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Home Archive Volume 64 Volume 64, Issue 5 The Status of Nonstatus
The Status of Nonstatus

By Geoffrey Heeren | 64 Am. U. L. Rev. 1115

 

Millions of unauthorized immigrants in the United States have no legal immigration status and live in constant fear of deportation.  There are millions more who do have some sort of status, like lawful permanent residency, asylum, or a nonimmigrant visa.  In between is the netherworld of nonstatus.  Here live noncitizens who possess government documentation but few rights.  They have no pathway to lawful permanent residence or citizenship and cannot receive most public benefits.  If nonstatus is denied or revoked by a prosecutor or bureaucrat, there is no right to a hearing or an appeal.  If the Executive Branch discriminates in how it allocates nonstatus, there may not be a legal right to challenge it.

The Obama Administration’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs are the most recent and largest categories of nonstatus, but there are many others:  parole, administrative closure, supervision, Deferred Enforced Departure (DED), and stays of removal, to name just a few.  What these categories have in common is that they are discretionary, unreviewable, weakly described by positive law, and officially temporary, although individuals often live for years or even lifetimes in the purgatory of nonstatus.  They occupy a paradoxical middle ground between legality and illegality, loosely tethered to this country by humanitarian concern or prosecutorial discretion.  Those with nonstatus have fewer rights and remedies than those with immigration status.  At the same time, they must register, disclose biographic data, be fingerprinted, and regularly update their address.  Yet nonstatus is not just a government surveillance program:  it is the only way for many individuals to claim some measure of dignity and legitimacy from a society that places a strong stigma on unauthorized immigrants.

This Article will provide the first description of immigration nonstatus and its impact on the individuals who have it.  It will describe the growth of nonstatus over time and the acceleration of that growth following late-1990s immigration reforms that restricted the means to acquire immigration status.  The Article will contend that nonstatus is growing in part because it offers a means to authorize the presence of undocumented immigrants without offering them rights and benefits that have become controversial for immigrants with full status.

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