

distribution of ages for the approved DACA requestor population (see

Wage Assumptions

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    \378\ Source: BLS, Employment Projections (Sept. 2020), Civilian

labor force participation rate by age, sex, race, and ethnicity,

Table 3.3. Civilian labor force participation rates by age, sex,

race, and ethnicity, 1999, 2009, 2019, and projected 2029, https://www.bls.gov/emp/tables/civilian-labor-force-participation-rate.htm.

 

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[[Page 53280]]

 

section) to calculate an age group-adjusted weighted average. Based on

this methodology, DHS estimates that the average rate of the potential

DACA recipients who will participate in the labor market and work is 78

percent and the rate of those who might not is 22 percent.\379\ The 78

percent estimate is interpreted as an average estimate over the

analysis period meant to encapsulate any fluctuations due to labor

market dynamics. DHS recognizes that the estimated 78 percent

participation rate of potential DACA recipients does not directly

account for the potential additional benefits of an EAD beyond income

earnings. DHS describes these potential additional benefits in the

analysis below, regarding the benefits of the rule relative to the Pre-

Guidance Baseline.

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    \379\ BLS labor force calculated averages by age group, United

States: 16 to 24 years old average is 53.6 percent (average of FY

2019 [55.9%] and FY 2029 [51.3%]); 25 to 34 years old average is

82.4 percent (average of FY 2019 [82.9%] and FY 2029 [81.9%]); and

35 to 44 years old average is 82.15 percent (average of FY 2019

[82.1%] and FY 2029 [82.2%]). Previously estimated USCIS age group

distribution of the active DACA-approved population: 16 to 24 years

old is 18 percent; 25 to 34 years old is 46 percent; and 35 to 44

years old is 37 percent. Calculations: Age group adjusted weighted

average is (53.6% * 18%) + (82.4% * 46%) + (82.15% * 37%) = 78.151%

= 78% (rounded) of the DACA recipient population who potentially

will participate in the labor market. Thus, it follows, (1-78.151%)

= 21.849% = 22% (rounded) of the DACA recipients who potentially

will opt out of the labor market.

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    DHS calculates the quantified and monetized benefits associated

with this final rule by taking the sum of the approved initial and

renewal populations (i.e., those who have been granted an EAD) and

multiplying it by an estimated yearly compensation total of $67,769,

which is the previously estimated compensation rate of $32.58,

multiplied by 80 hours in a pay period, times 26 pay periods per year.

As previously discussed, DHS assumes that over the analysis period, on

average, 78 percent of DACA recipients will work, so the total

population projections presented previously are adjusted to reflect

this (population * 78 percent). Given the previously delineated

provisions of this final rule and the stated assumptions, there are no

new quantified and monetized benefits relative to the No Action

Baseline. In the No Action Baseline, the same average estimate of 78

percent of DACA recipients will work, which is the same percentage of

people estimated that would work under this final rule.

    The unquantified and qualitative benefits of an approved DACA

request are discussed in significantly greater detail in the analysis

below, regarding the benefits of the rule relative to the Pre-Guidance

Baseline.

(7) Transfers of the Final Regulatory Changes

    The provisions of this final rule will produce no transfers

relative to the No Action Baseline.

  1. Pre-Guidance Baseline

    The period of analysis for Pre-Guidance Baseline also includes the

period FY 2012-FY 2020, which includes the period during which DHS has

operated under the Napolitano Memorandum, to provide a more informed

picture of the total impact of the DACA policy. DHS proceeds by

considering the DACA population from this period (given by the

historical data of Table 8 and Table 10), but applying all the

assumptions as presented before (e.g., on wages and age distributions).

In essence, in this baseline, we assume the DACA policy never existed,

but instead of the period of analysis beginning in FY 2021, the Pre-

Guidance Baseline period of analysis is FY 2012-FY 2031, which allows

DHS to analyze the potential effects of the final rule's provisions

starting in FY 2012. As a result, the Pre-Guidance baseline condition

is similar to the state of the world under the July 16, 2021, district

court decision, should the partial stay of that decision ultimately be

lifted.

