Monday, February 8, 2016

DAPA’s Unlawful Presence Problem by Michael Kagan


The commentary on United States v. Texas keeps coming.  Here is Michael Kagan's latest in Notice & Comment, the Yale Journal of Regulation blog.  In encapsulates his argument as follows: 

"Like many immigration law professors, I have long thought that President Obama’s deferred action programs are within the Executive’s statutory and constitutional authority. But as I re-read the Fifth Circuit opinion and the briefs in US v. Texas, I am becoming persuaded that the states challenging DAPA may have a valid point about one aspect of the program.

In short, deferred action is a well-established form of prosecutorial discretion in immigration enforcement that the Court has long accepted. But DAPA may go a step too far by declaring that beneficiaries of prosecutorial discretion should be considered `lawfully present' in the United States even though they are removable according to the Immigration and Nationality Act (INA). Texas’ strongest arguments against DAPA are about this lawful presence provision, not about deferred action."


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