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New rule shields DACA from being challenged in court


All right. A bit more on immigration now. DACA is the federal program that offers protections to immigrants who arrived in the U.S. as children. When she was 11, Daniela Santos Viera (ph) came from Brazil.

DANIELA SANTOS VIERA: DACA really redefined what was possible and what wasn't possible for me. Before DACA, I had, really, no idea how I was going to make college possible.

KING: She did finish college. And she started working to get a graduate degree. But DACA is temporary. And last summer, a federal judge in Texas ruled that it is unlawful. Earlier this week, Homeland Security Secretary Alejandro Mayorkas issued a rule shielding DACA from future legal challenges until Congress does something. Daniela says it's not enough.

VIERA: It continues to exclude thousands of youth who came to this country more recently than the DACA parameters allow for. It's not enough because it doesn't have a path to citizenship. It's not enough because I'm still going to be dealing with the cycle of uncertainty every two years. And it's not what the president promised.

KING: Our co-host, Rachel, talked to Austin Kocher about all of this. He's an expert on immigration with TRAC, a research institute that studies federal policies.


May I ask you to do a little of the heavy lifting here and explain what exactly the new rule from the Biden administration does?

AUSTIN KOCHER: Sure. So the new rule from the Biden administration is an attempt to basically deal with a series of legal challenges that have happened over the last decade since DACA was initially announced in 2012. The main criticism in the courts has been that the program didn't go through the proper rule-making process to make it an actual, federal rule, which includes a comment period. So the Biden administration is trying to address that now, in particular in response to the Texas court ruling this summer, and take the DACA policy and put it through the rule process.

MARTIN: But it doesn't do anything for children who were brought to this country before the DACA timeline, right? Say, after 2007, any kids who were brought then, who'd be teenagers now, wouldn't qualify for these protections.

KOCHER: Yeah. That's right. So by putting the original DACA policy into a rule, it takes the criteria, which at the time was, you know, individuals had to be in the country since 2007, had to be continuously in the United States for five years up until the time that the policy was announced in 2012 - but it doesn't change the dates for any of those. So it does provide a measure of security for the more than 600,000 DACA recipients currently. But by not expanding it, it really doesn't provide any additional protection for any new people. And I think one of the most important things to sort of keep in mind here is that that pool of eligible DACA recipients dwindles each year because the dates haven't moved. So a lot of people are aging out.

MARTIN: So this new rule from the Biden administration still doesn't do anything to change the lives of DREAMers like Daniela, who we heard from earlier. I mean, yes, she gets the benefit of DACA protections. But it's still not a permanent fix for her. She still has to live with that ambiguity and fear every two years when her renewal comes up.

KOCHER: That's right. It doesn't change anything for DACA recipients. And it doesn't expand the program in any way. And because it really only puts those original provisions into the rule process, essentially, it doesn't provide any path to legalization or citizenship. It doesn't expand the DACA criteria any way. So it doesn't apply to any new people. And even if the Biden administration approves that rule, it could still face future challenges yet again.

MARTIN: So is there any hope for a permanent solution? If it must come out of Congress, then at least this Congress doesn't seem apt to make that change.

KOCHER: Yes. I mean, I think there's two things sort of happening at the same time. I think the Democrats are trying to push for immigration reform in Congress. And you're right. There does not seem to be any movement on that. But at the same time, Congress really has delegated a lot of that discretionary authority to the executive. The DACA program is typically characterized as sort of a humanitarian program for children who came to the United States as sort of a benefit for them. But in fact, most of the justification for the rule and the proposed rule change is actually around the enormous benefit that the program provides to the tune of tens of billions of dollars in both federal tax revenue, as well as state and local tax revenue, and the benefit for the U.S. economy in terms of workers and jobs.

MARTIN: Austin Kocher is an expert on immigration with TRAC, a research institute that studies federal policy. Thank you so much for your time and perspective. We appreciate it.

KOCHER: Thanks, Rachel. Transcript provided by NPR, Copyright NPR.

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