Saturday, February 13, 2016
In DAPA, "Lawful Presence," and the Illusion of a Problem, Anil Kalhan responds 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 memo’s 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 reference—and quite apart from any issues that might have arisen if that language had been included in the operative part of the memo in some fashion—it 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 noted when discussing the Fifth Circuit’s May 2015 opinion, while Judge Smith makes a point of tacking on an “emphasis added” when he quotes that language from the DAPA memo—and when he quotes other references to “lawful presence” in his opinion that serve his argument—italics cannot give legal effect to words that have none. As such, despite Judge Smith’s effort to recharacterize “lawful presence” as a central feature of DAPA, the memo’s stray reference to the term cannot serve as a plausible basis for calling the validity of the DAPA guidance, writ large, into question.