Strengthen DACA Now! 

Nearly a decade after the Deferred Action for Childhood Arrivals (DACA) program launched, more than 700,000 immigrant youth and their families have benefited from the opportunities and peace of mind the program has offered.

DACA remains under attack due to litigation, including a recent court decision barring new DACA petitions. In response to this ruling, in September, U.S. Citizenship and Immigration Services (USCIS) issued a Notice of Proposed Rulemaking to codify the program. 

Unfortunately, instead of using the rulemaking process as an opportunity to make the DACA program stronger and more inclusive, USCIS’s proposed rule maintains the original guidelines of eligibility, which limits access to protections based on standards developed nearly a decade ago. It excludes youth who were not already in the United States by June 2012, leaving out an entire generation of young people, as well as others based on past interactions with the criminal legal system which our society has since come to understand is steeped in racism and injustice that most often targets Black, Brown, and Indigenous youth.  

Submit your comment to the Federal Register using the form on this page to tell the Biden administration why it must update and strengthen, not just stabilize, the DACA program.

To help you write your comment, you can modify and personalize the sample comment below.

Below is a sample comment that you can modify with your own personal opinion and experiences. The government only reviews and counts unique comments, so DO NOT just copy and paste the sample comment. Modify the text and add your own voice to reflect your own professional expertise and personal experiences, or those of people you know, and explain why you believe the DACA program must be strengthened and expanded.

Sample comment:

I am submitting the following comments to DHS/USCIS and DOJ/EOIR in response to the proposed rule issued by the Departments on September 28, 2021 (Deferred Action for Childhood Arrivals; CIS No. 2691-21; DHS Docket No. USCIS-2021-0006; RIN 1615-AC64). I strongly support USCIS’ intent to preserve DACA through this rulemaking, and urge USCIS to take further step to strengthen these protections, which remain unattainable by too many who do not fit rigid categories implemented nearly a decade ago.

[Start by sharing your personal connection to DACA: your pro bono service with DACA recipients or other immigrants who could have benefited from the program if it were more inclusive; your knowledge of administrative law; or your belief in the social, economic, and humanitarian rewards of expanding this program. Do not provide any identifying information about your clients.]

I believe the administration must: 

[Select 1-2 of the points below to focus on in your comment. Use the language below as a guide and add additional insight based on your personal experience, practice area, or other expertise.]

• Preserve and fortify DACA without turning back the clock to 2012. DACA’s original eligibility date was arbitrary and could be shifted by the agency. Expanding the number of individuals eligible for DACA by advancing the eligibility date would strengthen the program’s humanitarian impact while yielding greater economic and social benefits already outlined in the proposed rule.
• Expand eligibility to grant DACA for detained individuals. The proposed rule takes one step forward and one step back: permitting detained individuals to apply for DACA with USCIS, but forbearing the adjudication until ICE grants release from detention. This bifurcation is all but certain to deny detained individuals the main benefit DACA provides: demonstrating that they are in fact low-priority for removal and eligible for deferred action. It also makes DACA’s codification inefficient, as it straddles the form of relief between two DHS agencies rather than housing it under one. USCIS is already tasked with adjudicating many applications regardless of an individual’s detention status. That is why the agency should extend its jurisdiction to permit adjudication of detained and non-detained applications alike.
• Reduce barriers to DACA eligibility for individuals impacted by the criminal legal system. The proposed rule currently precludes individuals entirely from eligibility on the basis of any felony, multiple misdemeanors, or any single misdemeanor if it falls within a broadly defined list of offenses including any driving under the influence offense, regardless of the date of the offense. This approach effectively imposes a double punishment on largely Black, Brown, and Indigenous immigrants who have already served their full sentences and complied with the requirements and consequences of the criminal legal system. Decades of racist policing and discriminatory administration of the criminal legal system means that Black, Brown, and Indigenous immigrants are far more likely to face arrest, suffer convictions, and be involved in the criminal legal system compared to white immigrants. The agency’s policy subjects these immigrants to additional harm by triggering more negative consequences flowing from this unjust and racist system.  
• Exempt individuals with expunged or juvenile delinquency records. The processes of expungement and delinquency adjudications recognize the capacity for rehabilitation of impacted individuals and the special vulnerabilities of youth. Under current guidance, expungements and juvenile adjudications do not automatically disqualify people from DACA eligibility, but are considered on a case by case basis. In immigration court proceedings, an adjudication of a criminal offense in juvenile court does not constitute a criminal conviction for immigration purposes and will not trigger adverse immigration consequences that flow from a conviction. Matter of Ramirez-Rivero, 18 I. & N. Dec. 135. 138 (BIA 1981); Matter of CM, 5 I. & N. Dec. 327, 335(BIA 1953). Instead of leaving it to individual adjudicators’ discretion, USCIS should adopt a clear rule that exempts consideration of expunged convictions or juvenile delinquency adjudications for DACA decisions. This approach would be more efficient and better align with current case law.  
• Maintain employment authorization benefits as part of the DACA application process. USCIS proposes to decouple the DACA application (Form I-821D) from the application process for employment authorization (Forms I-765 and I-765WS). Rather than make the program more accessible, this change would cause confusion and could deprive DACA recipients of a key building block to establish their family’s lives in their communities: the ability to work. Pro se DACA applicants may fail to understand that their applications no longer would provide access to work authorization, mistakes which would harm both the agency and applicants who would then shoulder a second round of administrative burden to correct the misunderstanding. Further, Employment Authorization Documents (EADs) often function as the foundational form of identification for DACA recipients. Separating DACA from access to a work permit undermines access to social benefits, bank accounts, school registration for children, driver’s licenses, or home utilities such as heating and electricity.  
• The proposed rule comports with the Administrative Procedures Act. It is a well-established feature of executive power to prioritize its resources within the confines of its discretionary power. Existing areas of humanitarian relief, such as self-petitioners under the Violence Against Women Act or crime survivors deemed eligible for U visas but lacking access to available visas, show the well-established character of deferred action. USCIS properly expands on the lengthy historical use of executive discretion and grant of deferred action within an array of forms of relief. Further, existing rule 8 C.F.R. § 1.3(a)(4)(vi) properly makes clear that deferred action does not grant status, but merely exempts individuals of accumulating “unlawful presence.” 

Thank you for your consideration of this comment. Please contact me to provide any additional information you might need. I look forward to your response. 

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