Rule2022-18401
Deferred Action for Childhood Arrivals
Primary source
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Published
August 30, 2022
Effective
October 31, 2022
Issuing agencies
Homeland Security Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 167 (Tuesday, August 30, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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
I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the 2021 Proposed Rule
C. Summary of Changes From Proposed Rule to Final Rule
D. Summary of Costs and Benefits
II. Response to Public Comments on the Proposed Rule
A. General Feedback on the Rule
1. General Support for Rule
2. General Opposition to Rule
3. Impacts on DACA Recipients and Their Families
4. Impacts on Other Populations, Including U.S. Workers and
Other Noncitizens
5. Impacts on the Economy, Communities, and States
6. Impacts on Businesses, Employers, and Educational
Institutions
7. Impacts on Migration
8. Other Impacts on the Federal Government
9. Criminality, National Security Issues, and Other Safety
Concerns
10. Creation of a ``Permanent'' Class of Individuals Without
Legal Status
11. Pathway to Lawful Status or Citizenship
12. Other General Reactions and Suggestions
B. Background, Authority, and Purpose
1. Statutory Authority
2. Litigation and Legal Disputes
3. Other Comments and Suggestions
C. Comments on Proposed Provisions
1. Deferred Action/Forbearance From Enforcement Action (Sec.
236.21(c)(1))
2. Employment Authorization (Sec. Sec. 236.21(c)(2) and
274a.12(c)(33))
a. General Comments on Employment Authorization
b. Authority To Provide Employment Authorization to Deferred
Action Recipients
c. Unbundled Process To Make Form I-765 Optional
d. Automatic Termination of Work Authorization
3. Lawfully Present (Sec. 236.21(c)(3)) and Unlawful Presence
(Sec. 236.21(c)(4))
4. Discretionary Determination (Sec. 236.22)
a. General Comments on Discretionary Determination
b. 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
5. Procedures for Request, Terminations, and Restrictions on
Information Use (Sec. 236.23)
a. Fees and Fee Waivers
b. USCIS Jurisdiction (Including Comments on Inability To Grant
DACA to Someone in Immigration Detention)
c. Grants and Denials of a Request for DACA (Including
Additional Evidence, 2-Year Period, Consultations, Notice of
Decision)
d. Notice To Appear or Referral to ICE
e. Appeals and Reconsideration
f. Termination of a Grant of DACA (Including Comments on
Discretionary/Automatic Termination and Alternatives)
g. Restrictions on Use of Information Provided by DACA
Requestors (Including Information Sharing and Privacy Concerns)
6. Severability (Sec. 236.24)
7. Advance Parole and Adjustment of Status
D. Other Issues Relating to the Rule
1. Public/Stakeholder Engagement (e.g., Requests To Extend the
Comment Period)
2. Administrative Procedure Act and Rulemaking Requirements
3. Processing Time Outlook (Including Comments on Backlogs)
4. DACA FAQs
5. Other Comments on Issues Relating to the Rule
E. Statutory and Regulatory Requirements
1. Impacts and Benefits (E.O. 12866 and E.O. 13563)
a. Methodology and Adequacy of Cost-Benefit Analysis
(1) Methodology of the RIA
(2) Comments on Population Estimates and Assumptions
(3) Comments on Wage Rages
b. Benefits (No Action Baseline, Pre-Guidance Baseline, or
Unspecified)
c. Regulatory Alternatives
d. Regulatory Flexibility Act (Impact on Small Entities)
e. Other Comments on Costs and Benefits
2. Paperwork Reduction Act (Including Comments on Actual Forms/
Instructions, and Burden Estimates for Forms I-821D and I-765)
3. Other Statutory and Regulatory Requirements (e.g., National
Environmental Policy Act)
F. Out of Scope
III. Statutory and Regulatory Requirements
A. 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
a. 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
b. 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
c. Costs to the Federal Government
d. Labor Market Impacts
e. Fiscal Effects on State and Local Governments
f. Reliance Interests and Other Regulatory Effects
g. Discounted Direct Costs, Cost Savings, Transfers, and
Benefits of the Final Regulatory Changes
h. Regulatory Alternatives
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Order 13132: Federalism
F. Executive Order 12988: Civil Justice Reform
G. Paperwork Reduction Act--Collection of Information
H. Family Assessment
I. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
J. National Environmental Policy Act
K. Executive Order 12630: Governmental Actions and Interference
With
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Constitutionally Protected Property Rights
L. 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
I. Executive Summary
A. 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
V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection
(CBP), et al. (June 15, 2012), <a href="https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf">https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf</a> (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;
3. 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;
4. 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
5. 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), <a href="https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf">https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf</a>. 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), <a href="https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients%E2%80%93December31%2C2020.pdf">https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients%E2%80%93December31%2C2020.pdf</a>.
