A new rule, but longstanding challenges
The Biden administration last week released a long-awaited rule to shore up the Deferred Action for Childhood Arrivals program, or DACA, which has provided legal protections and work authorization to more than 700,000 undocumented immigrants brought to the United States as children.
While the regulation was welcomed by immigration advocates, including many in higher education, it’s far from the final chapter in the fight to give legal status to Dreamers, as those affected by DACA are known. I jumped on the phone with Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration, a group of college leaders who push for policies that support immigrant, international, and refugee students. We talked about what the new rule does (and doesn’t) do, legal and legislative fights over undocumented students, and what action colleges can take.
First, the new rule reaffirms the status quo but does not expand DACA or provide new benefits. That’s because a major goal of the rule was to try to shore up the program against legal challenges, Feldblum said, in particular a ruling by a federal judge in Texas last year that DACA was unlawful because, in part, it was put in place not through regulation but by executive action. The rule-making was an effort by the Biden administration to run the existing program through the regulatory process, to dot every “i” and cross every “t.”
The narrow regulation was a disappointment to many advocates who would have liked the U.S. Department of Homeland Security to widen the program. For one, DACA now protects a smaller share of undocumented students from deportation than it did when the program was begun, in 2012, because fewer can meet eligibility requirements. To qualify, applicants had to come to the United States by June 2007 — meaning that today’s college freshman would have had to arrive by the age of 3 or 4. The Presidents’ Alliance and the New American Economy, a think tank, have estimated that less than half of undocumented college students qualify for DACA.
Feldblum said she understood the administration’s approach of hewing to what was already in place. “They did it very carefully,” she said.
Still, the rule is unlikely to end legal challenges. Retroactively going through the regulatory process may not be enough to satisfy the judge in the Texas case, who has scheduled a hearing later this week. Critics could also file lawsuits to delay the new rule, which is scheduled to take effect on October 31.
The U.S. Supreme Court in 2020 blocked former President Donald Trump from abruptly ending the program, calling his actions “arbitrary and capricious.” But the decision did not rule on DACA’s underlying legality, and immigration experts expect that the court could accept another case on DACA. If so, the current more-conservative majority of justices could vote to scrap the program. In a talk at the University of California at Los Angeles on Monday, Ur M. Jaddou, a top Homeland Security official, said the Biden administration “would be ready” if DACA were overturned.
The continuous legal tussling has left many undocumented students with deep uncertainty about their futures. As one told me, “I am exhausted. I’m constantly living in fear not knowing what my future is going to hold.”
But all the action won’t be in the courts. As Jaddou suggested, the administration may be able to take measures, such as strengthening and streamlining work authorization for undocumented young people.
The fight will also once again focus on Congress, although past efforts at immigration reform, which included improving DACA, have faltered. With the possibility of a Republican takeover of Congress in the midterm elections, the window for action is narrowing, Feldblum said. Supporters could try to expand DACA eligibility criteria or institute a more permanent path to residency or citizenship. Anything that happens will probably be the result of a narrow compromise, not comprehensive action, Feldblum said. “It’s not optimal but what is feasible, doable, and needed.”
Colleges can do more to support undocumented students. In addition to advocating for policy changes, college leaders can take steps on their own campuses to aid undocumented students. For example, those without DACA lack work authorization, meaning that they often miss out on the hands-on work experiences during college that are widely seen as giving new graduates a leg up in the job market. Colleges can expand work-based educational opportunities like fellowships and internships that don’t require employment authorization. Such career-preparatory experiences could also benefit international students, who face visa-based restrictions on off-campus work.
