Legal Phantoms
Executive Action and the Haunting Failures of Immigration Law
Jennifer M. Chacón, Susan Bibler Coutin, and Stephen Lee



Sameer M. Ashar is a co-author of this chapter.

ON NOVEMBER 20, 2014, President Obama went on national television to announce Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expansion of the 2012 Deferred Action for Childhood Arrivals (DACA) program (DACA+). In the streets outside of an immigrant detention facility in downtown Los Angeles, community members gathered to watch the announcement. A huge screen was inflated so that the speech could be projected. The mood was festive. A band played and a crowd of people circulated, holding signs advocating for immigrants’ rights. As night fell and the time for the speech began, viewers sat on the street pavement, which had been closed to traffic, to watch the telecast.

President Obama appeared on the screen, and as the audience listened, he described the importance of immigration for the United States and the ways that the immigration system was broken. The President emphasized his enforcement accomplishments, characterizing the increased arrivals of unaccompanied migrant children at the US southern border in the summer of 2014 as a “brief spike.” After outlining his administration’s frustrated efforts to encourage Congress to pass comprehensive immigration reform legislation, he described the actions that he could legally take as president. As many in the audience feared, he began with increased enforcement efforts: “First, we’ll build on our progress at the border with additional resources for our law enforcement personnel so that they can stem the flow of illegal crossings and speed the return of those who do cross over.” This announcement led to a cascade of boos from the crowd that sat on the pavement watching the screen.

Next, he turned to the matter of greatest interest to those present: “Steps to deal responsibly with the millions of undocumented immigrants who live in this country.” Taking these steps, he said, would enable enforcement activities to focus on “felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.” In essence, the president offered longtime undocumented immigrants what he described as a “deal”:

If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes—you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law. That’s what this deal is.

The offer of this “deal,” like the distinction between “families” and “felons,” created artificial categories of deserving and undeserving immigrants at odds with the lived experience of many members of the assembled crowd. The proposed “deal” did not draw cheers from those assembled on the streets of Los Angeles. Instead, there seemed to be a stunned silence among onlookers as the president finished his speech. In fact, as the president signed off, there were more boos. While the details of this “deal” were still unclear, the inclusion of only parents of US citizens and lawful permanent residents and the exclusion of parents of DACA recipients appeared to many onlookers to be a major injustice. Moreover, the facile dichotomies—between children and “criminals,” mothers and “gang members”—belied the complexity of the lives of people living in places where police labeled mothers as gang members haphazardly, and where intrusive policing practices ensured that many children would also bear criminal records.

The negative response of the audience that night was a striking contrast to the ways that the officials who designed deferred action programs imagined that the announcement would be received. It was widely understood that the president announced the original DACA program in 2012 with the hope that Republicans, who controlled the House of Representatives at the time, would pass a law creating a more lasting legal status for intended DACA recipients and many other longtime immigrant residents. When the Republican-controlled House refused to even consider a 2013 Senate bill that did precisely that, officials within the Obama administration imagined that immigrants would welcome the news of the 2014 “deal,” which expanded on the basic framework of DACA, with not only relief, but enthusiasm. One official we interviewed for this book said that he “really did picture tears of joy just streaming down the faces of people in millions of immigrants’ households around the country.” Some people undoubtedly felt some degree of relief, or at least hope of relief. But many were disappointed by the details of the announcement.

Ultimately, DAPA and DACA+ ended before they began. On February 16, 2015, just days before the programs were set to go into effect, a federal district court in Texas issued a nationwide preliminary injunction preventing them from being implemented while litigation on the merits of the programs proceeded. As the litigation wore on, the programs remained frozen in the courts. In 2017, Donald J. Trump assumed the presidency after running on a racist, anti-immigrant platform. Unsurprisingly, his administration rescinded DAPA and DACA+ altogether. President Obama’s “deal” never came to pass, but it has left traces everywhere—a phantom program that continues to haunt.

At the same time, the original DACA program, created in 2012, is still in place as we put the finishing touches on this book in mid-2023. Lawyers and government officials who worked in the Obama administration continue to view the program as a significant success, and it has had an important, ameliorative effect on the lives of DACA recipients. During President Trump’s administration, acting Department of Homeland Security (DHS) secretary Elaine Duke announced the rescission of the DACA program, but those efforts were stopped by the US Supreme Court, which concluded in a 5–4 decision that the administration’s attempted rescission of the program failed to comply with the requirements of the Administrative Procedures Act. When Joseph R. Biden—President Obama’s former vice president—entered the White House in 2021, DACA’s legacy appeared more secure. Still, the program remains endangered by ongoing litigation, with a federal court injunction barring the grant of new applications, and with a built-in degree of obsolescence ensured by the requirement that recipients have been in the US since June 15, 2007. A new legal challenge is headed to the nation’s highest court, and the Supreme Court appears to be ready to declare DACA illegal. Nevertheless, for those recipients who obtained and maintained eligibility, DACA has provided work authorization and reprieve from the threat of banishment for over a decade. And some recipients have been able to use DACA as a bridge to more permanent forms of status.

Given the unceremonious thwarting of the DAPA and DACA+ programs, and the survival of the original DACA program across administrations, it is easy to overlook the period from 2014 through early 2017, when the promise of DAPA and DACA+ hung in the balance. Those interested in understanding how the law shapes and is shaped by immigrants, advocates, and government officials often focus on the events leading up to June 2012, when the Obama administration announced DACA, or on the early days of President Trump’s administration, with its flurry of entry bans, enforcement pronouncements, and the attempted rescission of DACA.

This is a book about the interstitial space connecting these landmark political and legal moments over a ten-year period, from 2012 to 2022. Our 135 interviews and focus group sessions with immigrants, community organizers and leaders, lawyers, and government officials document these years of political and legal uncertainty. We tell a story of government action gone awry, the continued immiseration of immigrants in limbo in the United States, and advocates and organizers navigating a shifting and complex terrain. We document the ways that people continue to be haunted by the failed promise of phantom DAPA and DACA+ programs, and the broader failures of immigration policy. Ultimately, we tell a story about the limits of political imagination, sharply restricted by the central logic of US immigration law and policy as it has developed in the past century—a logic rooted in racism and manifested in discretionary, racialized enforcement. Even when government officials imagined themselves to be bold actors developing unprecedented programs of relief for undocumented immigrants, they were in fact operating within a narrow field circumscribed by the legal and political terms of the governing discourse of the day. In fact, officials’ most imaginative political thinking was directed not toward immigration relief, which in the end was limited to a relatively small set of beneficiaries, but rather toward enforcement measures that devastated communities within the US and markedly increased the militarization of the external border. The United States’ governing discourse allowed for the exercise of nearly unfettered enforcement authority, while it kept discussions about relief contained within narrowly established parameters.

Despite these developments, those directly affected by legal uncertainty—immigrants, immigrant justice advocates, and organizers—withstood the violence of state action (and inaction), drawing on deep reserves of material, spiritual, and intellectual resources. Advocates and organizers showed how policy discourse could be made elastic to accommodate new terms. They resisted legal violence and they argued strenuously for new political horizons of possibility for immigrants in the US. Not only did they argue for the DREAM Act, various deferred action programs, and other, more comprehensive legalization measures, they also argued against immigration and criminal law enforcement programs and practices that imperiled large swaths of society regardless of immigration status. Their transformative vision, rooted in an expansive political imagination, still has the potential to transform immigration law and policy in the wake of the devastation wrought by the Trump era and by decades of violent immigration enforcement. Over the course of this book, we recount these hopes and aspirations, and the context in which they were forged, as we tell the story of the phantom DAPA and DACA+ programs.