WASHINGTON — The Biden administration will move to publish a federal rule Tuesday to protect children brought to the U.S. by their migrant parents without the legal right to stay prior to 2007, known as Dreamers, after a federal court in Texas recently dealt a major blow to the Obama-era rule, the Department of Homeland Security said Monday.
The new rule will modify DACA, or the Deferred Action for Childhood Arrivals program, in an effort to “preserve and fortify” it against future legal challenges, mainly coming from conservative states who call it amnesty for illegal migrants. Currently, Homeland Security is not accepting new DACA applications in order to comply with the July order from the U.S. District Court for the Southern District of Texas that prohibited the administration from granting new requests.
It was not immediately clear how the new policy would be different and more protected against legal challenges.
In a statement, Homeland Security said “the 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.”
Homeland Security Secretary Alejandro Mayorkas said in the statement that “only Congress can provide permanent protection” for Dreamers.
The July ruling came in a lawsuit brought by Texas and eight other Republican-led states. They claimed that the Obama administration violated the Administrative Procedure Act with the creation of DACA when it failed to first publish the proposal and to seek public comment before it tried to enforce it.
U.S. District Court Judge Andrew Hanen in Brownsville, Texas, said the Obama administration failed to follow federal administrative rules in launching the Deferred Action for Childhood Arrivals program in 2012. But he put the effect of most of his ruling on hold while the case is appealed.
The status of people currently in the program does not change, and they can continue to seek renewal of their DACA status. But Hanen said Homeland Security cannot grant any new applications from people who have never been in the program.