\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),
<a href="https://www.americanprogress.org/issues/immigration/news/2020/04/06/482676/know-demographic-economic-impacts-daca-recipients-spring-2020-edition">https://www.americanprogress.org/issues/immigration/news/2020/04/06/482676/know-demographic-economic-impacts-daca-recipients-spring-2020-edition</a> (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), <a href="https://unitedwedream.org/wp-content/uploads/2017/10/DACA-report-final-1.pdf">https://unitedwedream.org/wp-content/uploads/2017/10/DACA-report-final-1.pdf</a> (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, <a href="https://cdn.americanprogress.org/content/uploads/2020/10/02131657/DACA-Survey-20201.pdf">https://cdn.americanprogress.org/content/uploads/2020/10/02131657/DACA-Survey-20201.pdf</a> (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), <a href="https://immigrationinitiative.harvard.edu/files/hii/files/final_daca_report.pdf">https://immigrationinitiative.harvard.edu/files/hii/files/final_daca_report.pdf</a> (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),
<a href="https://www.americanprogress.org/issues/immigration/news/2019/09/05/474177/know-daca-recipients-united-states">https://www.americanprogress.org/issues/immigration/news/2019/09/05/474177/know-daca-recipients-united-states</a>; Jie Zong, et al., A
Profile of Current DACA Recipients by Education, Industry, and
Occupation, Migration Policy Institute (Nov. 2017), <a href="https://www.migrationpolicy.org/sites/default/files/publications/DACA-Recipients-Work-Education-Nov2017-FS-FINAL.pdf">https://www.migrationpolicy.org/sites/default/files/publications/DACA-Recipients-Work-Education-Nov2017-FS-FINAL.pdf</a> (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), <a href="https://www.americanprogress.org/issues/immigration/news/2020/04/06/482708/demographic-profile-daca-recipients-frontlines-coronavirus-response">https://www.americanprogress.org/issues/immigration/news/2020/04/06/482708/demographic-profile-daca-recipients-frontlines-coronavirus-response</a>
(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), <a href="https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca-recipients-economic-educational-gains-continue-grow">https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca-recipients-economic-educational-gains-continue-grow</a> (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), <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5743635">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5743635</a> (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), <a href="https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf">https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf</a>, 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, <a href="https://trumpwhitehouse.archives.gov/briefings-statements/statement-president-donald-j-trump-7">https://trumpwhitehouse.archives.gov/briefings-statements/statement-president-donald-j-trump-7</a> (``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), <a href="https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca">https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca</a> (hereinafter Duke Memorandum); Memorandum from Secretary
Kirstjen M. Nielsen, DHS (June 22, 2018), <a href="https://www.dhs.gov/sites/default/files/publications/18_0622_S1_Memorandum_DACA.pdf">https://www.dhs.gov/sites/default/files/publications/18_0622_S1_Memorandum_DACA.pdf</a>
(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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B. 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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<bullet> 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.
<bullet> 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.
<bullet> 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:
<bullet> 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.
<bullet> 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.
---------------------------------------------------------------------------
<bullet> 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.
<bullet> ``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).
C. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
docket number USCIS-2021-0006.
