©Attorney Farhad Sethna, 2022
The USCIS final rule on DACA goes into effect on October 31, 2022. The USCIS states that there are over 700,000 DACA recipients in the United States.
What does this rule mean for the DACA-eligible alien, brought to the United States as a child under 16, before 2007?
Briefly, the new rule codifies the DACA memoranda issued by Homeland security during the Obama administration. The DACA program has been criticized as being illegal by various Republican governments, notably the state of Texas. Many Republican governors have denied DACA recipients driver’s licenses, and loans or grants to attend college, and even licenses to practice law.
Therefore, the new regulations are welcome and will hopefully give DACA recipients a legal basis to challenge roadblocks to their ability to integrate into and contribute to American society.
What is the practical effect of these new regulations?
To be honest, in my opinion, there is virtually no practical effect. The District Court decision last year to prevent new DACA applicants from applying for DACA status still stands. So although the USCIS has collected millions of dollars in fees from these new DACA applicants, it has not issued DACA deferred action protected status nor work permits to these applicants.
Additionally, pending litigation at the Fifth Circuit Court of Appeals, based in New Orleans, Louisiana questions the very legality of the DACA program. That court is very conservative, and could side with the state of Texas, holding that DACA is illegal, notwithstanding the new regulation.
Finally, if the 5th Circuit (or any other circuit for that matter) strikes DACA down as being illegal, and the parties appeal to the Supreme Court, the new, conservative majority of the Supreme Court could still strike down DACA as being illegal. [Remember, in 2020, the Supreme Court upheld DACA, but not because the Supreme Court found it was legal, rather that the Trump administration had not gone through the proper procedure to rescind the administrative process that granted DACA status.
Is congressional relief available?
Highly doubtful. In this polarized nation, with Republicans fighting Democrats every step of the way, to deny Democrats any advantage, it is highly unlikely that any DACA legislation will pass in this current make-up of Congress.
In my humble opinion, DACA recipients are (sadly) going to remain political footballs until President Biden controls the house and the Senate. Only then will Democrats and those moderate Republicans who join them, be able to pass legislation that will conclusively, once and for all, give these innocent DACA recipients a shot at permanent residency and a chance to participate in the American dream, which they so richly deserve.
© Farhad Sethna, Attorney, 2022
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to email@example.com. We will try to answer as many questions as possible.