Over the summer, federal district judge Andew Hanen ruled that President Obama’s executive amnesty program known as Deferred Action for Childhood Arrivals (DACA) is illegal. After finding that the state of Texas had standing to sue, Judge Hanen first ruled that DACA’s creation in 2012 via a three-page memorandum issued by then-Department of Homeland Security (DHS) Secretary Janet Napolitano violated the notice-and-comment requirement under the Administrative Procedure Act (APA). But Judge Hanen’s ruling went further, also finding that “DACA is an unreasonable interpretation of the law because it usurps the power of Congress to dictate a national scheme of immigration laws and is contrary to the INA.” By finding that DACA violates immigration law, Judge Hanen’s ruling should have curtailed the Biden administration’s ability to revive DACA through notice-and-comment rulemaking.
That is why it was so surprising to see DHS publish a notice of proposed rulemaking (NPRM) on DACA with a 60-day public comment period, ending November 29. The substance of the NPRM largely mirrored the DACA criteria established in the Napolitano memo while decoupling the price of “deferred action” from the work permit.
On the final day of the comment period, the Center submitted its public comment on the NPRM, pointing out that the proposed rule violates Judge Hanen’s order and also demonstrates that U.S. Citizenship and Immigration Services (USCIS), the agency within DHS that has been administering DACA since its inception, lacks the authority to grant deferred action. To the latter point, the Center argued that deferred action is a decision to temporarily decline to take an enforcement action, authority USCIS lacks because it is not an enforcement agency within DHS.
While the Biden administration has acted quickly to reverse numerous Trump administration policies, it has been pretty slow to utilize the rulemaking process. In total, the Center has submitted six comments this year on Biden administration regulatory actions but only two of them reflect substantive proposals to change immigration law. The other four have included reopening a comment period, delaying an effective date of a Trump rule, a request for public input, and an advance NPRM, a precursor step to an NPRM that is rarely used.
Notably, public engagement on Biden administration regulations has been significantly muted compared to the immigration regulatory changes proposed during the Trump administration. For example, the unlawful proposal to give USCIS asylum officers jurisdiction over defensive asylum claims, withholding of removal, and Convention Against Torture (CAT) protections received only around 5,260 comments. The DACA NPRM received just under 16,000 comments, despite over 600,000 illegal aliens benefiting from the (unlawful) executive amnesty.
By comparison, DHS/USCIS received over 266,000 comments on the Trump administration’s public charge NPRM, a record for an immigration regulation. A proposal to end "duration of status" treatment for foreign students received over 32,000 comments and even a highly technical proposal to modernize the collection of biometrics for immigration vetting received approximately 5,339 comments.
Under the APA, an agency is required to meaningfully consider and respond to all unique comments raised during the comment period. Proponents of unlimited immigration and critics of President Trump were far more organized and focused on slowing down the development of final rules by submitting a deluge of comments in opposition than supporters of the rule of law have been in voicing opposition to Biden proposed rules.