<bullet> 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).
<bullet> 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).
<bullet> 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).
<bullet> 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).
<bullet> 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).
D. 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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II. Response to Public Comments on the Proposed Rule
A. 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.
2. 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, <a href="https://www.dhs.gov/2022-priorities">https://www.dhs.gov/2022-priorities</a> (last updated Mar. 17, 2022).
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3. 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), <a href="https://www.brookings.edu/blog/brookings-now/2017/09/22/the-reality-of-daca-the-deferred-action-for-childhood-arrivals-program">https://www.brookings.edu/blog/brookings-now/2017/09/22/the-reality-of-daca-the-deferred-action-for-childhood-arrivals-program</a>.
\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), <a href="https://doi.org/10.1007/s10903-013-9968-4">https://doi.org/10.1007/s10903-013-9968-4</a>; 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)).
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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, <a href="https://www.dhs.gov/immigration-options-victims-crimes">https://www.dhs.gov/immigration-options-victims-crimes</a> (last updated Jan.
30, 2022).
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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.
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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.
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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.
4. 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), <a href="https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2014.pdf">https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2014.pdf</a>.
\54\ Ike Brannon and M. Kevin McGee, Estimating the Economic
Impacts of DACA (July 5, 2019), <a href="https://ssrn.com/abstract=3420511">https://ssrn.com/abstract=3420511</a> or
<a href="http://dx.doi.org/10.2139/ssrn.3420511">http://dx.doi.org/10.2139/ssrn.3420511</a> (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), <a href="https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm">https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm</a> (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), <a href="https://www.nap.edu/catalog/23550/the-economic-and-fiscal-consequences-of-immigration">https://www.nap.edu/catalog/23550/the-economic-and-fiscal-consequences-of-immigration</a> (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\
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\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), <a href="https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work">https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work</a>.
\66\ See INA sec. 286(m), 8 U.S.C. 1356(m).
\67\ See new 8 CFR 236.23(a)(1).
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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.
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\68\ See USCIS, DACA NPRM Supplemental Cost Methodology Docket
(Sept. 28, 2021), <a href="https://www.regulations.gov/document?D=USCIS-2021-0006-0008">https://www.regulations.gov/document?D=USCIS-2021-0006-0008</a> (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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5. 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\
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\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).
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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.
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\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), <a href="https://www.americanprogress.org/issues/immigration/news/2019/09/19/474636/daca-recipients-livelihoods-families-sense-security-stake-november">https://www.americanprogress.org/issues/immigration/news/2019/09/19/474636/daca-recipients-livelihoods-families-sense-security-stake-november</a>.
\75\ Ike Brannon and Logan Albright, The Economic and Fiscal
Impact of Repealing DACA, Cato at Liberty (Jan. 18, 2017), <a href="https://www.cato.org/blog/economic-fiscal-impact-repealing-daca">https://www.cato.org/blog/economic-fiscal-impact-repealing-daca</a> (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), <a href="https://www.nfib.com/surveys/small-business-economic-trends">https://www.nfib.com/surveys/small-business-economic-trends</a>, at 1; Anneken
Tappe, Nearly half of American companies say they are short of
skilled workers, CNN (Oct. 25, 2021), <a href="https://www.cnn.com/2021/10/25/economy/business-conditions-worker-shortage/index.html">https://www.cnn.com/2021/10/25/economy/business-conditions-worker-shortage/index.html</a>.
\77\ Nat'l Fed'n of Indep. Bus., Small Business Optimism Index
(Aug. 2019), <a href="https://www.nfib.com/surveys/small-business-economic-trends">https://www.nfib.com/surveys/small-business-economic-trends</a>.
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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.
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\78\ Tom K. Wong, et al., DACA Recipients' Economic and
Educational Gains Continue to Grow, Center for American Progress
(Aug. 28, 2017), <a href="https://www.americanprogress.org/article/daca-recipients-economic-educational-gains-continue-grow">https://www.americanprogress.org/article/daca-recipients-economic-educational-gains-continue-grow</a>.