(1) Population Estimates and Other Assumptions

    For the Pre-Guidance Baseline, the total population estimates

include all the projected populations described earlier in this

analysis for FY 2021-FY 2031, in Table 9 and Table 11, while also

adding the historical population numbers presented in Table 8 and Table

10 for FY 2012-FY 2020. To conserve space and time, we will not repeat

those numbers here.

(2) Forms and Fees

    All the forms and fees remain the same in the Pre-Guidance Baseline

as those presented for the No Action Baseline.

(3) Wage Assumptions

    For the Pre-Guidance Baseline, the wage assumptions remain as

presented previously for the No Action Baseline with an overall average

compensation rate for the DACA requestors of $32.58 and an average

compensation rate for preparers of $103.81.

(4) Time Burdens

    For the Pre-Guidance Baseline, all the time burdens remain as

presented previously for the No Action Baseline.

(5) Costs of the Final Regulatory Changes

    The Pre-Guidance Baseline represents a world without DACA; that is,

all baseline impacts are $0. DHS calculates the final rule's impacts

relative to this baseline of $0 costs, benefits, and transfers. Given

the population estimates, form fees, time burdens, wage assumptions

(including preparers'), biometrics fee, travel costs, and biometrics

time burden information presented in Section III.A.4.a, DHS presents

the requestors' application costs for period FY 2012-FY 2031. The

estimated cost per average DACA request is $1,206.83.\380\ Multiplying

these per-request costs by the population estimates yields the total

estimated cost. The following table presents our quantified and

monetized cost estimates.

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    \380\ The average request cost equals Form I-821D average cost

plus Form I-765 average cost, that is $1,206.83 = $461.24 + $745.59.

Breaking this down, Form I-821D average cost = Preparer average cost

+ DACA requestor average cost + Biometrics cost. Preparer average

cost = ($103.81 (estimated compensation) * 3.83 hours (total time

burden) + $85 (fee)) * 0.44 (application preparer use rate) =

$212.34. DACA applicant average cost = ($32.58 (estimated

compensation) * 3 (time burden)) + $85) * (1-0.44) = $102.33.

Biometrics cost = ($32.58 * 3.67 hours (time burden)) + $27 (50

miles * $.54/mile) = $146.57. Average Form I-821D cost = $212.34 +

$102.33 + $146.57 = $461.24. Average Form I-765 cost = $420.20

(preparer average cost) + $325.39 (DACA requestor average cost) =

$745.59.

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[[Page 53281]]

 

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BILLING CODE 9111-97-C

    The DACA policy also creates cost savings for DHS that are not

easily quantified and monetized. For instance, the DACA policy

simplifies many encounters between DHS and certain noncitizens,

reducing the burden upon DHS of vetting, tracking, and potentially

removing DACA recipients. Cost savings vary considerably depending on

the circumstances of the encounter; the type of enforcement officer

involved; relevant national security, border security, and public

safety considerations; and any intervening developments in the

noncitizen's situation and equities. In addition, some cost savings

that historically have been considered as part of deferred action

decision making are inherently difficult to quantify, such as costs

associated with taking enforcement action without first considering

``the likelihood of ultimately removing the alien, the presence of

sympathetic factors that could adversely affect future cases or

generate bad publicity . . ., and whether the alien had violated a

provision that had been given high enforcement priority.'' \381\

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    \381\ See AADC, 525 U.S. at 484 n.8 (citing 16 Charles Gordon,

et al., Immigr. L. and Proc. Sec.  242.1 (1998)).

---------------------------------------------------------------------------

 

(6) Benefits of the Final Regulatory Changes

    There are potential quantified and monetized benefits and

unquantified and qualitative benefits associated with this final rule.

