A recent New York Times story discussed a Tennessee non-citizen reporter who was arrested by Immigration and Customs Enforcement. Commenting on the arrest, according to the New York Times:
In a written statement, a spokeswoman for Immigration and Customs Enforcement said on Friday that Ms. Rodriguez had overstayed her tourist visa “and currently has no lawful immigration status.” Ms. Rodriguez is being trickery here. The trick goes to the heart of the fact that is the heart of much of President Trump’s current immigration shenanigans, making legal-illegal a binary proposition when being legal or illegal in immigration law is clearly not a binary proposition. It’s way more complex then that. It’s not unlike the renaissance of transsexual persecution – trying to reduce gender identity to a binary proposition.
That there are degrees of legal presence for non-citizens in the United States ranging from being a full-fledged lawful permanent resident, being in lawful non-immigrant status, to being a flat-out undocumented person. Congress even created an entire legal presence for people in between called “lawful presence.” A memo lays out a myriad of permutations where people lack lawful status but are lawfully present.
People in lawful status are often issued work permits or have statuses that permit work, and historically have been free from being arrested and deported while lawfully present but not in a lawful status. Two groups people are most aware of are DACA recipients, a limited set of children who came to the United States without inspection or who fell out of status, and became eligible to apply for Deferred Action, which pauses removing them, providing them lawful presence. Another is applicants for benefits like permanent residence, non-immigrant statuses, and asylum seekers. With an immigration system where benefit applications are pending for multiple years, the system has allowed, sometimes openly and sometimes tacitly, people to remain in the United States while their applications are pending. There are other ways a person can be lawfully present but not in lawful status. People are let into the United States because of emergencies without lawful status as parolees – which can be considered as you are physically allowed in the United States but legally you are not. People in removal proceedings are lawfully present. In fact, leaving the United States while in removal proceedings can lead to actual deportation. In such a situation, a person is better off and acting most legally when staying in the United States while out of status instead of just leaving.
That people can be legal and undocumented at the same time can be absurd. A jurist often critical of the administration of immigration laws from the not-so-distant past, former 7th Circuit Court of Appeals judge Richard A. Posner, criticized the distinction between lawful status and lawful presence at oral argument in a case, Samirah v. Holder.
In the case, which I discussed here, Mr. Samirah applied for adjustment of status in the United States. Adjustment of status is when an alien changes to permanent residence in the United States rather than immigrating from a U.S. Consulate abroad. Applying gives an applicant lawful presence, but not lawful status. Mr. Samirah then applied for advance parole to visit his ailing mother whom he had not seen for several years, which was granted. He traveled to visit his mother in Jordan. His route back to the United States took him through Shannon, Ireland, which has a U.S. CBP pre-inspection station. At pre-inspection, his advance parole was revoked and he was denied admission to the United States.
The regulation regarding advance parole in the Samirah case stated that when an advance parole is revoked, the alien is returned to his previous status. To Judge Posner this meant the alien should be allowed to return to the United States to pursue his adjustment of status application. To the government, which maintains that having an adjustment of status application is not a “status,” the alien cannot come back. To this proposition Judge Posner said, “The law can’t be that ridiculous.”
Judge Posner was wrong. While having some protections exist for being lawfully present, they do not provide the level of protection that having status does. For permanent residents, a benefit of having that status is that it can only be removed by an immigration judge with the government bearing the burden in proving deportability, which thus provides due process before stripping a permanent resident of their lawful status.
The tension in immigration law is when can Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP ) arrest, detain, and deport someone with lawful presence and how much authroity does ICE and CBP have to revoke someone’s unlawful presence to arrest, detain and deport them.
Stories in the media are rife with spouses of United States citizens with properly pending applications of permanent residence and thus having lawful presence being arrested and detained, and deported. Similarly, asylum applicants are being arrested and detained. We thus function in a system where a person who is not detained is free to apply for permanent residence in asylum while in the United States but at the same time be arrested and detained while the applications are pending. I gets worse. In many cases a person lawfully present is seeking a benefit from immigration authorities that an immigration judge or ICE or CBP officers cannot grant. U.S. Citizenship and Immigration Services, a sister Department of Homeland Security Agency, decides. Immigration judges will not
delay deportation proceedings while waiting for USCIS to make a decision such as recently, here, here, and here.
Courts have sometimes been sensitive to the fact that people are being arrested and detained while lawfully present in the United States pursuing lawful statuses by following the procedures laid out in the law. Sometimes they’re not. Sometimes a person cannot afford pursuing their rights. Sometimes they’re actually deported before they can do anything to protect their rights. The law is that ridiculous. Posted March 16, 2026.