Saturday, February 13, 2016
DAPA, “Lawful Presence,” and the Illusion of a Problem by Anil Kalhan
In DAPA, “Lawful Presence,” and the Illusion of a Problem,Anil Kalhanresponds to Michael Kagan’s post on the significance to the language in the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) guidance about the recipients’ “lawful presence.”It seems to me that Kalhan gets the better of the argument. As he concludes,
Kagan is correct in highlighting the potential for confusion in the DAPA memos offhand reference to lawful presence. But any such confusion can be resolved in a relatively straightforward manner. Regardless of what DHS officials might have been thinking when they included that offhand referenceand quite apart from any issues that might have arisen if that language had been included in the operative part of the memo in some fashionit seems fairly clear that the reference does not have any independent legal meaning that makes deferred action under DAPA somehow different from deferred action under DACA or traditional agency practices. As I previously notedwhen discussing the Fifth Circuits May 2015 opinion, while Judge Smith makes a point of tacking on an emphasis added when he quotes that language from the DAPA memoand when he quotes other references to lawful presence in his opinion that serve his argumentitalics cannot give legal effect to words that have none. As such, despite Judge Smiths effort to recharacterize lawful presence as a central feature of DAPA, the memos stray reference to the term cannot serve as a plausible basis for calling the validity of the DAPA guidance, writ large, into question.
Related articles http://lawprofessors.typepad.com/immigration/2016/02/dapa-lawful-presence-and-the-illusion-of-a-problem-by-anil-kalhan.html
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