Regulating DACA: A Political and Legal Roller Coaster

By: Carlos Vargas, ActionNYC Supervisor, Make the Road New York

Ten years ago, President Obama said “precisely because [Deferred Action for Childhood Arrivals] is temporary, Congress needs to act.”  Little did I know that “temporary” meant ten years (and counting) of optimism and disappointment. 

The Deferred Action for Childhood Arrivals program (commonly known as DACA) launched in 2012 under President Obama’s administration. At the time, it provided much needed relief — work authorization and protection from deportation — to thousands of undocumented immigrants like myself.

Since then, the Obama-era program has become a lifeline for so many people. But the program–along with its promise of a better immigration system in the future– has been  under extreme pressure to survive for nearly as long as it has been in place. 

The fight to preserve DACA started in earnest when Donald Trump tried to end the program immediately after taking over the presidency. 

Multiple lawsuits successfully challenged the Trump administration’s actions, including one involving me and the organization where I work (Make the Road New York). But Texas and six other states followed with their own lawsuit in 2018 with the goal of challenging and ending DACA altogether. To make matters worse, all of this was happening against a backdrop of local jurisdictions enacting policies across the country to make the lives of immigrants even more difficult. For me and others like me, this was a challenging time. We felt like we were fighting a two-front war in the federal courts and in our own communities. 

Then, in the summer of 2020, we witnessed a glimmer of hope when the United States Supreme Court ruled that ending DACA was arbitrary and capricious and therefore unlawful.  I was relieved to see that this meant the government would need to restore DACA to its original 2012 state, a principle reinforced by a federal judge a few months later in the case where I served as a plaintiff (Batalla Vidal v. Wolf) . And a few months later, the weight on my shoulders felt less heavy when Joe Biden won the presidency under a promise to help DACA-holders like myself and the immigrant community as a whole.

But then, in July 2021, a federal district court in Texas sided with the coalition of states led by Texas that sought to challenge DACA. Since then, the Biden administration has tried to take some steps to address the legal issues raised by that litigation, including the argument that DACA was created without undergoing the proper administrative process. Thus, on September 28, 2021, the Department of Homeland Security published a proposed federal regulation, thereby announcing its intent to codify the DACA program.  

 What exactly, however, is a “proposed rule”? And what does this mean for DACA recipients?

First, a proposed rule, or Notice of Proposed Rulemaking (NPRM), is the official document that announces and explains an agency's plan to address a problem or accomplish a goal. Many proposed rules must be published in the Federal Register to notify the public and to give them an opportunity to submit comments. 

The agency, in turn, is required to consider those comments. As part of its consideration, the agency can, for example, make changes to its proposed rule or clarify any ambiguities. 

At the end of the process, the agency will publish its final version of the rule with a timeframe for its legal implementation. In the DACA context, this means that if the Department of Homeland Security is  successful in its notice and comment process, the final rule may preserve original provisions of the DACA policy and, in theory, might create a safeguard against further litigation challenges.

The reality, however, is a bit more stark. Those who oppose DACA continue to challenge its legality and existence. In fact, in the absence of congressional action, the program continues to be under attack by elected officials, including my own representative, Nicole Malliotakis. The unpredictable ride has left me numb. Along with the joys of finally obtaining a driver’s license and being legally employed in a fulfilling career that provides benefits and allows me to help others, comes the fear and anxiety of losing everything with the stroke of a judge’s pen. 

More broadly, there has been little to no progress to solve the bigger inequities of our nation’s immigration system. Even worse, I can feel the cynicism crawling under my skin with the constant false promises and stalemate we hear from our political leaders. 

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All in all, an important step has been taken with the proposed rule to protect and preserve the DACA program. However, the proposed rule’s impact on the ongoing litigation around DACA remains to be seen. Beyond the legal arena, it will still be subject to political scrutiny. And even in the best-case scenario where this iteration of DACA survives, individuals like myself will continue to live in a year-to-year limbo, deprived of the full rights that come with permanent legal status but also protected from some of the cruelties of our immigration system. Our lives will revolve around  filing applications to renew our ability to remain in this country that we  have called home for decades.

Sometimes it feels easier to side with cynics than fight for justice. But it was the tough fights and activism of Dreamers that won us DACA. That is why Make the Road NY, the largest progressive grassroots immigrant-led organization in New York state, submitted a comment in support of the proposed rule while also fighting so Congress can finally act to create a pathway to citizenship. I still  hope Congress acts, because DACA was never meant to be the solution for me and the millions of immigrants who desperately need permanent relief.

I am proud to be part of the team that is fighting not just for me, but also for my mother, my sister, and millions of immigrants who contribute so much to this country. 

La lucha sigue.