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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.
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\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.
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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.
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\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, <a href="https://www.higheredimmigrationportal.org/state/california">https://www.higheredimmigrationportal.org/state/california</a>
(last visited June 9, 2022).
\84\ Logan Albright, et al., A New Estimate of the Cost of
Reversing DACA, Cato Inst. (Feb. 15, 2018), <a href="https://www.cato.org/publications/working-paper/new-estimate-cost-reversing-daca">https://www.cato.org/publications/working-paper/new-estimate-cost-reversing-daca</a>
(hereinafter Albright (2018)).
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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\
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\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), <a href="https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca-recipients-fall-2021-edition">https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca-recipients-fall-2021-edition</a>.
\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.
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\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), <a href="https://ssrn.com/abstract=3861371">https://ssrn.com/abstract=3861371</a> or <a href="http://dx.doi.org/10.2139/ssrn.3861371">http://dx.doi.org/10.2139/ssrn.3861371</a>
(hereinafter Brannon and McGee (2021)); Martin Ruhs and Carlos
Vargas-Silva, The Labour Market Effects of Immigration, Migration
Observatory (Feb. 2021), <a href="https://migrationobservatory.ox.ac.uk/resources/briefings/the-labour-market-effects-of-immigration">https://migrationobservatory.ox.ac.uk/resources/briefings/the-labour-market-effects-of-immigration</a>;
Matthew Denhart, America's Advantage: A Handbook on Immigration and
Economic Growth, George W. Bush Inst. 118-19 (3d ed. Sept. 2017),
<a href="http://gwbcenter.imgix.net/Resources/gwbi-americas-advantage-immigration-handbook-2017.pdf">http://gwbcenter.imgix.net/Resources/gwbi-americas-advantage-immigration-handbook-2017.pdf</a>; Ryan D. Edwards and Mao-Mei Liu,
Recent Immigration Has Been Good for Native-Born Employment,
Bipartisan Pol'y Ctr. (June 2018), <a href="https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2019/03/Recent-Immigration-Has-Been-Good-for-Native-Born-Employment.pdf">https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2019/03/Recent-Immigration-Has-Been-Good-for-Native-Born-Employment.pdf</a>; Gretchen Frazee, 4 Myths
About How Immigrants Affect the U.S. Economy, PBS NewsHour (Nov. 2,
2018), <a href="https://www.pbs.org/newshour/economy/making-sense/4-">https://www.pbs.org/newshour/economy/making-sense/4-</a> 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), <a href="https://www.cato.org/blog/three-reasons-why-immigrants-arent-going-take-job">https://www.cato.org/blog/three-reasons-why-immigrants-arent-going-take-job</a>.
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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.
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\89\ See, e.g., Abeba Mussa, et al., Immigration and housing: A
spatial econometric analysis, J. of Housing Econ., 35, 13-25 (2017),
<a href="https://doi.org/10.1016/j.jhe.2017.01.002">https://doi.org/10.1016/j.jhe.2017.01.002</a>.
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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.
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\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.
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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.
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\91\ Georgetown Law, Law Enforcement Leaders and Prosecutors
Defend DACA (Mar. 20, 2018), <a href="https://www.law.georgetown.edu/news/law-enforcement-leaders-and-prosecutors-defend-daca">https://www.law.georgetown.edu/news/law-enforcement-leaders-and-prosecutors-defend-daca</a>.
\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), <a href="https://perma.cc/QS5RK867">https://perma.cc/QS5RK867</a>.
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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), <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5578874">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5578874</a>;
Chandra Kring Villanueva, Texas Schools at Risk of Significant
Funding Cuts due to Pandemic-Related Attendance Loss, Every Texan
(Feb. 22, 2021), <a href="https://everytexan.org/2021/02/22/keeping-schools-whole-through-crisis">https://everytexan.org/2021/02/22/keeping-schools-whole-through-crisis</a>. 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.
6. 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.
