By Britain Eakin · Listen to article
Law360 (March 20, 2023, 8:29 PM EDT) -- If a Texas federal judge strikes down the Deferred Action for Childhood Arrivals program, President Joe Biden can use an alternate authority to grant those individuals deferred enforced departure, more than 50 immigration law scholars said Monday.

Deferred enforced departure could serve as a stopgap if a Texas federal judge strikes down Biden's DACA rule in the coming months, which will leave the administration about a year to protect the program's beneficiaries from deportation and loss of employment authorization, the scholars said in a letter to Biden.

"We hope Congress acts to secure permanent relief for DACA-recipients and DACA-eligible individuals. But with DACA threatened by litigation and future administrations, we urge you to provide independent grounds of protection for this population by granting them deferred enforced departure," their letter said.

The letter comes amid concerns that a Texas federal judge will invalidate Biden's DACA rule in a challenge brought by a coalition of Republican states, which already persuaded U.S. District Judge Andrew S. Hanen that President Barack Obama overstepped the executive branch's discretionary authority by issuing the 2012 memo that created DACA.

The program has provided hundreds of thousands of unauthorized immigrants, or "Dreamers," who came to the U.S. as children with protection from deportation and authorization to work in the U.S. The Republican states have argued that Biden's rule should also be struck down because it doesn't differ substantially from the Obama memo, and a ruling could come as soon as next month.

Should the program fall, the president can use the deferred enforced departure authority, or DED, to protect DACA recipients, according to the scholars. They said DED allows the president to designate certain individuals for a specific time for foreign policy reasons.

Withdrawing the temporary removal protection and work authorization from DACA recipients implicates U.S. foreign policy in several ways. For one thing, the scholars said it could impact bilateral relationships that are key to the Biden administration's efforts to tackle the underlying factors driving migration from Central American countries.

The scholars said the prospect of returning hundreds of thousands of DACA beneficiaries could also disrupt sensitive negotiations and agreements with other countries the U.S. has engaged in, like the recently expanded parole program for Venezuelans, Haitians, Cubans and Nicaraguans. The Biden administration is allowing up to 30,000 migrants from those countries to legally enter the U.S. every month for two years, with work authorization.

In exchange, Mexico has agreed to accept the same number of migrants every month from those countries whom the U.S. expels under Title 42, a public health law invoked by the Trump administration to rapidly remove some asylum-seekers during the COVID-19 pandemic.

There are economic concerns as well that could implicate U.S. foreign policy and justify DED, according to the scholars. For example, even if DACA recipients aren't deported, the loss of their employment authorization could "significantly curtail remittances to other countries and thus adversely affect U.S. foreign policy."

"Remittances make up a substantial portion of the GDPs of the top four countries of origin of DACA-recipients — Mexico, El Salvador, Honduras, and Guatemala. A significant reduction in those remittances would disrupt each state's economy," said the letter.

The use of DED stretches back to 1853, when President Franklin Pierce authorized the rescue of Hungarian freedom fighter Martin Koszta from being kidnapped by Austrian officials in Turkey. The authority was also used to help Jewish and other refugees fleeing Nazi persecution, according to the scholars.

And the attorney general used the authority from 1960 to 1989 for migrants from countries struck by natural disasters or mired in severe armed conflict, civil strife or government persecution.

In 1990, Congress codified Temporary Protected Status and so the widespread use of the DED authority ceased. However, the scholars said every president since George H.W. Bush continued to use it. It has been used for citizens of El Salvador, China, Kuwait, Haiti, Venezuela, Liberia and Hong Kong, and remains in effect for the latter two groups.

Fifty-four professors signed the letter, which was penned by Roger Williams University School of Law professor Peter S. Margulies, Vanderbilt Law School professor Karla McKanders and New York Law School professor Lenni B. Benson.

To invoke DED authority, the president needs to issue a memorandum that will be published in the Federal Register to the U.S. secretaries of state and homeland security laying out specific eligibility requirements and duration of deferment, according to the professors.

--Editing by Daniel King.