Where the line is drawn between noncitizens who are incorporated into American society and those who are not has changed greatly over time, resulting in the creation of a gray area where certain immigrants fall between those with lawful immigration status and those with no status at all. These individuals are granted “lawful presence” which permits them to remain and work in the United States, but does not provide them with a path to citizenship. The number of people in this ambiguous category continues to grow and may dramatically expand again soon as President Obama recently exerted broad scale executive action in response to Congress’ refusal to reform immigration laws.
This article looks at the ways immigration law grants lawful presence and the changing responses of the legal system in dealing with this “gap” between status and no-status. The recent exclusion of Deferred Action for Childhood Arrivals from the Affordable Care Act and other essential health insurance programs serves as a case study to demonstrate how inconsistently laws handle this middle category of people today. The consequences of such a narrow division between who receives benefits and who does not is that the gap between status and no-status widens, encouraging state lawmakers to further discriminate against this group. I argue that the struggle over where the line should be drawn to decide which noncitizens should and should not have access to essential rights and benefits is exacerbated by the tension between a progressive President and a conservative Congress. In a system where the Executive branch may confer lawful presence but only Congress can confer lawful status, hundreds of thousands of people are caught in the gap. I conclude by arguing that as the number of people in this gray area continues to grow, courts should lean toward inclusion rather than exclusion of lawfully present noncitizens in resolving this tension in the law.