The quantified and monetized benefits stem from the income earned by

DACA recipients who have an EAD and choose to participate in the labor

market. By participating in the labor market, DACA recipients are

increasing the production of the economy and earning wages, which, in

turn, leads to additional consumption. DHS acknowledges the possibility

that certain DACA recipients might have participated in the informal

labor market and earned wages prior to being granted lawful presence

and work authorization under the DACA policy. For this segment of the

DACA-recipient population, DHS would be overestimating the quantified

benefits in the form of earned income directly attributable to

receiving work authorization. Adjusting the quantified benefits to show

only income attributable to work authorization under DACA would entail

estimating the difference between the compensation these individuals

might expect to earn

 

[[Page 53282]]

 

in the informal labor market and the compensation estimates presented

in this analysis, multiplied by the estimate of this population.\382\

---------------------------------------------------------------------------

 

    \382\ See Borjas and Cassidy (2019).

---------------------------------------------------------------------------

 

    For example, Borjas and Cassidy (2019) examine the wage

differential between informal and formal work for immigrant

populations. They apply their analysis of a wage differential, or

``wage penalty,'' to an estimated proxy of the DACA-eligible

population, suggesting that the wage earned as a documented noncitizen

could be, on average, 4 percent to 6 percent higher than the wage of an

individual working as an undocumented noncitizen. This phenomenon also

is discussed in a recently published report on the economic benefits of

unauthorized immigrants gaining permanent legal status, which points

out that per-hour income differentials exist when comparing

unauthorized immigrant workers to citizen and legal immigrant

workers.\383\ In contrast, in a survey of 1,157 DACA recipients, Wong

(2020) finds that respondents age 25 and older (n=882) reported wage

increases of 129 percent ($27.17/$11.89 = 2.285) since receiving

DACA.\384\ Such an adjustment would yield a more accurate estimate of

the quantified benefits attributable to the receipt of work

authorization under DACA.\385\ DHS received public comments on the

topic of wage differentials specifically mentioning that, for

undocumented women, wage differentials could be even higher. However,

no comments made suggestions about whether DHS should adjust the

benefit estimates to account for possible wage differentials, or how to

adjust these estimates. Therefore, DHS made no adjustments in this

final rule RIA.

---------------------------------------------------------------------------

 

    \383\ See White House Council of Economic Advisors, The Economic

Benefits of Extending Permanent Legal Status to Unauthorized

Immigrants (Sept. 17, 2021), https://www.whitehouse.gov/cea/blog/2021/09/17/the-economic-benefits-of-extending-permanent-legal-status-to-unauthorized-immigrants.

    \384\ See Wong (2020). DHS notes that the intervening years of

experience could explain some of this growth rate.

    \385\ Borjas and Cassidy (2019) and Wong (2020) suggest that the

additional earnings from wages presented in this final rule, for

this segment of the DACA population, would have to be adjusted by

this formula: NPRM estimated DACA wage--(NPRM DACA estimated wage/(1

+ wage differential %)). This adjustment multiplied by this

population yields a more accurate estimate of the quantified and

monetized benefits of this final rule.

---------------------------------------------------------------------------

 

    In addition, DHS considered an additional modification to the

estimated benefits to help ensure DHS is not overestimating the

quantified benefits directly attributable to receiving DACA. For those

who entered the labor market after receiving work authorization and

began to receive paid compensation from an employer, counting the

entire amount received by the employer as a benefit could likely

results in an overestimate. Even without working for wages, the time

spent by an individual has value. For example, if someone performs

childcare, housework, or other activities without paid compensation,

that time still has value. DHS notes that for many workers, paid work

can also provide subjective value that exceeds and is not adequately

captured by wages; we bracket that possibility here.

