DAPA, 'Lawful Presence,' and the Illusion of a Problem

11 Pages Posted: 15 Feb 2016 Last revised: 24 Mar 2016

See all articles by Anil Kalhan

Anil Kalhan

Drexel University; Yale Law School Information Society Project

Date Written: February 12, 2016


When the Supreme Court adjudicates United States v. Texas, the lawsuit challenging the Obama administration's executive actions on immigration, one focal point may be the question of whether those initiatives — Deferred Action for Parents of Americans and Lawful Permanent Residents and its predecessor, Deferred Action for Childhood Arrivals — impermissibly confer "lawful presence" upon their recipients. In both of his opinions for the U.S. Court of Appeals for the Fifth Circuit, Judge Jerry E. Smith went out of his way to characterize DAPA and DACA as affirmatively conferring their recipients with "lawful presence." In their briefing to the Supreme Court the plaintiffs have now followed his lead, arguing that DAPA and DACA impermissibly "transform presence deemed unlawful by Congress into lawful presence."

In this essay, I explain why these claims about "lawful presence" are incorrect and ultimately a red herring. Describing DAPA and DACA as entailing a grant of "lawful presence" mischaracterizes those initiatives, relying upon a misunderstanding of both the structure and content of immigration law and the manner in which undocumented immigrants are recognized and constructed as legal subjects. Moreover, as a legal matter, “lawful presence” does not even exist as a thing in the sense that Judge Smith and the plaintiffs describe it. In order to characterize DAPA and DACA as something other than guidance structuring the exercise of enforcement discretion, as permitted by existing law, both Judge Smith and the plaintiffs fashion a conception of "lawful presence" as constituting an aggregated, intertwined package of benefits, in a manner that approximates conventional understandings of lawful immigration "status." That conception, however, has no actual legal basis. Ultimately, since "unlawful presence" does not carry the meaning that Judge Smith and the plaintiffs ascribe to it, there is only the illusion of a substantive problem here.

Keywords: immigration, deferred action, prosecutorial discretion, DACA, DAPA, Supreme Court

Suggested Citation

Kalhan, Anil, DAPA, 'Lawful Presence,' and the Illusion of a Problem (February 12, 2016). Drexel University Thomas R. Kline School of Law Research Paper No. 2016-W-02, Available at SSRN: https://ssrn.com/abstract=2732357 or http://dx.doi.org/10.2139/ssrn.2732357

Anil Kalhan (Contact Author)

Drexel University ( email )

3320 Market Street
Philadelphia, PA 19104
United States
+1 215 804-9098 (Phone)

HOME PAGE: http://www.kalhan.com

Yale Law School Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics