Why 'Lawful Presence' is a Red Herring in USA v. Texas - Prof. Anil Kalhan

Prof. Anil Kalhan, Feb. 12, 2016 - "[T]here is only the illusion of a substantive problem here, because as a matter of law, “unlawful presence” simply does not carry the meaning that Judge Smith [and] the plaintiffs ... ascribe to it. ... Properly understood, therefore, “lawful presence” should be regarded as a red herring in this litigation. To the extent that specific statutory provisions under federal, state, or local law make terms like “lawful presence” or “unlawful presence” relevant to particular legal consequences that might result for individuals who have been given notice of deferred action, those provisions operate collaterally and must be analyzed specifically and separately. Given the disaggregated manner in which undocumented immigrants are recognized as legal subjects, the interpretation and application of those specific statutory provisions have no bearing upon the validity of the guidance establishing eligibility criteria and processes for deferred action under DAPA."

Prof. Anil Kalhan