    Because nonpaid time still has value, a more accurate estimate of

the net benefits of receiving work authorization under the final rule

would take into account the value of time of the individual before

receiving work authorization. For example, the individual and the

economy would gain the benefit of the DACA recipients entering the

workforce and receiving paid compensation but would lose the value of

their time spent performing non-paid activities. Due to the wide

variety of non-paid activities an individual could pursue without DACA-

based work authorization, it is difficult to estimate the value of that

time. DHS requested public comment on how to best value the non-paid

time of those who were not part of the authorized workforce without

DACA, but did not receive any suggestions as to whether DHS should

adjust the estimated benefits to possibly account for leisure or non-

paid activities, nor how to adjust the estimated benefits. For this

reason, and based on approaches from previous DHS rules,\386\ DHS

estimated that a reasonable proxy of the value of one hour of non-paid

time is equal to the federal minimum wage, adjusted for benefits and in

2020 dollars, at $10.05.\387\ For an annual value, as before, DHS takes

the hourly rate (including benefits), $10.05, and multiplies it by 80

hours in a pay period and further multiplies by 26 pay periods, which

yields an annual value for non-paid time of $20,904.

---------------------------------------------------------------------------

 

    \386\ For example, in prior rules, the DHS position was that the

value of time for those not authorized to be in the workforce still

has a positive value. DHS valued this time as the minimum wage of

$7.25 * a benefits multiplier of approximately 1.45. See Employment

Authorization for Certain H-4 Dependent Spouses, 80 FR 10283 (Feb.

25, 2015), and International Entrepreneur Rule, 82 FR 5238 (Jan. 17,

2017).

    \387\ Federal minimum wage equals $7.25. Benefits multiplier

from before = 1.45. Average annual 2021 CPI = 270.970; 2020 CPI =

258.811. Value of non-paid time = (7.25/(270.970/258.811)) * 1.45 =

$10.05 (rounded).

---------------------------------------------------------------------------

 

    For total yearly income earnings calculations, DHS uses the

previously estimated average annual compensation of DACA EAD recipients

of $67,768.79 multiplied by 78 percent of the active population data in

Table 9 and the active population estimates in Table 11. DHS estimated

78 percent of DACA recipients will choose to participate in the labor

market, potentially earning income. This earned income is presented

here as part of the quantified and monetized benefit of this final rule

because of recipients having an EAD and working. The benefit (from

earned income) per working DACA recipient is adjusted by subtracting

the portion that is a transfer from working recipients to the Federal

Government, which ends up being $62,584.47 ($67,768.79 * (1-0.0765)).

These calculations assume that DACA workers were not substituted for

other already employed workers, and that all workers looking for work

can find employment in the labor market. As stated in the NPRM and

discussed below in Section III.A.4.d, DHS cannot predict the degree to

which DACA recipients are substituted for other workers in the U.S.

economy since this depends on many factors. Multiplying this per-

recipient benefit (income earnings) by the population projections

presented earlier in Table 9 and Table 11 yields the results in column

A in Table 13.\388\ Similarly, using the 78 percent rate applied to the

active DACA populations in Tables 9 and 11 yields the results in column

B in Table 13. Subtracting the two columns, A-B, yields our quantified

and monetized net benefits presented in column C of Table 13.

---------------------------------------------------------------------------

 

    \388\ The portion of total potential income earned that is a

payroll tax transfer from the DACA working population to the Federal

Government is 7.65%. Multiplying the benefits numbers in Table 13 by

[1/(1-0.0765)] yields the pre-tax overall total potential income

earned. The section below on Transfers discusses more details on the

calculations and transfer estimates.

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    DHS notes that to whatever extent a DACA recipient's wages

otherwise would be earned by another worker, the income earnings and

therefore net benefits in Table 13 would be overstated (see Labor

Market Impacts section for additional analysis).

    The unquantified and qualitative benefits stem in part from the

forbearance component of an approved DACA request. The DACA requestors

who receive deferred action under this final rule would enjoy

additional benefits relative to the Pre-Guidance Baseline. DHS

describes these next along with any other qualitative impacts of this

final rule relative to the Pre-Guidance Baseline.

