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Biden administration moves to make DACA harder to challenge in court


The DACA program, or Deferred Action for Childhood Arrivals, first started accepting applications ten years ago this month. However, in the summer of 2021, a series of court decisions made its future more uncertain. A district court in Texas ruled the program illegal. The U.S. Supreme Court issued a stay on that ruling pending an appeal from the Biden administration. So for now, the U.S. Department of Homeland Security has said it will continue accepting new DACA applications, even though it can't actually grant them. But on Wednesday, DACA got a bit of a boost. Alejandro Mayorkas is secretary of the Department of Homeland Security. He told us DACA is now in the federal government's code of regulation, something that has not been done before, which Mayorkas says fortifies DACA and preserves it.

You know, when you say fortifies and preserves DACA, what does that mean? Does that mean that it'll be tougher to challenge in court?

ALEJANDRO MAYORKAS: That is absolutely right. One of the attacks was that the government, in order to establish DACA, needed to proceed by way of notice and comment rulemaking by promulgating a regulation. While we disagree with that assertion, nevertheless, what we have done is we have proceeded to publish a regulation. And now DACA is codified in the Code of Federal Regulations. It is now a matter of regulatory law.

MARTÍNEZ: The Fifth Circuit Court of Appeals will issue an opinion on DACA later this year. It is, Secretary, a conservative-leaning court. Are you worried that they will rule it unlawful?

MAYORKAS: We feel very strongly that we are on firm legal footing. The court is, of course, going to make its independent judgment with respect to the lawfulness of DACA. It has been the subject of disagreement. We are hopeful that the court will agree with our legal interpretation and allow DACA to stand. It's been of such tremendous importance to and benefit for more than 800,000 young people. And it's been of such benefit to so many communities across the country to whom these and for whom these young people have contributed so much.

MARTÍNEZ: If the Fifth Circuit Court of Appeals does not see things your way, will President Biden appeal DACA to the Supreme Court?

MAYORKAS: I think we're going to take it step by step. We intend to fight for DACA in the courts. We believe very firmly in DACA. I will say that we remain hopeful that the legislature, that Congress will pass laws that really make DACA permanent.

MARTÍNEZ: Why do you think that hasn't happened yet?

MAYORKAS: You know, DACA has really tremendous support on both sides of the aisle. It's something of tremendous popularity in the United States. And we're hopeful that the legislature will act. You know, legislation in the immigration arena is certainly not facile. And nevertheless, we remain hopeful that it'll happen. And we continue to fight for it.

MARTÍNEZ: DACA now becoming a code in the federal government's Code of Regulations - why hasn't that happened before? You were director of Citizenship and Immigration Services during the Obama administration. Why wasn't all that done back then?

MAYORKAS: Well, we did not believe that regulatory authority was necessary to support the DACA program. We were successful in implementing it as a matter of policy. Hundreds of thousands of youth benefited from it. And it is in this prior administration, in the attacks that have been levied against this successful and meaningful program that the need for regulatory strengthening proved necessary. And so when that, in fact, arose and when we took office, we proceeded with speed.

MARTÍNEZ: So just to be clear, this is not a pathway to citizenship for DACA recipients. So why should people then continue to apply for DACA if that's not part of this?

MAYORKAS: Well, because it - you're correct, A, that it is not a path to citizenship. We need Congress to pass legislation to provide that path, something that we believe very strongly in and we continue to hope and fight for. But what DACA does is it provides lawful presence for the youth who qualify for it, meaning they are not subject to removal. They are not unlawfully present during the period that they have DACA. And very importantly, they receive work authorization so that they can work legally and receive those critical protections and benefits.

MARTÍNEZ: That is Alejandro Mayorkas, secretary of the United States Department of Homeland Security. Secretary, thanks.

MAYORKAS: Thank you very much. Transcript provided by NPR, Copyright NPR.