7. 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), <a href="https://www.pewresearch.org/fact-tank/2021/04/13/key-facts-about-the-changing-u-s-unauthorized-immigrant-population">https://www.pewresearch.org/fact-tank/2021/04/13/key-facts-about-the-changing-u-s-unauthorized-immigrant-population</a>.
\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),
<a href="https://www.americanprogress.org/article/statistical-analysis-shows-that-violence-not-deferred-action-is-behind-the-surge-of-unaccompanied-children-crossing-the-border">https://www.americanprogress.org/article/statistical-analysis-shows-that-violence-not-deferred-action-is-behind-the-surge-of-unaccompanied-children-crossing-the-border</a> (hereinafter Wong
(2014)); see also David J. Bier, DACA Definitely Did Not Cause the
Child Migrant Crisis, Cato Institute (Jan. 9, 2017), <a href="https://www.cato.org/blog/daca-definitely-did-not-cause-child-migrant-crisis">https://www.cato.org/blog/daca-definitely-did-not-cause-child-migrant-crisis</a>.
---------------------------------------------------------------------------
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, <a href="https://www.dhs.gov/2022-priorities">https://www.dhs.gov/2022-priorities</a> (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\
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\109\ U.S. Border Patrol, Total Unaccompanied Alien Children (0-
17 Years Old) Apprehensions By Month--FY 2010-FY 2014 (Jan. 2020),
<a href="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">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</a>.
\110\ U.S. Border Patrol, Total Illegal Alien Apprehensions By
Month--FY 2000-FY 2019 (Jan. 2020), <a href="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">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</a>.
\111\ Wong (2014); see also Amelia Cheatham, Central America's
Turbulent Northern Triangle, Council on Foreign Relations (July 1,
2021), <a href="https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle">https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle</a>.
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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\
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\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),
<a href="https://www.migrationpolicy.org/research/motivations-costs-central-american-migration">https://www.migrationpolicy.org/research/motivations-costs-central-american-migration</a> (hereinafter Ruiz Soto (2021)).
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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\
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\113\ CBP, CBP Enforcement Statistics Fiscal Year 2022: U.S.
Border Patrol Recidivism Rates, <a href="https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics">https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics</a> (last modified June 15, 2022).
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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\
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\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.
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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.
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\116\ See 8 U.S.C. 1153 (providing allocation of immigrant visas
among family-sponsored, employment-based, and diversity categories).
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8. 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.
9. 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\
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\118\ See Wong (2020).
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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\
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\119\ USCIS, DACA Requestors with an IDENT Response (June 5,
2018), <a href="https://www.uscis.gov/sites/default/files/document/data/DATA_DACA_CRIM.PDF">https://www.uscis.gov/sites/default/files/document/data/DATA_DACA_CRIM.PDF</a> (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), <a href="https://www.ojp.gov/pdffiles1/bjs/grants/255651.pdf">https://www.ojp.gov/pdffiles1/bjs/grants/255651.pdf</a>. (``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), <a href="https://www.uscis.gov/sites/default/files/document/data/DATA_DACA_CRIM.PDF">https://www.uscis.gov/sites/default/files/document/data/DATA_DACA_CRIM.PDF</a>.
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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.
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\122\ See DHS, DHS Efforts to Combat Human Trafficking (Jan. 25,
2022), <a href="https://www.dhs.gov/sites/default/files/2022-01/DHS%20Efforts%20to%20Combat%20Human%20Trafficking.pdf">https://www.dhs.gov/sites/default/files/2022-01/DHS%20Efforts%20to%20Combat%20Human%20Trafficking.pdf</a>; The While
House, Executive Office of the President, Office of National Drug
Control Policy, National Drug Control Strategy (Apr. 18, 2022),
<a href="https://www.whitehouse.gov/wp-content/uploads/2022/04/National-Drug-Control-2022Strategy.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/04/National-Drug-Control-2022Strategy.pdf</a>.
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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.
10. 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 t
[…truncated; see source link]Indexed from Federal Register on August 30, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.