    Some of the benefits associated with the DACA policy accrue to DHS

(as discussed above), whereas others accrue to the noncitizens who are

granted deferred action and employment authorization, and still others

accrue to family members, employers, universities, and others.

Quantification and monetization of many of these benefits is unusually

challenging. E.O. 13563 states that:

 

each agency is directed to use the best available techniques to

quantify anticipated present and future benefits and costs as

accurately as possible. Where appropriate and permitted by law, each

agency may consider (and discuss qualitatively) values that are

difficult or impossible to quantify, including equity, human

dignity, fairness, and distributive impacts.\389\

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    \389\ 76 FR 3821 (Jan. 21, 2011).

 

    DHS emphasizes that the goals of this regulation include protection

of equity, human dignity, and fairness, and the Department is keenly

alert to distributive impacts. DHS also recognizes that while some of

those qualitative benefits are difficult or impossible to measure, it

is essential that they be considered. Under the final rule, deferred

action may be available to people who came to the United States many

years ago as children--often as young children. As discussed above, in

DHS's view, scarce resources are not best expended with respect to

people

 

[[Page 53284]]

 

who meet the relevant criteria and are deemed, on a case-by-case basis,

to warrant a favorable exercise of discretion. In addition, DHS

believes forbearance of removal for such individuals furthers values of

equity, human dignity, and fairness.

    It is not simple to quantify and monetize the benefits of

forbearance for those who obtain deferred action and their family

members. These challenging-to-quantify benefits include (1) a reduction

of fear and anxiety for DACA recipients and their families,\390\ (2) an

increased sense of acceptance and belonging to a community, (3) an

increased sense of family security, and (4) an increased sense of hope

for the future. Some of these benefits are connected with equity and

fairness, mentioned in E.O. 13563; others are plausibly connected with

human dignity, also mentioned in that E.O. Again, these benefits are

difficult to quantify.\391\ One might attempt to compare the benefits

of the reduced risk of deportation to other benefits from risk

reduction, such as the reduction of mortality and morbidity risks. But

any such comparison would be highly speculative, and DHS does not

believe that it can monetize the total value of these specific benefits

to DACA recipients. A possible (and very conservative) lower bound

estimate could be the cost of requesting DACA; that is, it would be

reasonable to assume that the DACA-approved population values these

benefits at least as much as the cost of requesting DACA. DHS does not

speculate on an upper bound but concludes that it could well be a

substantially large sum, much larger than the lower bound; the benefits

of items (1), (2), (3), and (4) above are likely to be high.

---------------------------------------------------------------------------

 

    \390\ Giuntella (2021).

    \391\ On some of the conceptual and empirical issues, see

Matthew Adler, Fear Assessment: Cost-Benefit Analysis and the

Pricing of Fear and Anxiety, 79 Chicago-Kent L. Rev. 977 (2004).

---------------------------------------------------------------------------

 

    DHS notes as well that DACA recipients could be approved for

discretionary advance parole, which permits them to seek parole into

the United States upon their return from travel outside the United

States.\392\ In addition to the benefits of travel itself, DHS

recognizes that some DACA recipients who were not previously lawfully

admitted or paroled into the United States and are otherwise eligible

to adjust status to that of a lawful permanent resident (such as

through employment or family sponsorship) may satisfy the ``inspected

and admitted or paroled'' requirement of the adjustment of status

statute at 8 U.S.C. 1255(a) after being paroled into the United States

upon their return. However, DHS may grant advance parole to any

individual who meets the statutory criteria with or without lawful

status or deferred action, and a grant of advance parole alone does not

create a pathway to lawful status or citizenship. Regardless, DHS is

also unable to quantify the value of advance parole to the DACA

population.

---------------------------------------------------------------------------

 

    \392\ See 8 U.S.C. 1182(d)(5), 8 CFR 212.5, authorizing parole

on a case-by-case basis for urgent humanitarian reasons or

significant public benefit.

---------------------------------------------------------------------------

 

    Employment authorization