If DACA Beneficiaries Are ‘Lawfully Present’, They Shouldn’t Be Receiving State and Local Public Benefits
By Elizabeth Jacobs on June 8, 2023
The 11th anniversary of the Obama administration's creation of DACA will be next week, and the issue of whether DACA recipients are “lawfully present” in the United States is still a matter of confusion and debate. If DACA beneficiaries are lawfully present, as the federal government in many contexts says they are, then many may be surprised to learn that they are ineligible to receive almost all state and local benefits, including in-state tuition and professional licenses, under federal law. This is because under current policies, an alien could be “lawfully present” in the United States without having any lawful immigration status.
While several federal statutes draw distinctions between aliens who are lawfully present in the United States and aliens who are have no lawful presence, the Immigration and Nationality Act (INA) does not provide a general definition for what it means to be “lawfully present”. (Somewhat confusingly, the INA does provide a definition for “unlawful presence” at 8 U.S.C. § 1182(a)(9)(B)(ii). Congress, however, expressly chose to limit that definition for the purpose of applying the three- and 10-year bars, which prohibit officers from admitting aliens who have been unlawfully present in the United States in excess of 180 days or one year, respectively.)
Since 2021, however, the Biden administration has engaged in rule-making to define DACA beneficiaries as lawfully present in certain contexts. On August 30, 2022, the U.S. Department of Homeland Security (DHS) issued a final rule titled “Deferred Action for Childhood Arrivals” that, among other things, reiterated DHS’s position that DACA recipients be “not considered ‘unlawfully present’” for the purpose of inadmissibility under 8 U.S.C. § 1182(a)(9)(B) (governing application of the three- and 10-year bars), as well as deemed “lawfully present” for the purpose of 8 C.F.R. § 1.3(a)(4)(vi) (governing Social Security benefit eligibility).
Last month, in a step further, the U.S. Department of Health and Human Services (HHS) proposed a new rule titled “Clarifying Eligibility for a Qualified Health Plan Through an Exchange, Advance Payments of the Premium Tax Credit, Cost-Sharing Reductions, a Basic Health Program, and for Some Medicaid and Children's Health Insurance Programs”. The proposal would amend current Affordable Care Act (ACA) regulations to define lawful presence to include DACA beneficiaries, thereby extending eligibility to ACA benefits. Here, too, the Biden administration was careful to clarify that this regulatory change would not define what it means to be lawfully present in all circumstances.
https://cis.org/Jacobs/If-DACA-Beneficiaries-Are-Lawfully-Present-They-Shouldnt-Be-Receiving-State-and-Local-Public
