​​ACE, 45 Other Groups Praise Biden Administration’s Effort to “Protect and Fortify” DACA
November 29, 2021

​​ACE and 45 other higher education associations sent comments​ to the Department of Homeland Security today on the draft rules released in September to strengthen the Obama-era Deferred Action for Childhood Arrivals (DACA) program, following the Biden administration's campaign promise to "protect and fortify" it. 

The proposed rule is meant to provide protections for DACA against further court challenges, after years of legal wrangling under both the Obama and Trump administrations. A decision last summer in a case in a federal district court in Texas ruled that DACA had been established outside of executive authority, rather than through the normal rulemaking process. That decision also mandated a halt to processing new DACA applications. 

Since the program was established in 2012, it has not undergone any formal rulemaking.  

“This is an important step to further enshrine a program that many in the United States, including employers and institutions of higher education, have come to depend on, and allows qualifying undocumented people brought to this country at a young age to remain here,” the groups said in their comments. DACA has not removed all barriers for individuals who qualify, but ”it has made it possible for thousands of Dreamers to access postsecondary education and unlock the potential such an education affords.” 

The proposed rule in most ways adheres to the current structure of DACA. It would provide a definition of “deferred action” as a temporary forbearance from removal from the United States, and "does not confer any right or entitlement to remain in or to re-enter the U.S.” The proposed rule also includes the criteria that has previously been used for the program. The applicant must have come to the United States under the age of 16; have continuously resided in the U.S. from June 15, 2007, to the time the request is filed; have graduated, be currently enrolled in school, or be an honorably discharged veteran; not have been convicted of a felony or certain misdemeanors; and been born on or after June 16, 1981, and be at least 15 years of age at the time of filing the request. 

In their comments, the groups express concern that these requirements are too narrow and will omit many current Dreamers. The Biden administration should not feel constrained by the original parameters established in 2012, they write.  

Other concerns include the proposal to make the request for employment authorization optional, which could be problematic for DACA recipients who graduate from colleges and universities and plan to enter the workforce. The current system also makes it easier for employers if they know that DACA recipients are automatically provided work authorization, and it allows DACA recipients to support themselves while pursuing postsecondary education. 

The groups also requested that the final rule make explicit that DACA recipients are eligible for Title IV federal student aid programs such as Pell Grants, Federal Work-Study, and Direct Loans, if Congress is able to pass the Build Back Better Act before the final rule is enacted. Build Back Better, the reconciliation bill passed by the House of Representatives earlier this month, would expand Title IV eligibility to those who hold DACA status or would qualify for DACA status. The associations also ask that the federal government allow for flexibility in how DACA applicants demonstrate financial need, which typically requires tax returns and a verification process and can be difficult if parents are undocumented. The Build Back Better Act is currently awaiting action in the Senate. 

It’s critical to remember that while the rulemaking process is important, Congress still needs to act to provide permanent protections for DACA holders and Dreamers. The Senate parliamentarian has rejected two Democratic proposals to include a pathway to citizenship for some undocumented populations, including some Dreamers, in the Build Back Better Act. A third proposal from Senate Democrats to include some immigration relief in the reconciliation process, but without a pathway to citizenship, awaits a decision from the parliamentarian, which is expected sometime this week.  

To contact your lawmakers and ask them to support legislation for Dreamers, see www.rememberthedreamers.org. ​

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The Remember the Dreamers campaign is working to focus Congress on ​​finding a legislative solution for Dreamers and DACA recipients. Working together, the higher education community plays a vital role in both advocating for and assisting these young people, many of whom are students on our campuses.

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